Posts Tagged Recognition
Polish readers: Help required. St Vincent v Bruce Robinson et al: presumably the corporate jurisdictional head of Brussels I Recast.
In  EWHC 1230 (Comm) St Vincent v Bruce Roberston et al Males J set aside a worldwide freezing order in summary judgment but that is not the trigger for this blog post. Rather, consider paras 33 and 34:
- St Vincent (and two associated companies) attempted to stop the sale [of a chunk of assets by commencing proceedings in Cyprus against 19 defendants, including Mr Robinson, Winterbourne Pte and the other defendants to these proceedings and also HHL and HDP. On 5 August 2013 the District Court of Nicosia granted an injunction, purporting to restrain any dealings with HDP’s assets. [GAVC: for the jurisdiction of the Cypriot courts: see 12: The Shares Pledge was governed by the law of Cyprus and provided for the exclusive jurisdiction of the courts of that country]
- Notwithstanding the Cyprus order, on 30 September 2013 the creditors of HDP approved the sale to KFTP. The arrangement was then approved by the District Court of Gliwice on 24 October 2013. The Polish court did not regard the order of the Cyprus court as an impediment to the sale, taking the view that it had exclusive jurisdiction over a Polish company under its supervision and was not required to recognise the Cypriot order in accordance with the provisions of the Brussels Regulation. The court did not rule on any issue whether the proposed sale to KFTP was at market value and was not asked to do so.
I have tried to locate the Polish judgment but have failed to do so (which is where assistance from Polish readers would be appreciated). Presumably however the Polish courts argued that Article 24(2) Brussels I Recast was engaged, and then either per Weber ignored lis alibi pendens (were it to have found the case was still pending in Cyprus), or applied Article 45(1) e ii to ignore the Cypriot findings. In either case, the relevant point is how widely the Polish courts seem to have interpreted Article 24(2).
Come to think of it this would have been good exam material and I have one or two of those coming up (although there is plenty in the ‘exam material’ ledger).
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 126.96.36.199, Heading 2.2.16.
Thank you Tobias Lutzi for alerting us to the ECtHR drawing the final curtain (legally speaking at least) over the tragic events surrounding the Krombach case. The case is a classic viz ordre public, recognition and enforcement issues. Current decision however relates to the criminal law aspects of the case and the ne bis in idem principle in particular.
The Court declared Krombach’s complaint inadmissible.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 188.8.131.52.4.
Agrokor DD – Recognition of Croatian proceedings shows the impact of Insolvency Regulation’s Annex A.
Update 2 April 2018 For related developments in Slovenia, see Dr Sladic’s analysis here.
The English courts are being asked to recognise Agrokor’s extraordinary administration as a foreign main proceeding under the Cross-Border Insolvency Regulations 2006 (CBIR). For the facts of the case and Hogan Lovells breakdown of the judgment see here.
Of note for this blog is that Croatia have not included the emergency procedure foreseen Agrokor Act in the relevant Annexes to the Insolvency Regulation. Consequently no matter how much the procedure in the abstract meets with the definition of insolvency proceedings, it does not fall under the Insolvency Regulation hence recognition and enforcement of same does not follow that Regulation. Neither does it follow Brussels I Recast: for the procedure most definitely meets with the ‘insolvency’ exception under that Regulation. Matthews J justifiably refers to both in passing only, noting they have no calling here.
Recognition was eventually granted. Despite some serious relevant differences between Croatian and English insolvency law, none of these as so serious as to trigger ordre public objections. As Jake Hardy notes: if no man is an island, nor is any debt obligation – no matter how English it has painted itself to be.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5.
A case title which sounds a bit like a Scandinavian crimi – that’s because it almost is. In  EWHC 2570 (Pat) Parainen Pearl et al v Jebsen Skipsrederi et al the facts amounted to claimants, who had purchased a vessel containing a pneumatic cement system patented by defendant (a company domiciled in Norway), seeking a declaration of non-infringement (DNI) of said patent. The purchase was somewhat downstream for the vessel had been sold a number of times before.
Claimants suggested jurisdiction for the UK courts for DNIs relating effectively to the whole of the EEA (at least under their reasoning; the specific countries sought were Sweden and Finland). For the English (and Welsh side of things jurisdiction is established without discussion under Article 5(3) Lugano, forum delicti. Reference was made to Wintersteiger and to Folien Fischer.
Claimants suggested that by the first sale to the original owner, defendants had ‘exhausted’ their intellectual property thus rendering the vessel into a good free to sold across the EEA. Should the court agree with that view, that finding of exhaustion would have to be accepted, still the argument went, across the EEA. Hence, an initial finding of exhaustion, given the need to apply EEA law the same in all EEA Member States, would have to be accepted by all other States and conversely this would give the English courts jurisdiction for pan-EEA DNIs.
Arnold J refers to among others Roche, Actavis v Eli Lilly, Marzillier. He holds that a potential finding by an English court of exhaustion may not necessarily be recognised and enforced by other courts in the EU or indeed EEA: it is not for the UK courts to presume that this will be so (despite their being little room for others in the EEA to refuse to enforce): ‘(Counsel for claimant) argued that.., on a proper application of European law, there could only be one answer as to whether or not the Defendants’ rights under the Patent in respect of the Vessel had been exhausted. In my view, however, it does not follow that it would be proper for this Court to exercise jurisdiction over matters that, under the scheme of the Lugano Convention, lie within the province of the courts of other Contracting States.’
Article 5(3) which works for UK jurisdiction, can then as it were not be used as a joinder-type (Article 6(1) Lugano; Article 8(1) Brussels I Recast) bridgehead for jurisdiction on further claims.
Conclusion: UK courts have no jurisdiction in so far as the DNIs extend beyond the UK designation of the Patent.
(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2, Heading 184.108.40.206.4, Heading 220.127.116.11.
Supreme Tycoon: common law power to recognise and assist foreign insolvency proceedings extends to voluntary liquidations.
Thank you colleagues at Hogan Lovells for flagging  HKCFI 277 Supreme Tycoon in which the Hong Kong Court of First Instance ruled that the common law power to recognise and assist foreign insolvency proceedings extends to voluntary liquidations.
In so ruling, the court rejected the Privy Council obiter finding in Singularis. (see the HL link above) highlight the Court’s rather convincing arguments in not following the Privy Council, including one I like a lot namely that the principle of modified universalism, the rationale underlying the common law power of assistance, and the purpose of cross-border insolvency assistance do not prima facie call for a distinction between compulsory and voluntary winding-up.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 5, Heading 5.1.
I applied for funding 2 years back to have someone conduct a thorough review of recent development in State Immunity. Funding was not granted: quelle horeur!. Reviewers suggested there was no need to revisit an area where law and practice is settled: quelle erreur!
Needless to say both statutory and case-law developments have proven reviewers wrong since. I would still be happy by the way to supervise research in the area (happier still for someone to fund it).
Now, coming to the point: in 16-22.494 Congo v Commisimpex the French Supreme Court essentially held that the French Sapin II law applies retroactively. State assets employed iure imperii are only available for seizure following express and property-specific waiver. The Court’s decision does not reflect unisono developments in other States (neither indeed, I agree with Victor Aupetit), does it help France with regulatory competition in civil procedure: quite a few jurisdictions have taken a more relaxed and wide approach to contractual waiver of State immunity.