Posts Tagged residual private international law
This is a short post for archival purposes: I have been looking in vain in the past few weeks for a copy of prof Nuyts’ 2007 study for the European Commission on ‘residual jurisdiction’ (Review of the Member States’ Rules concerning the “Residual Jurisdiction” of their courts in Civil and Commercial Matters pursuant to the Brussels I and II Regulations). It was no longer on the EC’s studies page and the url which many of us have been using in the past no longer works. So here it is. Courtesy of the European Commission and of prof Nuyts.
Enjoy. It has lost nothing of its topical nature.
Gray v Hurley. Court of Appeal refers to Luxembourg on anti-suit to support EU jurisdiction against ex-EU action.
Update a few hours after posting. For the New Zealand perspective see Jan Jakob Bornheim’s thread here.
As I noted at the time, the High Court discussed the matrimonial exception of Brussels Ia, as well as the exclusive jurisdictional rule of Article 24(1), and (briefly) Article 25’s choice of court. The appeal however only concerns the application of Article 4’s domicile rule. Was Mr Hurley domiciled in England on 26 March 2019, when the court was seized? Article 62(1) Brussels Ia refers to the internal law. Lavender J decided that Mr Hurley was not domiciled in England, however that Lindner should be read as extending to the defendant’s last known domicile in a case where the Court: (1) is unable to identify the defendant’s place of domicile; and (2) has no firm evidence to support the conclusion that the defendant is in fact domiciled outside the European Union. I suggested at the time that this is a very relevant and interesting reading of Lindner, extending the reach of Brussels Ia as had been kickstarted by Owusu, with due deference to potential New Zealand jurisdiction (New Zealand domicile not having been established).
Note also that Mr Hurley had initially also relied on A34 BI1 however later abandoned this line. Article 34 is however cross-referenced in the discussion on Article 4’s domicile rule.
The Court of Appeal has concluded that the meaning of Article 4(1) and its applicability in this case is not acte clair and has referred to Luxembourg. The focus of the discussion was not whether or not Ms Gray was domiciled in England (see however my doubts as to the extension of Linder in the case at issue). Rather, the focus is on anti-suit and Article 4: Ms Gray submits that Article 4(1) provides her with a right not to be sued outside England, where she is domiciled, and that the court is obliged to give effect to this right by the grant of an anti-suit injunction to restrain proceedings in a third State.
As the Court of Appeal notes, the consequences of her arguments are that an EU-domiciled tortfeasor who was being sued only in a third State could require the court of his domicile to grant an anti-suit injunction – in contrast to the ‘flexible mechanism’ under Articles 33 and 34 in cases where the same or related proceedings exist in both jurisdictions. By the same token, if there are proceedings in a Member State, the defendant could seek an anti-suit injunction to prevent the claimant from taking or continuing unrelated proceedings in a third State. And, as appears from the present case, it is said that it makes no difference that the claimant’s case is not one that the courts of the Member State could themselves entertain, meaning that the ‘right’ said to be conferred on the claimant by Article 4(1) would have no content.
Yet again therefore interesting issues on the use of anti-suit to support EU (rather than: a particular Member State) jurisdiction. The Court of Appeal is minded not to side with Ms Gray, for comity reasons (anti-suit being a serious meddle in other States’ jurisdictional assessment) and because the use of anti-suit here would not serve the Regulation’s objectives of sound and harmonious administration of justice. At 52 it suggests the MS Gray line of reasoning would have profound consequence which would be expected to be explicit in the Regulation and not to be arrived at sub silentio – but refers to the CJEU for certainty.
(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2 practically in its entirety.
Gray v Hurley  EWHC 1636 (QB). Engages big chunks of Brussels Ia and eventually relies on Lindner to uphold Article 4 jurisdiction.
Thank you Jan Jakob Bornheim for flagging Gray v Hurley  EWHC 1636 (QB), in which as he puts it, ‘there is a lot going on’. Judgment is best referred to for facts of the case. On 25 March 2019 Mr Hurley commenced proceedings against Ms Gray in New Zealand. On 26 March 2019 Ms Gray issued the claim form in the present action and obtained an order for alternative service.
Of interest to the blog is first of all the matrimonial exception of Brussels Ia, nota bene recently applied by the CJEU in C-361/18 Weil. Article 1(2)(a) Brussels Ia (Lavender J using the English judges’ shorthand ‘Judgments Regulation’) provides that it does not apply to matters relating to: “…rights in property arising out of a matrimonial relationship or out of a relationship deemed by the law applicable to such relationship to have comparable effects to marriage.”
There is no EU-wide harmonisation of the conflict of law rules for matrimonial property. The UK is not party to the enhanced co-operation rules in the area and Lavender J did not consider any role these rules might play in same. Rome I and Rome II have a similar exception as Brussels Ia and at 111 Lavender J takes inspiration from Recital 10 Rome II which states that this exception “should be interpreted in accordance with the law of the Member State in which the court is seised.” Discussion ensues whether this is a reference to the substantive law of the court seized (Ms Gray’s position; English law does not deem their relationship to have comparable effects to marriage) or the private international law rules of same (Mr Hurley’s position; with in his view residual English private international law pointing to the laws of New Zealand, which does deem their relationship to have comparable effects to marriage). Lavender J does not say so expresses verbis but seems to side with the exclusion of renvoi: at 115: ‘I do not consider that the relationship between Ms Gray and Mr Hurley was a relationship deemed by the law applicable to such relationship to have comparable effects to marriage.’ Brussels Ia’s matrimonial exception therefore is not engaged.
Next, the application of the exclusive jurisdictional rule of Article 24(1) is considered. Ms Gray’s claim here essentially aims to establish her full ownership of the ‘San Martino’ property in Italy. Webb v Webb is considered, as are Weber v Weber and Komu v Komu (readers of the blog are aware that A24(1) cases often involve feuds between family members). Lavender J concludes that Ms Gray’s claim essentially is like Webb Sr’s in Webb v Webb: Ms Gray is not seeking an order for the sale of San Martino (and it does not appear that the right of pre-emption would be triggered by a judgment in her favour, as it would be by an order for sale). Nor is she seeking to give effect to her existing interest in San Martino. Rather, she claims that Mr Hurley holds his interest in San Martino on trust for her.
Application of Article 25 choice of court is summarily dismissed at 131 ff: there was choice of court and law (pro: Italy) in the preliminary sales and purchase agreement between the seller and Ms Gray. However, this clearly does not extend to the current dispute.
Next comes the application of Article 4’s domicile rule. Was Mr Hurley domiciled in England on 26 March 2019, when the court was seized? Article 62(1) Brussels Ia refers to the internal law. Application is made by Lavender J of inter alia  EWHC 160 (Ch), Shulman v Kolomoisky which I also included here; he also considers the implications of CJEU C-327/10 Lindner, and eventually decides that Mr Hurley was not domiciled in England, however that Lindner should be read as extending to the defendant’s last known domicile in a case where the Court: (1) is unable to identify the defendant’s place of domicile; and (2) has no firm evidence to support the conclusion that the defendant is in fact domiciled outside the European Union. This is a very relevant and interesting reading of Lindner, extending the reach of Brussels Ia as had been kickstarted by Owusu, with due deference to potential New Zealand jurisdiction (New Zealand domicile not having been established).
Final conclusion, therefore, is that Ms Hurley may rely on Article 4 Brussels Ia. Quite what impact this has on the New Zealand proceedings is not discussed.
Interesting judgment on many counts.
(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2 practically in its entirety.
Thank you Chloe Oakshett for flagging  CSOH 45 BN Rendering Limited v Everwarm Ltd, in which the Commercial Court in Edinburgh considered its jurisdiction to enforce an adjudicator’s award. Bone of contention was choice of court (ditto law) in the underlying contracts in favour of the courts at England (and English law). Both parties are domiciled in Scotland. Relevant works had to be carried out in Scotland. The Brussels I Recast Regulation does not formally apply between them: Scots-English conflicts are not ‘international’ within the meaning of that Regulation.
However Lord Bannatyne (at 16) points out that even for intra-UK conflicts, the Civil Jurisdiction and Judgements Act 1982 (per instruction in section 20(5) a) must be interpreted taking into account the Brussels regime and its application by the CJEU. It is in this context that Case 24/76 Colzani resurfaces: ‘real consent’ needs to be established without excess formality.
At 28 Lord Banatyne lists claimant’s arguments: the party’s contract was not signed by both parties; nevertheless the defender’s subcontract terms and conditions form part of the contract; the subcontract order refers expressly to the defender’s subcontract terms and conditions which includes the jurisdiction exclusion clause and lastly, that express reference meets the test for real consent to the jurisdiction clause.
Put in summary: At 49: Is an express reference in the defender’s subcontract order (sent to the pursuer) to the defender’s subcontract terms and conditions, which contain the jurisdiction clause (which document is unsigned by the pursuer) sufficient to satisfy the test that it is clearly and precisely demonstrated that the parties agreed to the clause conferring jurisdiction on the English courts? Or put another way, in order to satisfy the said test is it not only necessary for there to be an express reference to the defender’s subcontract terms and conditions but for the subcontract order to have been signed by the pursuer to demonstrate that the parties agreed to the clause conferring jurisdiction on the English courts?
The judge considers the answer to the above questions to be question 1, yes and question 2, no – and I believe he is right.
In Ecobank Transnational v Tanoh, the Court of Appeal refused an anti-enforcement injunction because of the applicant’s delay in filing it. Nigel Brook reviews the judgment’s findings on the issue of the anti-enforcement injunction here. The issue in this appeal is whether the High Court was wrong to refuse to grant Ecobank Transnational Incorporated (“Ecobank”), an injunction restraining Mr Thierry Tanoh (“Mr Tanoh”) from enforcing two judgments which he had obtained in Togo and Côte d’Ivoire. In substance the case concerned the relationship between arbitration, proceedings in the court in ordinary, and submission: it is to the latter that I turn my attention in this posting.
The Brussels regime does not apply – at stake is the application of the Civil Jurisdiction and Judgments Act 1982, which reads in relevant section
“33 For the purposes of determining whether a judgment given by a court of an overseas country should be recognised or enforced in England and Wales or Northern Ireland, the person against whom the judgment was given shall not be regarded as having submitted to the jurisdiction of the court by reason only of the fact that he appeared (conditionally or otherwise) in the proceedings for all or any one or more of the following purposes, namely
(a) to contest the jurisdiction of the court;
(b) to ask the court to dismiss or stay the proceedings on the ground that the dispute in question should be submitted to arbitration or to the determination of the courts of another country.”
Whilst the section states that a person shall not be regarded as having submitted by reason only of the facts there mentioned it is silent as to what additional facts are sufficient to establish submission. The Court of appeal confirms the feeling expressed in earlier case-law that Section 33 needs to be applied in parallel with Article 18 of the Brussels Convention, now Article 26 of the Brussels I Recast (and before that, Article 24 in the Brussels I Regulation). That is because Section 33 is largely derived from Article 18 of the Brussels Convention.
In the High Court judgment Burnton LJ said that it would be unfortunate if the principles applied by the courts of England and Wales on whether a litigant had submitted to the jurisdiction of a foreign court in non-EU cases were different from the principles applied by the Court of Justice, and therefore those courts, in cases under the Brussels and Lugano Conventions and now the Judgments Regulation.
In current appeal, Clarke LJ held (at 66) ‘I would go further. The decision of the court in Harada in relation to section 33 was heavily influenced by the decision of the European Court in relation to Article 18 of the Brussels Convention. But, now that section 33 has been interpreted in the way that it has, it cannot be right that it should bear a different meaning in cases outwith the European context.‘
Submission was not found to exist.
Do be aware of the limits to the relevant findings: Section 33 was largely borrowed, it appears, from the Brussels Convention. Many parts of English private international law, statutory or not, are no so borrowed. In those areas, the courts of England happily continue to follow their own course.