Call for Submissions: Trade, Law and Development

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Posted at the request of Sahil Verma, Managing Editor, Trade, Law and Development

General Issue

Issue 12.2 | Winter’20

The Board of Editors of Trade, Law and Development are pleased to invite original, unpublished manuscripts for publication in the Winter ’20 Issue of the Journal (Vol. 12, No. 2) in the form of ‘Articles’, ‘Notes’, ‘Comments’ and ‘Book Reviews’.

Manuscripts received by August 15th, 2020, pertaining to any area within the purview of international economic law will be reviewed for publication in the Winter ’20 issue.

Founded in 2009, the philosophy of Trade, Law and Development has been to generate and sustain a constructive and democratic debate on emergent issues in international economic law and to serve as a forum for the discussion and distribution of ideas. Towards these ends, we have published works by noted scholars such as WTO DDG Yonov F. Agah, Dr. Prof. Ernst Ulrich Petersmann, Prof. Steve Charnovitz, Prof. Petros Mavroidis, Prof. Mitsuo Matsuhita, Prof. Raj Bhala, Prof. Joel Trachtman, Gabrielle Marceau, Simon Lester, Prof. Bryan Mercurio, and Prof. M. Sornarajah among others. TL&D also has the distinction of being ranked the best journal in India across all fields of law for seven consecutive years by Washington and Lee University, School of Law.

Manuscripts may be submitted via e-mail or ExpressO. For further information about the Journal, please click here. For submission guidelines, please click here.

In case of any queries, please feel free to contact us at: editors@tradelawdevelopment.com

LAST DATE FOR SUBMISSIONS: 15 August, 2020

German Society of International Law: Corporate social responsibility and international law

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In April 2019 the German Society of International Law (Deutsche Gesellschaft für Internationales Recht) held its 36th biannual conference at the University of Vienna. Organised by August Reinisch (University of Vienna) in cooperation with Eva Maria Kieninger (University of Würzburg) and Anne Peters (Max Planck Institute Heidelberg), the conference  discussed the concept of „Corporate social responsibility“ from both a public and a private international law perspective. Presentations were given by Tanja Domej (University of Zurich), Oliver Dörr (University of Osnabrück), Anatol Dutta (University of Munich), Peter Hilpold (University of Innsbruck), Stefan Huber (University of Tübingen), Nico Krisch (Graduate Institut of Geneva), Giesela Rühl (University of Jena/Humboldt-University of Berlin) and Silja Vöneky (University of Freiburg).

Over the course of the next days conflictoflaws.net will present the main findings of the contributions in a series of blogposts. The full (German) contributions can be found in the conference proceedings that have just been published by C.F. Müller.

First contact of Greek courts with the 2005 Hague Choice of Court Convention

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The Choice of Court Convention is already close to its 5th year of application. Case law is still scarce. A Greek court tackled with the question, whether to apply the Convention or not. It decided that it should apply, but at the end it considered that the agreement was asymmetric, therefore outside the scope of the Convention.

 

THE FACTS

The claimant is a ship owner company registered in Monrovia, Liberia. While the claimant’s ship was on its way to Novorossiysk, Russia, the claimant agreed with a company registered in Hong Kong [defendant], having however a branch in Piraeus, to buy a quantity of petrol, to be delivered at the port of the Russian city. A few days later, both the ship and the fuel were in Novorossiysk. During bunkering, the 1st engineer of the ship requested the interruption of the supply. He was suspicious that petrol was not of the agreed quality. A technical inspection a couple days later proved that the engineer was right. As a result, litigation ensued before the Piraeus courts. The defendant did not challenge the court’s international jurisdiction. At the same time, he filed an interpleader action against the petrol supplier. The latter, a company registered in Monaco, challenged the jurisdiction of the Greek court, by invoking a choice of forum agreement between the parties, stipulated on the invoice issued as a standard term of the deal.

 

THE RULING

The court engaged in a thorough analysis of the issue: It confirmed that the agreement was falling under the scope of the convention both ratione temporis and ratione materiae. The agreement was signed after the entry into force of the Convention (1/10/2015) and concerned a genuinely commercial dispute. It then examined the content of the choice of forum clause, and considered that the agreement was asymmetric, i.e. unilaterally in favor of the seller, and to the detriment of the buyer. As a second step, the court found that the Brussels Ia Regulation was also not applicable, because the conditions provided by Article 25, lit. a – c were not met. Following the above, the court resumed to domestic provisions of the Greek Code of Civil Procedure, in order to establish its international jurisdiction (Article 31, similar actions).

 

COMMENT

The wording of the choice of court clause reads as follows: The contract is governed by English law; the contracting parties accept the exclusive jurisdiction of English courts for the resolution of any dispute related to the present contract [translated by the author]. I don’t think I need to say anything here; there’s nothing asymmetric in this clause. I will just reproduce a passage from the Explanatory Report prepared by Professors Hartley and Dogauchi:

105 Asymmetric agreements. Sometimes a choice of court agreement is drafted to be exclusive as regards proceedings brought by one party but not as regards proceedings brought by the other party. International loan agreements are often drafted in this way. A choice of court clause in such an agreement may provide, “Proceedings by the borrower against the lender may be brought exclusively in the courts of State X; proceedings by the lender against the borrower may be brought in the courts of State X or in the courts of any other State having jurisdiction under its law.”

 

The final point I want to make is that the court shouldn’t go that far with the examination of the matter. As mentioned above, the parties in question were registered in Hong Kong and Monaco. Both countries are not signatory members to the Hague Convention. Hence, the analysis was unnecessary.

 

Conclusion: Bad publicity is still publicity. There are of course drawbacks in the court’s analysis; still, on the other side, it is very fortunate that the court examined the facts from the Hague Convention’s point of view too. The worst case scenario would have been to ignore completely the Convention’s existence, which regrettably occurs occasionally, both for Hague Conventions and sometimes for EU Regulations as well.

 

[Piraeus Court of First Instance nr. 3106/2019, available (in Greek) here]

ECJ, judgment of 7 May 2020, C-641/18 – Rina, on the concepts of ‘civil and commercial matters’ and ‘administrative matters’ under Article 1 Brussels I Regulation

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Today, the ECJ decided in case C-641/18 –  LG and Others v. Rina SpA, Ente Registro Italiano Navale, on the concepts of ‘civil and commercial matters’ and ‘administrative matters’ under Article 1 Brussels I Regulation.

The case arose from the following facts:

14      LG and Others — relatives of the victims and survivors of the sinking of the Al Salam Boccaccio’98 vessel in the Red Sea on 2 and 3 February 2006, in which more than 1 000 people lost their lives — brought an action before the Tribunale di Genova (District Court, Genoa, Italy) against the Rina companies — ship classification and certification societies — whose seat is in Genoa.

15      LG and Others claim compensation for the pecuniary and non-pecuniary losses stemming from the Rina companies’ civil liability, arguing that the classification and certification operations for the Al Salam Boccaccio’98 vessel, carried out by the Rina companies under a contract concluded with the Republic of Panama, for the purposes of obtaining that State’s flag for that vessel, were the cause of that sinking.

16      The Rina companies contend that the referring court lacks jurisdiction, relying on the international-law principle of immunity from jurisdiction of foreign States. In particular, according to those companies, the classification and certification operations which they conducted were carried out upon delegation from the Republic of Panama and, therefore, are a manifestation of the sovereign powers of the delegating State.

17      According to LG and Others, by contrast, given that the Rina companies have their seat in Italy and the dispute at issue in the main proceedings is civil in nature, within the meaning of Article 1 of Regulation No 44/2001, the Italian courts have jurisdiction under Article 2(1) of that regulation. In addition, LG and Others submit that the plea of immunity from jurisdiction, relied on by the Rina companies, does not cover activities that are governed by non-discretionary technical rules which are, in any event, unrelated to the political decisions and prerogatives of a State.

18      The referring court raises the question of the jurisdiction of the Italian courts in so far as, while it is common ground that the Rina companies have their seat in Italy, it is claimed that they acted upon delegation from the Republic of Panama.

19      In that regard, the referring court refers, in its request for a preliminary ruling, to the case-law of the Corte costituzionale (Constitutional Court, Italy) and of the Corte Suprema di Cassazione (Supreme Court of Cassation, Italy) concerning immunity from jurisdiction. In accordance with the case-law of those supreme courts, recognition of immunity from jurisdiction is precluded only in respect of the acts of foreign States consisting in war crimes and crimes against humanity or where such recognition undermines the principle of judicial protection.

The Court held that

Article 1(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an action for damages, brought against private-law corporations engaged in the classification and certification of ships on behalf of and upon delegation from a third State, falls within the concept of ‘civil and commercial matters’, within the meaning of that provision, and, therefore, within the scope of that regulation, provided that that classification and certification activity is not exercised under public powers, within the meaning of EU law, which it is for the referring court to determine. The principle of customary international law concerning immunity from jurisdiction does not preclude the national court seised from exercising the jurisdiction provided for by that regulation in a dispute relating to such an action, where that court finds that such corporations have not had recourse to public powers within the meaning of international law.

The full text of the judgment is here.

The CoL post on the Opinion of Advocate General Szpunar in this case is here.

The Organization of American States is launching a weekly virtual forum “Inter-American law in times of pandemic” and the Hague Conference has published a COVID-19 Toolkit

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The Organization of American States (OAS) has announced that it is launching a weekly virtual forum entitled “Inter-American law in times of pandemic”.  It begins on Monday 11 May at 11:00 am (EDT, local time in Washington, D.C.).  The first session “Challenges to Inter-American Law” will be held in Spanish, with no simultaneous interpretation. Registration is free but space is limited. The agenda is available here.

As announced, “the topics to be discussed in relation to the impact of the pandemic in the Americas will include: the challenges to Inter-American law; the importance of access to public information; protection of privacy and personal data; the fight against corruption; legal cooperation against cyber-crime; food security as a specific challenge; the difficulties for private international law; among others.”

The list of virtual fora is available here. On Monday 29 June 2020, a forum will be held on “New Challenges for Private International Law.” Apparently, the sessions will be recorded and will be available on video later on the OAS website.

In addition, the Hague Conference on Private International Law (HCCH) has published a COVID-19 Toolkit, which is available in both English and French.

Conflict of Laws .net now on LinkedIn

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In addition to our Twitter account, you can now also follow us on LinkedIn to see all our latest posts and updates directly in your news feed.

You can find our profile here.

 

Conflict of Laws and the Internet

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Pedro de Miguel Asensio from the Universidad Complutense de Madrid has published a book on Conflict of laws and the Internet. The publisher’s blurb reads as follows:
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The ubiquity of the Internet contrasts with the territorial nature of national legal orders. This book offers a comprehensive analysis of jurisdiction, choice of law and enforcement of judgments issues concerning online activities in the areas in which private legal relationships are most affected by the Internet. It provides an in-depth study of EU Law in this particularly dynamic field, with references to major developments in other jurisdictions. Topics comprise information society services, data protection, defamation, copyright, trademarks, unfair competition and contracts, including consumer protection and alternative dispute resolution.
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Key features include:
  • comprehensive analysis of the complex conflict of laws issues that arise in connection with Internet activities
  • discussion on the jurisdiction of national courts and the determination of applicable law
  • a European perspective on the relationship between Internet Law and Private International Law (PIL)
  • consideration of the cross-border effects of judgments in all major fields of PIL affected by the Internet.

Conflict of Laws and the Internet will be a vital resource for practitioners and policy-makers alike with applications for IT law experts and companies active in e-commerce. Providing a strong doctrinal base for an area of ever increasing importance and attention, this book will also be a valuable reference for academics working in the fields of IT law and PIL.

Additional information plus access to its detailed table of contents are available here.

Brexit and Cross-Border Insolvency

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The latest issue of the Italian Journal Diritto del commercio internazionale (34.1/2020) features an article (in English) on “Brexit and Cross-Border Insolvency Looking Beyond the Withdrawal Agreement” written by Antonio Leandro (University of Bari).

The abstract of the article reads as follows: “The UK and the EU have concluded the Withdrawal Agreement which officially triggers the so-called Brexit. However, the real effects of the Brexit still are unclear, at least as regards the future following the end of the transition period provided for by the Withdrawal Agreement during which the UK will be treated as if it were a Member State. After the transition period, mini hard Brexit(s) are in fact likely for matters currently governed by the EU Law that the Parties will not want to relocate in new legal frameworks, such as bilateral treaties. The paper addresses the consequences of a mini hard Brexit for cross-border insolvency proceedings involving the UK and the Member States with the aim to explain why this specter should be avoided”.

Opinion of Advocate General Szpunar, Case C-253/19 – Novo Banco, on the COMI under the European Insolvency Regulation

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Today, Advocate General Szpunar delivered his Opinion in Case C-253/19 – MH, NI v. OJ, Novo Banco SA. As is generally known, Article 3 of Regulation 2015/848, entitled ‘International jurisdiction’, provides in paragraph 1:

‘The courts of the Member State within the territory of which the centre of the debtor’s main interests is situated shall have jurisdiction to open insolvency proceedings (“main insolvency proceedings”). The centre of main interests shall be the place where the debtor conducts the administration of its interests on a regular basis and which is ascertainable by third parties.

In the case of a company or legal person, the place of the registered office shall be presumed to be the centre of its main interests in the absence of proof to the contrary. That presumption shall only apply if the registered office has not been moved to another Member State within the 3-month period prior to the request for the opening of insolvency proceedings.

In the case of an individual exercising an independent business or professional activity, the centre of main interests shall be presumed to be that individual’s principal place of business in the absence of proof to the contrary. That presumption shall only apply if the individual’s principal place of business has not been moved to another Member State within the 3-month period prior to the request for the opening of insolvency proceedings.

In the case of any other individual, the centre of main interests shall be presumed to be the place of the individual’s habitual residence in the absence of proof to the contrary. This presumption shall only apply if the habitual residence has not been moved to another Member State within the 6-month period prior to the request for the opening of insolvency proceedings.’

As the Opinion explains (paras. 4 et seq.):

4. The applicants are married to each other and, since 2016, have been resident in Norfolk (United Kingdom), where they are engaged in paid employment. The couple made a request to the Portuguese courts to declare them insolvent. The court of first instance declared that it did not have international jurisdiction to rule on their request, holding that, under the fourth subparagraph of Article 3(1) of Regulation 2015/848, the centre of their main interests was their place of habitual residence, namely the United Kingdom.

5. The applicants brought an appeal against that judgment before the referring court, claiming that it was based on a misinterpretation of the rules laid down by Regulation 2015/848. In that regard, they submitted that, in so far as the sole immovable asset that they owned was located in Portugal, where all the transactions which gave rise to their insolvency had occurred, the centre of their main interests was not their place of habitual residence (United Kingdom), but was located in Portugal. Moreover, they claimed that there is no connection between their current place of residence and the events that led to their insolvency, which occurred entirely in Portugal.

6. The referring court has doubts as to the correct interpretation of Article 3(1) of Regulation 2015/848 and is uncertain, in particular, of the criteria to be used for the purpose of rebutting the simple presumption laid down in that provision for natural persons not exercising an independent business or professional activity, according to which, for such persons, the habitual residence of the concerned party is presumed to be the centre of that party’s main interests in the absence of proof to the contrary.

7. In that regard, the referring court points out that recital 30 of that regulation states that, in the case of natural persons not exercising an independent business or professional activity, it should be possible to rebut that presumption, for example where the major part of the debtor’s assets is located outside the Member State of the debtor’s habitual residence.

AG Szpunar proposed (paras. 65 et seq.) that the Court should answer the question referred for a preliminary ruling by the Tribunal da Relação de Guimarães (Court of Appeal, Guimarães, Portugal) as follows:

Article 3(1), first and fourth subparagraphs, of Regulation (EC) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings must be interpreted as meaning that the presumption that the habitual residence of a debtor who is a natural person not engaged in a self-employed activity is the centre of his main interests may be rebutted if the place of habitual residence does not fulfil its role as the place where a debtor’s economic decisions are taken, as the place where the majority of his revenue is earned and spent, or as the place where the major part of his assets is located.

However, that presumption cannot be rebutted in favour of the Member State within the territory of which a debtor’s sole immovable asset is located in the absence of any other indication that the centre of that debtor’s main interests is located in that Member State. That fact may be determined on the basis of objective factors which are ascertainable by third parties (current and potential creditors) and relate to the financial interests of that debtor.

The Volkswagen (VW) emissions scandal – The saga continues: Now it’s the turn of the Netherlands, France and Belgium

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Thanks to the entering into force of the Dutch Collective Redress of Mass Damages Act (Wet afwikkeling massaschade in collectieve actie, WAMCA) on 1 January 2020, there has been an increase in prospective litigation against Volkswagen in the Netherlands and other countries in Europe involving the Volkswagen emissions scandal (also known as Dieselgate). We have previously reported on this law here and also on ongoing litigation against Volkswagen here (CJEU) and here (UK).

One of the institutes / organisations taking advantage of this opportunity is the Diesel Emissions Justice Foundation (DEJF), which was founded in the Netherlands, and which is seeking to be the exclusive representative in a collective redress action against Volkswagen. The DEJF is currently acting in the Netherlands, Belgium and France and has recently extended its activities to the rest of Europe provided that certain conditions are fulfilled (e.g. customers have not yet been compensated – one cannot be compensated twice and has to choose one representative – see more information here).

As indicated on its website, on 13 March 2020, DEJF summoned Volkswagen et al. to appear before the Amsterdam District Court under new WAMCA proceedings. DEJF requested to be appointed as the Exclusive Representative Organisation (“Lead Plaintiff”). A summary in English is available here and the full text in Dutch is available here. See a summary of the progress here.

Undoubtedly, the ongoing litigation in other parts of the world and its final outcome will have an impact on this action. We will keep you informed.