PIS v Al Rajaan. An intensive Brussels Ia and Lugano choice of court (by incorporation) and anchor defendant discussion.

The Public Institution for Social Security v Al Rajaan & Ors [2020] EWHC 2979 (Comm) engages in lengthy discussion anchor jurisdiction (A6) and choice of court (A23) under the Lugano Convention which of course, albeit with some important mutatis mutandis, echoes Brussels I and Brussels Ia.

Henshaw J summarises the key issues at 74:

i)                    whether the exclusive jurisdiction clauses (‘EJCs’) relied on were agreed between the parties and incorporated into their respective contracts, applying;

a)                  the formal validity requirements set out in Lugano Convention Article 23/Recast Brussels Regulation Article 25, and

b)                 if relevant, the laws governing the contracts i.e. Swiss or Luxembourg law;

ii)                  if so, whether the EJCs satisfy the requirements for material validity under Lugano Convention Article 23/Recast Brussels Regulation Article 25;

iii)                if so, how the EJCs are to be interpreted under their respective governing laws;

iv)                whether, and if so to what extent, the EJCs apply to claims against the applicants;

v)                  if and to the extent that the EJCs apply to only some claims against particular applicants, or apply to some but not all of the applicants, whether this court has jurisdiction over the remainder of the claims pursuant to Lugano Convention Article 6(1)/Recast Brussels Regulation Article 8(1); and

vi)                whether the court should decline jurisdiction over the claims against Pictet Asia and Pictet Bahamas (seeing as they are neither EU or Lugano States domiciled) on forum non conveniens grounds.

 

The judgment is lengthy. These are my highlights:

  • At 107 following review of CJEU authority including Refcomp and Hoszig, the finding that the issue of validity of choice of court by incorporation are to be addressed solely by reference to the requirements of what is now A25 BIa and the corresponding provision in Lugano Convention Article 23. This requires real consent which is discussed with reference ia to Profit Investment Sim at 109 ff.
  • At 127 ff Henshaw J discusses the issue obiter under Swiss cq Luxembourg law as putative leges contracti for choice of court. At 142 the judge concludes that under Swiss law, as under EU law, it is sufficient, in order to incorporate a jurisdiction agreement into the parties’ contract, that the parties have made a written agreement which incorporates by reference general terms including a jurisdiction clause. Ditto with less discussion under Luxembourg law, at 148.
  • At 187 ff: the issue of material validity under EU law. This discussion kicks off with a review of what one of the parties calls the ‘proximity requirement’: per C-214/89 Powell Duffryn (CDC, too, is discussed), the fact that choice of court (only) extends to a ‘particular legal relationship’ (reference here is also made to Etihad, at the time of the judgment this had not yet benefitted from the Court of Appeal‘s judgment). At 201 ff Justice Henshaw takes a broad view:

In principle I would agree that if a jurisdiction clause is not clear, then it may be restrictively construed, consistently with the policy expressed in the relevant EU case law of promoting certainty and avoiding parties being taken by surprise.  On the other hand, I see no reason why parties cannot make a jurisdiction clause in deliberately wide-ranging terms which covers many, or indeed all, of their present and future contractual relationships.  I do not read the Opinion of the Advocate General in Refcomp as indicating the contrary.  Refcomp was essentially concerned with whether a jurisdiction clause could be relied on against a sub-purchaser of goods, and it is notable that the CoJ referred in its judgment to “the principle of freedom of choice on which Article 23(1) is based” (§ 40).  Nor do I read Powell Duffryn as restricting the parties’ ability to choose the scope of the particular legal relationships to which a jurisdiction clause is to apply.

  • Whether the claims at issue meet the ‘proximity’ requirements is then discussed at length, under EU law and again, obiter, under Swiss and Luxembourg law, largely leading to a conclusion of lack of jurisdiction in England and Wales for many of the claims.
  • Anchor jurisdiction is discussed for some of the claims at 403 ff, leading to a classic discussion of the (CJEU Kalfelis introduced) close connection requirement, and at 418 support for the fragile Court of Appeal finding in Privatbank, that that the word “expedient” in the context of the lis alibi pendens provision in Lugano Convention Article 28 must mean “desirable” as opposed to merely practicable or possible. At 427 the issue of fragmentation of proceedings is discussed: what should the court do where a claimant is required to sue a defendant in an overseas jurisdiction under A23 Lugano in relation to some claims, but seeks to pursue in this jurisdiction (a) connected claims against the same defendant, or (b) connected claims against another defendant, in reliance on A6? Henshaw J concludes the E&W courts should not entertain the accessory claims.
  • Forum non is discussed at 480 ff, with the final conclusion being that E&W does not have jurisdiction for any of the claims.

I fully expect there is scope for appeal.

Those criticising the intensity of jurisdiction squabbles will find ammunition in this 497 para judgment.

Geert.

EU Private International Law, 3rd ed. 2021, big chunks of Chapter 2.

 

TWR v Panasonic. Obiter consideration of A34 Brussels Ia forum non light. Hamburg court likely to have to take up that baton in some form.

TRW Ltd v Panasonic Industry Europe GmbH & Anor [2021] EWHC 19 (TCC)  adds to the slowly developing case-law on Article 34 Brussels Ia’s forum non conveniens light, on which I have reported at each occasion the Article to my knowledge has been applied (most recently in Ness Global Services).

The defendant Panasonic companies are based in Germany. Panasonic’s Group headquarters are in Japan. TRW is the English subsidiary, based in Solihull, of a German group of companies, ZF Group. The defendants say the parties agreed to German law and exclusive jurisdiction of the Hamburg court over any claim by TRW arising from supply of the resistors. TRW says the parties agreed to English law and jurisdiction.

There are related proceedings in Michigan, with judgment expected in about April 2021.

Kerr J decides at 55 ff here was valid A25 choice of court and hence jurisdiction for the courts at Hamburg, following the usual discussion on whether and if so which choice of court has been agreed in to and fro messages, purchase orders, invoices, references to general terms and conditions and the like. The kind of housekeeping complications which I discuss ia here.

Then follows obiter the Article 34 discussion. Parties agree that if jurisdiction under A25 BIa is established by neither party, TRW was at liberty to sue in England as the place of delivery of the goods, under A7(1) BIa; and that for A34 purposes there is a related lis alibi pendens in Michigan. The discussion turned on whether the word “expedient” in A34(1)(a) bears the meaning “desirable, even if not practicable” or “both practicable and desirable”, given the inconsistent case-law in JSC Commercial Privatbank v. Kolomoisky, SCOR v Barclays, Municipio de Mariana,  Federal Republic of Nigeria v. Royal Dutch Shell plcand of course  EuroEco.

At 94 Kerr J seems to side with Kolomoisky and with not reading EuroEco as a rejection of same, however he does not take definitive sides or does not attempt to reconcile the judgments. At 95 he says he would have not exercised his discretion for a stay, for the reasons earlier listed by counsel for claimants: these were (at 92-93)

Mr Caplan strongly opposed any stay. He submitted that, assuming I have any discretion to grant a stay (contrary to his reserved position), I should not exercise it. The risk of irreconcilable judgments could not be eliminated, he argued. The Michigan case would shortly produce a judgment binding on neither party to the present claim and, probably, applying Michigan law.

There was no scope for issue estoppel or abuse of process because the parties were different and the law could be different. Neither party in this case had opted for Michigan as the chosen forum and Michigan law as the choice of law. If the outcome of the Michigan litigation helped to promote settlement of the present claim, that could happen anyway, without a stay, since this claim is still at an early stage; the first case management conference has yet to take place.

At 98 Kerr J summarises

I would refuse a stay. The first condition in article 34(1)(a) – the expediency condition – may well be met, subject to clarification of the test emerging from the case law. The second condition is met. The third is not. I am far from satisfied that a stay is necessary for the proper administration of justice.

Kerr J concludes at 99

defendants have undertaken to submit to the jurisdiction of the Hamburg court, subject to seeking a stay of proceedings in Hamburg to await the outcome of the Michigan proceedings.

The Hamburg court is likely to see A34 arguments return, lest of course the Michigan proceedings will be concluded, in which case res judicata, recognition, and irreconcilability of judgment might be a core concern.

We have fairly little, if growing (*makes a note to now really really finish that paper*) authority to work with on A34. All bits help.

Geert.

European Private International, 3rd ed. 2021, Heading 2.2.15.3.2, para 2.539 ff

Jurisdiction for prospectus liability: Sanchez-Bordona AG in Vereniging van effectenbezitters attempts another go at Bier; leaves questions hanging on collective action.

When I flagged the Dutch SC reference to the CJEU in C‑709/19 Vereniging van Effectenbezitters, asking for clarification of the Universal Music case-law on purely economic damage, I signalled the specificities of this case:  the case concerns a class action, not that of an individual shareholder; no prospectus was specifically addressed at Dutch investors, who instead feel they received incomplete and misleading information that was made public through press releases, websites and public statements by directors; finally the Dutch Supreme Court questions the CJEU on an e-Date accessibility type jurisdictional basis.

BP plc, defendant, is domiciled in the UK.

Sanchez-Bordona AG Opined last Thursday (apologies I did not make the Twitter-promised Friday review). He kicks off  his Opinion with calling into question the very premise of the Universal Music case-law: at 24

the fact that the applicant’s account is located in that Member State is a relevant consideration in any non-contractual action for damage suffered by investments as a result of defective information, even when supplemented by other factors. While noting that the Court of Justice has inclined towards that view, in my opinion it is an open question.

That is a bold proposition not borne out by either CJEU or national case-law. Arguably better formulated is the position at 28 that the interest of the location of the bank account ‘should not be overstated’.

At 32 ff the AG repeats his call (joining a list of AG’s) to abandon the Bier Handlungsort Erfolgort distinction which he also expressed in his Opinion in Volkswagen. He emphasises again that in cases like these, the procedural decision on jurisdiction requires the judge too intensive an engagement with the substance of the case, consequently (at 36) ‘the very nature of the criterion may well create uncertainty among legal practitioners and encourage procedural delaying tactics, as well as divergent interpretations in Member States and further requests to the Court of Justice for preliminary rulings.’

At 37 (and with reference to national case-law) follows a repeat of the call to ‘ruling out the place where the investment account is located’. However the AG himself then acknowledges that call is likely to fall on deaf CJEU ears (at 39):

having regard to the wording of the questions referred, I shall answer them in accordance with their own premisses, that is to say, in the light of the existing case-law of the Court of Justice

hence he continues the Opinion taking Universal Music and its descendants into account:

at 46: ‘the fact that the financial damage took place in an investment account located in the Netherlands cannot be accepted as a ‘sufficient connecting factor for the international jurisdiction’ of the courts of that State.’ – I agree.

Again with reference to his Opinion in Volkswagen, and using the initial justification of the CJEU in Bier to put forward locus damni, the AG at 49-50 reiterates that

the ‘specific circumstances’ relevant to attributing jurisdiction are those which demonstrate the proximity between the action and the jurisdiction, and the foreseeability of that jurisdiction, .. Those circumstances must include: factors that facilitate the sound administration of justice and the smooth operation of proceedings; and factors that may have helped the parties to determine where they should institute proceedings or where they might be sued as a result of their actions.

He then rejects, for reasons succinctly explained in the Opinion, as being relevant: BP’s settlement with other shareholders; the status as consumer of some of the shareholders; BP’s information about its shares.

He concludes on this point at 60 ff that there simply is not a locus damni that meets with A7(2) Brussels Ia’s conditions. He refers as he did in Volkswagen pro inspiratio to the CJEU’s similar holding viz A7(1) forum contractus in C-56/00 Besix that we are dealing with an obligation which ‘is not capable of being identified with a specific place or linked to a court which would be particularly suited to hear and determine the dispute relating to that obligation’.

Finally the AG deals with the question whether the nature of the action brought by VEB (the fact that it is a collective action) and the fact that it is purely an action for a declaratory judgment, should have an impact. The referring court fears that extending the CJEU rule of CDC, that the transfer of claims by each original creditor to the applicant does not affect the determination of the court having jurisdiction under Article 7(2), would make collective action ineffective.

The AG points out first of all that following ia Folien Fischer, the courts of the Member State in which either the causal event took place or the harm occurred or may occur may lawfully accept jurisdiction by virtue of A7(2) in actions in which specific damages have not (yet) been sought.

He then suggests at 79 that he sees ‘no difficulty in applying [A7(2)] to declaratory actions such as that brought by VEB, in advance of subsequent actions for damages which may be brought only by the individual injured parties, whose identity and residence are unknown at the time of the (first) action.’ Here I do not quite follow. The questions asked by VEB are not merely provisional in an A35 sense (indeed that Article is not discussed). VEB are asking the court to hold

that the courts in the Netherlands have international jurisdiction to hear the claims for compensation brought by the BP shareholders; that the rechtbank Amsterdam (District Court, Amsterdam) has territorial jurisdiction to hear those claims; that BP acted unlawfully towards its shareholders inasmuch as it made incorrect, incomplete and misleading statements about: (i) its safety and maintenance programmes prior to the oil spill on 20 April 2010; or (ii) the extent of the oil spill; or (iii) the role and responsibility of BP in regard to the oil spill; that, had it not been for the unlawful conduct on the part of BP, the purchase or sale of BP shares by the BP shareholders would have been effected at a more favourable market price, or not at all; that there is a conditio sine qua non link between BP’s unlawful conduct and the loss suffered by the BP shareholders due to the fall in the share price in the period between 16 January 2007 and 25 June 2010.

Surely these kinds of questions can only be entertained by court that has A7(2) jurisdiction which, the AG had just opined, is highly unlikely (although the referring court will have the last word on that).  That he sees ‘no difficulty in applying [A7(2)] to declaratory actions such as that brought by VEB’ either then contradicts what he just advised (unlikely) or reinforces it cynically (as in ‘no difficulty in applying it, meaning there is no such jurisdiction’) – also perhaps unlikely. Am I missing something?

Finally at 95 the AG (not further discussing Qs 3 and 4) concurs with Bobek AG in Schrems: on the issue of assignment, it is not up to the CJEU to write the law.

Most relevant.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.459.

 

The CJEU in Wikingerhof on distinguishing tort from contract between contracting parties. No Valhalla for those seeking further clarification of Brogsitter, let alone De Bloos.

Update 25 November 10:38 AM:  Readers  may want to refer to the discussion posted to Tobias Lutzi’s view on the case, which I will not copy /paste here save for my initial reply: ‘I believe Tobias’ biggest take-away from the judgment is the Court’s emphasis on ‘indispensability’ of contractual interpretation for A(7)1 to be triggered (he will correct me if I am wrong).
As I argue in my review of the judgment, I think that’s a change of emphasis viz Brogsitter and e.g. Apple v eBizcuss rather than a change in nature of the CJEU approach.
However assuming one applies the authority that courts must not dwell too long on merits in assessing jurisdictional gateways, it does follow that A7(1) will only be engaged in those cases where the contract prima facie is overwhelmingly needed to solve the underlying dispute. This still leaves room for manoeuvre for the creative claimant (see also the AG’s points on forum shopping), but not as much as might have been expected prior to this judgment.’

 

The CJEU held yesterday (Tuesday) in C-59/19 Wikingerhof v Booking.com. I reviewed the AG’s Opinion here and the Court follows the AG’s minimalist interpretation. The case was held in Grand Chamber, which might have provoked expectations yet the judgment is not exactly a bang. Neither however can it be described a whimper. As I note in my review of the Opinion, the case in my view could have been held acte clair. The AG did take the opportunity in his Opinion to discuss many issues which the CJEU was bound not to entertain, at least not in as much detail as the AG did.

Let me first signal what I believe might be the biggest take-away of the litigation, if at least the referring court is followed. That is the Bundesgerichtshof’s finding that  there is no durable record of the alleged consent by Wikingerhof of the amended GTCs, including choice of court, effected via amendments on the ‘Extranet’, which is the portal via which the hotel may update its information and retrieve reservations. Booking.com claimed these amounted to a ‘form which accords with practices which the parties have established between themselves’ pursuant to Article 25(1)(b). Parties will still argue on the merits whether the initial consent to the primary GTCs was strong-armed because of booking.com’s dominant position.

With respect to to the jurisdictional issue, the CJEU in a succinct judgment firstly points to the need for restrictive interpretation. It points at 29 to the claimant being the trigger of A7(1) or (2). Without a claimant’s decision to base a claim on the Articles, they simply do not get to be engaged. That is a reference to the forum shopping discussion of the AG. Still, the court hearing the action must assess whether the specific conditions laid down by those provisions are  met.

At 32, with reference to Brogsitter, ‘an action concerns matters relating to a contract within the meaning of [A7(1)(a) BIa] if the interpretation of the contract between the defendant and the applicant appears indispensable to establish the lawful or, on the contrary, unlawful nature of the conduct complained of against the former by the latter’.  ‘That is in particular the case of an action based on the terms of a contract or on rules of law which are applicable by reason of that contract’ (reference to Holterman and to Kareda, with the latter itself referring to De Bloos). At 33  ‘By contrast, where the applicant relies, in its application, on rules of liability in tort, delict or quasi-delict, namely breach of an obligation imposed by law, and where it does not appear indispensable to examine the content of the contract concluded with the defendant in order to assess whether the conduct of which the latter is accused is lawful or unlawful, since that obligation applies to the defendant independently of that contract, the cause of the action is a matter relating to tort, delict or quasi-delict’.

At 32 therefore the CJEU would seem to confirm De Bloos’ awkward (given the Regulation’s attention to predictability) support for forum shopping based on claim formulation yet corrected by what is more akin to Sharpston AG’s approach in Ergo and the Court’s approach in Apple v eBizcuss, a judgment not referred in current judgment: namely that the judge will have to consider whether contractual interpretation is strictly necessary (the Court uses ‘indispensable’) to judge the case on the merits. Update 25 November 2020 as Tobias Lutzi notes here, it is the repeated (after its first use in Brogsitter) emphasis on ‘indispensable’ which might be the core clue of the CJEU: it would make the threshold for the 7(1) gateway in cases like these, high. A change in emphasis compared to Brogsitter, rather than one in substance.

Here, Wikingerhof rely on statutory German competition law (at 34-36): therefore the claim is one covered by Article 7(2).

The judgment confirms the now very fine thread between jurisdictional and merits review for the purposes of tort-based litigation between two contracting parties.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2, Heading 2.2.11.2.9. 3rd ed. 2021 para 2.469.

 

Ryanair v DelayFix. The CJEU dots some i’s on choice of court and unfair terms in consumer contracts; defers to national law on the assignment issue; and keeps schtum on renvoi in Article 25 Brussels Ia.

In C-519/19 Ryanair v DelayFix, the CJEU held yesterday. The case echoes the facts in Happy Flights v Ryanair at the Belgian Supreme Court.

Following inter alia  CJEU Jana Petruchova, the (absence of) impact of substantive European consumer protection rules on the consumer section of European private international law is now fairly settled. The separation between the two sets of laws seems quite clear for the application of the consumer section itself.

However under A25 BIa, EU consumer law might still play a role in those circumstances where the conditions of the consumer Section are not met (dual-use contracts, contracts for transport (such as here) etc.) yet where one of the parties may qualify as a consumer under substantive EU consumer protection law.

A core issue of contention is the consideration of the EU unfair terms in consumer contracts Directive 2019/2161 and its predecessor Directive 93/13 , which was applicable in Ryanair v DelayFix. Via Article 25’s lex fori prorogati rule on substantive validity for choice of court, the Directive plays an important role.

In the case at issue at the CJEU, Passenger Rights, now DelayFix, a company specialised in the recovery of air passengers’ claims under the EU Regulation on air passenger rights, has requested the courts at Warsaw to order Ryanair,  to pay EUR 250 in compensation, a passenger on the relevant flight having assigned DelayFix their claim with respect to that airline.

The CJEU first of all looks at the issue from the limited extent of what is actually materially regulated by A25: the requirement of ‘consent’ (as well as the formal expression of that consent. It holds, not surprisingly, that in principle of course a jurisdiction clause incorporated in a contract may produce effects only in the relations between the parties who have given their agreement to the conclusion of that contract (referring ex multi to Refcomp).  In the case at issue,  a jurisdiction clause incorporated in the contract of carriage between a passenger and that airline cannot, in principle, be enforced by the latter against a collection agency to which the passenger has assigned the claim.

However, at 47, there is a gateway for the choice of court nevertheless to extend to third parties, namely when the third party not privy to the original contract had succeeded to an original contracting party’s rights and obligations, in accordance with national substantive law. At 49, referring to A25(1), that law is the lex fori prorogati. Here: Irish law.

Recital 20 BIa in fact instructs to include the lex fori prorogati’s conflict of laws rules (in other words: an instruction for renvoi) to be part of the referral. In the aforementioned Belgian SC ruling in Happy Flights, renvoi was simply ignored. Here, the CJEU does not mention renvoi, even if it does not expressly exclude it.

The CJEU does point out that Directive 93/13 on unfair terms in consumer contracts of course is part of the Irish lex fori prorogati, as it is of all the Member States. In making that reference it would seem to have answered in the negative the question whether the ‘consent’ provisions of that Directive have not been superseded in the context of the ‘consent’ requirements of Article 25 Brussels Ia, as recently discussed obiter in Weco Projects.

Per previous case-law, the capacity of the parties to the original agreement at issue is relevant for the application of the Directive, not the parties to the dispute.  Further, a jurisdiction clause, incorporated in a contract between a consumer and a seller or supplier, that was not subject to an individual negotiation and which confers exclusive jurisdiction to the courts in whose territory that seller or supplier is based, must be considered as unfair under Article 3(1) of Directive 93/13 if, contrary to requirement of good faith, it causes significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer. Reference is made in particular to Joined Cases C‑240/98 to C‑244/98 Océano Grupo (at 58).

It will be up to the national courts seised of a dispute, here: the Polish courts, to draw legal conclusions from the potential unfairness of such a clause (at 61). DelayFix therefore are not quite yet home and dry.

Geert.

European Private International Law, 3rd ed. February 2021, Chapter 2, para 2.240.

KCA Deutag throws contractual commitment not to oppose into the scheme of arrangement jurisdictional mix.

KCA Deutag UK Finance PLC, Re (In the Matter of the Companies Act 2006) [2020] EWHC 2977 (Ch) is in most part a classic scheme of arrangement sanctioning hearing, with the scheme proposed by a UK-incorporated company with COMI undisputedly there, too. See a range of posts on the blog for the classic jurisdictional analysis.

What is slightly out of the ordinary is the contractual commitment by the creditors not to oppose the scheme in foreign jurisdictions.  Snowden J, at 33:

In this case, two things give me that comfort. The first is that there was an overwhelming vote by Scheme Creditors in favour, and a very large number of such creditors entered into a lock-up agreement which bound them contractually to support the Scheme and not to do anything to undermine it. It is very difficult to see how such creditors who contractually agreed to support the Scheme and/or who voted in favour could possibly be allowed to take action contrary to the Scheme in any foreign jurisdiction, and the number and financial interests of those who did not vote in favour is comparatively very small indeed. That alone is sufficient to demonstrate to me that the Scheme is likely to have a substantial international effect and that I would not be acting in vain if I were to sanction it.

I would intuitively have felt quite the opposite, although detail is lacking (e.g. was the commitment given as a blank cheque before the details of the scheme were known): such contractual commitment even if valid under (presumably; no details are given) English law as the lex contractus of the commitment, could serve to undermine international effectiveness. For I would not be surprised if creative counsel on the continent could find a range of laws of lois de police or ordre public character, to try and object to contractual commitment to sign away the right to oppose.

Geert.

(Handbook of) EU Private International Law, 2nd edition 2016, Chapter 2, Chapter 5. Third edition forthcoming February 2021.

Napag Trading v Gedi. A right Italian tussle on libel over the internet, leads to jurisdictional dismissal on good arguable case grounds.

Napag Trading Ltd & Ors v Gedi Gruppo Editoriale SPA & Anor [2020] EWHC 3034 (QB) engages (and refers to) the issues I previously reported on in inter alia Bolagsupplysningen, Saïd v L’Express,

It is worthwhile to list both claimants and defendants.

On the claimants side, Napag Trading Limited (“the First Claimant”) is an English-domiciled company. Napag Italia Srl (“the Third Claimant”) is an Italian-domiciled subsidiary of the First Claimant. Sgr Francesco Mazzagatti (“the Second Claimant”), an Italian national with his main residence in Dubai, is the CEO and sole director of, and 95% shareholder in, the First Claimant. The First Claimant trades, and the Third Claimant has traded, in petroleum-based products.

On the defendants side, Gedi Gruppo Editoriale S.p.A. (“the First Defendant”) is the publisher amongst other things of L’Espresso which is a weekly Italian-language political and cultural magazine available both in print and online in England and Wales. Società Editoriale Il Fatto S.p.A. (“the Second Defendant”) is the publisher of Il Fatto Quotidiano (“Il Fatto”), a daily Italian-language newspaper published in England and Wales only on the internet.

An earlier Brexit-anticipatory forum non conveniens challenge was waived away by Jay J at 7: ‘Only the Second Defendant saw fit to raise a forum non conveniens challenge in advance of 1st January 2021 and the relevant EU regulation no longer applying. I would have been very reluctant to rule on this sort of application on an anticipatory basis.’

Identifying a centre of interest in England and Wales, leading to full jurisdiction there for damages, per CJEU e-Date and Bolagsupplysningen and also a precondition to apply for injunctive relief (see also Bolagsupplysningen: only courts with full jurisdiction may issue such relief) is of course a factual assessment.

The Second Claimant is an entrepreneur, born in Calabria but now living in Dubai. He founded the Third Claimant in 2012. Initially, it traded in oil and petroleum products from offices in Rome. The Third Claimant dealt in particular with the Italian oil company Eni S.p.A. (“Eni”), headquartered in Rome and in part state-owned, and Eni Trading & Shipping S.p.A. (“Ets”) which is based in Rome and has a branch in London. Second Claimant incorporated the First Claimant in April 2018. His evidence is that London was a better base from which to conduct and grow his business because he was encountering resistance from some banks and financial institutions who were diffident about working with an Italian company. More specifically, the strategy was to hive off the Third Claimant’s oil and gas business into the First Claimant, and the former would devote itself to trading in petrochemicals. Additionally, the idea was to invest in an “upstream” development in the UK Continental shelf, and the first discussions about this were in November 2018.

Justice Jay revisits the CJEU’s instructions re centre of interests for natural persons per e-Date. At 29:

First, other things being equal, and certainly in the absence of evidence to the contrary, a natural person’s “centre of interests” will match his or her habitual residence. Whether or not this may accurately be described as an evidential presumption does not I think matter (in my view, no legal presumption is generated); in any case, the CJEU – subject to my second point – is not purporting to assist national courts as to the rules of law that should govern the exercise of ascertainment. Secondly, general considerations of predictability and the need for clarity militate in favour of straightforward and readily accessible criteria rather than any microscopic examination of the detail.

At 32 follows an interesting discussion of para 43 of the CJEU Bolagsupplysningen judgment

“43. It is also appropriate to point out that, in circumstances where it is not clear from the evidence that the court must consider at the stage when it assesses whether it has jurisdiction that the economic activity of the relevant legal person is carried out mainly in a certain member state, so that the centre of interests of the legal person which is claiming to be the victim of an infringement of its personality rights cannot be identified, that person cannot benefit from the right to sue the alleged perpetrator of the infringement pursuant to article 7(2) of Regulation No 1215/2012 for the entirety of the compensation on the basis of the place where the damage occurred.”

After a reference to what Justice Jay calls Bobek AG’s ‘masterly opinion’, in particular the burden of proof issues are discussed which Jay J justifiably holds are not within the scope of Brussels Ia (not at least in the sense of deciding the procedural moment at which proof must be furnished). I agree with his finding that the CJEU’s meaning of para 43 is simply that

in the event that the national court concluded that it could not identify the “centre of interests” because the evidence was unclear, article 7(2) of the RBR could not avail the claimant.

Conclusion of the factual consideration follows (probably obiter: see 150) at 161: first Claimant has the better of the argument that its “centre of interests” is in England and Wales.

Jay J then discusses at 35 ff that whether there actually is damage within E&W as a matter of domestic law to decide to good arguable case standard, that the case may go ahead. That discussion shows that  the actual concept of ‘damage’ within the meaning of Brussels Ia and indeed Rome II is not quite so established as might be hoped, and it is held at 141 that no serious damage has occurred within E&W for there to be jurisdiction.

The case is a good illustration of the hurdle which national rules of civil procedure continue to form despite jurisdictional harmonisation under EU private international law rules.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2.

Third ed. forthcoming February 2021.

 

The CJEU in Ellmes Property Services. Forum contractus in the case of real estate co-ownership with echoes of De Bloos.

The CJEU held yesterday in C‑433/19 Ellmes Property Services.

On the application of Article 24(1) Brussels Ia rights in rem it confirms Szpunar AG’s Opinion which I discussed here: the erga omnes charachter or not of the rights relied upon needs to be confirmed by the referring court for A24(1) to be engaged.

I suggested the forum contractus analysis was the more exciting one. The Advocate General advised it be determined by the Italian judge following the conflicts method per CJEU 12/76 Tessili v Dunlop, with little help from European harmonisation seeing i.a. as the initial co-ownership agreement dates back to 1978.

The Court held at 39 that the fact that a downstream co-owner was not a party to the co-ownership agreement concluded by the initial co-owners has no effect on there being a contract per A71(a)  BIa, per Ordre des avocats du barreau de Dinant and Kerr

Unlike the AG, however, the CJEU does not hold that the Tessili Dunlop looking over the fence test is required. It comes seemingly uncomplicated to the conclusion of the locus rei sitae as the forum contractus. At 44, yet linking it to the intention of the contractual obligations:

It seems that that obligation is thus intended to ensure the peaceful enjoyment of the property subject to co-ownership by the owner of that property. Subject to verification by the referring court, that obligation relates to the actual use of such property and must be performed in the place in which it is situated.

This may however harbour more uncertainty than first meets the eye. The CJEU here seems to suggest the original contractually designed ‘peaceful enjoyment by the owner’ , which indicates the contractual performance as being one of ‘actual use’ as determining the forum contractus.  A claim relating to a more immaterial use of the property, such as arguably letting the property for financial gain, or indeed an intention to divest the property, would in this perception not necessarily be linked to the locus rei sitae – which brings one back to the discussion entertained by the AG: depending on who brings which claim and how that claim is formulated (an echo from De Bloos, whose usefulness is currently sub judice in Wikingerhof), forum contractus will vary.

Geert.

(Handbook of) EU Private International Law, Chapter 2, Heading 2.2.6.1 (cited by the AG) and Heading 2.2.11.1.

(Third edition forthcoming February 2021).

Qatar Airways v Middle East News (Al Arabiya). On forum non and determining lex causae for malicious falsehood and locus damni for conspiracy.

Forum non conveniens featured not just in Municipio de Mariana at the High Court yesterday but also in Qatar Airways Group QCSC v Middle East News FZ LLC & Ors [2020] EWHC 2975 (QB).

Twenty Essex have good summary of the background and decision. Context is of course the blockade on Qatar, led by Saudi Arabia and the UAE. Qatar Airways Group (QAG) sue on the basis of tort, triggered by a rather chilling clip aired by Al Arabiya which amounted to a veiled threat against the airline.

Saini J at 27 notes what Turner J also noted in Municipio de Mariana and what Briggs LJ looked at in horror in Vedanta, namely the spiralling volume and consequential costs in bringing and defending a jurisdictional challenge. (Although at least for Vedanta and Municipio de Mariana the issues discussed are matters of principle, which may eventually settle once SC (and indeed CJEU) authority is clear).

The judgment recalls some principles of international aviation law under the Chicago Convention (with noted and utterly justifiable reference a 77 ff to an article on the opiniojuris blog by prof Heller) which is important here because (at 61) it is the starting point of QAG’s case that anyone who had taken steps to inform themselves of the legal position would have known that contrary to what (it argues) is the message of the Video, there was no real risk of any internationally legitimate interception, still less legitimate shooting at or down, of a QAG scheduled service in flight along one of the defined air corridors. At 88 Saini J concludes on that issue that there is an arguable case as to meaning and falsity.

On good arguable case, reference is to Kaefer v AMS, Goldman Sachs v Novo Banco, and Brownlie.

At 164 ff the judge discusses the issue of pleading foreign law at the jurisdictional threshold of making a good arguable case. Here, Saini J holds on the basis of the assumption that malicious falsehood is not covered by Rome II, which is the higher threshold for the purposes of establishing jurisdiction. He does suggest that it is likely that in fact malicious falsehood is covered by Rome II and not by the exception for infringement of personality rights (at 166: ‘Malicious falsehood is not a claim for defamation, and what is sought to be protected is not Qatar Airways’ reputation or privacy rights, but its economic interests’).

As for applicable law for conspiracy, that is clearly within the scope of Rome II and poses the difficulty of determining locus damni in a case of purely economic loss. Here, at 169 Saini J suggests preliminarily that parties agreed “damage” for the purposes of Article 4(1) of Rome II to have been suffered in the place where the third parties (that is, potential passengers) failed to enter into contracts with QAG (which they otherwise would have done) as a result of the video. Location of purely economic damage under Rome II as indeed it is under Brussel Ia is however not settled and I doubt it is as simple as locating it in the place of putative (passenger) contract formation.

Of long-term impact is the judge’s finding that for jurisdictional threshold purposes, he is content for claimant to proceed with a worldwide claim for tort on the basis of any foreign law that might be applicable having the same content as English law. 

Of note in the forum non analysis is that not just the obvious alternative of the UAE was not good forum, but neither would the DIFC be. At 374:’the UAE is not an appropriate forum is what I would broadly call “access to justice” considerations in what has clearly become a “hostile environment” for Qataris in the UAE.’ And at 379, re the DIFC: ‘The DIFC courts are a sort of “litigation island” within the UAE, created to attract legal business by their perceived superior neutrality, and higher quality, compared to the local courts. But as such, they have no superiority compared to the English courts, also a neutral forum. The English courts have the other connections to the case, which the DIFC courts do not.’

Geert.

 

 

RCT Holdings v LT Game. Supreme Court of Queensland sees no reason to frustrate choice of court pro Macau even in times of Covid19..

Update 3 December 2020 see Sarah McKibbin meanwhile for further background here.

Thank you Angus Macinnis for flagging RCD Holdings Ltd & Anor v LT Game International (Australia) Ltd [2020] QSC 318 in which  Davis J upheld choice of court in favour of the courts at Macau and held against a stay. The judgment is a good one for comparative purposes.

Claimants, ePayment Solutions Pty Ltd (EPS) and RCD Holdings Ltd (RCD), in their contract with the defendant, LT Game International (Australia) Ltd (LT) (a BVI domiciled company), agreed that any dispute between them would be litigated in Macau. However, when a dispute did arise they commenced proceedings in Queensland. LT entered a conditional appearance and now applies to strike out the claim, or alternatively, to have it stayed as being commenced in this court contrary to the contract.

Article 10 of the contract carries the title Governing law but actually is a choice of court clause – an oddity one sees more often than one might expect in B2B contracts: ‘Any dispute or issue arising hereunder, including any alleged breach by any party, shall be heard, determined and resolved by an action commenced in Macau. The English language will be used in all documents.”

Comparative insight includes the issue of whether A10 us a non-exclusive (an agreement not to object when proceedings are brought in the court designated) or exclusive (an agreement only to bring proceedings in the court designated) choice of court. Davis J settled for exclusive which would also seem to have been the position of both parties, despite some ambiguity at the start of proceedings.

Lex contractus is disputed, and at 27 Davis J settles for Macanese law, based upon factual construct of the contractual intention of the parties. Clearly that choice of court was made for Macau was an important factor – as it is in Rome I for consideration of so-called ‘implied’ choice of law in the event of choice of court made.

A stay on the basis of Covid19 impracticability (ia because of alleged difficulties for witness testimony) is dismissed, ia (at 34) because it is uncertain whether current travel restrictions will still be in place when the case in Macau might be heard. Davis j does suggest that a renewed application for a stay must not be ruled out in light of Covid19 developments, however will be seen against abuse of process: in other words claimants had best not do so lightly.

Geert.