Posts Tagged Jurisdiction

‘Right to be forgotten’ /data protection laws and the internet referred to CJEU.

Update 23 May 2017 the Case is C-136/17 and the relevant  dossier (partially in Dutch) is here, on the unparalleled website of the Dutch foreign ministry.

Many thanks to KU Leuven law student Dzsenifer Orosz (she is writing a paper on the issues for one of my conflict of laws courses) for alerting me to the French Conseil D’Etat having referred ‘right to be forgotten’ issues to the European Court of Justice.  I have of course on occasion reported the application of data protection laws /privacy issues on this blog (try ‘Google’ as a search on the blog’s search function). I also have a paper out on the case against applying the right to be forgotten to the .com domain, and with co-authors, one where we catalogue the application of RTBF until December 2016. See also my post on the Koln courts refusing application to .com.

The Conseil d’Etat has referred one or two specific Qs but also, just to be sure, has also asked the Court of Justice for general insight into how data protection laws apply to the internet. The Court is unlikely to offer such tutorial (not that it would not be useful). However any Advocate General’s opinion of course will offer 360 insight.

One to look forward to.

Geert.

 

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HanseYachts: A court asked merely to preserve evidence is (probably) not ‘seized’.

This is one for the conflict of laws anoraks. In C-29/16 HanseYachts the Court of Justice held (on 4 May) that an application for proceedings to preserve or establish, prior to any legal proceedings, evidence of facts on which a subsequent action could be based, does not constitute a proceeding within the meaning of (now) Article 32(1) Brussels I. If it had, it would trigger the lis alibi pendens regime of that Article, impacting therefore on any future substantive proceedings.

At 33 the Court defers to the insight into the relevant provisions of French judicial procedure, offered by the French Government: Although there may indeed be a connection between the court seised on the basis of the relevant French Article and the court having jurisdiction to hear the substance of the case with a view to which the measure of inquiry was ordered, the fact remains that such proceedings for the taking of evidence are independent in relation to the substantive procedure which may, if necessary, be brought subsequently. The Court’s ruling however is dependent (at 34) upon the French courts confirming this interpretation of French civil procedure: for the CJEU does not offer final interpretations on internal State law.

Of note is of course also that the Court seized with the substantive procedure, may en parcours de route take measures to preserve evidence etc.: that court would have already been ‘seized’.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.14.1.

 

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On ‘civil and commercial’, and, again, notaries as courts. The CJEU in Pula Parking.

Issued on the same day as Zulfikarpašić, Pula Parking Case C-551/15 deals with similar core issues, with a few extras thrown in. Pula Parking, a company owned by the town of Pula (Croatia), carries out, pursuant to a decision of the mayor of that town, the administration, supervision, maintenance and cleaning of the public parking spaces, the collection of parking fees and other related tasks. In September 2010, Mr Tederahn, who is domiciled in Germany, parked his vehicle in a public parking space of the town of Pula. Pula Parking issued Mr Tederahn with a parking ticket. Since Mr Tederahn did not settle the sums due within the period prescribed, Pula Parking lodged, on 27 February 2015, with a notary whose office is in Pula, an application for enforcement on the basis of an ‘authentic document’. A notary issued a writ of execution on 25 March 2015, on the basis of that document.  In his opposition, Mr Tederahn put forward a plea alleging that the notary who issued the writ of execution of 25 March 2015 did not have substantive and territorial jurisdiction on the ground that that notary did not have jurisdiction to issue such a writ on the basis of an ‘authentic document’ from 2010, against a German national or a citizen of any other EU Member State.

Does the Brussels I recast apply at all? And does it relate also to the jurisdiction of notaries in the Republic of Croatia?

On the temporal scope of the Brussels I Recast, the Court repeats its (Brussels Convention) Sanicentral (Case 25/79) finding: the only necessary and sufficient condition for the scheme of the Regulation to be applicable to litigation relating to legal relationships created before its entry into force is that the judicial proceedings should have been instituted subsequently to that date. Accession timing is irrelevant to the case: per C-420/07 Apostolides the Act of Accession of a new Member State is based essentially on the general principle that the provisions of EU law apply ab initio and in toto to that State, derogations being allowed only in so far as they are expressly laid down by transitional provisions.

On the substantial scope of the Brussels I Recast Regulation, for the issue of ‘civil and commercial’ the Court refers to its standing case-law (particularly most recently Aertssen and Sapir). In casu, it would seem (the national court is asked to confirm) that the parking debt claimed by Pula Parking is not coupled with any penalties that may be considered to result from a public authority act of Pula Parking and is not of a punitive nature but constitutes, therefore, mere consideration for a service provided. Brussels I applies.

However, notaries in casu do not act as courts: in a twin approach with Zulfikarpašić, the Court holds that the writ of execution based on an ‘authentic document’, issued by the notary, is served on the debtor only after the writ has been adopted, without the application by which the matter is raised with the notary having been communicated to the debtor. (at 58) Although it is true that debtors have the opportunity to lodge oppositions against writs of execution issued by notaries and it appears that notaries exercise the responsibilities conferred on them in the context of enforcement proceedings based on an ‘authentic document’ subject to review by the courts, to which notaries must refer possible challenges, the fact remains that the examination, by notaries, in Croatia, of an application for a writ of execution on such a basis is not conducted on an inter partes basis.

Geert.

European private international law, second ed. 2016, Chapter 2, Heading 2.2.16.1.1. Chapter 6, Heading 6.2.1.

 

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Lodi Trading, a lotta fog: Kolassa in the Belgian Supreme Court.

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.

Geert.

(Handbook of) European private international law, second ed. 2016, Chapter 2, Headings 2.2.11.2, 2.2.11.2.7

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Now you sue me, now you don’t. Trump v Daily Mail.

The president and Mrs Trump keep on exercising the courts. In Melania Trump v Webster Tarpley and Mail Media, Inc., the circuit court for Montgomery County, Maryland, accepted jurisdiction against the former, who is resident in Maryland, but rejected it against the latter, who is resident at New York. (It is registered there and also has its head office there). The second defendant is most likely the owner of the website dailymail.com and dailymail.co.uk. Whether that was really the case was left in the middle though for the Daily Mail group (whom Wikipedia today confirmed as no longer accepting as a source of facts), wanted the judge to rule on the merits of jurisdiction rather than on a possibly wrongly identified defendant.

Alleged libel concerns reports published by Mr Tarpley, a blogger, and the Daily Mail, relating to remarks, later retracted by both defendants, on alleged past racy activities of Mrs Trump. At issue was whether the courts at Maryland have personal jurisdiction over Mail Media. Mrs Trump’s legal team suggest publication of defamatory material in a publication with significant circulation in the forum state, suffices for jurisdiction. This, they argue, is compounded by targeted interactivity between the Daily Mail and readers in Maryland. Mail Media suggest there is no direct connection between Maryland and the Mail Article at issue and that even if the court were to accept such connection, jurisdiction should be refused on the basis of forum non conveniens.

The court accepted the first defence and did not therefore entertain the second. P.7: operating a website, even one that is popular and makes money from advertising, is not ‘purposeful availment’ under precedent rule: the publication has to intentionally enter the forum market: the MAil’s influence in the US is on a national (federal) basis.

Note to class: compare the court’s approach with that of European courts under the Brussels I Recast Regulation.

Mrs Trump has now refiled in New York, where both her and second defendant are resident.

Geert.

 

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Hooley: Modified universalism outside the EU’s Insolvency Regulation.

Hooley [Hooley v The Victoria Jute Company Ltd and others [2016] CSOH 14] has been sitting in my in-box for a few months. It concerns the liquidation (particularly: selling of companies’ assets by liquidators under Scots law) of companies incorporated in Scotland but with COMI (centre of main interests) outside the EU. In particular, India.

Given the presence of COMI outside the EU, the Insolvency Regulation does not apply. Indeed the Court of Session (Lord Tyre) does not refer to it at all.Findings would have been very different were the Regulation to apply: place of incorporation has to give way to COMI, where these two do not coincide, in which circumstance the place of incorporation at best may open secondary proceedings.

At issue was among others (and for the first time in a Scots court, I understand) the consideration of ‘modified universalism’: ie what is the practical impact of there being a company incorporated in Scotland, given Scots courts and administrators jurisdiction over the insolvencies, when the companies’ business is mainly carried out abroad and when proceedings are also pending abroad.

Per Rubin v Eurofinance, Universalism” means the “administration of multinational insolvencies by a leading court applying a single bankruptcy law.”  The principle of modified universalism was stated by Lord Sumption in Singularis Holdings Ltd v Pricewaterhouse Coopers [2015] AC 1675 (PC) at para 15 as being that “the court has a common law power to assist foreign winding up proceedings so far as it properly can” (see also Lord Collins at paragraph 33 and Lord Clarke of Stone‑cum‑Ebony at paragraph 112).

Essentially Lord Tyre had to decide whether the Scottish administrators’ powers were only exercisable to the extent that their exercise was recognised as legally valid by the law of the relevant non-UK jurisdiction. He held (at 36) that the proceedings taking place in India were ancillary to the administration proceedings in Scotland. The powers of a validly appointed administrator to a Scottish company were therefore not limited by the Indian winding up.

As often of course this judgment is but one side of the coin. Indian courts are at liberty to disregard the Scots findings. Any purchasers of Hooley assets therefore will have a compromised title. One assumes this has an impact on price.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 5.1, Heading 5.5.

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It does not get more The Hague than this. Footballing around jurisdiction, applicable law and corporate finance in ADO Den Haag v United Vansen (PRC)

Thank you Bob Wessels for alerting me to ADO Den Haag v United Vansen (of China). ADO Den Haag NV (the corporate vehicle of a Dutch Premier League club) domiciled at The Hague, sue United Vansen International Sports Co. Ltd, domiciled at Beijing, essentially for the latter to pay a deposit on the premium due for the shares it acquired in the club. Vansen did not appear.

First of all, were Vansen properly summoned in accordance with the Hague Service Abroad Convention (which both China and The Netherlands have ratified)? The court holds that it cannot yet decide that this has actually happened (relevant steps taken via the Dutch judicial authorities only recently having taken place) however it applies Article 15(3)’s provisions for extreme urgency: ‘Notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency, any provisional or protective measures.

Next up: do the Dutch courts have jurisdiction? Given the defendant’s domicile outside of the EU and the non-applicability of any of Brussel I’s rules where domicile is irrelevant, the Court applied Dutch residual rules of private international law. These grant it jurisdiction essentially in respect of urgent proceedings of attachment.

Of more interest to this blog is the court’s consideration of applicable law, which the Court conducts with reference to Rome I. The share purchase agreement seemingly did not contain choice of law, either implicit or explicit: at 2.15, the court suffices with a mere observation of the absence of choice of law. None of the standard contracts of Article 4(1) Rome I applies [there is some discussion in scholarship whether share purchase is covered by Article 4(1)a’s ‘contract for the sale of goods’], hence the relevance of Article 4(2)’s ‘characteristic performance’ test. Here, the Court declared unequivocally (and most probably correctly) that the characteristic performance is the  transfer of the share premium. The habitual residence of the party required to carry out that performance is the relevant connecting factor. In casu therefore, Chinese law in principle is the applicable law.

However the Dutch court finally settles for Dutch law after all, employing Article 4(3)’s escape clause. It holds that all circumstances of the case indicate that Dutch law is more closely connected: at 2.15: the agreement originated in The Netherlands; the performance has to be carried in The Netherlands (transfer of the sums into a Dutch bank account), and the transfer of the premium will benefit a Dutch company. Although the judgment does not give much detail on the contract, its origins etc., it would seem that in finally opting for Dutch law, the court does make proper application of the rather strict conditions of Article 4(3).

A good illustration of Article 4’s waterfall /cascade.

Geert.

(Handbook of) European private international law, 2nd ed. 2016, Chapter 3, Heading 3.2.6.

 

 

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