The new European Insolvency Regulation

Antonio Leandro, the author of this post, teaches International Law at the University of Bari.

On 20 May 2015 the European Parliament approved the new European Insolvency Regulation (EIR) in the text adopted by the Council at first reading on 12 March (publication on the Official Journal is expected to follow soon). This marks the end of a revision process which started with the Commission proposal of 12 December 2012 (COM/2012/744 final).

The primary aim of the revision was to improve the operation of the EIR with a view to ensuring a smooth functioning of the internal market and its resilience in economic crises, having regard to national insolvency laws and to the case law of the ECJ on the “old” Insolvency Regulation, i.e. Regulation No 1346/2000 (the relevant ECJ judgments include: Susanne Staubitz-Schreiber [2006]; Eurofood IFSC [2006]; Deko Marty Belgium [2009]; SCT Industri [2009]; German Graphics [2009]; MG Probud [2010]; Interedil [2011]; Zaza Retail [2011]; Rastelli Davide [2011]; F-Tex SIA [2012]; ERSTE Bank Hungary [2012]; Ulf Kazimierz Radziejewski [2012]; Bank Handlowy [2012]; Grontimmo [2013]; Meliha Veli Mustafa [2013]; Ralph Schmid [2014]; Burgo Group [2014]; Nickel & Goeldner Spedition [2014]; H [2014]).

In short, the revised text: (a) extends the EIR’s scope to proceedings aimed at giving the debtor a “second chance”; (b) strengthens the current jurisdictional framework in terms of certainty and clarity; (c) improves the coordination among insolvency proceedings opened in respect of the same debtor and strikes a better balance between efficient insolvency administration and protection of local creditors; (d) reinforces the publicity of the proceedings by compelling Member States to provide for insolvency registers and by providing for the interconnection of national registers; (e) deals with the management of multiple insolvency proceedings relating to groups of companies.

The new EIR will enter into force following its publication in the Official Journal, but the bulk of its provisions will only apply in 2017.


A broader scope

Opening the EIR to collective rescue and restructuring proceedings, to proceedings which leave the debtor fully or partially in control of its assets and affairs and to proceedings providing for a debt discharge or a debt adjustment in relation to consumers and self-employed persons as well as to interim proceedings, means that the appointment of a “liquidator” and the debtor’s divestment are no more grounds of the EIR’s applicability.

The difference between “all-creditors-including” and “not-all-creditors-including” proceedings has been implicitly upheld. However, Recital 14 clarifies that proceedings not including all the creditors should be proceedings aimed at rescuing the debtor, while those leading to a definitive cessation of the debtor’s activities or to the liquidation of the debtor’s assets should include all the creditors.

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153399_b1b27432fbAndrea Isabell Dicke, attorney at law in Berlin, has authored a book on capital market related financial transactions with consumers under the Rome I Regulation (“Kapitalmarktgeschäfte mit Verbrauchern unter der Rom I-VO“)  Published by Mohr Siebeck the book provides a detailed and thorough analysis of Article 6(4) lit. d) and e) of the Rome I Regulation (in German). Further information is available on the publisher’s website. The official (English) abstract reads as follows:

Article 6(4) lit. d) and e) of the Rome I Regulation establish various capital market-related categories which are excluded from the general consumer protection under the special conflict of laws rule for consumer contracts in Article 6 of the Rome I Regulation. Andrea Isabell Dicke examines the scope of application and practical relevance of this exemption provision.

 

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The release of the latest volume of the Travaux du Comité Français de DIP, 2013-2014, has just been announced. These are the contributions therein:

Olivier CACHARD

Les conventions uniformes régissant les transports internationaux et les règles de droit international privé de l’Union européenne : symbiose, indifférence ou rejet ?

Table ronde sur les innovations du règlement Bruxelles I refondu :

Etienne PATAUT
Le domaine spatial des règles de compétence
Pascal de VAREILLES-SOMMIERES
Les conflits de procédures
Françoise MONEGER
La reconnaissance et l’exécution des jugements étrangers

Fabienne JAULT-SESEKE
L’appréhension de la responsabilité des groupes de sociétés par le droit international privé : l’exemple du droit du travail et du droit de l’insolvabilité

Maxi SCHERER
Les effets des jugements étrangers relatifs aux sentences arbitrales

Guido CARDUCCI
Acquisition a non domino, prescription acquisitive, possession vaut titre, conflit mobile et circulation d’une res extra commercium

Pierre VERON
Le brevet européen à effet unitaire et la Juridiction unifiée du brevet (aspects de droit international privé)

Sylvain BOLLEE
La gestation pour autrui en droit international privé

Stefania BARIATTI
Critères de compétence européens et domaine de la compétence territoriale des juridictions nationales

For more information click here.

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The Spanish Association of Professors of International Law and International Relations is hosting a conference on

The Extraterritorial Application of EU Law

in Vigo (Spain) the 18th and 19th of June 2015.

The conference is structured in 8 thematic panels entitled:

  • EU, Values and Human Rights
  • Extraterritorial Application of EU Law: Trade and Contracts
  • The Fight against Corruption from an International Law Perspective
  • The Extraterritorial Application of Intellectual Property Rights
  • The Extraterritorial Application of Data Protection Legislation
  • The Extraterritorial Application of EU Competition Law
  • The Extraterritorial Application of Environmental Law
  • Fishing Industries and the Changes in Maritime Areas

The entrance is free but prior registration is required by June, 17 via e-mail to: montserrat.abad@uc3m.es or laura.carballo@usc.es

Further information can be found here.

The conference is organized in the framework of the Jean Monnet Project EU Law between Universalism and Fragmentation: Exploring the Challenge of Promoting EU Values beyond its Border

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On June 1, 2015, the Yale – Humboldt Consumer Law Lecture will be held for the second time at Humboldt-University Berlin. In this annual lecture series, up to three scholars from Yale Law School  and other leading US-Law Schools will be invited to spend two weeks in Berlin, at Humboldt Law School. During their stay, and as part of a variety of different events, the three visitors will interact with  colleagues as well as doctoral candidates and students. The highlight of  these series of events will be the Yale Humboldt Consumer Law Lecture,  which will be open to all interested lawyers. The presentations will be followed by a discussion.

The event is aimed at encouraging the exchange between American and  European lawyers in the field of Consumer Law, understood as an  interdisciplinary field that affects many branches of law. Special emphasis will therefore be put on aspects and questions which have as yet received little or no attention in the European discourse.

The programm reads as follows:

  • 2.00 p.m.
    Welcome
    Professor Dr. Susanne Augenhofer, Humboldt University,  and Professor Dr. Peter A. Frensch, Vice President for Research of Humboldt University
  • 2.15 p.m.
    Knowledge in Law and Economics and the Information Fiduciary
    Professor Richard Brooks, Columbia Law School
  • 3.15 p.m.
    Coffee break
  • 3.45 p.m.
    Does Disclosure Work? Some Realities and Challenges in Consumer Markets
    Professor Florencia Marotta-Wurgler, NYU School of Law
  • 4.45 p.m.
    Break
  • 5.00 p.m.
    The No Reading Problem in Consumer Contract Law
    Professor Alan Schwartz, Yale Law School
  • 6.00 p.m.
    Panel Discussion

The event will be followed by a reception.

Further information is available here. Participation in the event is free of charge but binding
registration is required by online-registration.

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This conference, the next in a series that has featured Madrid (2013), Milan (2011), New York (2009), Birmingham (2007) and Aberdeen (2005), will be held in Cambridge, England at the University of Cambridge.  As in the past, it features a diverse line-up of exciting speakers on interesting topics.  All essential information can be found on the conference web site (http://www.pilconf15.law.cam.ac.uk/) which can be accessed here.  In particular, the program and additional essential information can be obtained.

Accommodation is in Harvey Court, Gonville & Caius College, West Road.  All rooms are ensuite and there are some doubles.  It is very close to the Law Faculty.  The conference dinner on Thursday evening is in Caius Old Hall.  Both accommodation and dinner can be booked via the same link.  The further information gives travel advice about coming to Cambridge.

The conference organizers are Richard Fentiman, Pippa Rogerson and Louise Merrett.  The conference is supported by the Centre for Corporate and Commercial Law (3CL).

Registration is now open and so you are encouraged to book.

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Under the Brussels I Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (and, today, under the recast Brussels Ia Regulation), choice-of-court agreements must comply with certain formal requirements. These are set out in Article 23(1) of the Brussels I Regulation (corresponding to Article 25(1) of the recast). The agreement may either be “in writing” or “evidenced in writing”, or be “in a form which accords with practices which the parties have established between themselves” or, in international trade, in a form which accords with a usage of which the parties are or ought to have been aware.

Article 23(2) of the Brussels I Regulation (Article 25(2) of the recast) adds that “[a]ny communication by electronic means which provides a durable record of the agreement shall be equivalent to ‘writing’”.

In a judgment of 21 May 2015 (Case C-322/14, Jaouad El Majdoub v CarsOnTheWeb) the ECJ clarified the meaning of the latter provision.

The Court had been seised of a request for a preliminary ruling in the framework of a dispute regarding a contract for the sale of a car concluded by “click-wrapping” between parties none of which was a consumer.

In electronic contracts, click-wrapping occurs where the webpage containing the general terms and conditions of the seller does not open automatically upon registration or in the process leading to the individual transaction. Rather, to view such general terms and conditions, the purchaser must click on a box bearing an indication such as to “click here to open the general conditions of sale in a new window” .

In the case at hand, the general conditions of the seller included a forum-selection clause providing for the jurisdiction of a court in Leuven. The purchaser, however, contended that the click-wrapping method of accepting such general terms did not fulfil the requirements laid down in Article 23(2) of the Brussels I Regulation. Consequently, the jurisdiction clause cannot, in his view, be invoked against him.

In its judgment, the ECJ held that the method of accepting the general terms and conditions of a contract by “click-wrapping” constitutes a communication by electronic means which provides a durable record of the agreement, within the meaning of Article 23(2) of the Brussels I Regulation, “where that method makes it possible to print and save the text of those terms and conditions before the conclusion of the contract”.

The reasoning of the Court may be summarised as follows.

The formal requirements in Article 23 of the Brussels I Regulation “must be strictly interpreted”, since a valid agreement excludes both the general jurisdiction of the courts of the State in which the defendant is domiciled and the special jurisdiction provided for in Articles 5 to 7 of that Regulation (Articles 7 to 9 of the recast).

The scope of Article 23 is limited to cases in which the parties have “agreed” on a court. It is that consensus between the parties which justifies the primacy granted, in the name of the principle of autonomy, to the choice of a court other than that which may have had jurisdiction under the Regulation.

Thus, as the Court itself already observed with reference to the predecessor of the Brussels I Regulation, i.e. the Brussels Convention of 27 September 1968, the rule in question, by making the validity of a jurisdiction clause subject to the existence of an “agreement” between the parties, “imposes on the court before which the matter is brought the duty of examining … whether the clause conferring jurisdiction upon it was in fact the subject of consensus between the parties, which must be clearly and precisely demonstrated”.

Under Article 23(2) of the Brussels I Regulation, the validity of a forum-selection agreement involving communication by electronic means depends, inter alia, on the possibility of providing a durable record of the agreement of the parties.

Literally, this provision requires there to be the “possibility” of providing such a durable record, “regardless of whether the text of the general terms and conditions has actually been durably recorded by the purchaser before or after he clicks the box indicating that he accepts those conditions”.

Furthermore, the Explanatory Report of the Lugano Convention of 30 October 2007, by Professor Fausto Pocar, suggests that the test of whether the formal requirement in that provision is met is “whether it is possible to create a durable record of an electronic communication by printing it out or saving it to a backup tape or disk or storing it in some other way”, and that that is the case “even if no such durable record has actually been made”, meaning that “the record is not required as a condition of the formal validity or existence of the clause”.

As a matter of fact, the purpose of Article 23(2) is “to treat certain forms of electronic communications in the same way as written communications in order to simplify the conclusion of contracts by electronic means, since the information concerned is also communicated if it is accessible on screen”. For electronic communication to offer the same guarantees, in particular as regards evidence, “it is sufficient that it is ‘possible’ to save and print the information before the conclusion of the contract”.

The Court noted that, in Content Services, a judgment of 2012, it held that “a business practice consisting of making information accessible only via a hyperlink on a website does not meet the requirements” set out by Article 5(1) of Directive 97/7/EC on the protection of consumers in respect of distance contracts, pursuant to which the consumer must receive “written confirmation” of certain information to be provided prior to the conclusion of the contract, or “confirmation in another durable medium available and accessible to him”.

However, the Court explained, that interpretation cannot be applied to Article 23(2) of the Brussels I Regulation, “since both the wording of Article 5(1) of Directive 97/7 … and the objective of that provision, which is specifically consumer protection, differ from those of Article 23(2)”.

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Today, the long-awaited ruling of the CJEU in the CDC-proceedings has been delivered. It is the first time that the issue of jurisdiction in cartel damage claim-cases according to the Brussels I Regulation is dealt with by the CJEU.

The decision can be accessed here.

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An article and a case note on international jurisdiction in intellectual property disputes are published in Journal of Intellectual Property Law & Practice, Volume 10, Issue 6, 2015.

Annette Kur is the author of article Enforcement of unitary intellectual property rights: international jurisdiction and applicable law (pp. 468-480), a translation from German of the previously reported publication. The abstract reads:

Proprietors of Community trade mark and design rights have several advantages over national right holders. In case of cross-border infringements, the claims are based on uniform law and decisions rendered by Community Trade Mark and Design Courts with central competence have immediate legal effect throughout the Community. Nevertheless several issues remain unclear, and where such issues arise, they were not always resolved satisfactorily by the CJEU. The pertinent case-law demonstrates that the CJEU fails to appreciate the particularities of intellectual property law that accrue from the principle of territoriality. Another problem is that the CJEU uses the terms “place of infringement” and “place where the event causing damage occurred” synonymously, yet the meaningful use of these terms in industrial and intellectual property law requires a clear-cut conceptual distinction.

Kevin Bercimuelle-Chamot wrote a case note Accessibility is the relevant criterion to determine jurisdiction in online copyright infringement cases (pp. 406-407). The abstract reads:

The Court of Justice of the European Union (CJEU) held that in online copyright infringement cases the special rule of jurisdiction in Article 5(3) of Regulation 44/2001 (the ‘Brussels I Regulation’) must be interpreted as giving jurisdiction to the courts located in the member state where the allegedly infringing content is accessible and that, in compliance with the principle of territoriality of copyright, those courts have competence only to determine the damages that have occurred therein.

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The renowned German legal periodical „Recht der Internationalen Wirtschaft“ (RIW; International Business Law Review) will host a conference on „Provisional Measures in European Civil Litigation“ in Frankfurt/Main on Wednesday, 17 June 2015. This event is the second in a series of workshops that was successfully launched in 2014 and that aims at bringing together high-level academics and practitioners. The conference language is German. Registration is still possible. Further information is available here. The programme will be as follows:

10.30–10.35 Welcoming the participants

Dr. Roland Abele

10.35–10.45 Introduction

Prof. Dr. Jan von Hein, University of Freiburg (Germany)

10.45–11.30 Provisional Measures under Article 35 Brussels Ibis

Prof. Dr. Jan von Hein, University of Freiburg (Germany)

11.30–11.45 Coffee Break

11.45–12.30 The European Account Preservation Order

Prof. Dr. Tanja Domej, University of Zurich

12.30–13.15 Discussion

13.15–14.15 Lunch

14.15–15.00 Provisional Measures concerning Intellectual Property Rights

Prof. Dr. Christian Heinze, LL.M. (Cambridge), University of Hanover

15.00–15.20 Discussion

15.20–15.45 Coffee Break

15.45–16.30 Provisional Measures and Arbitration

Prof. Dr. Jens Adolphsen, University of Gießen

16.30–16.50 Discussion

16.50–17.00 Conclusion

Prof. Dr. Jan von Hein, University of Freiburg (Germany)

17.00 End of Conference

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