Views
Study Rome II Regulation published
The long-awaited Rome II Study commissioned by the European Commission, evaluating the first ten years of the application of the Rome II Regulation on the applicable law to non-contractual obligations, has been published. It is available here. The Study was coordinated by BIICL and Civic and relies on legal analysis, data collection, a consultation of academics and practitioners, and national reports by rapporteurs from the Member States. The extensive study which also includes the national reports, discusses the scope of the Regulation and the functioning of the main rules, including the location of damages under Art. 4 Rome II, which is problematic in particular in cases of prospectus liability and financial market torts. As many of our readers will know, one of the issues that triggered debate when the Rome II Regulation was negotiated was the infringement of privacy and personality rights, including defamation, which topic was eventually excluded from the Regulation. While it has been simmering in the background and caught the attention of the Parliament earlier on, this topic is definitely back on the agenda with the majority opinion being that an EU conflict of laws rule is necessary.
Three topics that the European Commission had singled out as areas of special interest are: (1) the application of Rome II in cases involving Artificial Intelligence; (2) business and human rights infringements and the application of Art. 4 and – for environmental cases – Art 7; and (3) Strategic Lawsuits against Public Participation (SLAPPs). For the latter topic, which is currently also studied by an expert group installed by the European Commission, the inclusion of a rule on privacy and personality rights is also pivotal.
The ball is now in the court of the Commission.
To be continued.
The Nigerian Court of Appeal recently revisits the principles for the grant of Mareva Injunction
The focus of this write-up is a brief case note on a recent decision of the Nigerian Court of Appeal (reported two days ago) on Mareva injunction.
The principal concern of a judgment creditor is that it should reap the fruits of the judgment. A judgment is useless or nugatory if the judgment debtor has no assets within the jurisdiction of the court and the judgment debtor is unwilling to comply with the court’s judgment. A prospective judgment debtor could frustrate the administration of justice and commercial effectiveness of a judgment by moving away all its assets from the Nigerian jurisdiction to another jurisdiction. The remedy of a Mareva injunction (or freezing injunction) was developed as a means of curtailing this form of bad litigation tactics by a judgment debtor. In reality, a Mareva injunction is similar to interlocutory and anticipatory injunctions. It is similar to an interlocutory injunction because it is granted pending the determination of the dispute between the parties. It is similar to an anticipatory injunction because it anticipates that there is a real likelihood that a prospective judgment debtor would take its assets out of the court’s jurisdiction in order to frustrate the effectiveness of a judgment.[1]
The Mareva injunction (as applied in Nigeria) was developed in the English case of Mareva Compania Naviera SA v International Bulkcarriers SA The Mareva (“The Mareva”).[2] It is also described as a “freezing injunction” on the basis that the order freezes the assets of a prospective judgment debtor, pending the determination of the case.[3]
Prior to the decision of the English Court of Appeal in The Mareva, it was uncertain[4] whether the English court had jurisdiction to protect a creditor before it obtained a judgment. The English Court of Appeal, in 1975,[5] had initially granted a “Mareva injunction” in the form of an interlocutory injunction, but the application of this concept in that case remained controversial.[6] The remedy of the Mareva injunction was later accepted by the then English House of Lords,[7] and is available in other Commonwealth jurisdictions.[8]
In the landmark case of Sotuminu v Ocean Steamship (Nig) Ltd(“Sotuminu”),[9] the Supreme Court of Nigeria legitimised the Mareva injunction, though on the facts of the case, the court did not think it was appropriate to grant a Mareva injunction.
Interestingly, although the decision of the Supreme Court was unanimous in dismissing the plaintiff-appellant’s case, Uwais JSC (as he then was), with whom two other Justices of the Supreme Court simply concurred, treated the plaintiff-appellant’s case as one involving an interlocutory injunction, and applied the principles relating to the grant of interlocutory injunction. It was Nnaemeka-Agu JSC and Omo JSC in their concurring judgments who qualified the plaintiff-appellant’s case as one involving a Mareva injunction.
Nnaemeka-Agu JSC made reference to Section 18(1) of the then High Court of Lagos Civil Procedure Rules, which provides that “[t]he High Court may grant an injunction by an interlocutory order in all cases in which it appears to the Court to be just and convenient to do so”; and Section 13 (of the then High Court of Lagos State Civil Procedure Rules), which provides that “subject to the express provisions of any enactment, in every civil cause or matter commenced in the High Court, law and equity shall be administered by the High Court concurrently and in the same manner as they are administered by the High Court of Justice in England.” He was of the view that these provisions enabled a court in Nigeria to apply the principles of a Mareva injunction. The learned Justice provided the criteria to grant a Mareva injunction when he held that:
“Now, all decided cases on the point show that the Courts are ever conscious of the fact that because of its very nature, Mareva injunctions could be open to abuses. So they have evolved some rules and principles which are designed to guard against such abuses. By these rules, before a Mareva injunction could be granted the applicant must show:-
(i) that he has a cause of action against the defendant which is justiciable in Nigeria:[10] See – Siskina (Owners of Cargo lately laden on borad) v distas Compania S.A (1979) A.C 210;
(ii) that there is a real and imminent risk of the defendant removing his assets from jurisdiction and thereby rendering nugatory any judgment which the plaintiff may obtain: See – Barclay-Johnson v. Ynill(1980) 1 WLR 1259, at p.1264: also –Rahman (Prince Abdul) him Turki al Sudiary v Abu-Taha(1980) 1 WLR 1268, at p.1272;
(iii) that the applicant has made a full disclosure of all material facts relevant to the application: see – Negocios Del Mar SA v. Doric Shipping Corp. SA. (The Assios) (1979) 1 LI. Rep. 331;
(iv) that he has given full particulars of the assets within the jurisdiction;
(v) that the balance of convenience is on the side of the applicant; and
(vi) that he is prepared to give an undertaking as to damages.
If he fails to satisfy the Court in any of these preconditions for a grant of a Mareva injunction, it ought not to be granted.”[11]
Nnaemeka-Agu JSC’s concurring judgment in Sotuminu has become the standard test for the application of Mareva injunction in Nigeria. However, it was not obvious whether this test provided by Nnaemeka Agu JSC was strict.
In the recent case of Haladu v Access Bank, (Haladu)[12] the Court of Appeal (Ojo JCA) interpreted the Supreme Court’s decision (Nnaemeka Agu JSC) in Sotuminu as follows:
“The apex court in the above case has stated clearly the conditions that must be met for the grant of a Mareva Injunction. In other words, they are pre-conditions that must be met. To my mind, the conditions are of strict liability. It follows therefore that an applicant who seeks an order of Mareva Injunction must place sufficient materials before the court upon which it can exercise its discretion.”[13]
In the instant case, the applicant’s case failed at the Court of Appeal because it failed to provide an undertaking as to damages in its application for Mareva injunction, and did not sufficiently prove that the defendant intends to remove its asset in Nigerian banks to a foreign country.[14]
The take away of Haladu is that an applicant that wants to obtain a Mareva injunction in Nigeria has to be thorough, hardworking, and diligent in its case. All the conditions for the grant of Mareva injunction as stated in Nnaemeka-Agu JSC’s concurring judgment in Sotuminu must be met. Indeed, this is not an easy task. As stated by Ojo JCA in Haladu, “solid evidence” must be provided to succeed in a prayer for Mareva injunction. It is submitted that there is justice in this approach because if a Mareva injunction is granted without the right justification, it would cause great hardship to the respondent. A balance is thus struck between ensuring that a claimant should be able to reap the fruits of its judgment, and on the other hand the defendant should not be subjected to great hardship by a wrongful grant of Mareva injunction. Haladu’s case demonstrates that Nigerian law tilts more towards the side of the defendant as a matter of evidence and procedure.
[1]See Omo JSC in Sotuminu v Ocean Steamship (Nig) Ltd (1992) LPELR-SC 55/1990 approving the English case of Z Ltd v AZ and AA-LL (1982) 2 QB 558, 584-6.
[2](1980) 1 All ER 213.
[3]See generally Dangabar v Federal Republic of Nigeria (2012) LPELR-19732 (CA).
[4]“I know of no case where, because it was highly improbable that if the action were brought to a hearing the plaintiff could establish that a debt was due to him from the defendant, the defendant has been ordered to give security until that has been established by the judgment or decree.” – Lister & Co v Stubbs (1886-90)] All ER Rep 797, 799 (Cotton LJ).
[5]Nippon Yusen Kaisha v Karageorgis (1975) 3 All ER 282.
[6]Cf. Sotuminu v Ocean Steamship (Nig) Ltd (1992) LPELR-SC 55/1990 (Nnaemeka-Agu JSC); Adeyemi Durojaiye v Continental Feeders (Nig) Limited (2001) LPELR-CA/L/445/99 (Aderemi JCA, as he then was).
[7]Owners of Cargo Lately Laden on Board the Siskina v Distos Compania Naveria SA (1979) AC 210.
[8] AJ Moran and AJ Kennedy, Commercial Litigation in Anglophone Africa (Cape Town, Juta and Company (Pty) Ltd, 2018) at 47–50, 87.
[9](1992) LPELR-SC 55/1990.
[10]The original judgment contains “in England”. We have substituted it with the phrase “in Nigeria” to appropriately suit the Nigerian context.
[11]Sotuminu v Ocean Steamship (Nig) Ltd (1992) LPELR-SC 55/1990. See also AIC LTD v. NNPC (2005) LPELR-6 (SC) 33-4 (Edozie JSC); Extraction System And Commodity Services Ltd. v. Nigbel Merchant Bank Ltd.(2005) 7 NWLR (Pt. 924) 215; R Benkay (Nig.) Ltd v Cadbury (Nig) Plc (2006) 6 NWLR (Pt. 976)338; International Finance Corporation v DSNL Offshore Ltd (2007) LPELR-5140(CA) 12-3 (Rhodes Vivour JCA (as he then was); Union Bank of Nig. Plc v. Pam (2016) 14 NWLR (Pt. 1533) 400; Haladu v Access Bank (2021) 13 NWLR (Pt. 1794) 434. The Nigerian Court of Appeal has granted Mareva injunction in some cases : Adeyemi Durojaiye v Continental Feeders (Nig) Ltd (2001) LPELR-CA/L/445/99; Compact Manifold and Energy Services Ltd v West Africa Supply Vessels Services Ltd (2017) LPELR-43537 (CA). See also AIC Ltd v Edo State Government (2016) LPELR-40132 (CA).
[12] (2021) 13 NWLR (Pt. 1794) 434.
[13] Haladu v Access Bank (2021) 13 NWLR (Pt. 1794) 434, 458.
[14] ibid.
Service of process on a Russian defendant by e-mail. International treaties on legal assistance in civil and family matters and new technologies
Written by Alexander A. Kostin, Senior Research Fellow at the Private Law Research Centre (Moscow, Russia) and counsel atAvangard law firm
and Valeria Rzyanina, junior associate, Avangard Law Firm
The Decree of the Arbitrazh (Commercial) Court of the Volga District of December 23, 2019 N F06-55840 / 2019 docket numberN A12-20691 / 2019, addresses service of process on the Russian party by the Cypriot court by e-mail and thus the possibility of further recognition of a foreign judgment.
- Factual background
1.1. Within the framework of the court proceedings, the Russian party (the defendant in the Cypriot proceedings) was notified by the Cypriot court by sending a writ of service of process to the known e-mail addresses of the defendant. In order to substantiate the manner of service, the Cypriot court referred to Art. 9 of Decree 5 of the Rules of Civil Procedure (Cyprus), according to which “In any case, when the court considers that, for any reason, the service provided for in Rule 2 of this Decree will not be timely or effective, the court may order a substitute for personal service, or other service, or substitute for a notice of service in any way that will be found to be fair and correct in accordance with the circumstances”.
1.2. After the default judgment of the Cypriot court was rendered, an application for its recognition was lodged with the Arbitrazh Court of the Volgograd Region. In addressing the issue of compliance with the notification rules, the Russian court referred to paragraph 2 of Art. 24 of the Treaty on Legal Assistance of the USSR-Cyprus 1984 on civil and family matters, according to which judgments are recognized and enforced if the party against whom the judgment was made, who did not appear and did not take part in the proceedings, was promptly and duly notified under the laws of the Contracting Party in the territory of which the judgment was made. The foreign judgment in question was recognized and enforced by the Russian court based on the fact that the proper manner of the notification was confirmed by the opinion of experts under Cypriot law. The Ruling of the Supreme Court of the Russian Federation of March 27, 2020 N 306-ES20-2957 in case N A12-20691 / 2019 left the acts of the lower courts unchanged.
- Analysis of the Decree of the Arbitration Court of the Volga District of December 23, 2019 N F06-55840 / 2019 in the case N A12-20691 / 2019
2.1. At first glance the logic of the Supreme Court and lower courts appears to be flawless. Nevertheless we find it important to correlate the provisions of paragraph 2 of Art. 24 of the 1984 Legal Aid Treaty with the provisions of Art. 8 of the Treaty. Article 8 requires that: “the requested institution carries out the service of documents in accordance with the rules of service in force in its state, if the documents to be served are drawn up in its language or provided with a certified translation into this language. In cases where the documents are not drawn up in in the language of the requested Contracting Party and are not provided with a translation, they are handed over to the recipient if only he agrees to accept them. ”
2.2. In this regard, it should be taken into account that when using the wording “notified under the laws of a Contracting Party,” the Treaty States simultaneously tried to resolve the following situations:
1) where the parties were in the state of the court proceedings at the time of the consideration of the case. In this case, the national (“domestic”) law of the State in which the dispute was resolved shall apply;
2) where the parties were in different states at the time of the consideration of the case. In this case, the provisions of the relevant international treaty shall apply, since the judicial notice is [a] subject to service in a foreign state and, therefore, it affects its sovereignty.
2.3. In this regard, attention should be paid to the fact that under the doctrine and case law of the countries of continental law, the delivery of a judicial notice is considered as an interference with the sovereignty of the respective state. The following are excerpts from case law. Excerpts from legal literature are provided for reference purposes:
- a) “The negotiating delegations in The Hague faced two major controversies: first, some civil law countries, including Germany, view the formal service of court documents as an official act of government; accordingly, they view any attempt by a foreign plaintiff to serve documents within their borders as an infringement on their sovereignty ” – Volkswagen Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988);
- b) “The exclusive competence to carry out acts of state power on its own territory follows from the sovereignty of states. As a rule, a state cannot perform actions of this kind within the borders of another state without violating its sovereignty and, therefore, without violating international law. An act is compatible with this right only if it is permitted by a specific international regulation, for example, if it is agreed in a treaty concluded between the states concerned, or if it is unilaterally accepted by the state in which it is carried out. When the notification is given abroad without permission under international law, this notification is invalid under Swiss domestic law due to its supremacy – Decision of the Swiss Federal Court of 01.07.2008 in case No. BGer 4A_161 / 2008.
- c) “According to the traditional German law approach, delivery is considered to be an act of sovereignty.”- Rasmussen-Bonne H-E., The pendulum swings back: the cooperative approach of German courts to international service of process P. 240;
- d) “From prospective of the Japanese state, certain judicial acts of foreign courts, such as the service of court notices and the receipt of evidence, are considered as a manifestation of sovereignty.”- Keisuke Takeshita, “Sovereignty and National Civil Procedure: An Analysis of State Practice in Japan,” Journal of East Asia and International Law 9, no. 2 (Autumn 016): 361-378
2.4. In light of the above, the interpretation of the Treaty on Legal Assistance of the USSR-Cyprus 1984, according to which a party located in the territory of Russia is subject to notification in accordance with Art. 8 of the Treaty, seems to be preferable.
We welcome further discussion on this intricate matter.
News
Two Interesting Recent Articles related to Private International Law
Williams C Iheme, “The Overdependence of African Courts and Businesses on English Law and Forum:
The Negative Repercussions on the Development of African Legal and Economic Systems” (2024) 15 Pravni Zapisi, pp. 151-190
The uncritical transplantation of English law by Anglophone-African legislators and judges, and their failure to sufficiently adapt English legal concepts to suit the idiosyncratic socioeconomic conditions in Africa, arguably contribute to the perpetuation of English law’s hegemony therein. It is argued that the overdependence on English law and courts by African businesses in resolving contractual disputes
is not necessarily due to any alleged stellar qualities of the former, but largely due to the over-marketing of the English legal system’s competence by its apologists. The analysis uses piquant examples to elicit some adverse effects of using/overreliance on the English law and forum by African businesses in resolving contractual disputes.
To reposition from the lengthened shadow of English law, Anglophone African legislators, judges and legal scholars, must craft autochthonous legal processes that suit Africa’s tastes and socioeconomic milieu.
Georgia Antonopoulou, “Forum Marketing in International Commercial Courts?” (2024) Oxford Journal of Legal Studies
Forum selling is a legal term used to describe the practices of courts and judges, geared towards attracting cases, such as increasing the predictability of judgments or speeding up trials. However, do courts also go beyond forum selling to attract cases? Taking international commercial courts as its focus, this article explores how these courts market themselves to attract cases and coins the term ‘forum marketing’. It demonstrates that the courts’ recent establishment, coupled with their voluntary jurisdiction, creates a compelling context, which encourages them to engage in forum marketing. The article argues that forum marketing is not merely a byproduct of the competition in commercial dispute resolution, but a powerful mechanism with deeply persuasive, normative and, effectively, structuring properties. Forum marketing is central to disseminating and reinforcing a pro-business approach in civil justice, consequently setting the stage for procedural inequality and a one per cent procedure.
Newest Commentaries and Newsletter on Private International Law (Vol. 7, Issue 1)
We are pleased to present the newest Commentaries on Private International Law (Vol. 7, Issue 1), the newsletter of the American Society of International Law (ASIL) Private International Law Interest Group (PILIG).
Comparative Procedural Law and Justice Final Conference in Luxembourg (11–12 July 2024)
On 11 and 12 July 2024, the Comparative Procedural Law and Justice (CPLJ) Final Conference will take place at the University of Luxembourg. The organizers have kindly shared the following announcement with us:
The conference will be held in a hybrid format and participation is free of charge. A brief description of the background of the CPLJ project and the final conference is provided below, together with the registration details.
The Project
CPLJ is a global project on comparative civil justice, which was launched in September 2020 by the former Max Planck Institute Luxembourg for Procedural Law with the financial support of the Luxembourg Research Fund (FNR). The project was designed to provide a comprehensive analysis of comparative civil procedural law and contemporary civil dispute resolution mechanisms.
Against this backdrop, CPLJ seeks to understand procedural rules within their cultural contexts and to identify effective approaches for resolving civil disputes. Moreover, it examines current developments in comparative civil procedure on a global scale, including the impact of information technologies, the growth of alternative dispute resolution methods, recent trends in access to justice and litigation funding, the complexities of collective litigation, and the increasing demands for transparency and independence within justice systems. These and other topics are addressed in sixteen thematic segments drafted by multi-jurisdictional author teams.
Over one hundred scholars from around the world actively participated in the genesis of CPLJ. They were guided by a Board of General Editors, consisting of Prof. Burkhard Hess, Prof. Margaret Woo, Prof. Loïc Cadiet, Prof. Séverine Menetry and Prof. Enrique Vallines. An Advisory Board of twelve esteemed scholars provided additional scientific support. Each of the sixteen author teams was led by a coordinator, who is a distinguished professor affiliated with a prestigious university or research institution. The multi-jurisdictional background of the individual members of the author teams ensures a global perspective.
The Final Conference
The final conference presents the results of the four-year CPLJ project. The rich two-day program encompasses numerous presentations by distinguished speakers who are contributors to the project, always followed by a discussion. The speakers will present highlights of their teams’ comparative procedural law research in their respective thematic segments.
The final conference additionally marks the launch of the CPLJ website that will host the thematic segments and the various contributions to those segments after their completion. The website will be open-access and is expected to become one of the major reference works for comparative civil procedural law for many years to come.
Make sure to register in time and please indicate whether you expect to attend in-person or online. The full program and registration details can be found here. We look forward to welcoming many attendants in Luxembourg to celebrate the conclusion of this exciting project with us.