Fraude à la loi

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In a judgment of 17 April 2007, the Court of first instance of Hasselt found that the exception of fraude à la loi did not apply to the following case: A man from India and a woman from The Netherlands married in Sweden. They had no connection to that country (no friends or family; never lived there). The city where they moved to in Belgium refused to recognise their marriage on the basis of fraude à la loi (arguing that the couple should have married in The Netherlands or in Belgium, and only went to Sweden because of the less stringent requirements regarding documents etc.). The court found that this exception did not apply. In its considerations, the court mentioned that this was not a simulated marriage.

Legalisation attachments in Belgium

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In Belgium a practice has developed whereby the Belgian embassies in foreign countries may attach a ‘warning’ when legalising a document. The most frequent example is for repudiation. The warning note will then indicate to the future receiver of the document that according to the embassy, the document concerns the unilateral dissolution of a divorce.

This practice has been affirmed in an ‘Arrêté royal’ (published in the Moniteur belge of 11 January 2007). In the past the warning could be inserted on the legalisation sticker or on a separate sheet of paper attached to the document and legalisation, but according to the new rules only the last option remains.

It seems that such warning is most often respected in practice. However, strictly speaking the warning is not legally binding, as it is the competence of the authority in Belgium where the document is presented to consider its content and whether it can be recognised.

MPI Comments on the Green Paper on the Attachment of Bank Accounts

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The Max Planck Working Group has – besides the comments on Rome I (see our older post) – also elaborated “Comments on the European Commission’s Green Paper on Improving the Efficiency of the Enforcement of Judgments in the European Union: The Attachment of Bank Accounts”.

The comments can be found on the MPI’s website and will be published in the European Company and Financial Law Review (issue 2, 2007) in due course.

The Commission’s Green Paper (COM(2006) 618 final) can be found here.

Yearbook of Private International Law, vol. VIII (2006)

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The VIII volume (2006) of the Yearbook of Private International Law (published by Sellier and Staempfli in association with the Swiss Institute of Comparative Law) is expected in June. It contains a huge number of articles, national reports, commentaries on court decisions and other materials, up to nearly 500 pages.

The main section (“Doctrine”) of the volume is devoted to the memory of Prof. Petar Šar?evi?, who co-founded the periodical in 1999 with Prof. Paul Volken (a biography and list of publications of Prof. Šar?evi? can be found in the Liber Memorialis dedicated to his memory, published by Sellier in 2006: “Universalism, Tradition and the Individual“, edited by J. Erauw, V. Tomljenovi? and P. Volken).

A presentation of the new volume is provided by the current editors of the Yearbook, Prof. Paul Volken and Prof. Andrea Bonomi, in the “Foreword”:

The present volume of the Yearbook is a special one for at least two reasons. First, it includes a section devoted to the memory of the Yearbook’s spiritual father, the late Petar Šar?evi?. […]

This special section features twelve most interesting contributions by colleagues from no less than eleven countries and three continents, thus confirming once again the worldwide reputation of Petar Šar?evi? and his Yearbook. The papers deal with a wide array of subjects ranging from classical themes such as the protection of children in inter-country adoptions and abduction cases, the principle of comity in United States case law and new national conflict codifications, to very fashionable topics like non-marital unions and same-sex marriages, up to the new challenging questions of the conflict régime of euthanasia and living wills. […]

With the intention of bringing the celebratory aim of the present volume in harmony with the general goals of the Yearbook, we have maintained in the current issue most of our traditional sections. We thus have the pleasure of presenting the reader with several most interesting national reports, as well as commentaries on court decisions and recent developments from various African, Asian and European countries. We will not mention all of them here, but we are pleased to stress that, in line with the purpose of extending with each passing year the Yearbook’s information network, the present volume hosts for the first time contributions from Greece, India, Latvia, Qatar and Tunisia.

In order to make the Yearbook more attractive for practitioners, we have also enlarged the section on national court decisions and included contributions on international arbitration. And last but not least, this year’s ‘Forum’ section summarizes the contents of two excellent doctoral theses on the pending European conflict system. One article analyzes the new system taking into account the scope of application of secondary Community legislation, while the other focuses on the conflict of laws aspects of the ever growing case law of the European Court of Justice.

Here’s the list of articles published in the “Doctrine” section (we highly recommend to browse the whole table of contents of the volume, which is not reproduced here in its entirety):

  • Alfred E. von Overbeck: Three Steps With Petar Šar?evi? (downloadable from the publisher’s website)
  • Tito Ballarino: Is a Conflict Rule for Living Wills and Euthanasia Needed?
  • Katharina Boele-Woelki, Ian Curry-Sumner, Miranda Jansen, Wendy Schrama: The Evaluation of Same-Sex Marriages and Registered Partnerships in the Netherlands
  • Alegría Borrás: Competence of the Community to Conclude the Revised Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters – Opinion C-1/03 of 7 February 2006: Comments and Immediate Consequences
  • Lawrence Collins: The United States Supreme Court and the Principles of Comity: Evidence in Transnational Litigation
  • William Duncan: Nationality and the Protection of Children across Frontiers, and the Example of Intercountry Adoption
  • Jasnica Garaši?: What is Right and What is Wrong in the ECJ’s Judgment on Eurofood IFSC Ltd
  • Huang Jin: Interaction and Integration between the Legal Systems of Hong Kong, Macao and Mainland China 50 Years after Their Return to China
  • Ulrich Magnus: Set-off and the Rome I Proposal
  • Yuko Nishitani: International Child Abduction in Japan
  • Yasuhiro Okuda: Reform of Japan’s Private International Law: Act on the General Rules of the Application of Laws
  • Robert G. Spector: Same-Sex Marriages, Domestic Partnerships and Private International Law: At the Dawn of a New Jurisprudence in the United States.

The table of contents of the previous volumes of the Yearbook (1999-2005) is available on the website of Sellier – European Law Publisher, in the “Private International Law” section (use the “serial” dropdown menu on the top of the page).

First Issue of 2007’s Revue Critique de Droit International privé

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The last issue of the French Revue Critique de Droit International Privé has just been released. It contains two articles, written in French.

The first deals with immigration law, which has traditionally been regarded as part of private international law in France. It is authored by professor Dominique Turpin and presents the last legislative reform in the field.

The title of the second article is “Le Reglement communautaire sur l’obtention des preuves: un instrument exclusif?” (The European Regulation on the Taking of Evidence: an Exclusif Instrument?). It is authored by Belgian professor Arnaud Nuyts. Unfortunately, the author does not provide any abstract.

Comments on Rome I

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The latest volume of the German legal journal Rabels Zeitschrift (Vo. 71, No. 2, April 2007) contains “Comments on the European Commission’s Proposal for a Regulation of the European Parliament and the Council on the law applicable to contractual oblitations (Rome I)” (in English) elaborated by the Working Group on Rome I of the Max Planck Institute for Comparative and International Private International Law.

The Mozambique Rule and IP Rights in New Zealand

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In a recently reported judgment, McKenzie J of the High Court of New Zealand has held that the New Zealand courts can exercise jurisdiction over claims for the infringement of foreign copyright, at least where the defendant is served within the jurisdiction and where the existence and validity of the foreign copyright is undisputed.

The case, KK Sony Computer Entertainment v Van Veen (2006) 71 IPR 179, concerned the sale and distribution in New Zealand, Hong Kong and the UK of a computer program which enabled the user to circumvent the embedded copy protection in Sony PlayStation 2 computer games. The plaintiff alleged breaches of the New Zealand, Hong Kong and UK copyright statutes, and the defendant entered a statement of defence in which he admitted the facts that would make him liable under each of those statutes. Beyond entering that statement, the defendant did not otherwise appear.

McKenzie J entered judgment for the plaintiff. His Honour declined to follow previous New Zealand and Australian authority on the point, and instead applied the English Court of Appeal decision in Pearce v Ove Arup Partnership Ltd [1999] 1 All ER 769. His Honour drew a distinction between cases in which the plaintiff’s title or rights were in dispute (in which the Mozambique rule would apply), and those cases in which the title or rights were undisputed (in which the court would be free to exercise jurisdiction).

His Honour then characterised the copyright infringement as a “wrong”, and then asked whether the double actionability rule in Phillips v Eyre precluded the court from entering judgment for the plaintiffs. The problem was that the infringements of UK and Hong Kong copyright “do not constitute a wrong against New Zealand copyright, since New Zealand copyright is territorial in effect.” The solution, again, was to be found in Pearce v Ove Arup: one simply “effect[s] a notional transfer to New Zealand, for consideration under New Zealand law, of both the infringing act, and the intellectual property right infringed.”

The decision is a curious one in some respects. On the proffered reasoning, what difference did it make that the defendant was resident in New Zealand? And if all jurisdictional complexities could be resolved by a “notional transfer”, why should the court’s jurisdiction be limited to those cases in which the existence of the IP right is undisputed? Cross-border infringement of IP rights is a real and topical problem: whether Sony v Van Veen (or, more importantly, Pearce v Ove Arup) offers a satisfactory response lies very much in the eye of the beholder.

Australian Article on Enforcing a Judgment on a Judgment

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P St J Smart (University of Hong Kong) has written an article in the latest Australian Law Journal (2007 vol 81, p 349) on the question of whether an Australian court may enforce a foreign judgment which is itself founded upon the judgment of another, different foreign court. The abstract continues:

The enforceability of a so-called “judgment on a judgment” has been canvassed by academic writers and has the support of at least one recent case (albeit not in an Australian court). Yet this commentator suggests that an Australian court should not enforce the judgment of an intermediary foreign court because such judgment will not meet the requirement that it is a decision on the merits of the parties’ dispute.

The article takes as its starting point the recent Hong Kong decision in Morgan Stanley & Co International Ltd v Pilot Lead Investments Ltd [2006] 4 HKC 93; [2006] HKCFI 430, which concerned the enforcement in Hong Kong of an Singaporean order which was in turn based upon the registration of an English judgment.

The article is available on the internet to Lawbook Online subscribers.

French Judgements on Article 5(1)(b) of the Brussels I Regulation, Part II

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In a recent post, I presented two 2006 judgements of the French supreme court for private matters (cour de cassation) on the application of Article 5 (1)(b) to distribution contracts. The Cour de cassation had held twice that the distribution contracts were Contracts for the Provision of Services in the meaning of article 5.

On January 23, 2007, the same court held in Waeco that another kind of distribution contract, a concession exclusive (exclusive concession in English?) was neither a Sales of Goods, nor a Provision of Services in the meaning of article 5(1)(b), and that, as a consequence, article 5(1)(a) had to be applied.

In Waeco, a distribution contract of concession exclusive de vente (Sale exclusive concession agreement) had been concluded in 2000 between a German seller, Waeco Int’l, and a French distributor, Waeco France. When the German party terminated the contract in December 2002, the French party decided to initiate proceedings in France. The Court of appeal of Aix-en-Provence had found that article 5 (1)(b) applied. The Cour de cassation reversed and held that article 5(1)(a) applied as exclusive concession agreements were neither sales of goods, nor provisions of services. It then went on to determine the applicable law pursuant to article 4 of the Rome convention to assess where the obligation in question was being performed. It held that the characteristic obligation was the provision of the sales exclusivity by the German seller to the French distributor, and that German law thus applied.

French judgements never mention previous cases. It is thus left to commentators to guess whether what may appear as a contradiction is not, or is. The only way to reconcile these cases that I can think of is to distinguish them on the nature of the distribution contract involved. In the 2006 cases, the distributor was not buying to resell, but was only making the sale happen: he was either facilitating the sale, or an agent. The distribution contract did not entail any sale. In Waeco, the distributor was buying the goods from the seller to resell them, and had the exclusivity of the sales on his commercial territory. The distribution contract involved both a sale and a service. For choice of law purposes, the Cour de cassation rules that one (sales exclusivity) is more important than the other, but for jurisdictional purposes, it refuses to choose and comes back to the good old article 5(1)(a) rule.

Brussels IV – The Problems of Trusts and Characterisation

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Richard Frimston (Russell Cooke solicitors) has written a note in the new issue of Private Client Business on “Brussels IV – The Problems of Trusts and Characterisation in the Civil Law” (P.C.B. (2007) No.3 Pages 170-180). The abstract reads:

Discusses European Commission plans to propose rules on jurisdiction and enforcement of judgments concerning succession (Brussels IV), considering how these plans may affect succession planning with lifetime gifts and settlements. Anticipates what the Commission may propose, and speculates how Brussels IV may interact with the Hague Convention on the Law Applicable to Trusts and on their Recognition 1985. Examines how the UK and Ireland may be particularly affected, because of the different classification of trusts in civil law countries.

A little bit from the conclusion:

In the past, jurisdictions have attempted to protect trust assets from foreign succession law claims on a unilateral basis. With the probability that succession law will become more, rather than less, directly enforceable between European jurisdictions, even more care needs to be given to the legal implications of the initial transfer, especially since change is also in the air, as to the relevant law of such transfer, particularly for dematerialised securities. It is to be hoped that issues of classification will be a matter to be decided by the law of the forum.

The European Commission Green Paper on Succession and Wills (i.e. Brussels IV) can be found here. The UK response to the Green Paper is here. The P.C.B. article can be found on Westlaw for those with access.