Tag: comparative

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Lydian international. The Jersey courts on universalism and cross-border insolvency.

In Representation of Lydian international Limited [2020] JRC 049 MacRae DB refers to universality in insolvency proceedings only once,  namely where he refers to authority at 20. Yet his approach in honouring the request for assistance, made by the courts at Ontario ‘on the basis of comity’, walks and talks like universality. This is of course reminiscent of Menon CJ’s recent speech on the issue, or similar decisions elsewhere.

‘Though there is no precedent in Jersey for a Canadian CCAA order or similar order being enforced or recognised in relation to a Jersey company, we had no doubt that we should assist the Canadian Court in this case.  There were no reasons of Jersey public policy impeding the court making the orders sought.  To the contrary, it is consistent with Jersey’s status as a responsible jurisdiction for the Royal Court to lend assistance in order to facilitate an international insolvency process in a friendly country that has a potential to benefit the creditors of the Lydian Group as a whole.’ The Deputy Bailiff also notes that key Jersey creditors and the Jersey corporation of the Lydian group itself were represented in the Canadian proceedings.

Geert.

(Handbook of) EU Private International Law, 2nd edition 2016, Chapter 5.

 

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Roberts: lois de police (overriding mandatory law) in tort under English residual rules.

Update 04 01 2023 the UKSC [2022] UKSC 29 has allowed the appeal against the contribution lex causae issue, as reported and analysed ia with comparative reference to Rome II, by Gilles Cuniberti here.

Update 17 July 2020 appeal against the decision was today dismissed: [2020] EWCA Civ 926. As Bobby Lindsay summarises the outcome: the contribution provisions of 1978 Act are overriding mandatory provisions. Joint wrongdoers’ entitlement to seek, or liability to make, contribution are governed by English law regardless of foreign connections.

A late post (I am slowly trying to mop up my back issues; none of them thankfully going back quite as far as this one) on Roberts v The Soldiers, Sailors, Airmen And Families Association & Anor [2019] EWHC 1104 (QB) in which Soole J had to hold on whether the Civil Liability (Contribution) Act 1978 (the 1978 Act) has mandatory/ overriding effect and applies automatically to all proceedings for contribution brought in England and Wales, without reference to any choice of law rules. A tortious and residual private international law (as opposed to Rome I or II) take therefore on similar issues as in the contracts case of Lamesa Investments.

Claimant was born at the Hospital in Viersen, North-Rhine Westphalia, Germany on 14 June 2000. The Hospital provided medical services to UK Armed Forces stationed in Germany, with whom the Claimant’s father was serving, and their families. His claim is that he sustained an acute profound hypoxic brain injury as a result of negligence in the course of his delivery by a British midwife supplied by the First Defendant charity (SSAFA). On his behalf it is alleged that SSAFA and/or the Second Defendant (MOD) are vicariously liable for her acts or omissions.

The Hospital contends that the application of the 1978 Act is subject to choice of law rules, whose effect is to apply German law to a claim for contribution. By the combined effect of the German law of limitation and s.1 Foreign Limitation Periods Act 1984 the contribution claim is time-barred; and therefore must fail. SSAFA/MOD accept that, if choice of law rules prevail, the relevant law is German and the claim time-barred. However they contend that the 1978 Act has overriding effect. Since the limitation period under the 1978 Act expires 2 years from the date of judgment award or settlement (s.10 Limitation Act 1980), the claim can proceed.

Rome II is not engaged ratione tempore (it may have varied the outcome).

Soole J first summarises at lenghth the submissions of the parties, including their scholarly references. He then, at 81, reminds us of the common law approach to characterisation (one which we successfully pleaded in a continental court in a trust case recently): ‘the first question in such a dispute is the characterisation (or classification) of the claim or issue in question. Such classification should not be constrained by particular notions or distinctions of the domestic law of the lex fori, or that of the competing system of law, which may have no counterpart in the other’s system; and should be taken in a broad internationalist spirit in accordance with the principles of conflict of laws of the forum’.

He then holds that the questions of lois de police do not justify cutting corners in conflict of laws analysis: one does not jump straight to application of a local act. Rather, one dutifully follows conflicts analysis and then applies the local act only if and to the extent the foreign law impedes it. Then follows at 92 his classification of the act as lois de police indeed (the terminology used here also includes ‘extraterritorial application’ which however suggests a disconnect from the usual conflicts exercise): ‘In my judgment it is implicit from the provisions of the 1978 Act that the statute does have overriding effect; and that the presumption to the contrary is accordingly rebutted. And at 93: ‘I consider that the express references in the 1978 Act to private international law (ss.1(6), 2(3)(c)) support this implication. Parliament having chosen to identify specific circumstances in which choice of law rules are to apply (and the extent of that application) in a claim under the statute, the natural implication is that the availability of this statutory cause of action was not itself to be subject to choice of law rules.’

Most interesting judgment. It is being appealed, with appeal to be heard in April 2020.

Geert.

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The governing law of privilege. The Dutch courts in re Shell.

This item has been in the queue a long time – apologies. Thank you Marco Vogels for reporting end of 2019 on the Rotterdam court’s approach re privilege in ECLI:NL:RBROT:2019:7856, a criminal prosecution involving Shell. Marco’s report is most complete and I am happy to refer.

Compare the Dutch approach to my earlier reports on the issue in England and in the US. The Rotterdam court takes the law of the place of establishment of the (self-employed) solicitors as the connecting factor, ditto for in-house lawyers (on which The Netherlands takes an unusual (bu continental European standards) position of professional privilege). However the court also held that privilege falls away for the whole in-house legal department and all its lawyers, foreign established or not, if the head of legal is member of the Executive Committee.

Geert.

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Hong Ziyun v Chan Kwan Ming. A reminder of the one-stop shop principle in Hong Kong.

In Hong Ziyun v Chan Kwan Ming [2019] HKCFI 2125, Chan J at the end of August summed up the Hong Kong approach (as it is that of the common law) to consolidation of jurisdiction at 31: ‘the approach of the courts should be to favor resolution of all disputes associated with a transaction in one jurisdiction.’ That is the so-called one stop shop or one stop principle (whether or not hyphenated).

As Herbert Smith Freehills note, in a host of related loan documents only one of the documents contained an express jurisdiction clause (in favour of the court of Xiamen in Mainland China). The defendants applied for and obtained a stay of proceedings in Hong Kong in favour of Mainland China. HSF summarise the reasoning (the judgment itself is not too long and logically structured) helpfully as follows:

  1. When there is no express jurisdiction clause, the applicable law is that which has the “closest and most real connection” with the transaction.
  2. Most of the defendants’ business was in Mainland China. They also spent most of their time in Mainland China. On the evidence presented, the court was unable to place significant reliance on the permanent “residence” of any of the defendants in Hong Kong as showing any real or closest connection with Hong Kong.
  3. The location of the debt, currency, and place of performance of the loans as well as the execution of and governing law clause in the SA all had a strong connection with Mainland China.

Geert.

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McDonald v Broadspectrum. When does a claim by an employee against her employer ‘relate to’ the contract of employment?

[2019] QSC 313 McDonald v Broadspectrum can go straight into the comparative binder – thank you Angus Macinnis for signalling it. A teacher employed by Broadspectrum on Nauru, sues it for personal injury. Amongst other things, Ms McDonald alleges Broadspectrum failed to provide a safe place or system of work, to warn her about the mould contamination, to provide protective clothing or respirators, to prevent exposure, and to provide adequate ventilation, in each instance in Nauru.

Broadspectrum applied for a declaration at the Supreme Court of Queensland that the substantive law applicable to her claims is the law of New South Wales and for an order setting aside or staying and transferring her claims to the Supreme Court of that State.

The relevant compensation schemes, in Queensland and New South Wales, each exclude from their scheme an employer’s liability arising under the law of another country. Bradley J however held that lex loci delicti is Nauru law,  which therefore is lex causae. The argument that the employment contract contained implied term to the contrary was rejected.

As I discussed with Angus, I was confused by the court’s qualification of the facts as ‘tort’ (particularly as it also refers to claimant’s argument re forum contractus being Nauru); is this not a contractual claim rather than one in tort? (and one relating to the employment contract, for that matter). Angus however pointed out that in Australia workplace injury claims are usually brought as tortious breach of care claims rather than breach of a contractual obligation to provide a safe system of work. Comparatively speaking, the EU approach would probably be different. For a comparative (consumer contracts, health and safety) angle see e.g. [2018] EWCA Civ 1889 Committeri v Club Med.

On the issue of concurrent liabilities and  EU PIL see recently also Bosworth.

Geert.

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In defence of litigating civil claims in England: a primer by Judge Matthews in Paralel Routs v Fedotov.

This is a case with no immediate conflict of laws interests (jurisdiction for instance was not disputed), other than a helpful summary by Matthews J on the overall conduct of proceedings in civil law cases in England.

In [2019] EWHC 2656 (Ch) Paralel Routs v Fedotov, the claim is brought by the claimant, a company incorporated in the British Virgin Islands, but administered in Cyprus,  against the defendant, a Russian citizen, currently in prison in Russia. The defendant says that these proceedings have been brought as part of a process of so-called “corporate raiding” (“reiderstvo” in Russian) against him, by the claimant, at the instigation and direction of his former business associate.

Witnesses and evidence were the sticking point in the litigation, leading Matthews J to summarise the English law of civil proceedings, at 35 ff, concluding at 41:

‘decisions made by English civil judges are not necessarily the objective truth of the matter. Instead, they are the judge’s own assessment of the most likely facts based on the materials which the parties have chosen to place before the court, taking into account to some extent also what the court considers that they should have been able to put before the court but chose not to. And, whilst judges give their reasons for their decisions, they cannot and do not explain every little detail or respond to every point made.’

And at 95 ff just before conclusion, a robust defence of proper oral proceedings:

‘it is sometimes thought that the English procedural rules are too time-consuming and expensive to operate, without any corresponding advantage in terms of justice. But this is a case which amply illustrates the importance of procedural rules in ensuring a fair trial and the best opportunity to deliver a just result between the parties. This case illustrates the importance in particular of advance disclosure and production of documents in unredacted form, control by the court of expert evidence, and (at trial) cross-examination of witnesses, all properly pursued by a party’s lawyers. The persistence of the defendant’s legal team in enforcing these procedures has made all the difference in this case.

Geert.

 

 

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AMP Advisory v Force India Formula One Team. Formation of contract under English law.

In [2019] EWHC 2426 (Comm) AMP Advisory & Management Partners AG v Force India Formula One Team Ltd (in liquidation), Moulder J leads a most complete and interesting analysis of the formation or not of a contract, oral or written, under English law. I keep this post short for it is mostly intended for library purposes and for the benefit of my comparative law colleagues, who are best served by simple reference to the judgment.

Geert.

 

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Wigmans v AMP. Abuse of process and multiplicity of proceedings.

[2019] NSWCA 243 Wigmans v AMP concerns the challenging application of fraus /abuse / vexatious and oppressive proceedings principles to multiplicity of proceedings. Fraus or abuse is not easily applied in civil procedure let alone conflict of laws context. See e.g. my critique of Pablo Star but equally other postings; search tag ‘abuse’ or ‘fraus’ should help locate them. Neither is the common law Aldi rule requiring claimants to bring grouped cases together easy to consider.

Following testimony given by executives of AMP in the (Australian) Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, five class actions were commenced within a short time of each other on behalf of shareholders in AMP who had made investments during periods of time in which it was said that AMP ought to have disclosed certain information to the market. Four of the five class actions were commenced in the Federal Court but were transferred to the Supreme Court. Two of the sets of proceedings then consolidated so that five became four. Each of the respective plaintiffs of the remaining four pending proceedings brought applications to stay each of the other sets of proceedings. AMP, whilst not filing a stay application, supported an outcome in which it would face only one set of proceedings.

Unclear principles on the issue have led to considerations of ‘beauty parades’ (which legal team might best lead the class action) as well as third party funding implications.

The primary judge ordered, pursuant to ss 67 and 183 of the Civil Procedure Act 2005 (NSW) and the inherent power of the Court, that the representative proceedings commenced by 3 of the 4 be permanently stayed. Each of these 3 fell within the definition of group member in the 4th, the ‘Komlotex’ proceedings. Ms Wigmans, one of the 3, made an application for leave to appeal that decision.

The issue in respect of which leave to appeal was granted (but appeal eventually refused) related to the principles applicable to applications to stay and counter-stay multiple open representative action proceedings.

The case therefore does not strictly relate to conflict of laws, rather to civil procedure and case management. However multiplicity of proceedings is clearly an issue viz conflicts, too (think lis alibi pendens; forum non etc.) hence I thought it worthwhile to flag the case; in which Bell P quotes conflicts handbooks; and in which 85 he expressly considers forum non and Cape v Lubbe. The House of Lords in that case had refused to stay proceedings which had been commenced in England where it was said that South Africa was the natural or more appropriate forum, in circumstances where it was held that the proceedings could only be handled efficiently and expeditiously on a group basis in England where appropriate funding was available. The lack of means available in South Africa to prosecute the claims required the application for a stay of proceedings to be refused.

An interesting case in which conflict of laws principles inspired domestic civil procedure rules, and where relevant considerations have an impact on e.g. the Article 33-34 Brussels Ia discussions.

Geert.

 

 

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The provisional text of the Hague Judgments Convention.

Update 16 December 2021 the EU Member States have proposed that the EU join. Parliament still needs to approve.

Update 21 November 2019 final text now here.

The representatives at the Diplomatic Conference at the Hague Convention have issued a provisional text of the Convention here. I am short of time to post a quick scan of the Convention – see some of my earlier posts on same. Also, since the Convention has taken on the format of the Brussels regime, it is of course quite an exercise even just to give a quick overview.

Of interest is that Jane Holliday posted a summary of key positive takeaways by prof Paul Beaumont, who was heavily involved in the drafting i.a. as a representative of the EU. These include the room for asymmetric choice of court (not covered by the Hague choice of court Convention and crucial for many common law jurisdictions); and the blend between the US and the EU regime for forum contractus: Article 5(g):

‘the judgment ruled on a contractual obligation and it was given by a court of the State in which performance of that obligation took place, or should have taken place, in accordance with

(i) the agreement of the parties, or (ii) the law applicable to the contract, in the absence of an agreed place of performance,

unless the activities of the defendant in relation to
the transaction clearly did not constitute a purposeful and substantial connection to that State.

Of note of course is also the carve-out for intellectual property and of ‘unilateral’ sovereign debt restructuring, but also of defamation and of privacy.

Much analysis no doubt to follow, as are complications in reaching a unified interpretation of the Convention once ratified.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016. Chapter 2.

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Comparative US /EU jurisdiction material: Mitchell v. DePuy Orthopaedics (Missouri); and KGS v Facebook (Alabama).

Thank you Stephen McConnell for flagging Mitchell v. DePuy Orthopaedics, Inc., 2019 U.S. Dist. (Missouri) and Alani Golanski for doing the same for KGS v Facebook at the Alabama Supreme Court,

Both cases have plenty of scope for comparative analysis viz EU law and non-US common law. Which is why I had pondered them for use in exam essays but in the end did not – they might come in handy at a later stage. 

Readers best refer to the reports linked above for a full picture. In short, Mitchell involves the minimum contacts rule as well as ‘directing activities towards forum residents’: both have clear echos (and differences) in EU jurisdictional rules. On neither ground was specific (what the EU would call ‘special’) jurisdiction upheld.

In the Facebook case, Facebook argument is included on p.10-11. Claimant put forward a case for jurisdiction on p.13-14. She argues i.a. effects doctrine. Bryan J discussed both extensively p.15 ff and held that doing business in Alabama is not sufficient for personal jur., and (p.39) Facebook engagement with complaints not enough for specific jurisdiction.

In both cases the US Supreme Court’s decision in Bristol-Myers Squibb is cited as highly relevant authority.

Geert.

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