Posts Tagged Fraus
Vinyls Italia. A boon for conflict of laws (with a fraus component) and important findings on the insolvency Pauliana.
Another one from the exam queue. I reported earlier on Szpunar AG’s Opinion in C-54/16 Vinyls Italia – readers may want to refer tot that post before reading on. The case concerns the extent to which a bona fide creditor may insulate payments made to it by the insolvent debtor, to the detriment of the collectivity of the creditors, using choice of law for its contract with the debtor away from the lex concursus. The Court held on 8 June, much along the lines of its AG and earlier precedent especially Nike with respect to anti-avoidance actions. The judgment therefore is not of great novelty for this part of the insolvency Regulation. It is on the other hand of crucial importance for the interpretation of ‘international’ in European private international law.
Firstly, whether the court hearing the insolvency proceedings can or must raise the Article 13 (now 16) even if the party profiting from the insulation of its payments from the insolvency, has failed expressly to do so in its submissions. This, the CJEU held, is a matter of procedure, not harmonised in the Insolvency Regulation and lex fori therefore, subject to the usual condition that effet utile is guaranteed and that EU law is equally applied as national law.
The Court had already held in Nike that the defendant in an anti-avoidance (Pauliana) action has to prove both the facts from which the conclusion can be drawn that the act is unchallengeable and the absence of any evidence that would militate against that conclusion (at 25). The Court in Vinyls Italia qualifies that statement: the party bearing the burden of proof must show that, where the lex causae makes it possible to challenge an act regarded as being detrimental, the conditions to be met in order for that challenge to be upheld, which differ from those of the lex fori concursus, have not actually been fulfilled. However defendant does not have to show that the lex causae does not provide, in general or in the abstract, any means to challenge the act in question: such means of challenging the act almost always exist, at least in the abstract, and such strict interpretation would therefore deprive Article 13 (now 16) of its effectiveness (at 38). Of course how wide exactly the net of voidness needs to be cast, is not entirely clear from the judgment.
The final question then deals with the possibility of relying on (now) Article 16 in the situation provided for in Article 3(3) of the Rome I Regulation, that is to say, where all the elements relevant to the situation in question between the parties to a contract are located in a country other than the country whose law is chosen by those parties. Now, the Rome I Regulation does not ratione temporis apply to the facts at issue and on the similar provisions of the Rome Convention, the referring court is not entitled to ask questions. The CJEU therefore decides to simply reply to the question of this being a purely domestic contract, by reference to Article 16 of the insolvency Regulation only. It nevertheless however uses both Regulation and Convention a contrario. Both existed at the time of adoption of the Insolvency Regulation. The latter does not include an Article 3(3) type provision. That it does not, must, the Court held, mean that the Insolvency Regulation saw no need at all to limit the use of lex contractus for insulation reasons, even in the case of purely domestic contracts.
There is however one condition: Fraus (omnia corrumpit) aka abuse of (EU) law. Here, the Court refers to its findings last summer in C‑423/15 Kratzer. EU law cannot be relied on for abusive or fraudulent ends. A finding of abuse requires a combination of objective and subjective elements. First, with regard to the objective element, that finding requires that it must be apparent from a combination of objective circumstances that, despite formal observance of the conditions laid down by EU rules, the purpose of those rules has not been achieved. Second, such a finding requires a subjective element, namely that it must be apparent from a number of objective factors that the essential aim of the transactions concerned is to obtain an undue advantage.
Here, Article 16 may be disregarded only in a situation where it would appear objectively that the objective pursued by that application, in this context, of ensuring the legitimate expectation of the parties in the applicability of specific legislation, has not been achieved (a tough condition if the lex contractus is wisely chosen), and that the contract was made subject to the law of a specific Member State artificially, that is to say, with the primary aim, not of actually making that contract subject to the legislation of the chosen Member State, but of relying on the law of that Member State in order to exempt the contract, or the acts which took place in the performance of the contract, from the application of the lex fori concursus. In this respect (at 55), choice of law of a Member State other than the Member State in which parties are established does not create any presumption regarding an intention to circumvent the rules on insolvency for abusive or fraudulent ends.
The findings on fraus amount to strong support for a wide interpretation of the concept ‘international’ in EU private international law. (That an entirely Italian situation was made ‘international’ simply by choice of law ex-Italy was not considered an issue). A development to be applauded. These same findings also make it very difficult within the context of Article 13 (now 16) successfully to mount a challenge of payments detrimental to the collectivity. This aspect of the case is what i.a. Gilles Lindemans objects to in the judgment. However the CJEU logic I suppose lies in what it sees firmly as the object and purpose of Article 16: it protects the legitimate expectations of the party who has benefitted from an act detrimental to all the creditors. In some way it prevents contractual sclerosis for parties suspected of being close to payment issues. Securitisation is facilitated if the lex causae is fixed, independent of the lex concursus. Not just fraus (a very improbable route now) but probably more importantly the burden of proof per C-310/14 Nike, protects the collectivity.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 5.7.1. Chapter 3, Heading 220.127.116.11.
Turkish Supreme Court rejects choice of court agreement on basis of ‘good faith’. Accepts asymmetric clauses.
Koray Söğüt and Suha Yılmaz reported recently on Turkish Supreme Court case-law in the area of choice of court. The report is very much worth a read. On choice of court agreements, what the Supreme Court seems to say is that when choice of court is made away from Turkey, Turkish law will make that choice subject to a de facto forum conveniens assessment: if Turkey is a suitable forum especially when the eventual judgment will be easily enforced against Turkish assets, a defendant’s insistence on exercising the clause must be seen as violating Turkey’s general provision on bad faith (a form of fraus omnia corrumpit).
It is also reported that the Supreme Court accepted a unilateral /asymmetric jurisdiction clause – the issues surrounding these clauses are a regular feature on this blog.
More cases for the comparative law class! (At least if and when I get hold of an English translation).
Sinocore International Co Ltd v RBRG Trading: The commercial court on fraus, ordre public and arbitration.
Fraus omnia corrumpit (fraud corrupts all; alternatively formulated as ex turpi causa non oritur actio) is not easily applied in conflict of laws. See an earlier post here. In Sinocore International Co Ltd v RBRG Trading , the Commercial Court granted permission for the enforcement of a foreign arbitral award despite allegations that the transaction in question had been “tainted” by fraud: this is how the case is summarised by Mayer Brown and I am happy broadly to refer to their overview and analysis.
The Commercial Court’s relaxed attitude is another sign of strong support of the English courts for the New York Convention and its narrow application of ordre public.
An interesting case for comparative conflicts /arbitration classes.
Vinyls Italia: Szpunar AG on the chemistry between the Insolvency Regulation and Rome I. And again, on the pauliana.
In C-54/16 Vinyls Italia (in full: Vinyls Italia SpA, in liquidation v Mediterranea di Navigazione SpA) Szpunar AG opined last week (the Opinion is not available in English). At the core of the case is the application of Article 13 of the Insolvency Regulation 2000 (Article 16 in the 2015 version; see my general review here), however the case opens an interesting discussion on the meaning of ‘international’ in ‘private international law’.
For the general context of Article 13 (16 new) I should like to refer to my review of Lutz and Nike. At issue in the case at hand are payments made by Vinyls to Mediterranea for the transport of chemicals of the former by the latter. Both are Italian registered companies. Shipment was presumably carried out in Italy (an extra-Italian element in the actual transport does not feature in the factual analysis re ‘international’, which I refer to below). However the contract made choice of law in favour of English law. Mediterranea makes recourse to Article 13 juncto English law as the lex contractus to ward off an attempt by Vinyls to have the payments return to its books.
First up is the question whether courts should apply Article 13 ex officio: for Mediterranea’s claim was made after the procedural deadline foreseen by Italian law. Szpunar AG in my view justifiably suggest it does not: he refers to the Virgos Schmit report [„Article 13 represents a defence against the application of the law of the State of the opening, which must be pursued by the interested party, who must claim it” – § 136 of that report, para 43 of the AG’s Opinion) and to the CJEU’s finding in C-310/14 Nike at 26. The AG does point to the particulars of the case: Mediterranea seemingly had provided proof supporting its view that the substantial conditions of Article 13 had been met (in particular an expert opinion by an English lawyer) but had not expressis verbis requested its application. Szpunar refers the final say to the Italian court, which needs to judge on the basis of Italian civil procedure however does suggest that it seems fairly inconceivable to have provided proof for the fulfillment of a legal proviso, without meaning to request its application.
The question on the applicability of Rome I at all (which is required if Mediterranea want to make recourse to the provisions of English law as lex contractus per Rome I or the Rome convention) may not make it to the CJEU. As Szpunar AG notes, the underlying contract dates prior to 17 December 2009, which is the cut-off date of the Rome I Regulation. The referring court being a court of first instance, it is not in a position to request preliminary review of Rome I’s predecessor, the 1980 Rome Convention. The AG completes the analysis anyway (the Court itself will not, should it find Rome I not to be applicable) and takes in my view the right, expansionist approach (one which I also defend in my handbook): especially given the presence of Article 3(3)’s proviso for ‘purely domestic’ contracts, it is clear that it suffices for Rome I to be applicable that parties make choice of court in favour of a foreign law. Further in the opinion (137 ff) he also suggests that such application is not tantamount to fraude a la loi (fraus legis) and again I agree: the relevance of fraus has been seriously diminished by the provisions on party autonomy in both Rome I and the Rome Convention.
The use of choice of law per Rome I (or the Convention) in turn serves as a jack to trigger the application of the insolvency Regulation. That too is correct in my view, and with undramatic consequences. Choice of law for the underlying contract only identifies its lex causae (where relevant, with an impact on Article 13 of the Insolvency Regulation). It does does not of course in and of itself determine the lex concursus: the latter is determined by the Insolvency Regulation once /if insolvency occurs. Parties have no means to manipulate this at the time of the formation of the contract.
Exciting, conceptual stuff. Most probably the Court itself will not be in a position to assess it all.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 3, Heading 3.2.1; Heading 18.104.22.168; chapter 5; Heading 5.7.1.