Another new reference on the interpretation of the Brussels I Regulation has been referred to the ECJ for a preliminary ruling: The Landesgericht Feldkirch (Austria) has asked the following questions:

Is the reference in Article 11(2) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to Article 9(1)(b) of that regulation to be interpreted as meaning that a social security institution, to which the claims of the directly injured party have passed by operation of law (Paragraph 332 of the Allgemeines Sozialversicherungsgesetz (General Social Insurance Law, ASVG)), may bring an action directly against the insurer in the courts for the place in a Member State where the social security institution is established, provided that such a direct action is permitted and the insurer is domiciled in a Member State?

If the answer to Question 1 is in the affirmative: Does that jurisdiction exist even if at the time of bringing the action the directly injured party is not permanently or ordinarily resident in the Member State in which the social security institution is established?

Recently, the ECJ had already to deal with the interpretation of Art. 11(2) Brussels I in a different case: In C-463/06 (FBTO Schadeverzekeringen N.V. v. Jack Odenbreit) the ECJ held that

[t] he reference in Article 11(2) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to Article 9(1)(b) of that regulation is to be interpreted as meaning that the injured party may bring an action directly against the insurer before the courts for the place in a Member State where that injured party is domiciled, provided that such a direct action is permitted and the insurer is domiciled in a Member State.

The difference with regard to the present case is that here the action is not brought by the directly injured party but rather by a social security institution, to which the claims of the directly injured party have passed by operation of law. Consequently the question arises whether the ECJ’s reasoning in case C-463/06 can be transferred to this situation.

This has been argued by the claimant in the main proceedings on the grounds that a social security institution to which the claims of the injured party have passed has to be qualified as “injured party” in terms of Art. 11 (2) Brussels I since “injured party” is everybody sustaining any disadvantages of rights, assets or physical integrity. This is – according to the claimant – the case since the claimant paid medical expenses and sickness benefits to the directly injured person. According to this point of view, the fact that two economically comparable insurance institutions are opposing each other does not preclude the application of Art. 11 (2) Brussels I.

This line of argument is disputed by the respondent party arguing that Artt. 11 (2), 9 Brussels I reflect the need to protect the economically weaker party. This, however, is – according to the defendant – in view of its economic situation not the case with regard to a social security institution, to which the claims of the directly injured party have passed by operation of law. Consequently, with regard to the question of international jurisdiction it is decisive where the directly injured party is domiciled.

According to the Landesgericht Feldkirch, the more persuasive arguments suggest that a social security institution, to which the claims of the directly injured party have passed by operation of law cannot bring an action directly against the insurer in the courts for the place in a Member State where the social security institution is established. However, since this particular question has not been answered by the ECJ so far, it referred the above cited questions for a preliminary ruling.

On 17 October 2008, the Dutch Supreme Court delivered a judgment in the case Baros A.G. (Switzerland) v. Embrica Maritim Hotelschiffe GmbH (Germany), concerning the application of Article 4 of the Rome Convention (Hoge Raad, 17 October 2008, No C07/084HR; LJN: BE7628). In 1998 Baros and Embrica concluded a “Bareboat-Chartervertrag” (rental agreement) concerning a hotel ship; the ship was located in Bremem (Germany) at that time, but was to be used for housing persons seeking asylum in the Netherlands. After termination of the contract in 2002, Embrica claimed damages in the amount of € 742.416,–, because the ship was not returned in the state it was when it was made available.

The Dutch Court of first instance dismissed the claim, but the Court of Appeal awarded a part of the claim. The applicable law was Dutch law, according to the Court. To this end the Court of Appeal stated that according to Article 4(2) of the Rome Convention the contract is presumed to be most closely connected to Germany, since the characteristic performer (Embrica) has its principal place of business in Germany. In line with the Dutch Supreme Court (Hoge Raad, 25 September 1992, No. 14556, NJ 1992, No. 750), the Court of Appeal further stated that article 4(2) of the Rome Convention constitutes the general rule, while Article 4(5) is the exception and should only be applied in exceptional circumstances, where the country where the party effecting the characteristic performance is situated has no real connecting value. The Court of Appeal decided that in this case the rental agreement did not have a real significant connection to Germany, since (a) the hotel ship was rented with the intention to use it as housing in a permanent location in the Netherlands, (b) the hotel ship had been connected to the shore with a jetty and a footbridge on a permanent basis, (c) the hotel ship was not intended or suited as a means of transport and cannot be moved without the assistance of a tugboat, (d) this was a continuing performance contract where Embrica had agreed to make the ship available in the Netherlands for rent, (e) Embrica was aware that Baros would not use the hotel ship himself, but would sublet it to a party situated in the Netherlands (National centre for support of persons seeking asylum), (f) the agreement stipulated that the return of the ship was to take place in the Netherlands. Therefore, the Court of Appeal concluded that Dutch law was applicable as the most closely connected law.

The Supreme Court, however, disagreed. It ruled that none of the grounds set out by the Court of Appeal could lead to the conclusion that Germany, as the principal place of business of the lessor (Embrica), has such an insignificant connection that it justifies departing from the general rule of Article 4(2) Rome Convention.

This ruling reaffirms the strict interpretation of Article 4(5) Rome Convention in the Netherlands. Further, it is in line with Article 4 of its successor, the Rome I Regulation, where the law of the habitual residence of the characteristic performer explicitly is the main rule, and may only be set aside where the contract is manifestly more closely connected to another country.

It has been a while, but this reference for a preliminary ruling is nevertheless worth mentioning. In its judgment of 20 June 2008, the Dutch Supreme Court, in a case between the German company Graphics Graphische Maschinen GmbH and A. van der Schee, acting as liquidator of Holland Binding BV, referred questions to the ECJ concerning the relationship between the Insolvency Regulation and the Brussels I Regulation (Hoge Raad, 20 June 2008, R07/124HR; LJN: BD0138). The questions arose in the context of the application by German Graphics of a declaration of enforceability of a German order (Beschluss) against the Dutch liquidator of Holland Binding to relinquish assets which are subject to retention of title. The Dutch Supreme Court referred the following questions to the ECJ in this case, pending as Case C-292/08:

“1) Must Article 25(2) of the Insolvency Regulation be interpreted as meaning that the words ‘provided that that Convention [that is to say, the Brussels I Regulation] is applicable’ featuring in that provision imply that, before it can be concluded that the recognition and enforcement provisions of the Brussels I Regulation are applicable to judgments other than those referred to in Article 25(1) of the Insolvency Regulation, it is first necessary to examine whether, pursuant to Article 1(2)(b) of the Brussels I Regulation, such judgments fall outside the material scope of that regulation?

2) Must Article 1(2)(b) of the Brussels I Regulation, in conjunction with Article 7(1) of the Insolvency Regulation, be interpreted as meaning that it follows from the fact that an asset to which a reservation of title applies is situated, at the time of the opening of insolvency proceedings against the purchaser, in the Member State in which those insolvency proceedings are opened, that a claim of the seller based on that reservation of title, such as that of German Graphics, must be regarded as a claim which relates to bankruptcy or the winding-up of an insolvent company, within the meaning of Article 1(2)(b) of the Brussels I Regulation, and which therefore falls outside the material scope of that regulation?

3) Is it relevant in the context of Question 2 that, pursuant to Article 4(2)(b) of the Insolvency Regulation, the law of the Member State in which the insolvency proceedings are opened is to determine the assets which form part of the estate?“

Ms Peggy Carlier has recently completed her doctorate at the Universiy of Lille on “How to use the Lex Fori in the Conflict of Laws Process” (“L’utilisation de la lex fori dans la résolution des conflits de lois“).

The English abstract reads:

By overemphasising the benefits of foreign law as the mean of the resolution of conflicts of laws, the literature on private international law presents a manichean vision of the discipline in which the lex fori (the law of the court to which the international dispute is referred) is demonised. However, such a presentation fails to recognise that the lex fori is more commonly used in international litigation, either directly or through a large number of derogations.

Given this observation, which can be explained by sociological (ethnocentrism) and pragmatic (the reasonable administration of justice) reasons, the present author seeks to restore the lex fori to favour. At the same time, the present author rejects the extreme of legeforismo, which in practice would mean a systematic application of the lex fori, preferring instead a more realistic and balanced approach based on bringing together the factors indicating the applicable law and the criteria founding the jurisdiction. The resulting vade-mecum offers the key to the complementarity which ought to exist between the lex fori and the foreign law.

The doctorate is not (yet?) published, but, remarkably, the manuscript is entirely available online for no fee. The abstracts (in French and English) are available here, and the manuscript (637 p., in French) here.

National Bank of Australia purchased U.S. mortgage service provider HomeSide Lending Inc. in 1998. Three years later, the bank was forced to admit that its calculations on the amount of fees HomeSide was generating from servicing mortgages were overstated. This led to the bank announcing two write-downs in 2001 totaling $2.2 billion. As a result, both the bank’s shares, which do not trade on U.S. exchanges, and its American Depository Receipts, which trade on the NYSE and make up only a small fraction of the bank’s securities, dropped in value. Three plaintiffs who purchased shares abroad and a fourth who purchased the ADR’s sought to represent two classes in the Southern District of New York.

The case presents the “vexing question of [the] extraterritorial application of the securities laws.” This vexing question, however, is not new. Though there is conflict in the nuances of the proper test to be applied, U.S. federal courts will sustain subject-matter jurisdiction over a foreign-based lawsuit “if activities in this country were more than merely preparatory to a fraud and culpable acts or omissions occurring here directly caused losses to investors abroad.” The plaintiffs had argued below that the fraud primarily occurred in the United States because HomeSide was based in Florida, even though the statements which investors relied upon were made and disseminated in Australia.

What is at the heart of the scheme as opposed to what is merely “preparatory” or “ancillary” can certainly be “an involved undertaking.” The defendant and some amici argued for a “bright-line rule” dismissing these sorts of securities cases, because U.S. markets are substantially not at issue. Their biggest objection was the conflict between U.S. securities laws and those in other countries, such as Canada, which does not recognize the fraud on the market doctrine, or other countries where class actions are not allowed or difficult to bring. The United States, under their “parade of horribles,” could become the clearing-house for the world’s securities fraud litigation if these sorts of actions were countenanced by the courts. On the other hand, plaintiffs argued that closing U.S. courts to these sorts of actions could actually harm U.S. competitiveness by increasing the migration of capital overseas.

The Second Circuit refused the “bright line rule,” but nonetheless dismissed this suit. It held that the potential conflict noted by Defendants does not require the “jettisoning” of our prior precedent because conflict of laws “is much less of a concern when the issue is the enforcement of the anti-fraud sections of the securities laws than with such provisions as those requiring registration of persons or securities.” On the former, he said, the “anti-fraud enforcement objectives” in different countries are “broadly similar.” A categorical rejection of these sorts of actions, he said, “would conflict with the goal of preventing the export of fraud from America.” Applying what has become known as the “conduct test,” the court found that the heart of the fraud alleged here occurred outside the United States, and dismissed the suit for lack of subject matter jurisdiction.

This is a short-term victory for foreign companies, though not as large a victory as they had liked. As the lead counsel for the defendants noted, “[t]he court’s decision makes clear that a paramount consideration in determining whether a U.S. court can hear [this sort of case] is whether the statements were made by the foreign issuer itself in the foreign country, and if that’s the case, it is going to be very difficult for the plaintiffs to sustain the case.” While this decision may have made some progress towards lessening the threat against foreign companies—for example, by shortening the chain of causation—the larger problem remains, because the Second Circuit clearly contemplates that there will be occasions where [foreign] transactions can be litigated here. According to one legal commentator, “[t]hat leaves considerable residual fear in the hearts of a foreign issuer who does not have to face the prospect of class litigation in their home country and thus only encounters it by entering the United States.” While people like to blame the “already significant migration” of capital off shore on Sarbanes-Oxley, he said, “that doesn’t do much compared with the threat of a billion dollar class action.”

The Second Circuit Decision is Morrison v. National Australia Bank Ltd., 07-0583-cv

A new book offers an Irish perspective on international and European litigation. Michelle Smith De Bruin, an Irish barrister at King’s Inns, Dublin, has recently published Transnational Litigation – Jurisdiction and Procedure (Thomson Round Hall Press, hardback).

Transnational Litigation: Jurisdiction and Procedure is a new book that addresses the complex jurisdictional rules and procedural issues which arise when dealing with disputes which cross national boundaries. It focuses on the issues which are most likely to come across the desk of an Irish practitioner.

The primary focus is on the determination of jurisdiction and practical matters such as how to serve defendants out of the jurisdiction, choice of court clauses, service of proceedings, protective measures, the taking of evidence and cross border discovery, and the enforcement of judgments at home and abroad.5 good reasons to have Transnational Litigation – Jusridiction and Procedure on your desk:

1. Helps you to consider geographical and tactical matters which influence where your client should issue proceedings.
2. It is the only Irish text which sets out the procedure in transnational litigation, for applications in the Circuit Court, High Court and Supreme Court.
3. Brings you right up to date with latest case law.
4. It is the most comprehensive Irish text in the area of transnational commercial litigation, family law and insolvency.
5. Includes the text of each of the main Regulations and Conventions in the appendices together with a list of the Contracting States and Member States.

The book is composed of the following chapters:

1. Introduction

Transnational litigation within the European Union – Litigation outside the European Union – Iceland, Norway and Switzerland – The Hague Conference – Bilateral and Multilateral Conventions

2. Choice of Court Agreements

Choice of court agreements in commercial litigation – The Hague Choice of Court Convention

3. Commercial Matters in The European Union

What constitutes civil or commercial proceedings? – Where should civil or commercial actions be brought? – Exceptions to the principle that defendants are sued in the country of their – Actions in which a Member State has exclusive jurisdiction – Civil and commercial actions within the EU and 
 
4. Family Law

Introduction – Divorce, legal separation and annulment – Child Law – Developments in EU Family Law

5. Insolvency Matters within The EU

The Insolvency Regulation – Main principles – Main and Secondary Proceedings – Centre of Main Interests (CoMI) – Applicable Law – The Liquidator – The Creditor – The application of the Regulation in Ireland

6. Proceedings in Which The Permission of The Court is Required to Serve Defendants Outside The Jurisdiction

Categories of claim – Comparative cost and convenience or forum non conveniens

7. Service Of Proceedings Commenced In Ireland On Defendants Abroad

Indorsement of claim – The Service Regulation – Service by consular means – Iceland, Norway and Switzerland – The Hague Convention

8. The Conduct Of Proceedings In Ireland Once Served On A Foreign Defendant

The Appearance – Entering an appearance to contest jurisdiction – Judgment in default of appearance – Issues common to both the High Court and Circuit Court – Applications to set aside service

9. Service of proceedings commenced abroad on defendants in Ireland

Service from other EU Member States on Irish defendants under the Service Regulation – Service of foreign proceedings under the Hague Convention or through the Minister for Foreign Affairs

10. Interlocutory orders in aid of foreign proceedings – provisional or protectivemeasures

Preservation measures in EU civil and commercial litigation – Applications to the courts of an EU Member State for protective measures -Preservation measures available to foreign litigants in the Irish Courts – The anti-suit injunction

11. Evidence and cross-border discovery

Intra-EU requests for evidence – Non-EU evidence and discovery – The Hague Evidence Convention – The taking of evidence by diplomatic or consular means

12. Enforcing judgments

Judgments obtained in civil or commercial matters – European Enforcement Orders (EEO) – Recognition and Enforcement of Family Law Judgments in Ireland – Enforcing Insolvency Judgments

Spanish autonomous PIL regulation is scattered and incomplete. In particular, we still lack of a rule on international lis pendens. The case law position on the matter seems quite clear, however: in the absence of any international agreement, the international lis pendens defense is not allowed: as the foreing ruling does not produce res judicata effect until it is recognized in Spain, there is no real risk of conflicting decisions. That’s why the Supreme Court’s (Tribunal Supremo, TS) decision of February 23, 2007 has attracted our attention. In that case a lawsuit between the same parties was simoultaneously pending in the U.S. and Madrid. The appellant claimed that the Courts of first and second instance had not observed “the jurisprudence reflected in the Judgments of January 31 1921, June 19 1990 and other consistent case law …”;  and that by doing so they had infringed Art. 533.5 º LEC 1881 (old lis pendens rule for purely domestic litigation).

Instead of displaying the customary arguments used for rejecting lis pendens, what the TS said was: “the lis pendens defence can be raised, and the Spanish court would have jurisdiction to decide on it. Whether or not it would be effective remains a different issue, to be solved considering the events taking place throughout the process”. Therefore, the Supreme Court seems to recognize that it is possible to plead and discuss the international lis pendens defence in the light of the peculiarities of each case. In the specific case before the Supreme Court, the exception was rejected: but not because there is no international treaty between Spain and the United States, or because the foreign ruling would not be recognized in Spain as long as the issue is still pending before our courts. Instead, the Supreme Court directly assumes that a lawsuit filed abroad requesting for revocation of a contract, and a national claim based on breach of the same contract, may affect each other: if the former is accepted, “there would be res iudicata” in the latter.

Since the Supreme Court’s line of arguments is not totally consistent (citations of case law supporting the court opinion are purely internal), we do not dare to say that our TS was really aware of the differences between domestic and international lis pendens. However, we would like to think that his decision adds interesting data to the Spanish debate on the admissibility, conditions and limits of international lis pendens defence.

Add: Professor Santiago Álvarez González comments the TS decision in Revista Española de Derecho Internacional, 2008, vol. I.

This is certainly not the first case, or the last case, to discuss the inherent conflict that results when a state provides that foreign marriages should be recognized, but nonetheless bans a certain form of marriage that is permitted elsewhere. It does, however, illustrate a noteworthy approach where the two states are worlds-apart in their public policies.

The case of Ghassemi v. Ghassemi involves divorce proceedings between persons married in 1976. The trial court refused to recognize their marriage for two reasons. First, they were married in Iran. Second, they are first cousins.

On the first issue, the trial court refused to “recognize any document, decree, judgments[,] statutes or contracts . . . whatsoever from the country of Iran.” In its view, “that country has been declared by itself and by its leader to be an enemy of the United States. The United States has had no diplomatic relations with that country for 28 years, and they are not a signatory to the Hague Convention with respect to marriages.” It didn’t seem to matter that when the couple was married in 1976, Iran was a U.S. ally.

This decision seemed quite spurious, and was overturned on appeal. Under this reasoning, all couples married in Iran would have been unmarried for all legal purposes, depriving them of the ability to inherit under the laws of intestate succession, call on the standard legal procedures for property settlement upon divorce, obtain various insurance benefits that were available only to married couples, etc. This, for no reason other than that the leaders of the country in which they were married are enemies of the United States. According to the Court of Appeal, “[i]t would be a questionable policy indeed to base the status of private individuals on the fluctuation of international relations,” and on the poor behavior of the leaders of the country in which they were married.

The second issue took a bit more ink to resolve. Iran permits marriage between first cousins. Like many states, Louisiana law bars marriage between first cousins, but it also provides that foreign marriages should be recognized, even if they would otherwise be illegal, unless it violates “a strong public policy” of the state.

In measuring the “strength” of Louisiana’s policy against first-cousin marriage, the Court of Appeal looked, first, to whether Louisiana law categorically prohibits all first-cousin marriages and sexual relationships; the court found that it did not. Ghassemi, Slip. op. at 22 (“we note that the Louisiana Legislature has not expressly outlawed marriages between first cousins regardless of where they are contracted as it has emphatically done in the case of purported same sex marriages” (emphasis in original)); see also id. at 24 (“relations between first cousins are not prohibited by our criminal incest statute”). It also noted that “marriage to first cousins has not always been prohibited in Louisiana.” Id. at 17-18. (noting that the change in the law came in 1902).

While this may have been enough to reverse the decision of the trial court, the Court of Appeal also looked to various other sources as to the depth of the prohibition on first cousin marriage, including:

• “natural law” (which Louisiana courts seem to refer to much more often than do other state courts, perhaps because of Louisiana’s civil law tradition),
• “Bible’s Book of Leviticus, the font of Western incest laws” (which does not prohibit first-cousin marriages)
• the views of other U.S. states (of which about half allow some or all first-cousin marriages),
• the views of other “western countries” (interestingly, “the U.S. is unique among western countries in restricting first cousin marriages.”)
Id. at 24-26.

Surveying these sources, the court eventually found that “although Louisiana law expressly prohibits the marriages of first cousins, such marriages are not so odious as to violate strong public policy of this state.” Id. at 22.

Like other who have commented on this case (Hat Tip to the editors at the Volokh Conspiracy for pointing it out), I also generally agree that American courts shouldn’t refer to modern foreign law in interpreting the meaning of the U.S. Constitution; for sure, American constitutional practices have their own history, text, and have been crafted in accordance with American life and our unique political thought. But is it a mistake to cast this decision into that same ilk of those decisions that have sparked controversy and, in some quarters, restrained outrage? Compare Lawrence v. Texas, 539 U.S. 558 (2003) (striking down a state sodomy law as inconsistent with the U.S. Constitution, based partly on a survey of laws in other countries) with id. (Scalia, J., dissenting) (characterizing the Court’s discussion of foreign laws as “meaningless” and “dangerous dicta,” since “this Court … should not impose foreign moods, fads, or fashions on Americans”) Using a comparative survey of foreign law to determine the scope of non-Constitutional domestic legal principles is often sensible—as even Justice Scalia has agreed, see Schriro v. Summerlin, 542 U.S. 348 (2004)—where the question is an empirical one. See id. (referencing the laws of “other countries” to determine whether judicial fact-finding, as opposed to juries, so “seriously diminishe[s]” accuracy as to produce an “impermissibly large risk” of injustice). But here, the case directly involves the scope of the State’s “public policy” exception to marriage recognition. Isn’t this a classic issue that is necessarily bound-up in the individualized history and political fabric of the forum state, which should be decided by referencing only that State’s authorities? Its probably a distinction without a difference here—even had the court stopped before its comparative survey, there was still likely enough evidence that “such marriages are not so odious as to violate strong public policy” of Louisiana.

The twentieth century has been the century of human rights vindication. Its last two decades have witnessed a very special phenomenon in this regard: the privatization of lawsuits brought for crimes against the most basic human rights. Individuals, singly or grouped, seek civil redress before domestic courts against the State (its officers, its agents; also multinational corporations), claiming it has incurred in liability through the commission of acts condemned by International Law.

USA has became an unavoidable reference to human rights litigation due to two federal laws: the Alien Torts Claims Act, 1789 (ATCA) and the Torture Victims Protection Act of 1991 (TVPA). The Acts allow foreign claimants to engage in civil actions against individuals associated with foreign States, claiming damages for conduct prejudicial to human rights, which is proscribed by International Law. Similar ideas are germinating in other countries, like Canada and recently also the United Kingdom: and not only in the academic arena.

While Greece or Italy still evokes the Second World atrocities, Spain focuses in the Civil War (1936-1939) and the Franco regime (1939-1975) outrages. On September 22, associations for the recovery of historical memory published their estimate number of missing persons during that periods- no less than 143,000. Within this figure are the names of Republicans who died in Nazi concentration camps in Germany, Austria and France, and others who died in exile. On Oct. 16  Judge Baltasar Garzon, our most well-known judge thanks to the Pinochet case, declared himself competent to investigate these disappearances and related crimes.

Maybe “dirty line will be washed at home” this time. Judge Baltasar Garzon works at the Audiencia Nacional, which has no jurisdiction in civil matters. In Spain, however, the civil claim can be accumulated to the criminal proceedings. But, if there is no luck (or even if any), will the civil action be tried elsewhere? Spaniards have begun to appreciate the advantages offered by U.S. procedural and substantive law (e.g., in cases of maritime pollution; see also G. Cuniberti “Jurisdiction to prevent the End of the Wordl”). And besides, it may not be necessary to go that far: On February 2008 Lord Archer of Sandwell (United Kingdom) presented the Torture (damages) Bill. If the Bill becomes law  (although it seems unlikely), it would provide the victim of torture with a civil action in England/Wales; that the facts took place elsewhere would be of no relevance at all.

At any rate, the idea of those Spanish cases being judged elsewhere requires more than universal civil jurisdiction covering acts described as crimes against humanity. The foreing judge would have to decide whether to apply -to take into account?- Spanish Law on amnesty (this morning the Spanish Public Prosecutor appealed against Garzon’s decision on amnesty grounds); or Law 52/2007, the so-called “Ley de momria histórica”, recognizing and extending rights and establishing measures for those who suffered persecution or violence during the Civil War and the Dictatorship. Art. 4 of the Law provides those who suffered retaliation during the Civil War and the Dictatorship with the right to obtain a “Declaración de reparación y reconocimiento personal” (Declaration of apology and personal reconnaissance); but such a statement does not imply recognition of responsibility of the State or of any government, nor does it lead to monetary redress or compensation .

I should have reported much earlier this interesting case of the French Supreme Court for Private and Criminal Matters (Cour de cassation) which applied for the first time the French 1980 statute which criminalizes cooperation with U.S. discovery procedures. A lawyer was fined € 10,000 for seeking information for the purpose of Californian proceedings.

The French blocking statute is the amended version of a 1968 statute which, at the time, prohibited communication to “foreign authorities” of any document or information relating to carriage by sea if such communication would have been contrary to “the rules of international law or likely to hurt the sovereignty of the French state”. In 1980, this provision (art. 1) was amended, and another one (art. 1bis) was added, which prohibits any person from seeking to obtain or communicating documents or information for the purpose of constituting evidence in foreign judicial or administrative proceedings. The new art. 1bis applies to documents or information of almost any kind (i.e. of economic, commercial, industrial, financial or technical kind). The statute imposes criminal penalties, which can go up to 6 months of prison, and a fine up to €18,000.

The first application of the law took place in the context of the Executive Life Insurance case. The lawyer was the counsel in France of the California insurance commissioner.  In 1999, the California commissioner had initiated civil proceedings in Los Angeles against various French parties, including Crédit Lyonnais bank and insurance company MAAF. The central issue was the purchase of Californian Insurance company Executive life at the beginning of the 1990’s. Californian authorities wondered whether MAAF had made this purchase in violation of California law. It was thus critical for the American proceedings to get information on the circumstances surrounding the purchase. The American party sought information both through rogatory commissions issued in accordance with the 1970 Hague Convention and through this lawyer, who decided to call directly a member of the board of MAAF in France.

According to the trial judges,the lawyer, Christopher X., talked to Jean-Claude X., who may well be Jean-Claude Lecarpentier, a top executive of MAAF. Christopher alleged that members of the board had made decisions at the time of the purchase of Executive life outside of regular meetings, and that there was a need to provide better information on what had actually happened to some of the members of the board. It seems that he hoped that Jean-Claude would answer that that was not the way things had happened, and would then give him hints on what the members knew and thought they were doing when they decided to purchase Executive Life.

Instead, Jean-Claude answered that he had never been in any board where decisions were made in the doorway. Jean-Claude then wrote to the French prosecutor about that conversation. Christopher was later charged with infringing the blocking statute and sentenced to pay a € 10,000 fine. In a judgment of 12 December 2007, the Cour de cassation rejected an appeal against the sentence.

Is this judgement a signal of the willingness of the French Supreme court to eventually apply the statute? This is unclear. From the French perspective, the Executive Life case is truly exceptional. It was widely perceived by French elites as an unacceptable pressure exercised by Californian authorities over French public entities and thus, eventually, over the French state. This might not be completely foreign to the solution adopted by the judgement.