Does anyone understand Private International Law???

Chi Force

Hi, I was wondering if anyone could help me out with a couple of Private International Law questions.

1. What effect does a foreign (non Member State) anti suit injunction from a seat of arbitration have on a Member State court chosen for contentious litigation where action is taken in the Member State in breach of the arbitration order? I can find lots of literature on the issue of anti suit injunctions by England and their validity in and outside Europe, I just need to know what happens the other way around. Can Brussels I apply?

This is part of a past exam question which I can provide fully if further details are needed.

2. In traditional (non Rome I/Rome II) choice of law, I can't figure out when the substantive/procedural analysis is made. I know that:

(a) you categorise the cause of action (eg succession to movables) and

(b) you determine the connecting factor to find the applicable law (eg law of the deceased's domicile).

So how then does the matter of whether an issue is substantive or procedural come to be discussed? Where does it fit in? Given that this is determinative in a number of significant cases, not understanding it (at all) is a bit of a problem right now.

Any help at all would be brilliant.

Thanks.

Tom Young

This smacks of homework ......

Chi Force

Actually, since I'm in final year and have tried to find an answer elsewhere and I'm in college, not school, it's not homework - it's desperation. Thanks though.:rolleyes:

Tom Young

What does private international law seek to do?

It seeks to resolve the conflict between laws of different countries.

What are the 3 objectives of private international law?

1. Jurisdiction – To establish conditions under which a court is competent to hear a claim;

2. Choice of law – To establish for each type of case the particular system of national law which should apply to that case;

3. Enforcement of judgements – To establish circumstances in which a foreign judgement is deemed decisive of a question in dispute and the circumstances in which the right vested in judgment creditor by a foreign judgement can be enforced by an action in Ireland.

What does council regulation no.44/2001 cover?

Council Regulation 44/2001 governs matters on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters. This regulation was adopted to ensure that these matters were covered throughout the European Community by a directly applicable law instrument. The Brussels Convention 1968 and 1982 was given effect in Irish Law by Jurisdiction of Courts and Enforcement of Judgements (European Communities) Act 1988.

What is the lugano convention?

The provision of the Lugano Convention are almost the same as the Brussels Convention, but the Lugano Convention covers Norway, Switzerland and Iceland as well as EC countries. The provisions are almost the same for these three countries but not entirely so. Accordingly, care should be taken when dealing with a case involving any of these three countries.

I know that 44/2001 is being reviewed at the moment and changes are afoot. I can't deal with your substantive queries re. the injunctions, but I suggest that 44/2001 deals with property in the sense you need.

Chi Force

Thanks Tom!

My question deals with New York as the seat of arbitration and the Netherlands as the court designated for litigation. No one seems to know what the situation is, though I'm sure it's really obvious or simple and I've just failed to grasp it!

The substantive/procedural thing was more of a general question (not related to property, that was just by way of example) about the traditional (common law) choice of law rules outside European law.

I'm going to keep on looking, if anyone knows good source of info, please let me know. I've tried Clarkeson & Hill, Cheshire, North & Fawcett, Collier and countless journals. I'm clearly looking in the wrong places or missing the pertinent parts of what I've looked at.

Tom Young

Hard to work blind. What's the question?

Chi Force

Ok this is a long one...

"Acme Shipping NV and Cargotron GmbH are party to a contract
for the provision of global marine logistical services, originating
out of The Netherlands, on behalf of Cargotron GmbH. The
companies are Dutch and German respectively.

The Netherlands is the chosen jurisdiction for any contentious
litigation while the contract also contains a ciause requiring the
parties to engage in an arbitral process before any litigation and
choosing New York as the seat of arbitration.

A dispute under the terms of the contract arose between the
parties and on engaging in the initial arbitration, the New York
court issued an anti-suit injunction purporting to prevent the
commencement of litigation in The Netherlands, including any
determination on the scope and validity of the arbitration
agreement.

Cargotron GmbH, becoming disillusioned with increasing delays
and the realisation that any arbitral award would likely diverge
from any award as a result of substantive proceedings, initiates
such proceedings in The Netherlands

What is the jurisdictional position of the Netherlands court in
light of the anti-suit injunction?"

(© UNIVERSITY OF DUBLIN 2009.)


Honestly this was a last gasp so I'm not expecting miracles!

Thanks again.

Tom Young

The injunctive relief is not longer available. The cases of Turner v Grovit (C-159/02) [2005] 1 AC 101; and Allianz SpA (formerly Riunione Adriatica di Sicurta SpA) v West Tankers Inc (C-185/07) [2009] 1 AC 1138. I believe 44/2001 applies.

Chi Force

Thanks a million, I really appreciate it!

dermot_sheehan

I must say I have a rather limited understanding of private international law so may be completely off the ball.

I'm not so sure Regulation 44/2001 applies.

In the case of Cargotron GmbH since it is a German domiciled defendant so arguably it is only sued in the netherlands pursuant to Art. 6(1) or 5(1) of regulation 44/2001.

However art 1(d) of reg 44/2001 excludes arbitration from the scope of the regulation and any contract used to found jurisdiction in the netherlands would be an arbitration contract. The ECJ in West Tankers stated that this term "arbitration" included enforcement of arbitration awards or enforcement of arbitration proceedings at the seat of arbitration but did not include measures in support of arbitration such as the anti suit injunction.
The opinion of the advocate general in tankers is useful

http://curia.europa.eu/jurisp/cgi-bin/gettext.pl?where=&lang=en&num=79919095C19070185&doc=T&ouvert=T&seance=CONCL

In any case Acme is a dutch domicilary and the dutch courts have jurisdiction both as a matter of dutch law and pursuant to the arbitration clause.

For both defendants the dutch courts should decline jurisdiction, not due to the anti suit injunction but due to the new york convention. The dutch legal system gives primacy to international obligations entered into by the netherlands which have direct effect and the new york convention would require a dutch court to stay the proceedings.

The existence or non existence of the new york injunction is irrelevant. I am unaware of procedural dutch law, but in a common law country, non monetary judgements from foreign states were not recognised.

The Canadian Supreme Court has resiled itself from this view in Pro Swing Inc. v. Elta Golf Inc., and the courts of EU member states will be bound by Regulation 44/2001, but in general my understanding was foreign non money judgements would not be recognised.


Regarding pre Rome regulation substantive/procedural distinction, this comes up in a couple of ways.

Traditionally law of capacity was determined by domicile. So a divorce in many continental law countries would apply the substantive law of the parties to the marraige's domicile yet the procedural law of the courts in question.

Similarly for example, if an irish domicilary died with both moveable and immoveable property in france. a french probate court would apply the substantive law of ireland with relation to the moveables but the substantive law of france in relation to the immoveables. In both cases however the procedural law of france would apply.

Chi Force

Thank you Dermot, I'm delighted with your and Tom's help, I love Boards!

(Also, good luck with the election )

Tom Young

Dermot is right. However, in proceedings where Council Regulation (EC) No 44/2001 applies to the parties, the anti-suit injunction is no longer available to assist litigation or arbitration. The two cases combined deal with that issue.

Tom Young

Illmer and Naumann have published a very interesting analysis of the compatibility of anti-suit injunctions in aid of arbitration agreements with the Brussels Regulation in International Arbitration Law Review (Int. A.L.R. 2007, 10(5), 147-159)