Global litigation, conflict of laws, Tatry case
As clarified in the Tatry case, “It should be noted at the outset that the English version […] does not expressly distinguish between the concepts of ‘object' and ‘cause' of action. That language version must however be construed in the same manner as the majority of the other language versions in which that distinction is made”—that is to say, both proceedings must have the same object as well as the same cause of action.
The same cause of action comprises the facts and the rule of law relied on as the basis of the action. Needless to say, both proceedings rely on the same set of facts. However, since the legal basis of A's lawsuit is contractual damages, while the legal basis of B's is wrongful and tortious
conduct, the rule of law relied on for both proceedings are different. Therefore, the first criterion of identical cause of action is not met, and as a result, the proceedings cannot be considered
parallel.
Accordingly, because the object in each proceeding essentially depends on the respective legal basis, the objects of both proceedings cannot be considered the same either.
[...] It was noted, however, that in some common law jurisdictions that term might be interpreted as not covering notions of procedural justice while in legal systems of civil law tradition, inspired by the French concept of “ordre public”, principles of procedural justice were regarded as being included [ ]' A related problem arises with regards to how broadly a court interprets public policy: if construed too broadly, it becomes indistinguishable from the laws of the arbitral seat; yet if understood too narrowly, then it becomes international public policy, which includes only the most basic notions of justice and morality. However, there are certain factors that play against Delta's annulment of award. Firstly, Paris being the seat of the arbitration, it would be highly unlikely for the Parisian courts to annul the award, unless the grounds for it are manifest, in view of Paris' pro-arbitration policy. In particular, an error of law is not normally accepted as a ground for annulment, as in the present case. [...]
[...] If they are, then recognition of the French judgment is not possible. Question 3 Although the reasoning relied upon by the court is not altogether nonsensical, I do not agree with the court's findings. The court essentially uses two arguments: firstly, that the preamble, as well as Chapters I and II of the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters Convention”) use permissive rather than mandatory language; secondly, that the opt-out provisions in Article 23 of the Convention would not make sense if the Convention was meant to be mandatory. [...]
[...] Hence, the proceedings do not have the same parties either. On a supplementary note, we may also look to the purpose of Article 27 of Brussels I to make the application of the Regulation to this particular case doubly clear: Article 27 is aimed at preventing conflicting decisions (as expressed by Fentiman), and this cannot be the case in this pair of proceedings. It would be more appropriate to place the pair under Article 28, on related actions, since the outcome might be irreconcilable rather than conflicting. [...]
[...] Moreover, the Convention has also allowed for a variety of alternative means for the taking of evidence, such as in Articles and 17. Thus, it is not a rigid document either, and trying to circumvent it by way of less-than-robust reasoning makes the court's findings unavailing to its cause. ii) The ramifications of the decision for French parties subject of a request for the taking of evidence for the purpose of proceedings conducted in the US are actually, at least technically speaking, limited. [...]
[...] Global Litigation and Conflict of Laws 2 Exam Numéro de carton de place: 15 Part B Question 1 My draft revision for Article 31 would be as follows: 1. Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that State, even if, under this Regulation, the courts of another Member State or an arbitral tribunal have jurisdiction as to the substance of the matter, provided that there is a real connecting link between the subjectmatter of the measures sought and the territorial jurisdiction of the Contracting State of the court before which those measures are sought For the purposes of the present Article, provisional, including protective, measures refer to measures which are intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is otherwise sought from For the purposes of the present Article, interim payments do not count as provisional measures unless: There is a guarantee of repayment should the party seeking the measure be unsuccessful in the principal proceeding; and the measure sought relates only to specific assets located or to be located within the confines of the territorial jurisdiction of the court to which application is made. [...]
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