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
Out Now: The Recognition and Enforcement of Punitive Damages Judgments Across the Globe – Insights from Various Continents, by Cedric Vanleenhove & Lotte Meurkens
Maastricht Law Series officially released the recent book edited by Dr Cedric Vanleenhove (Assistant Professor of Private International Law at Ghent University and Maître de Conferences at the HEC Management School of the University of Liège) and Dr Lotte Meurkens (Assistant Professor of Private Law at Maastricht University) titled The Recognition and Enforcement of Punitive Damages Judgments Across the Globe – Insights from Various Continents (Eleven, The Hague, 2023).
The description of the book reads as follows:
Thus far, private international law issues relating to punitive damages have mainly been dealt with from the perspective of several European countries. Systematic research into countries outside Europe was lacking up until
Commentaries on Private International Law-the Latest Issue
We are pleased to present the newest Commentaries on Private International Law (Vol. 6, Issue 1), the newsletter of the American Society of International Law (ASIL) Private International Law Interest Group (PILIG). The primary purpose of our newsletter is to communicate global news on PIL. Accordingly, the newsletter attempts to transmit information on new developments on PIL rather than provide substantive analysis, in a non-exclusive manner, with a view of providing specific and concise information that our readers can use in their daily work. These updates on developments on PIL may include information on new laws, rules and regulations; new judicial and arbitral decisions; new treaties and conventions; new scholarly work; new conferences; proposed new pieces of legislation; and the like.
This issue has two sections. Section one contains Highlights on the application of the CISG in Latin American countries, and PIL and the protection of children. Section two reports on the recent developments on PIL in Africa, Asia, Europe, North America, Oceania, and South America.
The latest PILIG newsletter can be accessed here Summer 2023 ASIL Newsletter
HCCH Monthly Update: June 2023
Conventions & Instruments
On 23 June 2023, Paraguay deposited its instrument of accession to the 1965 Service Convention and the 1970 Evidence Convention. With the accession of Paraguay, the 1965 Service Convention now has 82 Contracting Parties. It will enter into force for Paraguay on 1 January 2024 subject to the Article 28 procedure. As for the 1970 Evidence Convention, with the accession of Paraguay it now has 66 Contracting Parties. It will enter into force for Paraguay on 22 August 2023. More information is available here.
Publications & Documentation
On 6 June 2023, the Permanent Bureau of the HCCH announced the publication of the Toolkit for Preventing and Addressing Illicit Practices in Intercountry Adoption. The Toolkit is intended to assist in the proper implementation and operation of the 1993 Adoption Convention, by providing practical guidelines on what must be done to identify, prevent, and address illicit practices and their enabling factors. More information is available here.
On 21 June 2023, the Permanent Bureau of the HCCH announced the publication of the HCCH’s Strategic Plan for 2023-2028. The Strategic Plan 2023-2028 outlines the mandate and mission of the HCCH, sets out the three strategic goals pursued by the Organisation to fulfil them, and enshrines the guiding principles behind all aspects of the HCCH’s operations. More information is available here. Read more