Tag: Provisionary measures

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Weco Projects ASP v Zea Marine Carier GmbH: provisional measures, court-appointed surveyor’s powers in the light of arbitration.

Genova’s court ruling in Weco Projects ASP v Zea MArine Carier GmbH is remarkably similar to the Belo Horizonte (Cefetra et al v Ms ‘IDA’ Oetker Schiffahrtsgesellschaft MbH & Co KG et al) ruling at the Court of Rotterdam, which I reviewed here. Transport is of a yacht is the issue, sinking the event, and London arbitration the agreed dispute resolution. What powers do the courts in ordinary still have to order interim measures?

The court could have discussed the arbitration /Brussels Ia interface, as well as Article 35’s provisional measures. Instead, it mentions neither and relies entirely on an Italian Supreme Court precedent as Maurizio Dardani and Luca di Marco review excellently here (many thanks to Maurizio for forwarding me the case). An exciting, and missed opportunity to bring these issues into focus.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.15.

 

 

 

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Brussels Court of Appeal rejects jurisdiction against Facebook Inc, Facebook Ireland in privacy, data protection case.

Update 17 June 2021 for analysis of the CJEU judgment in same see Lorna Woods here.

Update 10 September 2020 the case at the CJEU is listed as C-645/19.

The Brussels Court of Appeal held early May in a lengthy and scholarly judgment that it sees no ground in either public international law, or European law, for jurisdiction of the Belgian courts against Facebook Ireland and Facebook Inc (Palo Alto, California). I reported on the litigation inter alia here. I believe the Court is right, as readers of the blog know from my earlier postings.

Belgium’s Data Protection Authority (DPA) does not signal the rejection of jurisdiction against FB Ireland and FB Inc in its press release, however even its 3 page extract from the 121 page judgment clearly shows it (first bullet-point).

The questions which the Court of Appeal has sent up to Luxembourg concern Facebook Belgium only. The Court in the full judgment does not qualify FB Belgium’s activities as data processing. However it has very specific questions on the existence and extent of powers for DPAs other than the leading authority under the GDPR, including the question whether there is any relevance to the fact that action has started prior to the entry into force of the GDPR (25 May 2018). The Court is minded to interpret the one-stop shop principle extensively however it has doubt given the CJEU’s judgment in Fanpages. 

Crucial and so far, I believe, fairly unreported. (My delay explained by the possibility for use as an essay exam question – which eventually I have not).

Geert.

(Handbook of) EU private international law, 2nd ed.2016, chapter 2, Heading 2.2.8.2.5.

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Ergo, and Haras des Coudrettes. Provisional measures under Brussels I Recast and Lugano before the French Supreme Court.

Thank you Nicolas Contis and Leonardo Pinto for reporting  judgments by the French Supreme Court (Cour de Cassation) 16-19-731 Ergo Versicherung v Volker and 16-27.913, Haras des Coudrettes v X, both held on 14 March 2018.

The judgments concern the interpretation of Article 35 Brussels I Recast c.q. Article 31 of the Lugano Convention (the second case concerned a defendant domiciled in Switzerland) on provisional measures.

Please refer to Nicolas and Leonardo for a summary of the facts the judicial proceedings in the case. In neither cases do the French courts have subject-matter jurisdiction: in Ergo, the German courts do by virtue of choice of court; in Haras des Coudrettes, the Swiss courts do by virtue of Article 5(3) Lugano (locus delicti commissi being there; and direct damage also having occurred there hence leaving only indirect, financial damage with the French owner of the horse at issue, even if the exact nature and size of those direct injuries could only be later established in France).

In Ergo, the Supreme Court held that ‘la juridiction française (est) compétente pour ordonner, avant tout procès, une mesure d’expertise devant être exécutée en France et destinée à conserver ou établir la preuve de faits dont pourrait dépendre la solution du litige. Appointing an expert to assess any damages caused to a solar plant, and to explore liabilities for such damage, falls within Article 35 Brussels I Recast. I would agree with such a wide reading as I have discussed before in my review of the Belo Horizonte case. The Supreme Court does not consider relevant to the outcome claimants’ argument, that under Article 2 Brussels I Recast, provisional measures only enjoy free movement under the Regulation when ordered by a court with subject-matter jurisdiction. Indeed in view of the Supreme Court the Court of Appeal need not even consider whether it has such jurisdiction. Given that the form Annexed to the Regulation includes a box requiring exactly that, this may seem odd. One assumes the Court held so given that the forensic measures ordered, can be rolled out entirely in France: no need for any travel at all.

In Haras des Coudrettes, the Supreme Court annulled because the Court of Appeal had established subject-matter jurisdiction for the Swiss courts, and had subsequently not entertained the possibility of provisional measures, even though the object at issue (the mare: ‘la jument’) is in France: ‘Qu’en statuant ainsi, alors qu’elle relevait que la mesure sollicitée avait pour objet notamment d’examiner la jument située en France, la cour d’appel, qui n’a pas tiré les conséquences légales de ses propres constatations, a violé les textes susvisés.‘

and  ‘une mesure d’expertise destinée à conserver ou établir la preuve de faits dont pourrait dépendre la solution du litige, ordonnée en référé avant tout procès sur le fondement du second de ces textes, constitue une mesure provisoire au sens du premier, qui peut être demandée même si, en vertu de cette Convention, une juridiction d’un autre Etat lié par celle-ci est compétente pour connaître du fond’:

expert findings which aim at maintaining or establishing facts upon which the eventual solution of the litigation may depend, fall within the scope of provisional measures and may be ordered even before any entertainment of subject-matter jurisdiction. Again, the fact that for the effective roll-out of the provisional measures no other State need be engaged, must have relevance in this assessment.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.15.

 

 

 

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Banca Turco: Popplewell J explains that worlwide freezing orders, particularly ex parte, are not extended willy-nilly.

In [2018] EWHC 662 (Comm) Banca Turco Romana, Popplewell J explained his reasons for discontinuing ex parte freezing orders, with reference among others to C-391/95 Van Uden. At 22-23 he discusses the not entirely clear application of the jurisdictional rules of Brussels I, which indicated that that Regulation was engaged either via Article 2 (now 4: domicile in Romania) or 4 (now 6): residual Member State (here: Romanian) jurisdictional rules, which go on to be sheltered under the Brussels I Regulation.

At 20 he refers to the earlier case of ICICI Bank UK plc v Diminco NV [2014] EWHC 3124 (Comm) in which he summarised the English Courts’ requirements for the issuing of ex parte freezing orders where the defendant is neither resident within the jurisdiction nor someone over whom the court has or would assume in personam jurisdiction for some other reason:

‘the court will only grant a freezing order extending to foreign assets in exceptional circumstances. It is likely to be necessary for the applicant to establish at least three things:

(a)        that there is a real connecting link between the subject matter of the measure sought and the territorial jurisdiction of the English court in the sense referred to in Van Uden;

(b)        that the case is one where it is appropriate within the limits of comity for the English court to act as an international policeman in relation to assets abroad; and that will not be appropriate unless it is practical for an order to be made and unless the order can be enforced in practice if it is disobeyed; the court will not make an order even within the limits of comity if there is no effective sanction which it could apply if the order were disobeyed, as will often be the case if the defendant has no presence within the jurisdiction and is not subject to the in personam of the English court;

(c)        it is just and expedient to grant worldwide relief, taking into account the discretionary factors identified at paragraph 115 of the Motorola case. They are (i) whether the making of the order will interfere with the management of the case in the primary court, e.g. where the order is inconsistent with an order in the primary court or overlaps with it; (ii) whether it is the policy in the primary jurisdiction not itself to make to make worldwide freezing/disclosure orders; (iii) whether there is a danger that the orders made will give rise to disharmony or confusion and/or risk of conflicting, inconsistent or overlapping orders in other jurisdictions, in particular the courts of the state where the person enjoined resides or where the assets affected are located; (iv) whether at the time the order is sought there is likely to be a potential conflict as to jurisdiction rendering it inappropriate and inexpedient to make a worldwide order; and (v) whether in a case where jurisdiction is resisted and disobedience may be expected  the court will be making an order which it cannot enforce.”

In Banca Turco discontinuation was ultimately mostly based not on any slip-up of jurisdictional basis, but rather on the absence of full disclosure by the requesting party: at 45: ‘The importance of the duty of disclosure has often been emphasised.  It is the necessary corollary of the court being prepared to depart from the principle that it will hear both sides before reaching a decision, which is a basic principle of fairness.  Derogation from that basic principle is an exceptional course adopted in cases of extreme urgency or the need for secrecy.  If the court is to adopt that procedure where justice so requires, it must be able to rely on the party who appears alone to present the evidence and argument in a way which is not merely designed to promote its own interests, but in a fair and even-handed manner, drawing attention to evidence and arguments which it can reasonably anticipate the absent party would wish to make.  It is a duty owed to the court which exists in order to ensure the integrity of the court’s process.  The sanction available to the court to preserve that integrity is not only to deprive the applicant of any advantage gained by the order, but also to refuse to renew it.’

Geert.

 

 

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One of those groundhog days. The Brussels Court of First instance on Facebook, privacy, Belgium and jurisdiction.

Update May 2019 the Court of Appeal reportedly has referred to the CJEU. However update 19 June 2019 as I explain here, that referral is on limited issues only. The court has rejected jurisdiction against FB Ireland and FB Inc.

I have flagged once or twice that the blog is a touch behind on reporting – I hope to be on top soon.

I blogged a little while ago that the Brussels Court of Appeal had sided with Facebook in their appeal against the Court of first instance’s finding of Belgian jurisdiction. I had earlier argued that the latter was wrong. These earlier skirmishes were in interim proceedings. Then, in February, the Court of First instance, unsurprisingly, reinstated its earlier finding, this time with a bit more substantial flesh to the bone.

First, a bit of Belgian surrealism. In an interlocutory ruling the court had requested FB to produce full copy of the Court of Appeal’s judgment upon which it relied for some of its arguments. Perhaps given the appalling state of reporting of Belgian case-law, this finding should not surprise. Yet it remains an absurd notion that parties should produce copies at all of Belgian judgments, not in the least copies of a Court of Appeal which is literally one floor up from the Court of first instance.

Now to the judgment. The court first of all confirms that the case does not relate to private international law for the privacy commission acts iure imperii (I summarise). Then follows a very lengthy and exhaustive analysis of Belgium’s jurisdiction on the basis of public international law. Particularly given the excellent input of a number of my public international law colleagues, this part of the judgment is academically interesting nay exciting – but also entirely superfluous. For any Belgian jurisdiction grounded in public international law surely is now exhausted regulated by European law, Directive 95/46 in particular.

In finally reviewing the application of that Directive, and inevitably of course with reference to Weltimmo etc. the Court essentially assesses whether Facebook Belgium (the jurisdictional anchor) carries out activities beyond mere representation vis-a-vis the EU institutions, and finds that it does carry out commercial activities directed at Belgian users. That of course is a factual finding which requires au faitness which the employees’ activities.

Judgment is being appealed by Facebook – rightly so I believe. Of note is also that once the GDPR applies, exclusive Irish jurisdiction is clear.

Geert.

 

 

 

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Belo Horizonte: Court at Rotterdam (using English as language of the oral procedure): Access to seized documents is no provisional measure under Brussels I Recast.

Arnold van Steenderen and Milan Simić have complete and concise review here of judgment of the Rotterdam court of December 2017 in re the Belo Horizonte (officially Cefetra et al v Ms ‘IDA’ Oetker Schiffahrtsgesellschaft MbH & Co KG et al). The case is a follow-up to 2015 proceedings. In these the Rotterdam court had first sanctioned seizure, and then rejected further action for claimant had not formally requested access to the documents.

Arnold and Milan summarise the facts very very helpfully – I am much obliged for the judgment is in Dutch (although as the judgment shows, the proceedings were actually conducted in English: a nice example of the use of regulatory competition in civil procedure) and their efforts have saved me a lot of translation time:

The decisions of the Rotterdam Court are a result of the carriage under bill of lading of soya beans on behalf of Cefetra B.V. (Netherlands based) on board of the “Belo Horizonte” from Argentina to the United Kingdom. Cefetra supplies raw materials to the feed, food, and fuel industries. Cefetra Ltd. (UK based) was the holder of the b/l’s and English law applied to the b/l’s. The vessel is owned by MS ‘IDA’ Oetker and is time chartered by Rudolf A Oetker (both German based, together addressed as Oetker). MS ‘IDA’ Oetker is the carrier under the b/l’s. London arbitration is agreed upon for any dispute rising from the contract of carriage and the b/l’s.

Following engine failure, ‘(d)uring the voyage, experts commissioned by both Cefetra and Oetker visited the “Belo Horizonte” to preliminary assess the condition of the vessel and its engines. Further investigation was conducted upon arrival in England. Oetker, however, only granted permission for inspection of the engine room and refused to disclose the documents on board. Crew interviews were not allowed as well. Subsequently, Cefetra obtained leave to attachment for the purpose of preserving evidence in the Netherlands on 27 October 2015. The leave was effected by the bailiff on 28 October 2015 on board of the “Belo Horizonte”. Several documents were seized and handed over to a sequestrator. Cefetra initiated proceedings’ to gain access to the seized documents.

The dispute in the main is arbitrable in London.

Oetker disputes jurisdiction of the court at Rotterdam on the basis of defendants’ domicile in Germany. Cefetra argue in favour of jurisdiction on the basis of Article 7(1), alternatively 7(2) or indeed Article 35 Brussels I Recast:

  • 7(1) forum contractus: for, it is argued, the main agreement between the two parties implies an obligation to provide any relevant evidence; the place of performance for that ‘obligation in question’ lies in The Netherlands since that is where the sequestrator holds them.
  • 7(2) forum delicti: Oetker’s obstruction of truth finding is a tort which is located (locus delicti commissi) at Rotterdam since that is where Oetker opposes disclosure.
  • 35 provisional, including protective measures.

The Court does not at all entertain Cefetra’s arguments on the basis of 7(1) or 7(2). Wrongly so: plenty of not at all obvious contracts or torts could qualify as same under these provisions. To not address them at all does not make them simply go away.

The court first of all (5.7 in fine) rejects relevance of the arbitration exclusion on the basis of C-391/95 Van Uden Deco-Line. It then sticks to a very restrictive approach to Article 35, with the classic provisionary (not covered by Article 35) v provisional (covered) nature of measures, as also discussed in C-104/03 St. Paul Dairy/Unibel (to which the Court refers). In the words of the court: seizure of evidence is provisional; actual access, copy or extract is not (5.8): the court suggests this is not provisional since it allows the party to gauge the evidentiary position of the party and hence is irreversible.

I disagree -and I have at least a shelf in my library to support the discussion.

Ireversibility in fact (once the evidence seen, the party can never wipe it from its memory, so to speak) does not equate ireversibility in law. The court takes a very limited view of Article 35 and I do not believe it is the right one.

There are not that many national judgments covering Article 35 quite so expressly. This is one to treasure.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.15.

 

 

 

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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 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.

This in fact is not as straightforward as it may sound. Other legal regimes may find perhaps entry in the shareholder registry following payment, to be the characteristic performance; or the initiation of negotiations to pay a share premium; etc.

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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Not the way the datr cookie crumbles. Belgian courts on soggy jurisdictional grounds in Facebook privacy ruling.

Update 27 June 2017 Before the CJEU Case C-210/16 Wirtschaftsakademie Schleswig-Holstein GmbH v Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein relates to some issues with relevance for the case at hand: in particular the respective powers of various authorities in the Member States with the parent company outside of the EU and one one of the data protection authorities based in the Member State where the company’s establishment is responsible for data processing under the group’s internal division of tasks and responsibilities.

Update 11 July 2016 the Court of Appeal has sided with FB on 29 June. No surprises there! Update 27 June 2017 both initial ruling and the CA’s judgment relate to the provisionary measures. The case is now going through the same courts in ordinary (non-urgent) fashion.

Update 9 February 2016 the French privacy commission has now mirrored the Belgian action

Quite a lot of attention has been going to a Belgian court ordering Facebook to stop collecting data from non-users through the use of so-called datr cookies.  Applicant is Willem Debeuckelaere, the chairman of the Belgian privacy commission, in his capacity as chairman (not, therefore, as a private individual). Our interest here is of course in the court’s finding that it has jurisdiction to hear the case, and that it can apply Belgian law. The judgment is drafted in Dutch – an English (succinct) summary is available here.

Defendants are three parties: Facebook Inc, domiciled in California; Facebook Belgium BVBA, domiciled in Brussels; and Facebook Ireland Ltd., domiciled in Dublin. Facebook Belgium essentially is FB’s public affairs office in the EU. FB Ireland delivers FB services to the EU market.

Directive 95/46 and the Brussels I Recast Regulation operate in a parallel universe. The former dictates jurisdiction and applicable law at the level of the relationship between data protection authorities (DPAs), and data processors (the FBs, Googles etc. of this world). The latter concerns the relation between private individuals and both authorities and processors alike. That parallelism explains, for instance, why Mr Schrems is pursuing the Irish DPA in the Irish Courts, and additionally, FB in the Austrian courts.

Current litigation against FB lies squarely in the context of Directive 95/46. This need not have been the case: Mr Debeuckelaere, aforementioned, could have sued in his personal capacity. If he is not a FB customer, at the least vis-a-vis FB Ireland, this could have easily established jurisdiction on the basis of Article 7(2)’s jurisdiction for tort (here: invasion of privacy): with Belgium as the locus damni. Jurisdiction against FB Inc can not so be established in the basis of Article 7(2) (it does not apply to defendants based outside the EU). If the chairman qq natural person is a FB customer, jurisdiction for the Belgian courts may be based on the consumer contracts provisions of Regulation 1215/2012 – however that would have defeated the purpose of addressing FB’s policy vis-a-vis non-users, which I understand is what datr cookies are about.

Instead, the decision was taken (whether informed or not) to sue purely on the basis of the data protection Directive. This of course requires application of the jurisdictional trigger clarified in Google Spain. German precedent prior to the Google Spain judgment, did not look promising (Schleswig-Holstein v Facebook).

At the least, the Belgian court’s application of the Google Spain test, is debatable: as I note in the previous post,

Article 4(1)(a) of Directive 95/46 does not require the processing of personal data in question to be carried out ‘by’ the establishment concerned itself, but only that it be carried out ‘in the context of the activities’ of the establishment (at 52): that is the case if the latter is intended to promote and sell, in that Member State, advertising space offered by the search engine which serves to make the service offered by that engine profitable (at 55). The very display of personal data on a search results page constitutes processing of such data. Since that display of results is accompanied, on the same page, by the display of advertising linked to the search terms, it is clear that the processing of personal data in question is carried out in the context of the commercial and advertising activity of the controller’s establishment on the territory of a Member State, in this instance Spanish territory (at 57).

Google Spain’s task was providing support to the Google group’s advertising activity which is separate from its search engine service. Per the formula recalled above, this sufficed to trigger jurisdiction for the Spanish DPA. Google Spain is tasked to promote and sell, in that Member State, advertising space offered by the search engine which serves to make the service offered by that engine profitable. The Belgian court accepts jurisdiction on the basis of Facebook Belgium’s activities being ‘inseparably linked’ (at p.15) to Facebook’s activities. With respect, I do not think this was the intention of the CJEU in Google Spain. At the very least, the court’s finding undermines the one stop principle of the data protection Directive, for Belgium’s position viz the EU Institutions means that almost all data processors have some form of public interest representation in Belgium, often indeed taking the form of a BVBA or a VZW (the latter meaning a not for profit association).

The court further justifies (p.16) its jurisdiction on the basis of the measures being provisionary. Provisionary measures fall outside the jurisdictional matrix of the Brussels I (Recast), provided they are indeed provisionary, and provided there is a link between the territory concerned and the provisional measures imposed. How exactly such jurisdiction can be upheld vis-a-vis Facebook Ireland and Facebook Inc, is not clarified by the court.

The court does limit the provisionary measures territorially: FB is only ordered to stop using datr cookies tracking data of non-FB users ‘vis-a-vis internetusers on Belgian territory’, lest these be informed of same.

I mentioned above that the data protection Directive and the Brussels I recast can be quite clearly distinguished at the level of jurisdiction. However findings of courts or public authorities on the basis of either of them, do still face the hurdle of enforcement. That is no different in this case. Recognition and enforcement of the judgment vis-a-vis FB Inc will have to follow a rather complex route, and it is not inconceivable that the US (in particular, the State of California) will refuse recognition on the basis of perceived extraterritorial jurisdictional claims (see here for a pondering of the issues). Even vis-a-vis Facebook Ireland, however, one can imagine enforcement difficulties. Even if these provisionary measures are covered by the Brussels I Recast (which may not be the case given the public character of plaintiff), such measures issued by courts which lack jurisdiction as to the substance of the matter, are not covered by the enforcement Title of the Regulation.

All in all, plenty to be discussed in appeal.

Geert.

 

 

 

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Evidence Regulation’s subsidiary nature confirmed in ProRail. Questions on enforcement left open.

Update 11 January 2021 see therefore my doubt viz Coward Phaestos Ltd & Ors [2021] EWHC 9 (Ch): Application, denied, for discovery /evidence order of data held in England, for use in Cypriot matrimonial proceedings. Held application could and should have been made in Cyprus under EU evidence regulation.

The ECJ has confirmed the subsidiary nature of the Evidence Regulation in ProRail, Case C-332/11. Regulation 1206/2001 does not govern exhaustively the taking of cross-border evidence, but simply aims to facilitate it, allowing use of other instruments having the same aim. The Court in this respect confirmed its view in Lippens.

Unfortunately the ECJ did not entertain the questions of the Belgian Hof van Cassatie on the role of the Brussels I Regulation, in particular Article 31 (confirming jurisdiction for provisional, including protective measures), Article 32 (defining ‘judgment’), and Article 33 (providing for automatic recognition and enforcement).  Admittedly, the national court could have been more precise on the role, if any, it saw for these Articles of the Jurisdiction Regulation in the dispute at issue (the appointment of an expert, for an expertise to be carried out outside of Belgium).

A possible impact of Articles 31-33 JR might relate to challenges of the carrying out of work by the expert (e.g. by way of seeking an injunction) in The Netherlands: would the Dutch court be prevented from second-guessing the expert’s brief, qualifications etc?

The Hof van Cassatie itself, according to the order of reference to which JÄÄSKINEN AG refers, flagged the Jurisdiction Regulation at the instigation of ProRail, whose appeal alleged infringement of Regulation No 44/2001. ProRail sought to infer that the power to order that an expert’s report be obtained lies exclusively with the courts of the place in which it is to be executed and, a contrario, that such a measure does not have any extraterritorial effect except by virtue of the authorisation of the Member State in which that investigative measure is to be carried out.  Switzerland, intervening on this point because of the similarities with the Lugano Convention, suggested that the measure by which a court charges an expert to carry out an investigation in the territory of another Member State is neither a provisional nor a preventive measure within the meaning of Article 31 of Regulation No 44/2001, on the ground that such a measure cannot produce extraterritorial effects, nor a judgment which may be the subject of recognition or enforcement within the meaning of Article 32 of the same regulation.

In the end, the AG suggested that the reference to the Jurisdiction Regulation was not specifically enough included in the questions put to the ECJ – a view which the ECJ implicitly agreed with. An interesting opportunity wasted, so it would seem.

Geert.