Brand on the New Hague Judgments Project

Ronald A. Brand (University of Pittsburgh School of Law) has posted Jurisdictional Developments and the New Hague Judgments Project on SSRN.

A Working Group of the Hague Conference on Private International Law is revisiting possible multilateral rules on the recognition of foreign judgments. This was the subject of broader negotiations on jurisdiction and judgments that ran from 1992 until 2005, concluding in the Hague Convention on Choice of Court Agreements. Any effort to coordinate judgments recognition rules necessarily requires consideration of the jurisdictional bases of authority of the court from which a judgment originates. Problems of coordination are exacerbated because differences in existing jurisdictional bases are colored by: (1) basic differences between civil law and common law approaches to judicial analysis, (2) differences in the extent to which jurisdiction is a constitutional matter, and (3) differences in focus on the interests of plaintiffs and defendants. Recent developments in both the United States and the European Union have both highlighted existing differences in approaches to adjudicative jurisdiction, and demonstrated some areas in which there may be greater hope for common ground. While rules on general jurisdiction may be moving closer together, rules on specific jurisdiction seem to be suffering greater divergence. Any new multilateral efforts will also have to take into account the impact on parallel efforts to obtain ratifications of the Choice of Court Convention. While there are jurisdictional bases on which agreement should not be difficult in a new judgments project, those are probably the bases for which recognition and enforcement abroad will be least valuable to the judgment creditor.

The paper is forthcoming in A Commitment to Private International Law – Essays in Honor of Hans Van Loon.




Hague Conference Seeks to Recruit Senior Legal Officer

The Permanent Bureau of the Hague Conference on Private International Law is seeking a

Senior / Principal Legal Officer (full-time)

to carry out work in the fields of international procedural law and commercial law, in particular as regards the Choice of Court Convention, the Choice of Law in International Contracts, and the Judgments Project, as well as such other work as may be required by the Secretary General from time to time, including in the field of legal co-operation.

Duties will include promotion of the instruments mentioned, comparative research, preparation of research papers and other documentation, assistance in the preparation of and participation in conferences, seminars and training programmesthe provision of support services.

The successful applicant will possess the following qualifications:

– Law school education in private law, preferably at the post-graduate level, including private international law (conflict of laws) and international procedural law (jurisdiction, recognition and enforcement of judgments, legal and administrative co-operation), familiarity with comparative law (substantive and procedural law).

– Excellent drafting capabilities (e.g. LL.M. dissertation or doctoral thesis, law review or other publications).

– Seven to ten years experience in private practice, public service or academia.

– Excellent command, preferably as a native language (both spoken and written), of at least one of the working languages of the Hague Conference (i.e., French and English), with good command of the other; knowledge of other languages an asset.

Type of appointment and duration: two-year contract, possibly renewable.

Starting date: October/November 2013.

Grade (Co-ordinated Organisations scale): A2/1 subject to relevant experience.

Deadline for applications: 23 August 2013.

Applications should be made by e-mail, with Curriculum Vitae, letter of motivation and at least two references, to be addressed to the Secretary General, at: secretariat@hcch.net

H/T: Pietro Franzina




Volumes 357, 359 and 360 of Courses of the Hague Academy

Volumes 357, 359, and 360 of the Collected Courses of the Hague Academy of International Law were just published.

  • Volume 357
    • J. Dugard, The Secession of States and Their Recognition in the wake of Kosovo
    • L. Gannagé, Les méthodes du droit international privé à l’épreuve des conflits de cultures
  • Volume 359
    • D. Opertti Badán, Conflit de lois et droit uniforme dans le droit international privé contemporain: dilemme ou convergence? (conférence inaugurale)
    • Chen Weizuo, La nouvelle codification du droit international privé chinois
    • Christian Kohler, L’autonomie de la volonté en droit international privé: un principe universel entre libéralisme et étatisme
  • Volume 360
    • Jürgen Basedow, The Law of Open Societies — Private Ordering and Public Regulation of International Relations. General Course on Private International Law



The Kiobel Judgment of the US Supreme Court and the Future of Human Rights Litigation – Seminar at the MPI Luxembourg

On July 4th, 2013, the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law invited experts from the USA and Europe to a colloquium to discuss the consequences of the US Supreme Court’s decision in the proceedings Kiobel v. Royal Dutch Shell Petroleum Co. The seminar aimed at a broad perspective: Subject of the discussion were the consequences of the judgment with regard to public international law, procedural law and private international law – from the viewpoint of Europe and the United States respectively.

Dr. Clemens Feinäugle (MPI Luxembourg) started by presenting how the reasoning of the judgment relates to the general principles of jurisdiction in public international law. He emphasized that Kiobel can hardly be qualified as a suitable leading case as far as the limits of exercising state jurisdiction in the international context are concerned. In this regard, the judgment (or at least the reasoning of the majority) follows too strictly the decision in Morrison v. National Australia Bank, Ltd. on presumption against territoriality which, on its part, is strongly oriented at the prerequisites of US constitutional law. In terms of legal policy, the US Supreme Court passed the buck to the Congress: If US courts were to adjudicate substantially human rights claims against civil actors, this should be authorized by the Congress – just as it had done it in 1997 in the Torture Victims Protection Act (in a rather questionable manner). The fact that Kiobel is to be read primarily from the viewpoint of the domestic discussion within the US on the role of International Law as “federal common law” was made clear by Prof. David Steward (Georgetown University Law Center). He presented the Alien Tort Claims Act (ATCA) in the context of the longstanding discussion on the legal role of international treaties, particularly the question of whether the constitutional separation of powers limits the authority of the federal state with regard to foreign affairs. A further perspective was taken by the following presentations: Prof. Horatia Muir Watt brought up the question of the regulatory approach of the US Supreme Court and criticized the unclear notion of “extraterritoriality” in the Kiobel judgment. Prof. Patrick Kinsch (Luxembourg), on the other hand, noted from an international private and procedural law perspective that the ATCA can hardly be qualified as a suitable and effective instrument for the domestic implementation of international human rights protection: The Act regulates only the subject matter jurisdiction of US federal courts as opposed to state courts rather than the international jurisdiction (personal jurisdiction). From this observation Prof. Kinsch derived the forecast that future human rights claims in the USA would be brought increasingly before state courts.

In the second part of the seminar, a round table chaired by Professor B. Hess raised the issue of the practical consequences of the Kiobel judgment. Prof. Jägers (Tilburg) started with presenting the Dutch parallel judgment to Kiobel. On January 30th, 2013, The Hague District Court rejected a damage claim brought by Nigerian victims against Shell as a parent company but upheld the action against the subsidiary. The Dutch court based its judgment on Nigerian tort law – the claim against the parent company was dismissed for lack of evidence. Nevertheless, Jäger pointed out the general readiness of Dutch courts to deal with such disputes. Prof. Catherine Kessedjian (Paris) referred to the Sofia Declaration of ILA on International Civil Litigation and the Public Interest. It also stipulates the jurisdiction of the courts at the seat of the defendant company – particularly when no effective judicial protection can be obtained at the place of the human rights violations. Dr. Anke Sessler, Siemens AG, München, described from the perspective of an internationally operating company that a lawsuit in the USA is connected with substantial workload, time consumption and costs and at the same time is characterized by structural advantages for the plaintiff. Prof. Trey Childress (Pepperdine University) reported on the practical consequences of the Kiobel judgment: Overall, the last decade was marked by the increasingly restrictive attitude of US courts towards F-cubed litigation. US federal courts have strengthened the requirements with regard to pleading, general jurisdiction, class certification – also discovery has its limits. Kiobel, in particular, has already had a sustainable impact on the 25 currently pending ATCA lawsuits in the USA. Six of them have already been rejected, only one is still admissible: it concerns the bomb attack at the US embassy in Nairobi. In this case, the Federal Court affirmed the prevailing interest of the USA in continuing the proceedings. All things considered, Childress could hardly see increasing chances for ATCA claims in the US. This, however, does not mark the end of human rights litigation – the plaintiffs are rather expected to resort to alternative grounds in order to support their claim (such as federal common law or the respective conflict of law rules of the states). This would naturally lead to different defense strategies on the part of the respondent, e.g. removal from state to federal courts and invoking the forum non conveniens objection which some federal courts have granted even before examining the personal jurisdiction.

Two rounds of discussions elaborated on and expanded the arguments of the speakers. It became clear that human rights litigation remains a controversial subject. Some discussants assessed Kiobel – in line with the judgment of the ICJ in Germany v. Italy, Greece Intervening from February 3rd, 2012 – as a “missed opportunity”, whereas others welcomed the decision as a politically balanced reflection of the stand of current legal developments. The lively discussion showed that the research profile of the MPI Luxembourg, combining public international law, international litigation and questions of transnational regulation, can give a strong impetus towards understanding important issues of legal policy.




Brand on Challenges to Forum Non Conveniens

Ronald A. Brand (University of Pittsburgh School of Law) has posted Challenges to Forum Non Conveniens on SSRN.

This paper was originally prepared for a Panel on Regulating Forum Shopping: Courts’ Use of Forum Non Conveniens in Transnational Litigation at the 18th Annual Herbert Rubin and Justice Rose Luttan Rubin International Law Symposium: Tug of War: The Tension Between Regulation and International Cooperation, held at New York University School of Law, October 25, 2012. The doctrines of forum non conveniens and lis alibi pendens have marked a significant difference in approach to parallel litigation in the common law and civil law worlds, respectively. The forum non conveniens doctrine has recently taken a beating. This has come (1) in its UK form as a result of decisions of the European Court of Justice, (2) through a lack of uniformity of application throughout the common law world, (3) as a result of legislation and litigation in Latin American countries, and (4) through the misapplication of the forum non conveniens doctrine in cases brought to recognize and enforce foreign arbitration awards. This article reviews those challenges, and considers the compromise reached in 2001 at the Hague Conference on Private International Law when that body was considering a general convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. It concludes with thoughts on the importance of remembering that compromise and the promise it holds for bringing legal system approaches to parallel litigation closer together.

The paper is forthcoming in the New York University Journal of International Law and Politics.




Latest Issue of “Praxis des Internationalen Privat- und Verfahrensrechts” (4/2013)

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

  • Bettina Heiderhoff: “Fictitious service of process and free movement of judgments”

When judgments or court orders are to be enforced in other member states, it is an essential prerequisite that the defendant was served with the document which instituted the proceedings in sufficient time (Article 34 Nr. 2 Brussels I Regulation).

When the service was conducted in a fictitious manner, the issue of service “in sufficient time” causes friction. It is acknowledged that the measure for timeliness – or, in such a case, more accurately for rightfulness – is not set by the state of origin, but by the recognising state. However, if the criteria are taken from the autonomous procedural rules of the recognising state, as has occasionally happened, minor differences between national laws can cause unreasonable obstacles to the recognition of titles.

In order to fulfill the aim of the Brussels I Regulation, to improve the free movement of judgments and strengthen mutual trust, the criteria must, therefore, not be taken from the national rules of the recognising state, but ought rather to resemble the standards valid for breaches of public policy. Only such a “mildly Europeanized” standard for fictitious services may avoid a trapping of the claimant who, trusting in the decision of the court of origin, is then surprised by the differing measures of the recognising state.

  •  Haimo Schack: “What remains of the renvoi?”

The renvoi is one of the main principles of classic private international law. The renvoi doctrine aims for the conformity of decisions in different jurisdictions, which may also facilitate the recognition of the decision abroad. With this goal in mind the following article gives an overview of the acceptance of renvoi in different national jurisdictions. In addition, the article evaluates and criticizes the tendency to push back the doctrine of renvoi in international treaties and in EU private international law. Especially in the former domain of renvoi, i.e. the law of personal status, family and inheritance law, the European conflict rules are dominating more and more and preventing the conformity of decisions in relation to third countries. As a means to achieve this decisional harmony the renvoi remains useful, it shows the cosmopolitan attitude of classic private international law.

  •  Hannes Wais: “Hospital contracts and Place of Performance Jurisdiction under § 29 ZPO (German Code of Civil Procedure)”

This article comments on a recent decision of the German Federal Supreme Court, in which the court ruled that, for payment claims from a hospital contract, § 29 ZPO conferred jurisdiction upon the courts in the locality of the hospital. The Court decided that, not only for the purposes of § 29 ZPO, the place of performance of the monetary obligation from a hospital contract is the creditor’s seat and not that of the debtor (in contrast to what is generally accepted for monetary obligations). This article will discuss the implications of this decision, and will consider the possibility of a conceptual “reversal” of § 29 ZPO.

  •  Markus Würdinger: “Der ordre public-Vorbehalt bei Verzugsaufschlägen im niederländischen Arbeitsrecht” – the English abstract reads as follows:

The substantive ordre public rarely plays a role when it comes to recognition and enforcement of foreign legal decisions. This article deals with such a case. It is about the declaration of enforceability of a Dutch court decision in Germany. The judgment in question decided the applicant’s claim for unpaid wages plus a statutory increase of 50% as a penalty for late payment in his favour. The Higher Regional Court of Düsseldorf (OLG) rightly interpreted Art. 34 EuGVVO (Regulation (EC) No 44/2001) narrowly and refused to consider this decision as being comparable to an award of punitive damages.

  •  Urs Peter Gruber: “Die Vollstreckbarkeit ausländischer Unterhaltstitel – altes und neues Recht” – the English abstract reads as follows:

For a maintenance creditor, the swift and efficient recovery of a maintenance obligation is of paramount importance. In the Brussels I Regulation – which until recently was also applicable with regard to maintenance obligations – and in various conventions there are procedures for the declaration of enforceability of decisions. In these procedures, the courts have to ascertain whether there is a maintenance claim covered by the Regulation or the convention and whether there are reasons to refuse recognition of the foreign decision. In the new Regulation (EC) No 4/2009 on maintenance obligations however, a declaration of enforceability of decisions is no longer required, provided that the decision was given in a Member State bound by the Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations. In this case, a decision on maintenance obligations given in a Member State is automatically enforceable in another Member State. The article discusses recent court decisions on the declaration of enforceability in maintenance obligations. It then examines the changes brought about by the Regulation (EC) No 4/2009 on maintenance obligations. Weighing the interests of both the creditor and the debtor, it comes to the conclusion that the abolition of the above-mentioned procedures is fully justified.

  •  Wolf-Georg Ringe: “Secondary proceedings, forum shopping and the European Insolvency Regulation”

The German Federal Supreme Court held in a recent decision that secondary proceedings according to Article 3(2) of the European Insolvency Regulation cannot be initiated where the debtor only has assets in a particular country. The requirements for an “establishment” go beyond this and require an economic activity with a “minimum of organisation and certain stability”. This decision stands in conformity with the leading academic comment and other case-law. Nevertheless, the decision is a good opportunity to stress the importance of secondary proceedings and their function to protect local creditors. This is particularly true where the secondary proceedings are initiated (as here) in the context of a cross-border transfer of the “centre of main interests” (COMI) of the debtor. The ongoing review of the European Insolvency Regulation should respond to this problem in one of the regulatory options provided.

  •  Moritz Brinkmann: “Ausländische Insolvenzverfahren und deutscher Grundbuchverkehr” – the English abstract reads as follows:

Art. 16 EIR provides for the automatic recognition of insolvency proceedings which have been commenced in another member state. The recognition of insolvency proceedings pertains not only to the debtor’s power with respect to the estate, but also to his procedural position as well as to questions regarding company law or the law of land registries. The decision rendered by the OLG Düsseldorf (March 2, 2012) illustrates that these consequences are easily ignored in the routine of everyday legal life as long as courts and parties have difficulties in accessing reliable information as to the status of foreign proceedings. The existing deficits in terms of access to information regarding foreign insolvency proceedings may thwart the concept of automatic recognition. Hopefully, the coming reform of the EIR will address this issue (see proposed Art. 22 EIR in COM (2012) 744 final).

  •  Kurt Siehr: “Equal Treatment of Children of Unmarried Parents and the Law of Nationality”

A child of unmarried parents acquires nationality of Malta only if the child is recognized by the Maltese father and legitimized by marriage or court decision. The European Court of Human Rights decided that this provision violates the European Convention of Human Rights, especially Article 8 on the right of family life and Article 14 on non-discrimination. There are doubts whether the decision is correct. A more careful phrasing of Maltese law could avoid the violation of the Convention. Or is the decision of the European Court of Human Rights its step further towards a human right for nationality?

  •  Fritz Sturm: “Forfeiture of the choice of surname: The European Court of Human Rights compels the Swiss Federal Court to set aside its former judgment”

The Swiss Federal Court, 24 May 2005, did not authorize foreign husbands to have their surname governed by their national law (s. 37 ss. 2 Swiss Private International Law Act) when they have previously chosen to take the wife’s surname as the family name, situation which could not have occured if the sexes had been reversed. In fact, in this case the husband’s surname would automatically become the family name and the wife could choose to have her surname governed by her national law. For the Court of Strasburg this difference in treatment is discriminatory (violation of art. 14 in conjunction with art. 8 ECHR). The Swiss Federal Court has therefore been compelled to set aside its former judgment.

  • Dirk Looschelders: “Jurisdiction of the Courts for the Place of Accident in case of a Recourse Direct Action by a Social Insurance Institution against the Liability Insurer of the Tortfeasor”

In the present judgement the Austrian High Court (OGH) deals with the question whether a social insurance institution can sue the liability insurer of the tortfeasor in the courts for the place where the harmful event occurred. The OGH comes to the conclusion that such a jurisdiction is granted at least by Article 5 no 3 Brussels I Regulation. The problematic issue whether the priority provision of Article 11 (2) read together with Article 10 s. 1 Brussels I-Regulation applies, is left undecided. In the decision Vorarlberger Gebietskrankenkasse the European Court of Justice has held that the social insurance institution cannot take a recourse direct action against the liability insurer under Article 11 (2) read together with Article 9 (1) (b) Brussels I Regulation. According to the opinion of the author, jurisdiction in such cases shall generally not be determined by Chapter II Section 3 of the Brussels I Regulation. Therefore, Article 11 (2) read together with Article 10 s. 1 Brussels I Regulation is inapplicable, too. In consequence, contrary to the opinion of the OGH, the social insurance institution cannot be regarded as an injured party in terms of Article 11 (2) Brussels I-Regulation.

  • Michael Wietzorek: “On the Recognition of German Decisions in Albania”

There is still no established opinion as to whether the reciprocity requirement of § 328 Sec. 1 No. 5 German Civil Procedure Code is fulfilled with regard to Albania. A decision of the High Court of the Republic of Albania dated 19 February 2009 documents that the Court of Appeals of Durr?s, on 5 December 2005, recognized two default judgments by which the Regional Court of Bamberg had ordered an Albanian company to pay two amounts of money to a German transport insurance company. One single court decision may not be sufficient to substantiate that there is an established judicial practice. Yet the reported decision appears to be the only one available in the publicly accessible database of the High Court dealing with the recognition of such foreign default judgments by which one of the parties was ordered to pay an amount of money.

  •  Chris Thomale: “Conflicts of Austrian individual labour law and the German law of the works council – intertemporal dimensions of foreign overriding mandatory provisions”

The Austrian Supreme Court (Oberster Gerichtshof) recently held that the cancellation of an individual employment contract between a German employer and an Austrian employee posted in Austria was valid despite the fact that the employer failed to hear his German works council properly beforehand. The case raises prominent issues of intertemporal conflicts of laws, characterization of the mentioned hearing requirement and the applicability of foreign overriding mandatory provisions, which are discussed in this article.

  •  Sabine Corneloup: “Application of the escape clause to a contract of guarantee”

The French Cour de cassation specifies how to apply the escape clause of Art. 4 n° 5 of the Rome Convention to a contract of guarantee. The ancillary nature of guarantees leads national courts often to the application of the law governing the main contract, on the basis of a tacit choice of law or on the basis of the escape clause. The latter is to be used very restrictively, according to the Cour de cassation. It is necessary to establish first that the ordinary connecting factor, designating the law of the habitual residence of the guarantor, is of no relevance in the examined case. Only after this step, the courts can examine the connections existing with another State. This restrictive interpretation adds a condition to the text that seems neither necessary nor appropriate.

  • Oliver Heinrich/Erik Pellander: “Das Berliner Weltraumprotokoll zum Kapstadt-Übereinkommen über Internationale Sicherungsrechte an beweglicher Ausrüstung”
  • Stefan Leible: “Hannes Unberath † (23.6.1973–28.1.2013)”

 

 




Italian Conference on the EU Patent System

University of Milano-Bicocca

Friday 27 September 2013 – Aula Martini U6-4

THE EU PATENT SYSTEM:

THE EUROPEAN PATENT WITH UNITARY EFFECT AND THE UNIFIED PATENT COURT

  

9.00 – Registration of participants

9.15 – Welcome speeches:

Prof. Marcello Fontanesi – Rector, University of Milano-Bicocca

Dr. Fabrizio Spada – Director, European Commission Representation, Office in Milan

 

9.30 – Morning session:

The Substantive Law

Chair: Prof. Dr. Hanns Ullrich (MPI München)

 

Michael König – Head of Unit, Industrial Property, DG Internal Market, EU Commission 

  • The Long Road from EC Patent to Patent with Unitary Effect: Potentials and Challenges Ahead

Prof. Fausto Pocar – University of Milan, International Criminal Tribunal for the former Yugoslavia

  • La cooperazione rafforzata in materia di brevetti e il controllo della Corte di giustizia UE (The Enhanced Cooperation on Patents and the Control by the CJEU)

Prof. Giovanni Guglielmetti – University of Milano-Bicocca

  • Natura e contenuto del brevetto con effetto unitario (The Legal Nature and the Content of the Patent with Unitary Effect)

10.30-10.50  Coffee-break

Prof. Manuel Desantes Real – University of Alicante, Former Vice-President EPO

  • The European Patent with Unitary Effect and the European Patent Office

Prof. Vincenzo Di Cataldo – University of Catania

  • La concorrenza di discipline di fonte diversa nel brevetto ad effetto unitario (Concurring Sources of Law in the Legal Regime of the Patent with Unitary Effect)

Prof. Giandonato Caggiano – University of Roma Tre

  • La collocazione normativa delle disposizioni di diritto sostanziale e la loro interpretazione pregiudiziale (The Legal Frame for Substantive Law Provisions and their Referral to the ECJ for Preliminary Ruling)

12.00 – Interventions

Dr. Francesco Macchetta – IP Director, Bracco Imaging

 

14.30 – Afternoon session:                                                                           

The Judicial Frame

Chair: Prof. Riccardo Luzzatto (University of Milan) 

Prof. Marta Pertegás – First Secretary, Hague Conference of Private International Law, The Hague

  • The Institutional Framework for the Enforcement of European Patents and European Patents with Unitary Effect: a View from the Hague Conference

Prof. Roberto Baratta – University of Macerata, Legal Advisor, Permanent Representation of Italy in Brussels

  • La natura del Tribunale unificato tra tribunale nazionale «comune agli Stati» e tribunale internazionale (The Unified Patent Court between a National Court “Common to the Member States” and an International Court)

Dr. Marina Tavassi – President of the IP Specialised Section, Milan Tribunal

  • Le Rules of Procedure e i rapporti tra Tribunale unificato e giudice nazionale (The Rules of Procedure and the Relations between the Unified Patent Court and National Courts)

15.45-16.10  tea-break

Prof. Costanza Honorati – University of Milano-Bicocca

  • Il diritto applicabile dal Tribunale unificato: diritto UE, diritto internazionale, diritto interno (The Law Applicable by the Unified Patent Court: EU Law, International Law, National Law)

Prof. Marco Ricolfi – University of Turin

  • La ‘biforcazione’ tra azioni di validità e azioni di contraffazione: ragioni teoriche e problemi applicativi – (‘Bifurcation’ of Revocation and Infringement Actions: Theoretical Reasons and Practical Problems)

Dr. Micaela Modiano – European Patent Attorney

  • Il ruolo del patent attorney di fronte al Tribunale unificato (The Role of Patent Attorneys Before the Unified Patent Court)

17.30 – Interventions and discussion

Dr. Francesca Ferrari – University of Insubria

Dr. Benedetta Ubertazzi – University of Macerata

Dr. Lidia Sandrini – University of Milan

18.30 – Closing of the Conference

Scientific Coordinator: prof. Costanza Honorati

The Conference will be held in English and in Italian. Simultaneous translation will be provided.

For further information, please contact  costanza.honorati@unimib.it  




Second Issue of 2013’s Belgian PIL E-Journal

The second issue of the Belgian bilingual (French/Dutch) e-journal on private international law Tijdschrift@ipr.be / Revue@dipr.be was just released.

The journal essentially reports European and Belgian cases addressing issues of private international law, but it also offers academic articles. This issue includes two:

  • Herman VERBIST – Transparency In Treaty Based Investor State Arbitration – The Draft Uncitral Rules on Transparency
  • Thalia KRUGER en Britt MALLENTJER – Het kind dat een voldongen feit is



UK Supreme Court Rules on Service Abroad

On June 26, the UK Supreme Court delivered its judgment in Abela and others (Appellants) v Baadarani (Respondent)

The Court issued the following press summary.

JUSTICES: Lord Neuberger (President), Lord Clarke, Lord Sumption, Lord Reed, Lord Carnwath

BACKGROUND TO THE APPEAL

This case concerns the circumstances in which a court may make an order retrospectively declaring that steps taken by a claimant to bring a claim form to the attention of a defendant should be treated as good service.

On 30 April 2009, Mr Abela and his two companies brought a claim for damages for fraud against Mr Baadarani in connection with a contract for the purchase of shares in an Italian company which the appellants contend were worthless, or were worth far less than the amount for which they were purchased. In September 2009, permission was granted for the claim form and all other documents to be served on Mr Baadarani at an address at Farid Trad Street in Beirut, Lebanon. No relevant bilateral treaty on service of judicial documents existed between the UK and Lebanon, and the Hague Service Convention was not applicable. Time for serving the claim form was extended until 31 December 2009 and permission was granted, if necessary, to serve Mr Baadarani personally at the Farid Trad Street address. The appellants gave evidence that they had used a notary to seek to serve Mr Baadarani at the Farid Trad Street address by instructing a service agent or clerk to attend that property over a period of four consecutive days. Mr Baadarani could not, however, be found. He denies that he has ever lived at the Farid Trad Street address.

On 22 October 2009 a copy of the claim form and other relevant documents were delivered to the offices of Mr Baadarani’s Lebanese lawyer in Beirut, Mr Azoury. That method of service had not been authorised by the judge and it is accepted it that was not good service under Lebanese law; Mr Azoury said that he had never been given instructions to accept service of documents on behalf of Mr Baadarani save in connection with certain Lebanese proceedings. Mr Azoury gave no indication of where Mr Baadarani could be served. Arabic translations of the relevant documents were delivered to the Foreign Process Section of the High Court in November 2009 together with certified translations. The appellants were informed in December 2009 that service on Mr Baadarani in Lebanon via diplomatic channels could take a further three months. In April 2010, Lewison J extended time for service of the claim form and granted permission for the claim form to be served on Mr Baadarani by alternative means, namely via his English or Lebanese solicitors. An application by the appellants that the steps already taken to serve Mr Baadarani be treated as good service was adjourned. Service was subsequently effected by alternative means on Mr Baadarni’s English solicitors in May 2010.

Mr Baadarani applied to set aside the various orders that had been made to extend time for service of the claim form and also sought to set aside the order permitting alternative service via Mr Baadarani’s English and Lebanese solicitors. That application did not need to be determined because Sir Edward Evans-Lombe made a declaration at the request of the appellants, pursuant to rules 6.37(5)(b) and/or 6.15(2) of the Civil Procedure Rules (CPR), that the steps taken on 22 October 2009 constituted good service of the claim form. The Court of Appeal reversed that decision and held that the various extensions of time for service of the claim form should not have been granted. The claim was, therefore, dismissed. Mr Abela and the other appellants appealed to the Supreme Court.

JUDGMENT

The Supreme Court unanimously allows the appeal. Lord Clarke gives the leading judgment.

REASONS FOR THE JUDGMENT

  • CPR 6.15(2) can be used retrospectively to validate steps taken to serve a claim form even if the defendant is not within the jurisdiction [21, 22].
  • Orders under CPR 6.15(1) and (2) can be made only if there is “good reason” to do so. The judge’s conclusion that there was a good reason to make an order under 6.15(2) constituted a value judgment based on an evaluation of a number of different factors. An appellate court should be reluctant to interfere with such a decision [23].
  • The Court of Appeal was wrong to say that the making of an order under CPR 6.15(2) in a service out case is an “exorbitant” power. It is not appropriate to say that such an order may only be made in “exceptional” circumstances, at any rate in a case in which there is no danger of subverting any international convention or treaty. The test under CPR 6.15(2) is simply whether there is good reason to make such an order. [33, 34, 45, 53].
  • CPR 6.15(2) applies only in cases where none of the methods of services permitted by CPR 6.40(3) have been successfully adopted, including any method of service permitted by the law of the country in which the defendant is to be served. A claimant seeking an order under CPR 6.15(2) is not, therefore, required to show that the method of service used was good service under local law. The Court of Appeal was, in any event, wrong to say that the judge had concluded that service of the documents on Mr Azoury was good service under Lebanese law; if the judge had reached that conclusion, there would have been no reason for him to make an order under CPR 6.15(2) [24, 32, 46].
  • The only bar to the use of CPR 6.15(2), if otherwise appropriate, is the rule, under CPR 6.40(4) that nothing in a court order may authorise any person to do anything which is contrary to the law of the country where the claim form is to be served. Although delivery of the claim form and other documents to Mr Azoury was not good service on Mr Baadarani under Lebanese law, it has not been suggested that it was contrary to Lebanese law [24].
  • The mere fact that the defendant learned of the existence and content of the claim form cannot without more, constitute a good reason to make an order under CPR 6.15(2). That is, however, a critical factor. Service has a number of purposes, but the most important is to ensure that the contents of the document served are communicated to the person served. [36].
  • The fact that a claimant has delayed before issuing the claim form is not, save perhaps in exceptional circumstances, relevant when determining whether an order should be made under CPR 6.15(2). The focus must be on the reason why the claim form cannot or could not be served be served within the period of its validity [48].
  • The judge was entitled to conclude that an order under CPR 6.15(2) was appropriate. The judge correctly took account of the fact that Mr Baadarani, through his English and Lebanese lawyers, was fully apprised of the nature of the claim being brought against him. The claim form and other documents were delivered to him within the initial period of validity of the claim form. He also took account of the fact that service in Lebanon via diplomatic channels had proved impractical and that Mr Baadarani was unwilling to cooperate by disclosing his address to the appellants. Whilst Mr Baadarani had no obligation to disclose his address, his refusal to cooperate was a highly relevant factor in determining whether there was a good reason to make an order under CPR 6.15(2). The judge was entitled to take the view that an order under CPR 6.15(2) was appropriate notwithstanding the three and a half month delay between the issue of the claim form and the application for permission to service the claim out of the jurisdiction, and despite the fact that the claim against Mr Baadarani may be time barred [37, 39, 40].



Land Grabbing in Mubende-Neumann (article)

Professor Zamora Cabot continues his line of research on the subject of multinational enterprises liability with this article (ckick here to download), where he raids into a field of the out-most concern, such as that of land grabbing, over the very significant case Mubende-Neumann.

After an introduction, Section I highlights some of the most relevant aspects of the subject matter; at the same time it indicates the working plan. Then, in Section II, the author implements a definition of the land grabbing phenomenon, together with the trends over which an exponential growth has been based. Also, some basic questions such as those of property titles on lands and their surrounding problems, together with the influence of the right to food and the right to land, are developed. This Section concludes by referring to regulatory approaches based on non-committal attitudes when it comes to facing land grabbing, and the special scrutiny it should undergo in connection with countries either submerged or suffering from conflict situations, i.e., weak environments where land grabbing problems may develop into human rights questions.

Section III states the facts and legal consequences of the case Mubende-Neumann, a procedure of massive eviction that took place in Uganda in 2001, where the Government, after signing an agreement with a firm of German origin, expelled in a particularly brutal and violent way more than two thousand people from the lands they occupied, and delivered them to a branch of the above-cited corporation. These facts prompted a legal proceeding in Uganda, on the one hand, and another one based on the OECD Guidelines for multinational companies, on the other; both are exposed in the article in a synthetic way. The author ends this Section by setting off the report drawn up by GI-ESCR on this case before the United Nations Human Rights Committee, and the notes addressed by the Committee to Germany (October 2012) in its Concluding Observation nº 16.

Section IV deals with the subject of the so-called “extraterritorial obligations” of the States, explaining their precedents, the main actors implied in their development, their legal framework (the Covenant of Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights, as the most outstanding among them). It also adresses the issue of how to conciliate these obligations with extraterritorial laws.

The study ends up in Section V with some concluding reflections, critical remarks adressed to the German authorities performance in the case under consideration and, more generally, in all cases arising out of human rights violations on the part of the German multinational corporations. Still, as a note of hope, the autor underlines the increasing number of occasions in which the countries hosting companies and investments are reacting in favour of the affected communities through their institutional framework. As exemple, the Instance decision issued by a judge of Kampala in the case Mubende-Neumann or, just as well very recently, that of the Supreme Court in India, Comunidad Dongria Kondh, of Orissa, in face of the mining colossus Vedanta. Two cases in which the fight both affected communities undertook in defence of their rights turned to be decisive, thus constituting a most important pattern and a valuable element for reflection towards the future.