Views
The “Coman” Case (C-673/16): Some reflections from the point of view of private international law
Written by Dr. iur. Baiba Rudevska (Latvia)
On 5 June 2018, the ECJ rendered a judgment in the Coman case (C-673/16). For the first time the ECJ had the opportunity to rule, on the concept of ‘spouse’ within the meaning of the Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (Directive 2004/38) in the context of a same-sex marriage. Even if the Directive only covers questions related to the entry and residence in the European Union (EU), this judgment could be of interest for Private International lawyers as well. Read more
Petronas Lubricants: ECJ confirms that Art 20(2) Brussels I can be used by employer for assigned counter-claim
Last Thursday, the ECJ rendered a short (and rather unsurprising) decision on the interpretation of Art 20(2) Brussels I (= 22(2) of the Recast Regulation). In Petronas Lubricants (Case C 1/17), the Court held that an employer can rely on the provision to bring a counter-claim in the courts chosen by the employee even where said claim has been assigned to the employer after the employee had initiated proceedings.
The question had been referred to the ECJ in the context of a dispute between an employee, Mr Guida, and his two former employers, Petronas Lubricants Italy and Petronas Lubricants Poland. Mr Guida’s parallel employment contracts with these two companies had been terminated among allegations of wrongly claimed reimbursements. Mr Guida, who is domiciled in Poland, had sued his Italian employer in Italy for wrongful dismissal and his employer had brought a counter-claim for repayment of the sums Mr Guida had allegedly wrongfully received, which had been assigned by the Polish employer.
Art 20(2) Brussels I contains an exception to the rule in Art 20(1), according to which an employee can only be sued in the courts of their country of domicile, to allow the employer to bring a counter-claim in the courts chosen by the employee. Similar exceptions can be found in Art 12(2) Brussels I (= Art 14(2) of the Recast; for insurance contracts) and Art 16(3) Brussels I (= Art 18(3) of the Recast; for consumer contracts), all of which incorporate the ground for special jurisdiction provided in Art 6 No 3 Brussels I (= Art 8(3) of the Recast). In the present case, the ECJ had to decide whether this exception would also be available for counter-claims that had been assigned to the employer after the employee had initiated proceedings.
The Court answered this question in the affirmative, pointing out that
[28] … provided that the choice by the employee of the court having jurisdiction to examine his application is respected, the objective of favouring that employee is achieved and there is no reason to limit the possibility of examining that claim together with a counter-claim within the meaning of Article 20(2) [Brussels I].
At the same time, the Court emphasised that a counter-claim can only be brought in the court chosen by the employee if it fulfils the more specific requirements of Art 6 No 3 Brussels I, according to which the counter-claim must have arisen ‘from the same contract or facts on which the original claim was based’. This has recently been interpreted by the ECJ (in Case C-185/15 Kostanjevec) as requiring that both claims have ‘a common origin’ (see [29]–[30] of the decision). Where this is the case – as it was here (see [31]–[32]) –, it does not matter that the relevant claims have only been assigned to the employer after the employee had initiated proceedings (see [33]).
Mareva injunctions under Singapore law
Whether the Singapore court has the jurisdiction or power to grant a Mareva injunction in aid of foreign court proceedings was recently considered by the Singapore High Court in PT Gunung Madu Plantations v Muhammad Jimmy Goh Mashun [2018] SGHC 64. Both plaintiff and defendant were Indonesian and the claim related to alleged breaches of duties which the defendant owed to the plaintiff. The plaintiff had obtained leave to serve the writ in Indonesia on the defendant. The defendant thereupon applied, inter alia, to set aside service of the writ and for a declaration that the court has no jurisdiction over him. In response, the plaintiff applied for a Mareva injunction against the defendant in respect of the defendant’s assets in Singapore. The plaintiff had, after the Singapore action was filed, commenced actions in Malaysia and Indonesia covering much the same allegations against the defendant.
Under Singapore law (excluding actions commenced in the Singapore International Commercial Court where different rules apply), leave to serve the writ on the defendant abroad may be granted at the court’s discretion if the plaintiff is able to show: (i) a good arguable case that the claim falls within one of the heads of Order 11 of the Rules of court; (ii) a serious issue to be tried on the merits; and (iii) Singapore is forum conveniens. On the facts, the parties were Indonesian and the alleged misconduct occurred in Indonesia. As the plaintiff was unable to satisfy the third requirement, the court discharged the order for service out the writ out of the jurisdiction. Other orders made in pursuant of the order for service out were also set aside.
On the Mareva injunction, the Singapore High Court adopted the majority approach in the Privy Council decision of Mercedes Benz v Leiduck [1996] 1 AC 284. Lord Mustill had distinguished between two questions, to be approached sequentially: first, the question of whether the court has in personam jurisdiction over the defendant; secondly, the question of whether the court has a power to grant a Mareva injunction to restrain the defendant from disposing of his local assets pending the conclusion of foreign court proceedings. Valid service is required to found in personam jurisdiction under Singapore law. In PT Gunung Madu Plantations, as in Mercedes Benz itself, as the answer to the first question was in the negative, the second question did not arise.
Justice Woo was cognisant of the difficulties caused by hewing to the traditional approach of viewing Mareva relief as strictly ancillary to local proceedings but stated ‘that is a matter that has to be left to a higher court or to the legislature’ (para 54). His Honour referenced developments in the UK and Australia, where freestanding asset freezing orders in aid of foreign proceedings are permitted. Further, the Singapore International Arbitration Act was amended in 2010 to give the court the power to grant an interim injunction in aid of a foreign arbitration. It is likely that legislative intervention will be required to develop Singapore law on this issue.
The judgment may be found here: http://www.singaporelaw.sg/sglaw/laws-of-singapore/case-law/free-law/high-court-judgments/23135-pt-gunung-madu-plantations-v-muhammad-jimmy-goh-mashun
News
Today begins the first meeting of the Special Commission to review the practical operation of the HCCH 2000 Protection of Adults Convention
The first meeting of the Special Commission to review the practical operation of the HCCH 2000 Protection of Adults Convention will be held today in The Hague and will last until 11 November 2022. This event is remarkable given that this is the first time that the practical operation of this Convention is assessed since its entry into force on 1 January 2009.
A few topics of the agenda are worthy of note. I would like to highlight two:
The first topic deals with the tools to assist with the implementation of the 2000 Convention and is broken down as follows:
- Improving accessibility to the existing model forms
- Direct judicial communications and a possible network of judges under the 2000 Protection of Adults Convention. See here.
- Finalisation and adoption of the Practical Handbook on the Operation of the 2000 Protection of Adults Convention
- Finalisation and adoption of the Implementation Checklist under the 2000 Protection of Adults Convention
- Finalisation and adoption of the 2000 Protection of Adults Convention Country Profile
The second topic and undoubtedly fascinating to any international lawyer – if only with regard to treaty law – is the agenda item: Possible amendments to the 2000 Convention. For more information, click here. This agenda item contains the following sub-items:
- Interest in deleting the terms “guardianship” and “curatorship” (Art. 3(c))
- Interest in adding a new conflict rule for “ex lege representation”
- Interest in adding a provision on “instructions given and wishes made by the adult e.g. advance directives”
- Interest in adding final clauses allowing Regional Economic Integration Organisation to join the 2000 Convention
- Possible mechanisms to amend the 2000 Convention
Enforcing Foreign Judgments in China and Chinese Judgments Abroad: Recent Developments and Remaining Challenges
On January 24, 2022, the Supreme People’s Court of China issued the Minutes of the National Court’s Symposium on Foreign-Related Commercial and Maritime Trials (“Minutes”), which provide rules for judgment recognition and enforcement (“JRE”) in China when no treaty exists between China and the state of origin or the treaty does not address a particular JRE issue. Later in the year, on August 29, 2022, the European Union and its member states acceded to the 2019 Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. The Convention will enter into force in September 2023. Given that China has not signed the Convention, this talk aims to help international business actors to plan for the ways in which JRE in China will differ and understand the prospects for China to ratify the Convention.
Dr Huang’s talk and discussion will be followed by a light sandwich lunch. Please email conflictoflaws@law.ox.ac.uk to register your attendance and any dietary requirements.
For more information see here
This event is generously supported by Twenty Essex
The French Project for a Private International Law Code – a Debate at the Comité Français
by Ilaria Pretelli
On Friday October 21 the Comité français de droit international privé held a special session devoted to the last and possibly final version of the project of code of private international law. As such, the project consists of 207 articles divided into 6 books: general rules, special rules, procedure, recognition and enforcement of foreign acts and judgments, provisional and protective measures, transitional provisions.
The session was held “à huis clos” with the discussion among members stimulated by foreign guests specially invited to have a perspective from abroad. Not surprisingly, due weight was given to Switzerland and Belgium, as the former is considered to have a model legislation on the discipline and the latter has the “youngest” statute of continental Europe. Marc Fallon underlined the very different circumstances in which the Belgian legislation was constructed, since it came from a private initiative of Belgian academics, only at a later stage submitted to the Belgian legislator. The opposite path has led to the drafting of the French project, which stems directly from an initiative of the Ministry of Justice. In France, this project is the fourth in time after those by Niboyet (1950), Batiffol (1959) and Foyer (1967). If successful, it will bring to an end the essentially doctrinal and jurisprudential character of French private international law. These traditional characteristics of French private international law were recalled by Pierre Mayer in an already nostalgic note. Andrea Bonomi offered both a Swiss and European perspective, with laudatory remarks on the main innovations of the project: the codification of rules on procedure and on procedural measures, and the codification of the “méthode de la reconnaissance”. Reference is thereby made to the renowned French theory which has developed Picone’s observations on the opportunity of recognising the competence of a legal order (l’ordinamento competente) as a whole to decide a cross-border issue, instead of applying such a foreign order’s rules to decide the same cross-border issue within the forum. This method (or methods, according to subsequent works of the author of the theory, Pierre Mayer), is gaining importance in contemporary practice. On the one hand, the increasing mobility of citizens raises the number of conflicts of laws and creates an appetite for hard and fast solutions. A method allowing to displace the discussion from substance to competence of the authority serves this need. In addition, it is particularly welcome in the EU, where it is coherent with the prevalence of the evaluations of the “country of origin”.
Other rules applauded by the audience were those on public policy and fraude à la loi, although regret was expressed over the fact that these well-known denominations are not mentioned in the corresponding rules (Articles 11 and 12). The rule on public policy is among the many of the project that reveals a constant attention by the drafters to coordinate national rules with the European ones: it explicitly grants a role to the “European notion of public policy”.
Possibly the most controversial rules are those on filiation resulting from IVF with a donor and on surrogacy (Articles 62 and 63). In this respect, the project breaks with French precedent and adopts a solution based on the respect of the legitimate expectations of donors, intended parents and the gestational mother: the lex loci actus.
According to the drafters, legal certainty for all parties involved points to the application of the law of the country in which assisted reproductive technology (ART) was performed or surrogacy was agreed by contract and implemented. These rules represent an exception to the general ones (Article 59), which point to the law of the child’s citizenship at the moment of birth. Article 62 seems to be of limited utility, since it merely confirms that French clinics need to follow French law and vice versa. However, as regards the filiation of children born with the employment of a donor by means of an IVF performed in a foreign fertility clinics, the applicable law will depend on the place of birth. If the latter is in France, the presumptions of paternity of French domestic law will apply in the first place. The scope of application of the foreign law of the country in which the clinic is based will thus be limited to the aspects related to the right of the child to have access to information regarding the donor. In addition, the lex loci actus would open the French border to reproductive tourism and, in so doing, would create the conditions to prevent the need of further strategic litigation before the ECHR in order to decriminalise surrogacy. Some critical voices have observed that the present domestic and international context are too fragile for such a solution to be welcome. The inherent risk is that the advancement in a wider recognition of “a right to parenthood”, including “parenthood for all” may increase existing divisions and undermine the credibility of the universal character of the principle of non-discrimination.
Divisions also exist as regards the timeliness of the code. Paul Lagarde raised his authoritative voice, in the columns of the last issue of the Revue critique, against the very idea of devoting energies to a national code of private international law. The engagement for the French code reveals, he argued, the availability of resources that could have been better employed to contribute to the drafting of a comprehensive code of European private international law based on the numerous existing regulations.
The four panels of the debate allowed a comprehensive analysis:
- structure of the code, articulation of sources, general rules of choice of law (chaired by Marie-Laure Niboyet)
- Procedure, Effect of foreign judgments and public acts (chaired by Jean-Pierre Rémery)
- Roundtable on family law
- Ccompany law – collective labor law ( chaired by Etienne Pataut).
All distinguished participants engaged in the rich and deep discussion triggered by the analysis of the project are looking forward to future arenas where the debate can continue.