The fourth issue of French Journal du droit international (Clunet) for 2013 was just released. It contains two articles discussing issues of private international law and several casenotes. A full table of content will soon be available here.

In the first article, Hughes Fulchiron (University of Lyon III) discusses the private international law aspects of same-sex marriage after the French statute allowing same sex marriage (Le mariage entre personnes de même sexe en droit international privé au lendemain de la reconnaissance du « mariage pour tous »). The English abstract reads:

Concerned about giving the widest possible international influence to the consecration of same-sex marriage, the french legislator of 17 May 2013 enacted a new rule of conflict of laws according to which « two people of the same sex can contract marriage when for at least one of them, either his [her] personal law or the law of the State in which he [she] has his [her] domicile or residence permits it ». The same rule applies to appreciate the validity in France of same-sex marriages celebrated abroad. The freedom to get married between same-sex persons is setted up as a real French international public policy principle. The new rules arouse many difficulties on the legal plan, but also on the diplomatic plan. Moreover, they increase « lame » marriages. Especially, the legislator in 2013 did not cared about the effects of same-sex marriages, whether the effects in France of a marriage celebrated abroad or effects abroad of a marriage celebrated in France. The question of same-sex marriages in international private law sheds a new light on some of the key issues of the international private law, as it creates original situation, poses complex problems and arouse various legal responses.

In the second article, Fanny Cornette, who is a researcher at the University of Delft (Holland), explores the issue of the COMI of natural persons under the Insolvency Regulation with a special focus on Alsace-Moselle (Le « centre des intérêts principaux » des personnes physiques dans le cadre de l’application du Règlement Insolvabilité dans les départements de la Moselle, du Bas-Rhin et du Haut-Rhin). The English abstract reads:

The notion of « center of main interest », key concept of the Insolvancy Regulation, caused difficulties even when applying this concept to individuals. Abundant jurisprudence was developed in the departments of Moselle, Bas-Rhin and Haut-Rhin, which are in France, for historical reasons, the only ones concerned by the application of this Regulation to individuals. Lots of debtors, coming from Germany and recently settled in these departments, were denied the application of this text. In fact, judges considered that they moved their center of main interests solely to benefit from the French law, which is more favorable to them than the German one. Therefore, several lines of thoughts should be considered to improve the application of the Insolvency Regulation.

Recently, the November/December issue of the German law journal “Praxis des Internationalen Privat- und Verfahrensrechts” (IPRax) was published.

• Bernhard Pfister: “Kollisionsrechtliche Probleme bei der Vermarktung von Persönlichkeitsrechten” – the English abstract reads as follows:

 Internationally famous celebrities often commercialize their personality rights in different countries. The following article tries to solve the problem, what national law is applicable in regard to the protection of these rights; the relevant sources of law for a German court are Arts. 42, 40 and 41 EGBGB. In this context, German courts and literature mostly deal with defamation by the press. In those cases, the personality of the defamed is offended and the law of the state, where the injured person lives (Erfolgsort) or where the newspaper is published (Handlungsort), is applicable. The issue of protection of commercially used property rights, however, is a different matter: The personality of the celebrity is not harmed, but the property right gained by her/his achievement. It is situated in the country, where the she/he is known.

Only the law of the state, where the advertisement was placed, has to be applied. This is the place, where the action occurred (Handlungsort) and where the damage was caused (Erfolgsort). Neither the law of the country, where the advertising documents had been written, nor the law of the country of the habitual residence are applicable.

•  Kurt Lechner: “The interplay between the law applicable to the succession and national property law (lex rei sitae) in the EU regulation on successions”

The line the European regulation on successions draws between the law applicable to the succession on the one hand, and property law on the other hand, raises specific questions in legal practice. The way a legatum vindicationis is to be treated by German law is a good example. Only a thorough analysis of the provisions in the regulation and their historic evolution in the law-making process can illustrate the functioning of the regulatory system. The stipulations of Article 1 (2) lit. l together with recital 18 of the regulation are the result of a carefully considered compromise between the institutions involved in the legislative process. Besides leaving the national register proceedings as such unaffected, the final wording expressly states that it is the national law that determines “the effects of recording or failing to record such rights in a register”. Moreover, as far as immovable property is concerned, recital 18 confirms the lex rei sitae principle. The European legislator hence gives precedence to the national property law, the accuracy of registers and the protection of bona fide rights over a more comprehensive application of the law applicable to the succession. As a result, and as far as real estate located in Germany is concerned, neither can rights in rem be created nor ownership be transferred without registration in the German land register. Accordingly, the protection of the integrity of the German land register and the protection of bona fide rights require a formal agreement (Auflassung) between the parties involved in the transfer of ownership.

•  Matthias Weller: “Keine Drittwirkung von Gerichtsstandsvereinbarungen bei Vertragsketten” – the English abstract reads as follows:

 In Refcomp the ECJ rejected any binding effect of a choice of forum clause on following buyers in the distribution chain raising an “action directe” under French law against the first seller. The judgment is unconvincing both in its reasoning and its result. It appears preferable to characterise as contractual the direct claim against the first seller if and to the extent the claim aims at compensating the contractual interests in full performance. The characterisation as delictual results in unforeseeable places of jurisdiction at the domicile of the respective buyer in the distribution chain. If the applicable law grants a direct claim to a third party, thereby transgressing the relativity of the contract, it appears justified to bind the privileged third party to what the contractual parties agreed for each other in respect to claims compensating the contractual interest.

•  Jan von Hein: “The applicability of Art. 5 No. 3 Brussels I-Regulation to damages caused by multiple tortfeasors”

 In Melzer v. MF Global UK Ltd, the CJEU refused the application of article 5 no. 3 of the Brussels I Regulation in a case in which the plaintiff who claimed to have been harmed by multiple tortfeasors had sued only the alleged accomplice, a London broker, at the place where the main perpetrator, a German company, had committed the relevant acts, i.e. defrauded the claimant. The German courts had so far applied a principle of “reciprocal attribution of the place where the event occurred” amongst multiple tortfeasors in such cases. The CJEU argued, however, that there is no equivalent autonomous concept in the Regulation, that art. 5 no. 3 must be interpreted restrictively and that the plaintiff could instead have sued under art. 5 no. 1 or art. 6 no. 1 of the Regulation. In his critical note, Jan von Hein argues that, given the substantial convergence of Member States’ laws on joint and several liability of multiple tortfeasors, the Court should have contributed to the development of an autonomous rule on attribution. The doctrine of restrictive application of art. 5 no. 3 is not absolute, but must be balanced against the principle of effet utile. The alternatives suggested by the CJEU – generously re-characterizing claims sounding in tort as contractual or suing all alleged tortfeasors at the same time – are, in a large number of cases, either not available or lead to unsatisfactory consequences. Particularly in the given case, a suit against the main perpetrator would not have been admissible because of its insolvency. The note concludes with an outlook on pending cases concerning infringements of intellectual property rights.

•  Wulf-Henning Roth: “Choice-of-law clauses in consumer contracts – a difficult matter?”

The judgment of the Bundesgerichtshof (BGH) deals with the use of a choice-of-law clause in the standard terms of a consumer contract. Applying German law to the relevant clause the Court holds that a choice-of-law clause may not be misleading and has to stand up to the standard of transparency. The implications of this approach need to be discussed further on. The Court classified the action for injunctive relief brought by a trade organisation as delictual, applying German private international law of torts, thereby disregarding the Rome II-Regulation. Moreover, the Court hold that the question whether the relevant choice-of-law clause stands up to the standard of transparency shall be determined by the applicable law of torts, instead of classifying this issue as a contractual one. It is suggested that this classification should be reconsidered.

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On 6 November 2013, the UK Supreme Court delivered its judgment in the three cases in the Matter of the Alexandros T.

The Court issued the following press release:

BACKGROUND TO THE APPEALS

On 3 May 2006, the vessel Alexandros T sank and became a total loss 300 miles south of Port Elizabeth with considerable loss of life. Her owners were Starlight Shipping Company (“Starlight”). Starlight made a claim against their insurers, who denied liability on the basis that the vessel was unseaworthy with the privity of Starlight. In response, Starlight made a number of serious allegations against their insurers including allegations of misconduct involving tampering with and bribing of witnesses.

On 15 August 2006, Starlight issued proceedings in the Commercial Court against various insurers (“the 2006 proceedings”). One group of insurers was described as the Company Market Insurers (“CMI”) and the other group was described as the Lloyd’s Market Insurers (“LMI”). Before the hearing, the 2006 proceedings were settled between Starlight and the insurers and the proceedings were stayed by way of a Tomlin Order.

In April 2011, nine sets of Greek proceedings, in materially identical form, were issued by Starlight although they were expressed as torts actionable in Greece. The insurers sought to enforce the earlier settlement agreements. Starlight applied for a stay of these proceedings, firstly pursuant to Article 28 then Article 27 of Council Regulation (EC) No 44/2001 (“the Regulation”)

The judge refused to grant a stay under Article 28 and gave summary judgment to the insurers. The Court of Appeal held that it was bound to stay the 2006 proceedings under Article 27, which provides for a mandatory stay, and it was not therefore necessary to reach a final determination of the position under Article 28. Before the Supreme Court, the insurers challenge the correctness of the Court of Appeal’s conclusion under Article 27 and submit that the judge was correct to refuse a stay under Article 28. Starlight cross-appeal on the Article 28 point.

JUDGMENT

Subject to the possibility of a reference to the CJEU on some limited questions, the Supreme Court unanimously allows the CMI’s and LMI’s appeal. Lord Clarke gives the lead judgment, with which Lord Sumption and Lord Hughes agree. Lord Neuberger agrees adding a short judgment of his own. Lord Mance agrees with the result.

REASONS FOR THE JUDGMENT

Article 27

Article 27 must be construed in its context. The purpose of Article 27 is to prevent the courts of two Member States from giving inconsistent judgments and to preclude, so far as possible, the non-recognition of a judgment on the ground that it is irreconcilable with a judgment given by the court of another Member State [23, 27].

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The Lithuanian Supreme Court has made a preliminary reference to the Court of Justice of the European Union asking whether the Brussels Regime forbids the recognition of arbitral anti-suit injunctions. In this case, after one party initiated court proceedings in Lithuania, the other party commenced arbitral proceedings in Sweden. The arbitral tribunal found that the Lithuanian court proceedings were in breach of the arbitral agreement and issued an antisuit injunction. The beneficiary of the injunction then sought recognition in Lithuania.

The Lithuanian Supreme Court is therefore asking the CJEU whether the Brussels Regime forbids arbitral antisuit injunction as well, and whether this might mean that the Brussels Regime would have impact on the recognition of arbitral awards issuing such injunctions.

See this report of John Gaffney @ OGEMID:

In proceedings before the Lithuanian Supreme Court (LSC) concerning the recognition and enforcement of an arbitral award in SCC arbitral proceedings between Gazprom and the Lithuanian Ministry of Energy, the LSC has decided to make a preliminary reference to the Court of Justice of the EU (CJEU).

Background

In 2004, Gazprom and the Ministry of Energy of Lithuania and other shareholders in the Lithuanian natural gas company, Lietuvos Dujos, entered into a shareholders’ agreement (“SHA”), which required all disputes arising out of or in connection with it to be resolved by arbitration under the Rules of the Stockholm Chamber of Commerce (SCC).

In 2011, the Ministry of Energy commenced proceedings before the Lithuanian courts in respect of the actions of Lietuvos Dujos in relation to the terms of a gas supply and gas transit concluded with Gazprom.

Gazprom commenced the SCC arbitration proceedings, arguing that Lithuania’s attempt to litigate certain matters relating to the management of Lietuvos Dujos before the Lithuanian courts was a breach of SHA.

In a 2012 award, the arbitral tribunal (Derains, Nappert, Lamb) declared that the Ministry’s initiation and prosecution of the Lithuanian court proceedings was partially in breach of the arbitration agreement contained in the SHA and ordered the Ministry to withdraw certain requests in the court proceedings and to limit its request in the same proceedings to measures that would not jeopardize the rights and obligations established in the SHA and that the Ministry could not request before an arbitral tribunal constituted pursuant to the arbitration clause of the SHA.

West Tankers

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I (University of Luxembourg) have posted A Critical Appraisal of Article 3.3.1 of the PICC on Contracts Infringing Mandatory Rules (Le Nouvel Article 3.3.1 Des Principes Unidroit 2010 Sur Le Contrat Violant Une Règle Impérative: Un Regard Critique Du Point De Vue Du Droit International Privé) on SSRN. The English abstract reads:

The 2010 UNIDROIT Principles of International Commercial Contracts include several new provisions on illegality. This paper offers a critical appraisal of one of them, Article 3.3.1 on Contracts Infringing Mandatory Rules. First, the paper wonders the extent to which applicable mandatory rules will tolerate the attempt of Article 3.3.1 to regulate their application. The paper then focuses on the distinction between effects of the infringement upon the contract expressly prescribed by the applicable mandatory rule and effects non expressly prescribed. It argues that, while the distinction makes sense in the context of the American Restatement (Second) on Contracts, which inspired the drafters, it does not in the context of a private instrument which will essentially be used by arbitrators to decide particular disputes. Finally, the paper discusses the relevance of the distinction between effects of the infringement of a mandatory rule upon the contract and the right to exercise remedies under the contract.

Note: Downloadable document is in French.

The paper is forthcoming in the Uniform Law Review.