Posts Tagged Locus delicti commissi

Arica Victims v Boliden Mineral (Sweden). Lex causae and export of toxic waste. Relevant for the business and human rights /CSR debate.

I reported earlier on the decision at first instance in Arica Victims v Boliden Mineral. The Court of Appeal has now reversed the finding of Chilean law as lex causae, opting instead for Swedish law. Lindahl has good review here and I rely on it quite heavily for I do no speak Swedish.

Boliden Mineral exported toxic waste to Chile in the ’80s, prior to either Basel or EU or OECD restraints (or indeed bans) kicking in. A first issue for consideration was determination of lex causae. Rome II does not apply ratione temporis (it only applies to tortious events occurring after its date of entry into force) – residual Swedish private international law applies. My understanding at first instance was that the applicable law rule referred to lex loci damni, Chile. The Court of Appeal has gone for lex loci delicti commissi: whether this was by use of an exception or whether the court at first instance had simply misunderstood Swedish PIL, I do not know.

Having opted for lex loci delicti commissi, the Court of Appeal then considered where this was. Readers of the blog will know that this is relevant for CSR /business and human /environmental rights discussions. Lindahl’s Linda Hallberg and Tor Pöpke summarise the court’s approach:

In order to determine which country’s law applied to the case, the court examined a sequence of events that had influenced, to varying degrees, what had led to the alleged damage. According to the court, the decisive factor in the choice of law were acts and omissions that could be attributed to the Swedish mining company, as the case concerned this company’s liability for damages.

Instead of determining the principal location of the causative events using quantitative criteria, the court considered it to be where the qualitatively important elements had their centre of gravity. Further, in contrast with the district court’s conclusion, it held that the Swedish mining company’s alleged negligence had its centre in Sweden and therefore Swedish tort law should be applied in this case (the law of the place in which a delict is committed).

Unlike more ‘modern’ CSR cases the fact do not concern mother /daughter company relations yet the considerations of locus delicti commissi are nonetheless interesting.

The Court of first instance had employed Chilean’s longer statute of limitation. The Court of Appeal tried to stretch Sweden’s shorter one of 10 years (the case concerns a potentially tortious act which occurred more than 30 years ago): any subsequent damage that had been caused by the mining company’s failure to act during the period after the toxic waste had been shipped to Chile would advance the starting point for the limitation period. However this was at the latest 1999 and the 2013 action therefore had been taken too late.

On 25 June last the Supreme Court rejected further consideration, the Court of Appeal’s finding therefore stands.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 4, Heading 4.6.3, Chapter 8.

 

 

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LIC Telecommunications et al v VTB Capital et al. High Court suggests autonomous EU approach to asymmetric choice of court. Also discusses contract and tort distinction, and abuse of process.

In [2019] EWHC 1747 (Comm) LIC Telecommunications et al v VTB Capital et al Moulder J suggests an unorthodox interpretations of Article 25 of the Brussels Ia Regulation. (Note also her very critical view at 22 of one of the experts, whom she found having confused his role as expert with a role as advocate). Much of the lengthy judgment is devoted to intricate discussions of Luxembourgish corporate law (hence the need for expert evidence) and the jurisdictional issues are, somewhat illogically, discussed towards the end of the judgment, at 245 ff.

Maze, one of the defendants, acts as a manager of V2 pursuant to a directorship agreement dated 26 May 2015 (the “Directorship Agreement”). It relies on the effect of clause 19 of the Directorship Agreement and submitted that claims against it are subject to the exclusive jurisdiction of the courts of Luxembourg pursuant to Article 25 Brussels Ia. Clause 19 provides: 

“for the benefit of the Manager, the Shareholder and the Company hereby irrevocably, specially and expressly agree that the courts of Luxembourg city have jurisdiction to settle any disputes in connection with this Agreement and accordingly submits to the jurisdiction of the courts of Luxembourg city. Nothing in this clause limits however the rights of the Manager to bring proceedings against the Company in connection with this Agreement in any other court of competent jurisdiction or concurrently in more than one jurisdiction.”

The clause is asymmetric aka hybrid aka unilateral. (See e.g. my discussion of Rothschild etc.). These clauses as I have noted elsewhere highlight the clear insufficiency of Brussels Ia’s new lex fori prorogati (including renvoi) rule for choice of court. Which court has been prorogated, hence also lex fori prorogati, is not clear when the clause is asymmetric.

Moulder J discusses [2017] EWHC 161 (Comm) Commerzbank v Liquimar Tankers as precedent: I reviewed it here and signalled at the time that it would not be the last we would hear of the issue. In that case Cranston J held ‘There is nothing in Article 25 that a valid jurisdiction agreement has to exclude any courts, in particular non EU Courts. Article 17, penultimate paragraph, of the Brussels Convention recognised asymmetric jurisdiction clauses. To my mind it would need a strong indication that Brussels 1 Recast somehow renders what is a regular feature of financial documentation in the EU ineffective.‘ I was never taken by that conclusion viz the Brussels Convention: its Article 17 reference to a party having ‘benefit’ from choice of court does not relate entirely to the same discussion on asymmetric clauses (Peralla v Codere [2016] EWHC 1182 (Comm) which I discussed here illustrates that difference).

At any rate I disagree with Moulder J’s statement at 254 that

It is now common ground that it is a question of autonomous EU law and not a question of national law. (It was I believe accepted that the proviso “unless the agreement is null and void as to its substantive validity” refers to issues such as capacity, fraud and mistake, not whether particular kinds of “choice of court” agreements are permitted under the Regulation).

Asymmetric clauses are the first example often given when highlighting the limited cover of Article 25 Brussels I a (and the need for certainty on the lex causae for choice of court). There is no autonomous interpretation there at all. I do agree however with the conclusion at 261: that Luxembourg courts, applying EU law, would not uphold such clauses was not made out on the evidence. Luxembourgish courts at least when they apply Luxembourgish law, generally uphold the validity of asymmetric choice of court.

At 263 ff then follows discussion of Article 7(1) and 7(2). Much of the authority discussed has been reviewed on this blog. (Including Bosworth (Arcadia) which in the meantime has been held by the CJEU but without the contract /tort element – the CJEU found against a contract of employment). Moulder J holds that Article 7(2) is engaged, not 7(1), and on the former discusses locus delicti commissi with reference to JSC BTA Bank v Khrapunov. At 295: it is not sufficient that there are meetings in England to implement the conspiracy, it is the making of the agreement in England which is to be regarded as the harmful event.  Claimants have not supplied a plausible evidential basis that the agreement was made in England. Their evidence is consistent with a case that the conspiracy was implemented in England but that is not sufficient.

As for locus damni, at 298: Even though the share purchase agreement was under English law, it is the loss of the shares in the Luxembourg company which is the pleaded damage not the agreement to sell or the auction. The Vivacom group consists of Bulgarian telecommunications companies which were held by InterV through Viva Luxembourg Bulgaria EOOD (paragraph 3 of the Agreed List of Agreed Issues). Locus damni is Bulgaria, perhaps Luxembourg. But not England.

Finally, abuse of process considerations are linked to English procedural law (whether claims should have been brought sooner).

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.9, Heading 2.2.11.1, Heading 2.2.11.2 .

 

 

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Ashley v Jimenez: Jurisdiction upheld despite choice of court ex-EU. No locus damni, locus delicti commissi or trust jurisdiction viz EU defendant.

In [2019] EWHC 17 (Ch) Ashley et anon v Jimenez et anon service out of jurisdiction was granted against a Dubai-based defendant, despite choice of court pro the UEA. That clause was found by Marsh CM not to apply to the agreement at issue. Jurisdiction was found on residual English PIL, which are of less relevance to this post. Forum non conveniens was rejected.

Service out of jurisdiction was however denied against the Cyprus-based (corporate) defendant in the case. Claimants had argued jurisdiction on the basis of Brussels I Recast Articles 7(2) (tort) or (6) (trust). Note Marsh CM  using the acronym BRR: Brussels Recast Regulation. As I noted earlier in the week  Brussels Ia is now more likely to win the day.

Claimants (“Mr Ashley” and “St James”) allege that £3 million has been misappropriated by the defendants (“Mr Jimenez” and “South Horizon”). In summary the claimants say that: (1) Mr Ashley and Mr Jimenez orally agreed in early 2008 that upon payment of the euro equivalent of £3 million, Mr Ashley would acquire, via a shareholding in Les Bordes (Cyprus) Limited, a holding of approximately 5% in the ownership of a golf course in France called Les Bordes and that the shares would be registered in the name of St James. (2) On 13 May 2008, Mr Ashley instructed his bank to transfer the requisite sum to the bank account specified by Mr Jimenez and the transfer was made. In breach of the agreement, the shares were never registered in the name of St James. (3) The agreement and/or the payment were induced by fraudulent misrepresentations made by Mr Jimenez. The claimants say that Mr Jimenez knew South Horizon did not hold the shares and was not in a position to transfer, or procure transfer, upon payment of the agreed sum and that, in representing that South Horizon held the shares, or could procure transfer, Mr Jimenez acted dishonestly. (4) In the alternative, the payment of £3 million gave rise to a Quistclose trust (on that notion, see below) because the payment was made for an agreed purpose that only permitted use of the money for securing transfer of the shares.

(At 82) qualifying strands relevant to the jurisdictional issues, are (1) representations were made by Mr Jimenez to Mr Ashley to induce him to invest in Les Bordes which he relied on; (2) an oral contract was made between Mr Jimenez and Mr Ashley in early 2008 under which Mr Ashley invested £3 million in Les Bordes; and (3) the creation of a Quistclose trust relating to the investment. Note a Quistclose trust goes back to Barclays Bank Ltd v Quistclose Investments Ltd [1968] UKHL 4, and is a trust created where a creditor has lent money to a debtor for a particular purpose. Should the debtor use the money for any other purpose, it is held on trust for the creditor.

On Article 7(2), the High Court held that a breach of trust is properly seen as a tortious claim for the purposes of Brussels Ia. As for locus delicti commissi, the Court notes the question of where the harmful event occurred is less straightforward. Claimants rely on the Cypriot defendant, South Horizon, having paid away the investment money it received in breach of the relevant trust. That event took place in Cyprus where the bank account is based. There might be an obligation to restore the money in England, yet that does not make England the locus delicti commissi: at 128: ‘It seems to me, however, that the claimants in this case are seeking to conflate the remedy they seek with the tortious act which was paying away the investment. The obligation to make good the loss is the result of the wrong, not a separate wrong.

The High Court does not properly consider the locus damni strand of the claim against South Horizon. Given the test following from Universal Music, England’s qualification as locus damni given the location of the bank accounts is not straightforward yet not entirely mad, either. The Court did consider England to be the locus damni in its application of English residual rules for the claim between Ashley and Jimenez (who is domiciled in Dubai): at 101: ‘the dealings between Mr Ashley and Mr Jimenez concerning an investment of £3 million in Les Bordes took place in England in the early part of 2008. Loss was sustained in England because the payment was made by Mr Ashley from an account held in England’ (reference made to VTB capital).

On (a rare application of) Article 7(6): are any of the claims relating to the Quistclose trust claims brought against “… the trustee … of a trust … created orally and evidenced in writing” and which is domiciled in England and Wales?: Marsh CM at 129-130:

Article 7(6) does not assist the claimants. They need to show that there is (a) a dispute brought against a trustee of a trust (b) the trust was created orally and was evidenced in writing and (c) the claim is made in the place where the trust is domiciled. The difficulty for the claimants concerns the manner in which the trust came into being. As I have indicated previously, although the oral agreement between Mr Ashley and Mr Jimenez gives rise to the circumstances in which the Quistclose trust could come into being, there was (i) no express agreement that the investment would be held on trust and (ii) South Horizon was not a party to the agreement. The trust came into being only upon the payment being made by Mr Ashley to South Horizon at which point, and assuming South Horizon was fixed with knowledge of the agreement, the investment was held upon a restricted basis.

I also have real difficulty with the notion of the Quistclose trust having a domicile in England. It seems to me more likely that the domicile is the place of receipt of the money, because that is where the trust came into being, rather than the place from which the funds were despatched.’

Geert.

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

 

 

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Bento Rodrigues (Samarco dam victims) v BHP Billiton in the English courts. A new CSR marker.

The media have been reporting on a considerable class action lawsuit, underway in the English courts, in the Corporate Social Responsibility /mass torts category.

The class action case was filed against Anglo-Australian company BHP Billiton on behalf of 240,000 individuals, 24 municipal governments, 11,000 businesses, a Catholic archdiocese and about 200 members of the Krenak indigenous community. It concerns victims of the Samarco dam collapse in Mariana three years ago.

I am reporting the case simply to ensure complete overview of the CSR /jurisdiction /applicable law issues reported on the blog. For as I am co-counsel acting for the claimants, I am not in a position to comment on the case until and if legal analysis will be in the public domain.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.

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Done but not dusted. Sophocleous v Foreign Secretary (historic human rights infringement): common law conflicts history (double actionability, tort) at the Court of Appeal.

[2018] EWCA Civ 2167 Sophocleous v Foreign Secretary et al is a good reminder that conflicts rules past have a tendency not to be so easily forgotten. And in the case of the English law, one or two of them may well be revived post-Brexit (with the usual caveats). Judgment in first instance was [2018] EWHC 19 (QB) which is reviewed here.

Longmore J: ‘The common law private international rule used by the courts to determine liability in an English court in respect of foreign torts (usually referred to as the double actionability rule) was prospectively abolished by the Private International Law (Miscellaneous Provisions) Act 1995 (“the 1995 Act”) for all torts except defamation. But it casts a long shadow because section 14(1) of the 1995 Act expressly provides that its provisions do not apply to “acts or omissions giving rise to a claim which occur before the commencement” of the relevant Part of the Act. The 1995 Act has itself been largely superseded by the provisions of the Rome II Convention (sic) but that likewise only applies to events occurring after its entry into force.

Claimants seek damages for personal injuries sustained in Cyprus, as a result of alleged assaults perpetrated in Cyprus by members of the UK armed forces, seconded British police officers and servants or agents of the then Colonial Administration. The appeal relates to alleged torts committed during the Cyprus Emergency sixty years ago between 1956 and 1958. Accordingly the old common law rule of double actionability applies. In the last edition of Dicey and Morris, Conflict of Laws published before the 1995 Act (12th edition (1993)) the double actionability rule was stated as follows in rule 203:

“(1) As a general rule, an act done in a foreign country is a tort and actionable as such in England, only if it is both

a) actionable as a tort according to English law, or in other words is an act which, if done in England, would be a tort; and

b) actionable according to the law of the foreign country where it was done.

(2) But a particular issue between the parties may be governed by the law of the country which, with respect to that issue, has the most significant relationship with the occurrence and the parties.”

The last element is known as the “flexible exception” – of note is that the exception can apply to the whole of the tort of only part of the legal issues it provokes: depecage, therefore, is possible.

In fact whether Cypriot law is lex causae is first of all relevant for determining whether the claim has exceeded the statute of limitation: again in the words of Longmore J: ‘the Foreign Limitation Periods Act 1984 (“1984 Act”) governs limitation in claims where the law of any other country is to be taken into account. Section 1 provides that where foreign law falls to be taken into account in English proceedings that includes the foreign law of limitation, unless the law of England and Wales also falls to be taken into account, in which event the limitation laws of both countries apply, the effective limitation period being the shorter of the two. However, section 2 provides an exception: where the outcome under section 1 would conflict with public policy, section 1 is disapplied to the extent that its application would so conflict. By section 2(2) the application of section 1 conflicts with public policy “to the extent that its application would cause undue hardship to a person who is, or might be made, a party to the action or proceedings …”. It is therefore necessary to determine whether foreign law falls to be taken into account; this has to be determined in accordance with rules of private international law.’

To settle the issue the locus delicti commissi needs to be determined (the double actionability rule is only relevant where the tort is actionable according to the law of the foreign country where it was done). This is clearly Cyprus: at 21: ‘..there is only one tort. If that tort was committed by the primary actor in Cyprus, the fact that a person jointly liable for the commission of the tort was elsewhere when he gave the relevant assistance makes no difference to the fact that the tort was committed in Cyprus.’

On whether the flexible exception for determining lex causae as a whole applies (reminder: here relevant only for the issue of limitation), Longmore J disagrees with Kerr J, the judge in the first instance case at the High Court. The flexible exception remains an exception and must not become the rule. At 56 (after lengthy reflection of various arguments brought before him): ‘In the case at issue there are no “clear and satisfying grounds” required by Lord Wilberforce at page 391H of Boys v Chaplin for departing from the general rule of double actionability. There is a danger that if the exception is invoked too often it will become the general rule to give primacy to English law rather than law of the place where the tort was committed. That would not be right.’

And at 63, he agrees with Kerr J that the flexible exception does not apply singularly to the issue of limitation.

Conclusion: both the law of Cyprus and the law of England and Wales apply for the purpose of determining limitation. The remainder of the issues are to be held later.

Fun with conflicts – albeit evidently on not a very happy topic.

Geert.

 

 

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Fly lal: Locus delicti commissi for anticompetitive agreements still has not properly landed.

Time to tackle the judgments left over from the exam queue. I reviewed Bobek AG’s Opinion in C-27/17 flyLAL here. The CJEU held early July.

Pro memoria: the AG’s suggested for locus damni not place of financial loss, rather the place within the markets affected by the competition law infringement where the claimant alleges loss of sales: damage located in a Mozaik fashion in other words; for locus delicti commissi with full jurisdiction, the AG distinguishes between Article 101 TFEU (place of the conclusion of the agreement) and 102 TFEU (place where the predatory prices were offered and applied); finally with respect to (now) Article 7(5), the activities of a branch: offering the fixed prices or otherwise having been instrumental in concluding contracts for services at those prices suffices for that branch to have participated in the tort.

The Court itself,

  • for locus damni reminds us of the findings in Marinari (which tempered the implications of Bier), implying that one needs to decide whether loss of income of the kind alleged by flyLAL may be regarded as ‘initial damage’, or whether it constitutes solely consequential financial damage which cannot, in itself, lead to a forum under Article 7(2). The Court, like the AG, opts for Mozaik, referring inter alia to its judgment in Concurrences: each place where the loss of income consisting in loss of sales occurred, that is to say, the place of the market which is affected by that conduct and on which the victim claims to have suffered those losses, opens up partial jurisdiction. As I noted in my review of the Opinion, this interpretation aids the tortfeasor: locus damni leading to shattered jurisdiction facilitates anti-competitive behaviour.
  • for locus delicti commissi, under Article 101 TFEU (cartels), with reference to CDC, the CJEU opts for courts for the place in which the agreement was definitively concluded: this truly is extraordinary for it allows for forum shopping by the cartel participants. For Article 102 TFEU (abuse of dominant position)
    • Prima facie at 52 there is one consolation for those suffering anti-competitive behaviour: the Court holds that the event giving rise to the damage in the case of abuse of a dominant position is not based on an agreement, but rather on the implementation of that abuse, that is to say, the acts performed by the dominant undertaking to put the abuse into practice, in particular by offering and applying predatory pricing in the market concerned. That would seem to suggest full jurisdiction for each of those places where the pricing is offered and applied. However in that para 52 the Court does not verbatim links this to jurisdiction: this it does do in
    • Para 53: ‘If it were to be established that the events giving rise to the main proceedings were part of a common strategy intended to oust flyLAL from the market of flights to and from Vilnius Airport and that those events all contributed to giving rise to the damage alleged, it would be for the referring court to identify the event of most importance in implementing such a strategy out of the chain of events at issue in the main proceedings.Courts holding on jurisdiction must not delve too deep into the substance of the case but still have to employ, without looking too deeply at the merits of the case, the lex causae for the anti-competitive behaviour (per Rome II) to identify that event of most importance. In para 54 too the Court emphasises the need to limit the amount of potential jurisdictions (reference here is also made to Universal Music). I cannot be sure: does the combination of paras 52 and 53 suggest that the Court does not accept jurisdiction for all places where the pricing is offered and applied?
  • Finally with respect to Article 7(5), the CJEU at 64 holds that the national courts must in particular review whether the activities carried out by the branch included actual acts of offering and applying the predatory pricing alleged and whether such participation in the alleged abuse of a dominant position was sufficiently significant to be regarded as a close link with the dispute in the main proceedings. Separate accounts are not required to conduct that exercise (at 65).

Essentially therefore the Court firmly pulls the Brussels I Recast’s ‘predictability’ card. This is in the interest of companies behaving anti-competitively. I do not read in this judgment a definitive answer however for as I suggested, the combination of paras 52 ff is simply not clear.

Geert.

(Handbook of) EU private international law), 2nd ed. 2016, Chapter 2, Heading 2.2.11.2

 

 

 

 

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