Posts Tagged international

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

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SMD v Banco Santander: the CJEU will either boost or bust European private international law.

The title exaggerates. However the CJEU will have an opportunity in C-136/16 SMD v Banco Santander to hold how ‘international’ a case has to be to trigger application of the European private international law Regulations. In both Owusu and Lindner the Court suggested a flexible approach to the ‘international’ character of a case (hence to the Regulations being easily engaged). The case referred is reminiscent of Banco Santander Totta at the High Court. In that case, however, jurisdiction was not contested and analysis focused on the reach of Article 3(3) Rome I (relating to ‘purely domestic contracts’).

I have copy/pasted the questions referred below. No doubt the CJEU will not entertain them all.

Crucial questions, are: is choice of court ex the country enough for the  case to be considered ‘international’; if it is, can forum non conveniens-type considerations lead to the (national) Court seized ignoring choice of court; if it is not, what other international elements need to be present and does choice of law play a role in this assessment.

Exciting. Once private international law engaged, literally the whole world opens up to contracting parties. If it is not, one is stuck with national law.


(Handbook of) European Private International Law Chapter 2, Heading


In a dispute between two national undertakings of a Member State concerning agreements, does the fact that such agreements contain clauses conferring jurisdiction to another Member State constitute a sufficient international element to give rise to the application of Regulation (EC) No 44/2001 1 and Regulation No 1215/2012 to determine international jurisdiction, or must there be other international elements?

May application of the jurisdiction agreement be waived where the choice of the courts of a Member State other than that of the nationality of the parties causes serious inconvenience for one of those parties and the other party has no good reason to justify such choice?

In the event that it is held that other international elements are necessary in addition to the jurisdiction agreement:

Do the swap agreements concluded between [Sociedade Metropolitana de Desenvolvimento, S.A.] (‘SMD’) and Banco Santander Totta have sufficient international elements to give rise to the application of Regulation (EC) No 44/2001 and Regulation (EU) No 1215/2012 in order to determine which courts have international jurisdiction to settle disputes relating to them where:

(a)    Those entities are nationals of a Member State, Portugal, that concluded two swap agreements in Portugal consisting of an ISDA Master Agreement and two confirmations, negotiated by the Autonomous Region of Madeira on behalf of SMD;

(b)    In that negotiation, the Autonomous Region of Madeira, assisted by Banco BPI, S.A., and by a law firm, invited more than one international bank to submit proposals, one of those invited banks being JP Morgan;

(c)    Banco Santander Totta is wholly owned by Banco Santander, with domicile in Spain;

(d)    Banco Santander Totta acted in its capacity as an international bank with subsidiaries in various Member States and under the single brand Santander;

(e)    Banco Santander Totta was considered in the ISDA Master Agreement as a Multibranch Party, able to make and receive payments in any transaction through its subsidiaries in London or Luxemburg;

(f)    Under the terms of the ISDA Master Agreement concluded, the parties may, in certain cases, transfer their rights and obligations to other representative offices or subsidiaries;

(g)    The parties to the swap agreements specified that English law was applicable and concluded jurisdiction agreements that confer exclusive jurisdiction on the English courts;

(h)    The agreements were drafted in English and the terminology and concepts used are Anglo-Saxon;

(i)    The swap agreements were concluded with the objective of covering the risk of variation in the interest rates of two financing agreements, both drafted in English and concluded with foreign entities (one based in the Netherlands and the other in Italy), and in one of the financing agreements it is provided that borrowers’ payments must be made to the HSBC Bank Plc account in London, on dates defined by reference to the London time zone and subject to English law and the English courts;

(j)    Banco Santander Totta acted as an intermediary of the international market, having concluded hedging agreements in the context of the international market?


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