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EU Member State sees opportunities in Brexit: Belgium is establishing a new English-language commercial court
Expecting higher demands for international commercial dispute resolution following Britain’s departure from the EU, Belgium plans to set up a new English-language commercial court, the Brussels International Business Court (BIBC), to take cases away from the courts and tribunals in London. This decision was announced on 27 Oct 2017. This BIBC is designed to address disputes arising out of Brexit and major international commercial disputes. The court will take jurisdiction based on parties’ choice, and will do the hearing and deliver judgments in English. The parties would have no right to appeal. BIBC combines elements of both traditional courts and arbitration. See comments here.
Although Brexit may cause uncertainty to litigants in the UK, a survey suggests that the EU judicial cooperation scheme is not the main reason for international parties choosing London to resolve their disputes. The top two factors that attract international litigants to London are the reputation and experience of English judges and combination of choice of court clauses with choice of law clauses in favor of English law, followed by efficient remedies, procedural effectiveness, neutrality of the forum, market practice, English language, effective UK-based counsel, speed and enforceability of judgments. Furthermore, Brexit will not affect the New York Convention and would less likely affect London as an arbitration centre. It may be more reasonable to suggest that the main purpose of BIBC is not to compete with London at the international level, but to offer additional judicial tool and become a new commercial dispute resolution centre within the EU to attract companies and businesses to Brussels.
CJEU on the place of the damage under Article 7(2) of Brussels Ia as regards violation of personality rights of a legal person
First personal impressions presented by Edina Márton, LLM, PhD (Saarbruecken)
For jurisdictional purposes, the localisation of cross-border violations of personality rights under European instruments, such as Regulation (EU) No 1215/2012 (Brussels Ia), has attracted the attention of a considerable number of scholars and often led to different legal solutions in the national judicial practice. At EU level, besides Shevill (C-68/93; ECLI:EU:C:1995:61) as well as eDate and Martinez (C-509/09 and C-161/20; ECLI:EU:C:2011:685), since 17 October 2017, a third judgment in case Bolagsupplysningen (C-194/16; ECLI:EU:C:2017:766) has given further clarification in this area. In the recently delivered judgment, the ECJ specified one of the two limbs of the connecting factor “where the harmful event occurred or may occur” under Article 7(2) of Brussels Ia, namely the place of the alleged damage. Read more
Is “la réserve héréditaire” part of French international public policy ?
Through two decisions (Civ. 1ère, 27 sept. 2017, n° 16-17198 et 16-13151) both issued on September 27th, The French Cour de cassation finally gave an answer to one of the most discussed question of French Succession law: Is la réserve héréditaire part of French international public policy?
The circumstances of both cases are very similar. Two French composers living in California, where they had most of their assets, got married respectively in 1984 and 1990. They put their assets in a trust and designated their wives as beneficiaries. In both cases, the settlers did not designate the children they had from previous relationships as beneficiaries of the trust. After the death of their fathers, the latter turned to French courts in order to obtain part of the inheritance. They argued that the Californian law applicable to the succession should be declared contrary to French international public policy for not including a réserve héréditaire for certain heirs.
According to Article 912 §1 of the French Civil Code, la réserve hérédiataire or the reserved portion « is that part of the assets and rights of the succession whose devolution, free of charge, the law assures to certain heirs, called forced heirs, if they are called to the succession and if they accept it ». In other words, under French succession law, a person cannot freely dispose of all of his or her assets. French law set boundaries by putting aside a reserved portion of the deceased’s property. However, he or she can freely dispose of the disposable portion (quotité disponible) which is defined as « that part of the assets and rights of the succession that is not reserved by law and of which the deceased can freely dispose by liberalities » (Article 912 § 2).
Whereas the Court of Cassation ruled that the reserved portion is mandatory in internal matters, the question of its imperative nature in international cases was yet unclear. Authors disagree. While some consider that the réserve héréditaire cannot be considered as such as part of French ordre public international, others consider that due to the fact that it is an expression of solidarity among family members as well as a guarantee of equality between heirs, it has to be part of French international public policy.
The controversy was aggravated in 2011 when the Conseil Constitutionnel condemned le droit de prélèvement for amounting to a discrimination based on nationality. The droit de prélèvement is another specific French mechanism. It allows French heirs that have been deprived of the reserved portion from the assets located abroad to deduct the equivalent of such reserved portion from the part of the deceased’s assets that are located in France. As a consequence of this decision, the reserved portion remained the only protection for heirs from the risk of disinheritance.
However, in both decisions, the Court found that the mere fact that the foreign law does not provide for a mechanism such as the reserved portion does not amount to a violation of French international public policy. The foreign law could nevertheless be disregarded, but only if its concrete application in a specific case leads to a situation that would be incompatible with French essential principles.
Giving the particulars circumstances of the cases, the Court found that in both cases the application of Californian law was not contrary to French public policy. First, the Court outlined that the deceased had lived in California for over thirty years and that most of their assets were located there. As a consequence, both situations were not strongly connected to the French forum. Then, the Court pointed out that the children living in France were adults and that their economic situation will not suffer from their being deprived of the succession.
These observations lead the Court to consider that, in these situations, the Californian law is not contrary to French international public policy even though it does not provide for a reserved portion. The Court emphasis on the particular circumstances of the case, namely that the situation was mainly located in California and that none of the claimants was in need or economically instable, indicates that these circumstances weighed strongly on the outcome. It does not exclude that, in different circumstances, a foreign law that would not provide for a reserved portion could be dismissed as contrary to public policy.
Prior to the coming into force of the Succession Regulation, the solution appears in accordance with its public policy provision. Stating that courts could only refuse to apply provisions that are manifestly incompatible with the forum’s international public policy, Article 35 allows that foreign laws be disregarded when their application could lead to serious consequences. It does not appear to be the case in the present situations.
The new discussed question is now: In which case the application of a foreign law not including a reserved portion could lead to a situation incompatible with French essential principles ?
News
With EU, Ukraine joining, the 2019 Hague Judgments Convention will enter into force on 1 September 2023
Just about a month ago, as previously reported, the EU formally decided to accede to the 2019 Hague Judgments Convention – a decision that has now been implemented by depositing the instrument of accession with the Convention’s Depositary, the Ministry of Foreign Affairs of the Netherlands. At the same time, Ukraine has deposited its instrument of ratification, thus becoming the second contracting party.
As per its Article 28(1), the Convention will enter into force on 1 September 2023 for all EU Member States (except Denmark) and Ukraine.
The Convention currently has five additional signatories: Costa Rica, Israel, the United States of America, Uruguay, and, somewhat delicately, the Russian Federation.
Nigerian Bar Association Journal for 2022
The Nigerian Bar Association recently published articles on Nigerian law. Interestingly, the first two articles are on Nigerian conflict of laws. This should probably not come as a surprise because the editor-in-chief, Professor Uche Chukwumaeze, specialises in Nigerian conflict of laws.
The articles and abstracts read as follows:
O Uka, “Internal Conflict of Laws in Nigeria: Making a Case for the Consolidation of Rules of Jurisdiction in Inter-State Disputes”
“Owing to the central place that jurisdiction occupies in the adjudication process in Nigeria, jurisdictional conflicts will continue to take up precious judicial time into the foreseeable future. A lesser-known facet of these conflicts is the one among the various High Courts in Nigeria in actions in personam. Until recently, Nigerian courts have had to resolve these conflicts and generally interprete internal conflict of laws questions without the benefit of the direction that legislation and high-quality academic works provide. This paper examined the position on the jurisdiction of courts in inter-State jurisdictional challenges in actions in personam. It analysed decisions which tackled territorial jurisdiction challenges in actions in personam with a view to highlighting their inherent errors. Ultimately, the paper proposed a hierarchical roadmap for Nigerian courts to adopt in determining the issue of jurisdiction in inter-State in personam disputes which if followed, would potentially go a long way towards resolving the protracted jurisdictional conflicts between Nigerian courts, reduce the largely unnecessary challenges to these courts’ authority, significantly reduce the notorious delays in the determination of cases in Nigeria, and eliminate one of the biggest impediments to the smooth administration of the justice delivery system in Nigeria.”
I Olawunmi, “Party Autonomy and Commercial Expectations: How are the Nigerian Courts faring on Choice of Law and Forum Clauses in Contracts beyond Borders?”
“Where a contract bears a transnational coloration, it is only instinctual to have the parties agree on specific arrangements to guide their commercial endeavour. It is a legal right for parties to a contract to freely negotiate the terms to govern their agreement. This underpins the principle of party autonomy that guides the law of contract globally. It is a common practice to have parties to an international commercial contract select the law to govern their agreement. Since conflict is inevitable in any human relationship, parties can also agree to the forum to resolve their disputes. Parties can choose arbitration or even litigate in a foreign court over a contractual dispute. This paper aims to x-ray party autonomy, law and forum clauses, their different effects and the judicial attitude of Nigerian courts to them, especially for contracts entered into and/or are to be performed in Nigeria. The author adopts the doctrinal methodology of research, with reliance placed on both primary and secondary sources. This paper recommends that the courts should not derogate from the doctrine of party autonomy in determining commercial disputes as practical as possible, as this would help investors achieve their contractual goals.”
Third Issue of Lloyd’s Maritime and Commercial Law Quarterly for 2022
The third issue of the Lloyd’s Maritime and Commercial Law Quarterly for 2022 was recently published. It features the following case notes and articles:
A Briggs, “Render unto Caesar the things that are Caesar’s”
R Bork, “The Arbitrability of Insolvency-Related Claims”
CH Tham, “Assignments, Assignees and the Burden of an Arbitration Clause”