Home - International Litigation Blog
246
blog,ajax_fade,page_not_loaded,,select-child-theme-ver-1.0.0,select-theme-ver-3.4,wpb-js-composer js-comp-ver-4.12.1,vc_responsive
 

CJEU Rules on Immunity and Application of Brussels Ibis Regulation to International Organisations

DownloadPrint

On 3 September 2020, the Court of Justice of the European Union (CJEU) delivered a judgment in a case which raised very interesting issues relating to the interaction and application of Regulation (EU) No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels Ibis Regulation) in summary proceedings involving international organisations, in particular when such international organisations invoke their immunity. The judgment follows the Opinion of Advocate General (AG) Henrik Saugmandsgaard Øe handed down earlier this year.READ MORE

0

EU Plurilateral Agreement on Termination of Intra-EU BITs Enters Into Force – What consequences for Sunset Clauses?

DownloadPrint

This article has jointly been co-authored by Isabelle Van Damme and Quentin Declève

With some delay, we wanted to discuss the latest developments on intra-EU BITs that took place during the last couple of months[1].

As we already discussed, instead of the EU Member States agreeing, on a bilateral basis, to amend or terminate their respective intra-EU BITs, most of the EU Member States have elected, as envisaged in their declarations of January 2019, to negotiate a single plurilateral agreement that will terminate all of the intra-EU BITs (the Plurilateral Agreement). That agreement received the political consensus of all EU Member States in October 2019. Twenty-three Member States (with the notable exceptions of Austria, Sweden, Finland, the United Kingdom[2] and Ireland)[3] signed the agreement on 5 May 2020[4] which entered into force on 29 August 2020[5].

Purposes of the Plurilateral Agreement

The use of a Plurilateral Agreement to terminate, amend, interpret or complement a series of existing agreements is not novel. This method – which relies on Article 30(3) of the Vienna Convention on the Law of Treaties (the VCLT) (“When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty“) – has been used in the past to, for example, modify bilateral tax treaties[6] and conclude the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (the “Mauritius Convention on Transparency”). It is currently being contemplated within the UNCITRAL Working-Group III as a possible method for establishing the Multilateral Investment Court, which is the preferred option of the European Union for ISDS reform. Such a method is typically preferred because, instead of concluding a high number of separate agreements whereby State parties amend or terminate existing agreements between themselves on a bilateral basis, it allows for the conclusion of a single multilateral agreement whereby the parties agree to amend all their respective (bilateral) treaties having the same subject-matter at once.READ MORE

0

Political Agreement to Make Cross-Border European Justice Faster and More Accessible in Civil and Commercial Matters

DownloadPrint

On 30 June 2020, the European Parliament (the EP) and the Council of the European Union (the Council) reached an agreement to amend Council Regulation (EC) No 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (the Taking of Evidence Regulation) and Regulation (EC) No 1393/2007 of the European Parliament and of the Council on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (the Service of Documents Regulation) (together the Regulations).

The amendments to those Regulations aim to make cross-border European justice more accessible, faster, cheaper and more straightforward, in particular by increasing legal certainty and decreasing judicial delays and undue costs for citizens.READ MORE

0

CJEU Rules on Interplay between State Immunity and Brussels I Regulation

DownloadPrint

On 7 May 2020, the Court of Justice of the European Union (the CJEU) issued its judgment in LG and others v. Rina SPA and another (Case C-641/18) in which it recalled that the customary international law principle of immunity from jurisdiction did not preclude the application 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 (the Brussels I Regulation)[1] if the defendant, who invokes that principle, does not exercise sovereign public powers.

The case relates to the sinking, in February 2006, of a passenger’s ship (under the flag of the Republic of Panama) in the Red Sea. Following that event, the victims of the sinking brought an action for damages, before an Italian court, against the Italian companies that carried out the ship classification and certification operations on behalf of the Republic of Panama. The victims essentially alleged that the sinking of the ship had been caused by these operations.

The Italian companies, however, asserted that the Italian courts lacked jurisdiction to rule on the matter since the classification and certification operations which they conducted on behalf of Panama were a manifestation of the sovereign powers of that State.READ MORE

0

European Parliament and Council Reach Political Agreement on EU Collective Representative Actions

DownloadPrint

On 22 June 2020, the European Parliament (the EP) announced that it reached a political agreement with the Council of the European Union (the Council) on the final text of the Directive on representative actions for the protection of the collective interests of consumers (the Collective Representative Actions Directive) (See here, here and here). This agreement is the result of interinstitutional negotiations that started on 9 January 2020.

The Collective Representative Actions Directive will introduce harmonised rules that aim to facilitate redress for consumers in case of widespread infringements of their rights in more than one EU Member State, while at the same time provide safeguards against abusive recourses. Collective representative actions will enable consumers to seek redress in a wide range of areas such as general consumer law, data protection, financial services, travel and tourism, energy, telecommunications, environment and health or train passenger rights.READ MORE

0

Belgian Court Confirms Arbitrability of Exclusive Distribution Agreements Governed by Foreign Law

DownloadPrint

On 19 May 2020, the Leuven (Belgium) Enterprise Court (the Leuven Court) ruled that, following the reform of the Belgian arbitration rules in 2013, arbitration clauses in exclusive distribution agreements were valid, even if these agreements were governed by foreign law (judgment of 19 May 2020 in case A/20/00034, Akron NV v. Amphenol (Maryland) Inc.).

The judgment was given in the context of a dispute between a U.S. supplier and its former Belgian distributor following the supplier’s decision to unilaterally terminate the distributor’s distribution agreement dated 1 April 2018 for serious misconduct. While the distribution agreement contained an arbitration clause pursuant to which any dispute had to be settled by arbitration proceedings in the USA in accordance with the Commercial Arbitration Rules of the American Arbitration Association, the distributor initiated proceedings before the Leuven Court and claimed damages based on Title 3 of Book X of the Code of Economic Law (CEL), i.e., the Belgian mandatory rules on the unilateral termination of exclusive or quasi-exclusive distribution agreements of indefinite duration.READ MORE

0

U.S. Supreme Court Rules on Retroactivity of New FSIA Cause of Action

DownloadPrint

On 18 May 2020, the U.S. Supreme Court (the Supreme Court) handed down its decision in Opati v. Republic of Sudan. It ruled that a new cause of action added in the Foreign Sovereign Immunities Act (the FSIA), which allowed plaintiffs to seek punitive damages from foreign governments who sponsor terrorist activities, could be applied retroactively.

The case at hand relates to the 1998 Al Qaeda bombings of the U.S. Embassies in Kenya and in Tanzania.

Following these terrorist attacks, several victims sued the Sudanese government in U.S. courts claiming damages, as Sudan had allegedly supported and protected Al Qaeda.

The plaintiffs relied on an exception to the FSIA’s general rule that foreign governments enjoy immunity and cannot, in principle, be brought before U.S. courts. According to that exception, the immunity enjoyed by foreign governments does not apply to acts of terrorism and to States that sponsored such terrorist activities. However, at the time, this exception did not allow plaintiffs to seek punitive damages.READ MORE

0