Posts Tagged Choice of court
Apple v eBizcuss. CJEU leaves open all options on choice of court and anti-trust, particularly for abuse of dominant position.
Update 12 February 2019 Thank you Hélène Péroz for flagging that the French Supreme Court held on 30 January last (case number 16-25259)and upheld the choice of court in favour of Irish courts: ‘Qu’il s’avère que les pratiques anticoncurrentielles alléguées, qui se seraient matérialisées dans les relations contractuelles nouées entre les sociétés eBizcuss et Apple Sales International, au moyen des conditions contractuelles convenues avec elle, ne sont donc pas étrangères au rapport contractuel à l’occasion duquel la clause attributive de juridiction a été conclue ; que cette clause doit, donc, recevoir application.’ The Court holds that given that the very contractual terms and conditions form the means by which Apple has allegedly infringed competition law, that infringement is not foreign to the contract and therefore the contractual choice of court must stand.
My review of Wahl AG’s Opinion gives readers necessary detail on C-595/17 Apple v eBizcuss. In 2012 eBizcuss started suing Apple for alleged anti-competitive behaviour, arguing Apple systematically favours its own, vertically integrated distribution network. Can choice of court in their original contract cover the action (meaning the French courts would not have jurisdiction).
The Court says it can, both for Article 101 TFEU (cartels) and for 102 TFEU actions (abuse of dominant position), but particularly for the latter. In both cases the final say rests with the national courts who are best placed to appreciate the choice of court provisions in their entire context.
For Article 101 TFEU actions, the window is a narrow one (at 28: ‘the anti‑competitive conduct covered by Article 101 TFEU, namely an unlawful cartel, is in principle not directly linked to the contractual relationship between a member of that cartel and a third party which is affected by the cartel’). For Article 102 TFEU, as noted by other, it is wider (‘the anti‑competitive conduct covered by Article 102 TFEU, namely the abuse of a dominant position, can materialise in contractual relations that an undertaking in a dominant position establishes and by means of contractual terms’). The overall context of appreciation is that of predictability: at 29 (referring to CDC): ‘in the context of an action based on Article 102 TFEU, taking account of a jurisdiction clause that refers to a contract and ‘the corresponding relationship’ cannot be regarded as surprising one of the parties.’
(Handbook of) European Private International Law. 2nd ed. 2016, Chapter 2, Heading 2.2.12, Heading 22.214.171.124.
Yukos v Merinson: A Brussels I jurisdictional bonanza. Particularly the issue of ‘after the issue has arisen’ for protected categories.
I have been posting a series of comments in recent weeks, with more on the way, on cases that caught my attention pre-exam period. They were all candidates for exam questions except much as I would want to, I can only subject my students to that many developments in conflict of laws. Another one in this series of ‘overdue’ postings:  EWHC 335 (Comm) Yukos v Merinson.
From Salter DJ’s summary of the facts: (excuse their length – this is rather necessary to appreciate the decision)
_____________The defendant was employed by the first claimant under a contract of employment governed by Dutch law. Various proceedings were commenced before the Dutch courts by the defendant and entities within the claimant group in relation to the defendant’s employment. The parties reached terms of settlement of those proceedings, which were embodied in a settlement agreement executed by the parties and subject to the exclusive jurisdiction of the Dutch courts. The settlement agreement was in turn approved by the Dutch courts, with the effect that it became a “court settlement” within the meaning of article 2 of Brussels I Recast. Subsequently, upon certain additional facts as to the defendant’s conduct being learnt by the claimants, they brought a claim against the defendant in England, where the defendant was then domiciled, seeking damages for losses allegedly suffered as a result of the defendant’s breach of duties under his employment contract (“the damages claims”) and a declaration that the settlement agreement did not bar the damages claims, alternatively an order that the settlement agreement should be annulled under Dutch law on the grounds of error and/or fraud (“the annulment claims”). The defendant applied for a declaration that the courts of England and Wales had no jurisdiction to try the claims brought and an order that the claim form be set aside, on the grounds that all of the claims fell within the settlement agreement conferring exclusive jurisdiction on the Dutch courts, which therefore had exclusive jurisdiction by operation of Article 25 Brussels I Recast, and (1) in respect of the annulment claims, Article 25 could not be overridden by Articles 20(1) and 22(1) requiring proceedings to be brought in the courts of the state of the defendant’s domicile at the time of issue of the claim form, since those claims were not “matters relating to [an] individual contract of employment” within the meaning of Article 20(1); (2) in respect of all claims, Article 23(1) allowed the rule in Articles 20(1) and 22(1) to be departed from, since the settlement agreement had been entered into after the dispute had arisen; and (3) the settlement agreement being a juridical act of the Dutch courts, the English courts were precluded by Article 52 from reviewing its substance in respect of the annulment claims and, the settlement agreement also being a court settlement, the English courts were required by Articles 58 and 59 to recognise and enforce it unless it was manifestly contrary to public policy._______________
All in all, plenty of issues here, and as Salter DJ was correctly reassured by counsel for the various parties, not any that the CJEU has had the opportunity to rule on. Four issues were considered:
1. Are the Damages Claims and/or the Annulment Claims “matters relating to [an] individual contract of employment” within the meaning of Article 20(1)?>>>Salter DJ’s Answer: 25 ff: YES. His main argument: the Settlement Agreement set out the terms on which Mr Merinson’s contract of employment came to an end. In so doing, it also varied the terms of that contract of employment. The terms of the Settlement Agreement now form part of the contractual terms on which Mr Merinson was employed, and which govern the rights and liabilities arising out of the employment relationship between him and the Yukos Group. In my view this finding should not have been made without considering the lex causae of the employment contract: Rome I in my view should have been engaged here.
2. If so, is the Settlement Agreement “an agreement .. entered into after the dispute has arisen” within the meaning of Article 23(1)?>>>Answer (on the basis of extensive reference to Brussels Convention and Regulation scholarship): a dispute will have “arisen” for the purposes of these Articles only if two conditions are satisfied: (a) the parties must have disagreed upon a specific point; and (b) legal proceedings in relation to that disagreement must be imminent or contemplated. Salter DJ correctly emphasises the protective policy which underlies these provisions, however I am not confident he takes that to the right conclusion. Common view on the protective regime is that when parties have had the privilege of legal advice, they can be assumed to have been properly informed: the position of relative weakness falls away.
3. Further, is the English court, in any event, precluded from entertaining the Annulment Claims by Chapter IV of the Recast Judgments Regulation? >>>The issue of court settlements was specifically considered in the Brussels Convention, and the Jenard Report, given their importance in Dutch and German practice. In C-414/92 Solo Kleinmotoren the CJEU (at 17) held ‘to be classified as a “judgment” within the meaning of the Convention, the act must be that of the court belonging to a Contracting State and ruling on its own authority on points in dispute between the parties.’: considering Dutch expert evidence on the issue, the decision here is that despite the limited authority under Title III Brussels I Recast for other Courts to refuse to recognise a court settlement (ordre public in essence), it is not a ‘judgment’. Salter DJ concludes on this point that normal jurisdictional rules to challenge the settlement apply. At 81 he suggests, provisionally, that ‘it would nevertheless be open to this court in those circumstances to case manage the enforcement application and the set-aside action, so that they are dealt with together, the result of the action determining the enforcement application. Fortunately, I am not required to wrestle with those practical complexities in order to determine the present application, and I make no decision one way or another on any of these matters. There is no application before me to enforce the Dutch Court Settlement, merely an application for a declaration that the court “has no jurisdiction to try the Claimants’ claims”.‘
This insight into the case-management side of things, however, does highlight the fact that the findings on the jurisdiction /enforcement interface appear counterintuitive. Particularly in cases where the English courts would not have jurisdiction viz the settlement, but would be asked to enforce it – which they can only refuse on ordre public grounds, the solution reached would not work out at all in practice.
4. And finally what are the consequences, as regards jurisdiction, of the decisions on the first three of these issues?>>>Held: the English court, as the court of the Member State in which Mr Merinson was domiciled at the date this action was commenced, has jurisdiction in relation to all of the claims made in the present action.
There is much more to be said on each of the arguments – but I must not turn the blog into a second Handbook, I suppose.
Apple v eBizcuss. Wahl AG on choice of court, anti-trust (competition law; clarifying CDC) and ‘corresponding relationships’.
Those of us who are familiar with the issue of multilingualism and international courts, will enjoy the discussion of contractual terms in Wahl AG’s Opinion in C-595/17 Apple v eBizcuss. Not only does the issue entre around the precise implications of the wording of a choice of court provision. The Opinion (not yet available in English) also highlights the difficulty of translating the original English of the contractual term, into the languages at the Court.
Current litigation is a continuation of the earlier spats between Apple and eBizcuss, which led to the Cour de Cassation’s 2015 reversed stance on the validity of unilateral choice of court – which I discussed at the time.
The 2002 Apple Authorized Reseller Agreement (in fact the 2005 version which applied after continuation of the contract) included a governing law and choice of court clause reading
„This Agreement and the corresponding relationship between the parties shall be governed by and construed in accordance with the laws of the Republic of Ireland and the parties shall submit to the jurisdiction of the courts of the Republic of Ireland. Apple reserves the right to institute proceedings against Reseller in the courts having jurisdiction in the place where Reseller has its seat or in any jurisdiction where a harm to Apple is occurring.” (emphasis added)
Footnote 3 displays the translation difficulty which I refer to above: parties disagree as to the translation of the contractual clause in French: applicant suggest this should read „et la relation correspondante”, defendant proposes „et les relations en découlant”. The AG suggest to include both for the purposes of his analysis „Le présent contrat et la relation correspondante (traduction de la requérante)/et les relations en découlant (traduction de la défenderesse) entre les parties seront régis par et interprétés conformément au droit de l’Irlande et les parties se soumettent à la compétence des tribunaux de l’Irlande. Apple se réserve le droit d’engager des poursuites à l’encontre du revendeur devant les tribunaux dans le ressort duquel est situé le siège du revendeur ou dans tout pays dans lequel Apple subit un préjudice.” In Dutch: „De door partijen gesloten onderhavige overeenkomst en de bijbehorende betrekking (vertaling van verzoekster)/de hieruit voortvloeiende betrekkingen (vertaling van verweerster) tussen partijen zullen worden beheerst door en worden uitgelegd volgens het Ierse recht, en partijen verlenen bevoegdheid aan de Ierse rechter. Apple behoudt zich het recht voor om vorderingen jegens de wederverkoper aanhangig te maken bij het gerecht in het rechtsgebied waar de wederverkoper is gevestigd of in een land waar Apple schade heeft geleden.”
This translation issue however highlights precisely the core of the discussion: ‘the corresponding relationship’ suggest a narrow reading: the relationship corresponding to the contractual arrangements. Infringement of competition law does not correspond, in my view. ‘La relation correspondante’ displays this sentiment. ‘(L)es relations en découlant’ suggests a wider reading.
In 2012 eBizcuss started suing Apple for alleged anti-competitive behaviour, arguing Apple systematically favours its own, vertically integrated distribution network.
The Cour de Cassation had rebuked the Court of Appeal’s finding of lack of jurisdiction. In its 2015 decision to quash, (the same which qualified the Court’s stance on unilateral jurisdiction clauses) it cited C-352/13 CDC, in which the CJEU held that choice of court clauses are not generally applicable to liability in tort (the clause would have to refer verbatim to tortious liability): the specific para under consideration is para 69 of that judgment in CDC:
‘the referring court must, in particular, regard a clause which abstractly refers to all disputes arising from contractual relationships as not extending to a dispute relating to the tortious liability that one party allegedly incurred as a result of its participation in an unlawful cartel’.
At issue in Apple /eBizcuss is essentially what kind of language one needs for choice of court to include infringement of competition law (for Dutch readers, I have an earlier overview in Jacques Steenbergen’s liber amicorum here).
Wahl AG emphasises (at 56) that it would not be in the spirit of Article 25 Brussels I Recast (which he analyses in extenso in the previous paras) to require parties to include the exact nature of the suits covered by the choice of court agreement. He is right of course – except those suits in my view do need to be contractual unless non-contractual liability has been clearly included: that in my view is the clear instruction of the CJEU in CDC.
The AG then continues the discussion (which will be redundant should the CJEU not follow his lead) as to whether the clause covers both follow-on (a suit for tort once a competition authority has found illegal behaviour) as well as stand-alone (private enforcement: a party claiming infringement of competition law in the absence of an authority’s finding of same) suits. He suggests there should be no distinction: on that I believe he is right.
(Handbook of) European Private International Law. 2nd ed. 2016, Chapter 2, Heading 2.2.9, Heading 2.2.12, Heading 126.96.36.199.
Thank you Chloe Oakshett for flagging  CSOH 45 BN Rendering Limited v Everwarm Ltd, in which the Commercial Court in Edinburgh considered its jurisdiction to enforce an adjudicator’s award. Bone of contention was choice of court (ditto law) in the underlying contracts in favour of the courts at England (and English law). Both parties are domiciled in Scotland. Relevant works had to be carried out in Scotland. The Brussels I Recast Regulation does not formally apply between them: Scots-English conflicts are not ‘international’ within the meaning of that Regulation.
However Lord Bannatyne (at 16) points out that even for intra-UK conflicts, the Civil Jurisdiction and Judgements Act 1982 (per instruction in section 20(5) a) must be interpreted taking into account the Brussels regime and its application by the CJEU. It is in this context that Case 24/76 Colzani resurfaces: ‘real consent’ needs to be established without excess formality.
At 28 Lord Banatyne lists claimant’s arguments: the party’s contract was not signed by both parties; nevertheless the defender’s subcontract terms and conditions form part of the contract; the subcontract order refers expressly to the defender’s subcontract terms and conditions which includes the jurisdiction exclusion clause and lastly, that express reference meets the test for real consent to the jurisdiction clause.
Put in summary: At 49: Is an express reference in the defender’s subcontract order (sent to the pursuer) to the defender’s subcontract terms and conditions, which contain the jurisdiction clause (which document is unsigned by the pursuer) sufficient to satisfy the test that it is clearly and precisely demonstrated that the parties agreed to the clause conferring jurisdiction on the English courts? Or put another way, in order to satisfy the said test is it not only necessary for there to be an express reference to the defender’s subcontract terms and conditions but for the subcontract order to have been signed by the pursuer to demonstrate that the parties agreed to the clause conferring jurisdiction on the English courts?
The judge considers the answer to the above questions to be question 1, yes and question 2, no – and I believe he is right.
Ermgassen v Sixcap Financials: Singapore High Court the first to recognise and enforce under the Hague Choice of Court Convention
 SGHCR 8 Ermgassen v Sixcap Financials to my knowledge is the first recognition and enforcement by any court under the 2005 Choice of Court Convention. Together with the 28 EU Member States (and the EU itself), Singapore, with Mexico, are the 30 States for which the Convention has entered into force.
In his decision for the High Court, Colin Seow AR recognises a High Court ex parte summary judgment, taking the process to the Hague motions: whether the issue is civil and commercial; whether choice of court was concluded in favour of the courts having issued the judgment; and pointing to the UK’s membership of the Convention and to counsel for the plaintiff having been heard at the London High Court hearing: this makes the judgment one on the merits, not just a judgment in absentia (of the defendant: a Singapore-domiciled company). Of note is Seow AR’s flexible approach to the requirement to produce certified copies of the judgment (at 23 ff).
In  EWHC 1670 (Comm) BNP Paribas v TRM, the High Court essentially had to hold on its jurisdiction in the face of competing choice of court clauses in an ISDA MAster Agreement (the courts of England; and lex contractus English law) and the attached Financing Agreement (the courts of Turin).
Knowles J dissected the agreements in relation to the claims made by the parties (again highlighting the relevance of formulation of claims): at 27: where, as here, there is more than one contract and the contracts contain jurisdiction clauses in favour of the courts of different countries, the court is faced with a question of construction or interpretation. And at 54: ‘The parties agreed jurisdiction in favour of the English Court under the Master Agreement. The fact that TRM further committed itself in the Financing Agreement to comply with its commitments under the Master Agreement does not mean that commitments under the Master Agreement and swap transaction are any the less subject to the jurisdiction agreed under the Master Agreement, or any the less able to be adjudicated upon and enforced by proceedings in England.’
Application to reject jurisdiction of the English Courts dismissed.
Forum non conveniens, lis alibi pendens ex-EU following Brussels I Recast. High Court adopts limiting approach in UCP v Nectrus.
In  EWHC 380 (Comm) UCP Plc v Nectrus Limited Cockerill J takes the same conclusion on the new lis alibi pendens rule ex-EU in the Brussels I Recast, which I had suggested in the Handbook (p.182). A court in a Member State seized of an action other than those based on Articles 4, 7, 8 or 9 cannot refuse jurisdiction in favour of a court based ex-EU.
From Herbert Smith’s summary of the case: Nectrus, a Cypriot company, commenced proceedings in the Isle of Man seeking payment of sums withheld by UCP, an Isle of Man company, on the sale of a company, Candor. UCP then commenced proceedings in England claiming that Nectrus was in breach of an Investment Management Agreement (IMA), the loss being the amount by which the sale consideration of Candor had been reduced, hence the amount withheld on its sale.
The IMA contained a non-exclusive jurisdiction agreement in favour of the English courts. UCP disputed the jurisdiction of the Manx court, but in the event the proceedings continued, indicated they would raise the cause of action relied on in the English proceedings by way of equitable set off. Nectrus disputed their right to do so.
Nectrus disputed the jurisdiction of the English court on the basis that the Manx courts were the most appropriate forum to determine the dispute and were first in time.
Other than for the articles listed above, the CJEU’s findings in Owusu continue to apply. That includes English jurisdiction on the basis of non-exclusive choice of court, covered by Article 25 of the Recast Regulation. Justice Cockerill is entirely correct in unhesitatingly (at 39) rejecting forum non conveniens.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.4 (International impact of the Brussels I Recast Regulation), Heading 188.8.131.52.2.