On 12 September 2011, the International Chamber of Commerce (ICC) has launched a revised version of its Rules of Arbitration with the aim of better serving the existing and future needs of businesses and governments engaged in international commerce and investment.
The new ICC Arbitration Rules (the “Rules”) will come into force on 1 January 2012 and take into account current requirements and developments in arbitration practice and procedure, as well as developments in information technology, since they were last revised in 1998.
The revision process began in 2008 and was undertaken by a small drafting committee of up to 20 members, supported by a wider task force of 202 members and a consultation process with ICC national committees around the world and the ICC Commission on Arbitration. The new Rules were approved in Mexico City by the ICC World Council on 11 June 2011.
Additions to the Rules include provisions to address disputes involving:
Other amendments have also been made to ensure that the arbitral process is conducted in an expeditious and cost-effective manner.
Unless parties stipulate otherwise, the new ICC Arbitration Rules will automatically apply to all arbitrations under the auspices of the International Chamber of Commerce commenced after 1 January 2012, save for the emergency arbitrator provisions.
In answer to the growing demand for a more holistic approach to dispute resolution techniques, the new Rules are published in a booklet that also includes the ICC ADR Rules, which provide for mediation and other forms of amicable dispute resolution. Both sets of Rules define a structured, institutional framework intended to ensure transparency, efficiency and fairness in the dispute resolution process while allowing parties to exercise their choice over many aspects of procedure.
Article 101 TFEU prohibits agreements which have as their object or effect the restriction of competition. Article 101(3) TFEU provides, subject to certain conditions, for agreements which improve the distribution of products or contribute to promoting economic progress to be granted an individual exemption. In addition, various regulations provide that certain categories of agreements may qualify for a block exemption. One of those regulations, the Vertical Agreement Block Exemption Regulation, provides such an exemption for distribution agreements which meet certain conditions. However, that regulation contains a list of agreements which may not benefit from a block exemption.
Pierre Fabre Dermo-Cosmétique (“PFDC”) is one of the companies in the Pierre Fabre group. It manufactures and markets cosmetics and personal care products and has several subsidiaries, including, inter alia, the Klorane, Ducray, Galénic and Avène laboratories, whose cosmetic and personal care products are sold, under those brands, mainly through pharmacists, on both the French and the European markets.
The products in question are not classified as medicines and are, therefore, not covered by the pharmacists’ monopoly laid down by French law. However, distribution contracts for those products in respect of the Klorane, Ducray, Galénic and Avène brands stipulate that sales must be made exclusively in a physical space and in the presence of a qualified pharmacist, thereby restricting in practice all forms of internet selling.
In October 2008, following an investigation, the Autorité de la concurrence (French Competition Authority) decided that, owing to the de facto ban on all internet sales, PFDC’s distribution agreements amounted to anti-competitive agreements contrary to both French law and European Union competition law. The Competition Authority found that the ban on internet selling necessarily had as its object the restriction of competition and could not benefit from a block exemption. The Authority also decided that the agreements could not benefit from an individual exemption either.
PFDC challenged that decision before the Cour d’appel de Paris (France), which has asked the Court of Justice whether a general and absolute ban on internet selling amounts to a restriction of competition “by object”, whether such an agreement may benefit from a block exemption and whether, where the block exemption is inapplicable, the agreement may benefit from an individual exemption under Article 101(3) TFEU.
In its Judgment in Case C-439/09 Pierre Fabre Dermo-Cosmétique SAS v Président de l’Autorité de la Concurrence and Others, the European Court of Justice recalls that in order to assess whether a contractual clause involves a restriction of competition “by object”, regard must be had to the content of the clause, the objectives it seeks to attain and the economic and legal context of which it forms a part.
As regards agreements constituting a selective distribution system, the Court has already stated that such agreements necessarily affect competition in the common market. Such agreements are to be considered, in the absence of objective justification, as “restrictions by object”. However, a selective distribution system is compatible with European Union law to the extent that resellers are chosen on the basis of objective criteria of a qualitative nature, laid down uniformly for all potential resellers and not applied in a discriminatory fashion, that the characteristics of the product in question necessitate such a distribution network in order to preserve the product’s quality and ensure its proper use, and, finally, that the criteria laid down do not go beyond what is necessary.
After recalling that it is for the referring court to examine whether a contractual clause which de facto prohibits all forms of internet selling can be justified by a legitimate aim, the Court provides the referring court for that purpose with guidance on the interpretation of European Union law to enable it to reach a decision.
Thus, the Court points out that, in the light of the freedoms of movement, it has not accepted – as it has already stated in the context of the sale of non-prescription medicines and contact lenses – arguments relating to the need to provide individual advice to the customer and to ensure his protection against the incorrect use of products, put forward to justify a ban on internet sales. Similarly, the Court rules that the need to maintain the prestigious image of PFDC’s products is not a legitimate aim for restricting competition.
As to whether a selective distribution contract may benefit from a block exemption, the Court recalls that the exemption does not apply to vertical agreements which have as their object the restriction of active or passive sales to end users by members of a selective distribution system operating at the retail level of trade. A contractual clause which de facto prohibits the internet as a method of marketing at the very least has as its object the restriction of passive sales to end users wishing to purchase online and located outside the physical trading area of the relevant member of the selective distribution system. Consequently, the block exemption does not apply to that contract.
However, such a contract may benefit, on an individual basis, from the exception provided for in Article 101(3) TFEU, if the referring court finds that the conditions laid down in that provision are met.
Under the regulation on the protection of geographical indications for spirit drinks (see Regulation (EC) No 110/2008 of the European Parliament and of the Council of 15 January 2008 on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks and repealing Council Regulation (EEC) No 1576/89), it is possible to register as a geographical indication the name of a country, region or locality from which a spirit drink originates, where a given quality, reputation or other characteristic of that drink is essentially attributable to its geographical origin. A registration of that kind is made upon application by the Member State of origin of the drink. The application must be accompanied by a technical file listing the specifications which the drink must meet if it is to be able to be designated by the protected geographical indication.
Furthermore, the regulation prohibits the registration of trade marks which may adversely affect a protected geographical indication and states that, as a general rule, where such a mark has already been registered, it must be invalidated. The regulation mentions “Cognac” as a geographical indication identifying wine spirits originating from France.
Gust. Ranin Oy, a Finnish company, applied in Finland for the registration, for spirit drinks, of two figurative marks in the form of a bottle label bearing descriptions of the spirit drinks containing the term “Cognac” and its Finnish translation, “konjakki”. Although the Finnish authorities have accepted the application for registration, the Bureau national interprofessionel du Cognac – a French organisation of cognac producers – contests the legality of that registration before the Finnish courts.
The Korkein hallinto-oikeus (i.e.: Supreme Administrative Court, Finland) asks the Court of Justice whether it is permissible under the regulation to register national trade marks containing the term “Cognac” for products which, in terms of manufacturing method and alcohol content, do not meet the requirements set for the use of the geographical indication “Cognac”.
In its judgment given today (see Judgment in Joined Cases C-4/10 and C-27/10 Bureau national interprofessionel du Cognac v Gust. Ranin Oy), the Court states, first of all, that although the contested marks were registered on 31 January 2003 – that is to say, before the regulation entered into force – that regulation is applicable in the present case. In that connection, the Court observes that the retrospective application of the regulation does not undermine the principle of legal certainty or the principle of the protection of legitimate expectations. The obligation on Member States to prevent the use of a geographical indication identifying spirits for alcoholic beverages which do not originate from the place designated by that indication has existed in EU law since 1 January 1996.
Next, the Court observes that the two Finnish trade marks, registered on 31 January 2003, cannot benefit from the derogation provided for under the regulation, in accordance with which the use of a mark which was acquired before the date of protection of the geographical indication in the country of origin (or before 1 January 1996) is permitted, even if it adversely affects the geographical indication concerned. In that regard, the Court points out that, independently of the protection it enjoys under French law, the term “Cognac” has been protected as a geographical indication under EU law since 15 June 1989.
The Court also finds that the use of a mark containing the term “Cognac” for products which are not covered by that indication constitutes a direct commercial use of the protected indication. Such a use is prohibited by the regulation in so far as it concerns comparable products. The Court finds that this may be the position in the case of spirit drinks.
Likewise, the Court finds that the fact that the two Finnish marks incorporate part of the name “Cognac” means that, when the consumer is confronted with the name of the marks on the bottles of spirit drinks not covered by the protected indication, the image triggered in his mind is that of the product whose designation is protected. The Court points out that such “evocation” is also prohibited under the regulation.
In those circumstances, the Court holds that the Finnish authorities must invalidate the registration of the contested marks.
With its accession to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (also known as the New York Convention), effected on 7 July 2011, Liechtenstein becomes the 146th State party to the Convention. The Convention will enter into force for Liechtenstein on 5 October 2011.
The “New York” Convention is widely recognized as a foundation instrument of international arbitration and requires courts of contracting States to give effect to an agreement to arbitrate when seized of an action in a matter covered by an arbitration agreement and to recognize and enforce awards made in other States, subject to specific limited exceptions.
The United Nations Commission on International Trade Law (“UNCITRAL”) is the core legal body of the United Nations system in the field of international trade law. Its mandate is to remove legal obstacles to international trade by progressively modernizing and harmonizing trade law. It prepares legal texts in a number of key areas such as international commercial dispute settlement, electronic commerce, insolvency, international payments, sale of goods, transport law, procurement and infrastructure development. UNCITRAL also provides technical assistance to law reform activities, including assisting Member States to review and assess their law reform needs and to draft the legislation required to implement UNCITRAL texts. The UNCITRAL Secretariat is located in Vienna and maintains a website at www.uncitral.org.
The Governing Council of UNIDROIT at its 90th session formally adopted on 10 May 2011 the third edition of the Principles of International Commercial Contracts (“UNIDROIT Principles 2010”).
The UNIDROIT Principles 2010 contain new provisions on restitution, illegality, plurality of obligors and obligees, and conditions, while with respect to the text of the 2004 edition the only significant changes made relate to the Comments to Article 1.4.
The new edition of the UNIDROIT Principles consists of 211 Articles (as opposed to the 120 Articles of the 1994 edition and the 185 Articles of the 2004 edition) structured as follows: Preamble (unchanged); Chapter 1: General provisions (unchanged); Chapter 2, Section 1: Formation (unchanged), Section 2: Authority of agents (unchanged); Chapter 3, Section 1: General provisions (containing former Articles 3.1 (amended), 3.2, 3.3 and 3.19 (amended)), Section 2: Ground for avoidance (containing former Articles 3.4 to 3.16, 3.17 (amended), 3.18 and 3.20, and a new Article 3.2.15), Section 3: Illegality (new); Chapter 4: Interpretation (unchanged); Chapter 5, Section 1: Content (unchanged), Section 2: Third Party Rights (unchanged), Section 3: Conditions (new); Chapter 6, Section 1: Performance in general (unchanged), Section 2: Hardship (unchanged); Chapter 7, Section 1: Non-performance in general (unchanged), Section 2: Right to performance (unchanged), Section 3: Termination (containing former Articles 7.3.1 to 7.3.5, 7.3.6 (amended) and a new Article 7.3.7), Section 4: Damages (unchanged); Chapter 8: Set-off (unchanged); Chapter 9, Section 1: Assignment of rights (unchanged), Section 2: Transfer of obligations (unchanged), Section 3: Assignment of contracts (unchanged); Chapter 10: Limitation periods (unchanged); Chapter 11, Section 1: Plurality of obligors (new), Section 2: Plurality of obligees (new).
On Thursday 12 May 2011, the Ambassador of the Sultanate of Oman, deposited Oman’s instrument of accession to the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (the “Apostille Convention”). As a result, Oman has become the 101st Contracting State to the Apostille Convention (*).
The accession of Oman is significant as the first State of the Persian Gulf to join the Apostille Convention. It is also the first Hague Convention to which Oman will become party, making it the 139th State or organisation to be connected to the Hague Conference (i.e., by being a Member of the Hague Conference, or either signatory or Contracting State to at least one of the Hague Conventions).
In its Judgment in Case C-235/09 DHL Express France SAS v Chronopost SA the European Court of Justice ruled that the Council Regulation (EC) No 40/94 of 20 December 1993 on the Community Trade Mark (the Regulation) creates Community arrangements for trademarks whereby undertakings may obtain Community trademarks to which uniform protection is given and which produce their effects throughout the entire area of the European Union.
In order to ensure that protection, the Regulation provides that Member States are to designate in their territories “Community trademark courts” having jurisdiction for infringement actions and, if they are permitted under national law, actions in respect of threatened infringement relating to Community trademarks. Where a Community trademark court finds that a defendant has infringed or threatened to infringe a Community trademark, it is to issue an order prohibiting the defendant from proceeding with the acts which infringed or would infringe the Community trademark. It is also to take such measures in accordance with its national law as are aimed at ensuring that this prohibition is complied with.
In relation to this, the Court ruled that Article 98(1) of the Regulation shall be interpreted as meaning that the scope of the prohibition against further infringement or threatened infringement of a Community trade mark, issued by a Community trademark court whose jurisdiction is based on Articles 93(1) to (4) and 94(1) of the Regulation, extends, as a rule, to the entire area of the European Union.
Furthermore, Article 98(1), second sentence, of the Regulation No 40/94, shall be interpreted as meaning that a coercive measure, such as a periodic penalty payment, ordered by a Community trademark court by application of its national law, in order to ensure compliance with a prohibition against further infringement or threatened infringement which it has issued, has effect in Member States to which the territorial scope of such a prohibition extends other than the Member State of that court, under the conditions laid down, in Chapter III 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, with regard to the recognition and enforcement of judgments.
Where the national law of one of those other Member States does not contain a coercive measure similar to that ordered by the Community trademark court, the objective pursued by that measure must be attained by the competent court of that other Member State by having recourse to the relevant provisions of its national law which are such as to ensure that the prohibition is complied with in an equivalent manner.
By Legislative Decree No. 28 dated 4 March 2010 (the “Decree”), the European Mediation Directive 2008/52/EC (the Directive) has been implemented in Italy. The Directive is part of a European-wide initiative to promote and regulate the development of mediation throughout the EU. The Directive itself should apply only to mediation in cross-border disputes, but nothing should prevent Member States from applying such provisions also to internal mediation processes.
The mediation procedures introduced by the Decree, which covers both cross-border and domestic disputes, only apply to claims/rights which can be freely disposed of by the relevant parties (“Diritti Disponibili”) as opposed to rights which cannot be freely disposed of by the relevant individuals (e.g.: Italian family law).
The Decree has introduced two kinds of mediation procedure:
The mandatory mediation procedure is effective as of 20 March 2011 except for any possible litigation in relation to joint ownership and compensation for damages due to car/nautical accidents which will be effective as of 20 March 2012.
The procedure is mandatory in the sense that from such date all plaintiffs prior to bringing legal proceedings shall have to try to settle disputes falling within this “mandatory” category by mediation. Legal advisers to the relevant parties shall also have a duty to inform their clients about mediation and are under obligation to try to resolve disputes by way of mediation.
The mediation procedures established under the Decree may be brought before any of the mediation organisations mentioned in Article 16 of the Decree and the applicable procedure shall follow the rules applied by the body chosen by the parties.
However, where there are alternative mediation procedures available, the plaintiffs will have the option to use either the procedure as set out in the Decree or the alternatives. Two alternative mediation procedures are currently in force in Italy, which can be used instead of the mediation procedure under the Decree in relation to certain banking and financial disputes (see Legislative Decree No. 179 dated 8 October 2007 and art. 128 bis of the Italian Banking Law).
The European Court of Justice, in its Judgment in joined cases C-317/08, C-318/08, C-319/08, and C-320/08 for a preliminary ruling issued on 18 March 2010, held that EU directives and general principles do not preclude national legislation which imposes prior implementation of an out-of-court settlement procedure, provided that that procedure does not result in a decision which is binding on the parties, that it does not cause a substantial delay for the purposes of bringing legal proceedings, that it suspends the period for the time-barring of claims and that it does not give rise to costs – or gives rise to very low costs – for the parties, and only if electronic means is not the only means by which the settlement procedure may be accessed and interim measures are possible in exceptional cases where the urgency of the situation so requires.
Directive 2004/113/EC prohibits all discrimination based on sex in the access to and supply of goods and services. Thus, in principle, the Directive prohibits the use of gender as a factor in the calculation of insurance premiums and benefits in relation to insurance contracts entered into after 21 December 2007.
By way of derogation, however, the Directive provides that Member States may, as from that date, permit exemptions from the rule of unisex premiums and benefits, so long as they can ensure that the underlying actuarial and statistical data on which the calculations are based are reliable, regularly updated and available to the public. Member States may allow such an exemption only if the unisex rule has not already been applied by national legislation. Five years after the transposition of the Directive into national law (i.e.: 21 December 2012) Member States must re-examine the justification for those exemptions, taking into account the most recent actuarial and statistical data and a report to be submitted by the Commission three years after the date of transposition of the Directive.
In its Judgment in Case C-236/09 Association belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres, the European Court of Justice first points out that equality between men and women is a fundamental principle of the European Union. Reference is made to Articles 21 and 23 of the Charter of Fundamental Rights of the European Union which prohibit any discrimination on grounds of sex and require equality between men and women to be ensured in all areas and to Article 2 of the Treaty establishing the European Community which provides that promoting such equality is one of the Community’s essential tasks. Similarly, Article 3(2) of the Treaty requires the Community to aim to eliminate inequalities and to promote equality between men and women in all its activities.
In the progressive achievement of that equality, it is for the EU legislature to determine, having regard to the development of economic and social conditions within the European Union, precisely when action must be taken. Thus it was – the Court states – that the EU legislature provided in the Directive that the differences in premiums and benefits arising from the use of sex as a factor in the calculation thereof must be abolished by 21 December 2007 at the latest. However, as the use of actuarial factors related to sex was widespread in the provision of insurance services at the time when the Directive was adopted, it was permissible for the legislature to implement the rule of unisex premiums and benefits gradually, with appropriate transitional periods.
In that regard, the Court notes that the Directive derogates from the general rule of unisex premiums and benefits established by the Directive, by granting Member States the option of deciding, before 21 December 2007, to permit proportionate differences in individuals’ premiums and benefits where, on the basis of relevant and accurate actuarial and statistical data, sex is used as a determining factor in the assessment of risks.
Any decision to make use of that option is to be reviewed five years after 21 December 2007, account being taken of a Commission report, but, ultimately, given that the Directive is silent as to the length of time during which those differences may continue to be applied, Member States which have made use of the option are permitted to allow insurers to apply the unequal treatment without any temporal limitation.
Accordingly, the Court states, there is a risk that EU law may permit the derogation from the equal treatment of men and women, provided for by the Directive, to persist indefinitely. A provision which thus enables the Member States in question to maintain without temporal limitation an exemption from the rule of unisex premiums and benefits works against the achievement of the objective of equal treatment between men and women and must be considered to be invalid upon the expiry of an appropriate transitional period.
Consequently, the Court rules that, in the insurance services sector, the derogation from the general rule of unisex premiums and benefits is invalid with effect from 21 December 2012.
Cloud computing relates to IT services and resources – including infrastructure, platforms and software – which can be provided to customers via the internet, rather than by on-site installations of IT hardware and software (for a technical definition of cloud computing see National Institute of Standards and Technology).
Cloud computing allow companies to benefit of financial savings, share of costs with the other customers on the same cloud, and efficiency while their IT infrastructure is constantly upgraded and updated by the cloud computing provider.
Notwithstanding such benefits, cloud computing shall be duly considered in light of the risks involved in it such as – among others – security, performance, service availability, contractual remedies and supplier stability.
From an International Law perspective the key difference between traditional IT outsourcing and cloud computing is “where” the data resides or is processed as data may be dispersed across and stored in multiple data centers all over the world. Moreover, the use of a cloud platform can result in multiple copies of such data being stored in different locations. This is true even for a “private cloud” that is run by a single customer.
In fact, corporate customers shall consider that cloud computing is vulnerable to damage or interruption from earthquakes, terrorist attacks, floods, fires, power loss, telecommunications failures, computer viruses, computer denial of service attacks, or other attempts to harm the relevant systems. Data centers may be located in areas with a high risk of major earthquakes or may be subject to break-ins, sabotage, and intentional acts of vandalism, and to potential disruptions if the operators of these facilities have financial difficulties.
Above all, systems are not fully redundant, and disaster recovery planning cannot account for all eventualities.
In addition, cloud computing products and services are highly technical and complex and may contain errors or vulnerabilities. Any errors or vulnerabilities in such products or services, or damage to or failure of such systems, could result in interruptions in the services, which could reduce revenues and profits, or damage the corporate brand. Finally, internet, technology, and media companies own large numbers of patents, copyrights, trademarks, and trade secrets and frequently enter into litigation based on allegations of infringement or other violations of intellectual property rights related to the cloud.
In light of the above, as corporate customer explore cloud computing as IT outsourcing strategy, there are several legal issues that shall be carefully considered. Implications of outsourced data handling, contract terms and conditions, intellectual property rights and proper insurance coverage are among others the key elements to be addressed from an International Law perspective. Therefore, the carry out of a due diligence of the proposed cloud vendor is a crucial risk mitigation step.
Among others, the following key issues shall be addressed:
Legislative Decree No. 27, dated 27 January 2010 (the “Decree”), transposed in Italy the Directive 2007/36/EC on Shareholders’ Rights, introducing several significant amendments to the legal framework applicable to the rights of shareholders of listed companies.
Among others, the Decree expressly provides that the by-laws of listed and non-listed companies may allow attendance at the shareholders’ meeting and the exercise of voting rights by “electronic means” notably any or all of the following forms of participation:
(a) real-time transmission of the general meeting;
(b) real-time two-way communication enabling shareholders to address the general meeting from a remote location;
(c) a mechanism for casting votes, whether before or during the general meeting, without the need to appoint a proxy holder who is physically present at the meeting.
The exercise of voting rights by electronic means entails an interactive Web site able to allow during the shareholders’ meeting the direct interaction in real time of shareholders, directors and auditors in different physical locations.
From 31 October 2010 the option is available for non-listed companies while Consob, by Resolution No. 17592, dated 14 December 2010 has set forth the rules applicable to the companies listed on Italian or other EU-regulated exchanges, governing remote attendance at the shareholders’ meeting by telecommunication systems and voting by mail and/or electronic means.
Reference shall be made for non-listed companies to Section 2370 subsection 4 of the Italian Civil Code, and for listed companies also to art. 127 of the Legislative Decree No. 58, dated 24 February 1998, as replaced by art. 3 of the Decree, and art. 143 bis of the Consob Regulation No. 11971, dated 14 May 1999, as amended by Consob Resolution No. 17592, dated 14 December 2010.
The European Commission has revised its rules for the assessment of co-operation agreements between competitors, so called horizontal co-operation agreements. As it is often vital for companies to work together to achieve synergies, there exist a vast number of horizontal co-operation agreements in many industries.
“Horizontal co-operation agreements” are agreements concluded between competitors (as opposed to vertical agreements which are between companies at different levels in the supply chain), for example with a view to co-operate on research and development, production, purchasing, commercialisation, standardisation, or exchange of information. Horizontal co-operation can be pro-competitive and lead to substantial economic benefits, allowing companies to respond to increasing competitive pressures and a changing market place driven by globalisation. However, where the parties have market power, horizontal co-operation can also lead to serious competition problems.
The texts update and further clarify the application of competition rules in this area so that companies can better assess whether their co-operation agreements are in line with those rules. Modifications concern mainly the areas of standardisation, information exchange, and research and development (R&D).
Today the Commission has adopted a revised set of Guidelines and two Regulations which describe how competitors can co-operate without infringing EU competition rules. The “Horizontal Guidelines” provide a framework for the analysis of the most common forms of horizontal co-operation such as agreements in the areas of R&D, production, purchasing, commercialisation, standardisation, standard terms, and information exchange.
The two Regulations exempt from the competition rules certain R&D, specialisation and production agreements that are unlikely to raise competition concerns. Two key features of the reform are a new chapter on information exchange in the Horizontal Guidelines and a substantial revision of the chapter on standardisation agreements.
The Guidelines promote a standard-setting system that is open and transparent and thereby increases the transparency of licensing costs for intellectual property rights used in standards. The revised standardisation chapter sets out the criteria under which the Commission will not take issue with a standard-setting agreement (“safe harbour”). Moreover, the chapter gives detailed guidance on standardisation agreements that do not fulfil the safe harbour criteria, to allow companies to assess whether they are in line with EU competition law.
The European Court of Justice in its Judgment in Joined Cases C-585/08 and C-144/09 Peter Pammer v Reederei Karl Schlüter GmbH & Co. KG and Hotel Alpenhof GesmbH v Oliver Heller explains the rules of jurisdiction in European Union law that are applicable to consumer contracts, in relation to services offered on the internet.
The European Union regulation on jurisdiction in civil and commercial matters (see Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters) provides that actions against a person domiciled in a Member State must, as a general rule, be brought in the courts of that State. It also provides that cases resulting from a contractual relationship may be decided by the courts for the place of performance of the contractual obligation. In the case of consumer contracts, however, rules protecting the consumer apply. If the trader “directs its activities” to the Member State in which the consumer is domiciled, the consumer can bring proceedings before the courts of the Member State of his domicile and he can be sued only in that Member State.
In its judgment, the Court states that mere use of a website by a trader in order to engage in trade does not in itself mean that its activity is “directed to” other Member States, which would trigger application of the protective rules of jurisdiction in the regulation. The Court holds that, in order for those rules to be applicable in relation to consumers from other Member States, the trader must have manifested its intention to establish commercial relations with such consumers.
In order to determine whether a trader whose activity is presented on its website or on that of an intermediary can be considered to be “directing” its activity to the Member State of the consumer’s domicile, within the meaning of Article 15(1)(c) of Regulation No 44/2001, it should be ascertained whether, before the conclusion of any contract with the consumer, it is apparent from those websites and the trader’s overall activity that the trader was envisaging doing business with consumers domiciled in one or more Member States, including the Member State of that consumer’s domicile, in the sense that it was minded to conclude a contract with them.
In this context, the Court considers what evidence can demonstrate that the trader was envisaging doing business with consumers domiciled in other Member States. Such evidence includes clear expressions of the trader’s intention to solicit the custom of those consumers, for example when it offers its services or its goods in several Member States designated by name or when it pays a search engine operator for an internet referencing service in order to facilitate access to its site by consumers domiciled in those various Member States.
Nevertheless, other less patent items of evidence, possibly in combination with one another, are also capable of demonstrating the existence of an activity “directed to” the Member State of the consumer’s domicile. These include: the international nature of the activity at issue, such as certain tourist activities; mention of telephone numbers with the international code; use of a top-level domain name other than that of the Member State in which the trader is established, for example “.de”, or use of neutral top-level domain names such as “.com” or “.eu”; the description of itineraries from one or more other Member States to the place where the service is provided; and mention of an international clientele composed of customers domiciled in various Member States, in particular by presentation of accounts written by such customers. Likewise, if the website permits consumers to use a language or a currency other than that generally used in the trader’s Member State, this can also constitute evidence demonstrating cross-border activity of the trader.
On the other hand, the mere accessibility of the trader’s website in the Member State in which the consumer is domiciled is insufficient. The same is true of mention of an email address and of other contact details, or of use of a language or a currency which are the language and/or currency generally used in the Member State in which the trader is established.
The European Court of Justice (see judgment in Case C-47/09 Commission v Italian Republic) finds that Italy has failed to fulfil its obligations under EU law concerning the labelling of cocoa and chocolate products which harmonises the sales names for such products (see Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs Directive 2000/36/EC of the European Parliament and of the Council of 23 June 2000 relating to cocoa and chocolate products intended for human consumption).
The Commission brought infringement proceedings against Italy before the Court of Justice, claiming that Italy has introduced an additional sales name for chocolate products, depending on whether they can be regarded as “pure” or not, which constitutes an infringement of the directive and conflicts with the case-law of the Court. According to the Commission, the consumer must be informed whether or not substitute vegetable fats are present in the chocolate through the labelling and not through the use of a separate sales name.
Where they contain up to 5% of vegetable fats other than cocoa butter (“substitute vegetable fats”), their name remains unchanged but their labelling must display, in bold lettering, the specific statement “contains vegetable fats in addition to cocoa butter”.
In the case of chocolate products containing only cocoa butter, that information may be given on the labelling, provided the information is correct, neutral, objective, and does not mislead the consumer.
Under the Italian legislation, the phrase “pure chocolate” may be added to or incorporated in the sales names, or indicated elsewhere on the labelling of products not containing substitute vegetable fats, and administrative fines are laid down for any infringement of those rules.
The Court notes as a preliminary point that the European Union has introduced full harmonisation of sales names for cocoa and chocolate products in order to guarantee the single nature of the internal market. Those names are both compulsory and reserved for the products listed in the EU legislation. That being so, the Court holds that that legislation makes no provision for the sales name “pure chocolate” and does not permit its introduction by a national legislature. In those circumstances, the Italian legislation runs counter to the system of sales names created by EU law.
The Court notes also that the system of double names introduced by the Italian legislature does not comply either with the requirements of EU law concerning the need for the consumer to have information that is correct, neutral and objective, and that does not mislead him.
The Court has heldthat the addition of substitute vegetable fats to cocoa and chocolate products which satisfy the minimum contents required under EU legislation does not substantially alter their nature to the point where they are transformed into different products and therefore does not justify a difference in their sales names.
The Court holds, however, that, under EU legislation, the inclusion elsewhere in the labelling of a neutral and objective statement informing consumers of the absence from the product of vegetable fats other than cocoa butter would be sufficient to ensure that consumers are given correct information.
Consequently, the Court concludes that, to the extent it enables the coexistence of two categories of sales names essentially designating the same product, the Italian legislation is likely to mislead consumers and thus interfere with their right to obtain correct, neutral and objective information.
The Incoterms rules have become an essential part of the daily language of trade. They have been incorporated in contracts for the international sale of goods and provide rules and guidance to importers, exporters, lawyers, transporters, insurers and students of international trade.
The purpose of Incoterms is to provide a set of international rules for the interpretation of the most commonly used trade terms in foreign trade. Thus, the uncertainties of different interpretations of such terms in different countries can be avoided or at least reduced to a considerable degree.
Frequently, parties to a contract are unaware of the different trading practices in their respective countries. This can give rise to misunderstandings, disputes and litigation, with all the waste of time and money that this entails.
In order to remedy these problems, the International Chamber of Commerce first published in 1936 a set of international rules for the interpretation of trade terms, first conceived in 1921.
These rules were known as “Incoterms 1936”. Amendments and additions were later made in 1953, 1967, 1976, 1980, 1990, 2000 and presently in 2010 in order to bring the rules in line with current international trade practices.
As of 1 January 2011 the eighth edition, “Incoterms 2010”, shall have effect. Among other changes therein affected all of the five terms in section D are obsoleted and replaced with the following three: DAT (Delivered at Terminal), DAP (Delivered at Place), and DDP (Delivered Duty Paid). Such new terms apply to all modes of transport.
Rules for any mode or modes of transport:
Rules for sea and inland waterway transport:
It should be stressed that the scope of Incoterms is limited to matters relating to the rights and obligations of the parties to the contract of sale with respect to the delivery of goods sold (in the sense of “tangibles”, not including “intangibles” such as computer software) as they help traders avoid costly misunderstandings by clarifying the tasks, costs and risks involved in the delivery of goods from sellers to buyers.
The current Incoterms 2000 rules are endorsed by UNCITRAL.
The European Court of Justice (see judgment in Case C-550/07 Akzo Nobel Chemicals Ltd v Commission) has ruled that in the competition field the European Commission has the right to seize and use as evidence legal advice given by in-house lawyers.
In its judgment the European Court of Justice has confirmed the existing position under EU Law that legal advice from in-house lawyers is not protected by legal professional privilege.
The Court had the opportunity to give a ruling on the extent of legal professional privilege (see judgement in Case C-155/79 AM&S Europe v Commission), holding that it is subject to two cumulative conditions. First, the exchange with the lawyer must be connected to “the client’s rights of defence” and, second, that the exchange must emanate from “independent lawyers”, that is to say “lawyers who are not bound to the client by a relationship of employment”.
As regards the second condition, the Court, in its judgment, observes that the requirement that the lawyer must be independent is based on a conception of the lawyer’s role as collaborating in the administration of justice and as being required to provide, in full independence and in the overriding interests of that cause, such legal assistance as the client needs.
It follows that the requirement of independence means the absence of any employment relationship between the lawyer and his client, so that legal professional privilege does not cover exchanges within a company or group with in-house lawyers.
The Court did not address the question of whether advice from non-EU qualified lawyers should be protected by legal professional privilege, leaving the position as it currently stands, namely that the advice is not protected.
The Lego brick is not registrable as a Community trademark as it is a sign consisting exclusively of the shape of goods necessary to obtain a technical result.
The European Court of Justice (see judgment in Case C-48/09 Lego Juris v OHIM) finds that the main purpose of the prohibition on registration as a trademark of any sign consisting of the shape of goods which is necessary to obtain a technical result is to prevent trademark law granting an undertaking a monopoly on technical solutions or functional characteristics of a product. Thus, undertakings may not use trademark law in order to perpetuate, indefinitely, exclusive rights relating to technical solutions.
When the shape of a product merely incorporates the technical solution developed by the manufacturer of that product and patented by it, protection of that shape as a trademark once the patent has expired would considerably reduce the opportunity for other undertakings to use that technical solution. In accordance with the law of the European Union, technical solutions are capable of protection only for a limited period, so that subsequently they may be freely used by all economic operators.
In addition, the Court finds that by restricting the prohibition on registration to signs which consist “exclusively” of the shape of goods which is “necessary” to obtain a technical result the legislature duly took into account that any shape of goods is, to a certain extent, functional and that it would therefore be inappropriate to refuse to register a shape of goods as a trademark solely on the ground that it has functional characteristics. By the terms “exclusively” and “necessary”, the legislature sought to ensure that solely shapes of goods which only incorporate a technical solution, and whose registration as a trademark would actually impede the use of that technical solution by other undertakings, are not to be registered.
As regards the fact that the ground for refusal covers any sign consisting “exclusively” of the shape of goods which is necessary to obtain a technical result, the Court finds that that condition is fulfilled when, as in the present case, all the essential characteristics of a shape perform a technical function, the presence of one or more minor arbitrary elements with no technical function being irrelevant in that context.
The Court also finds that the position of an undertaking which has developed a technical solution cannot be protected – with regard to competitors placing on the market slavish copies of the product shape incorporating exactly the same solution – by conferring a monopoly on that undertaking through registering as a trademark the three-dimensional sign consisting of that shape, but can, where appropriate, be examined in the light of the rules on unfair competition.
On 25 June 2010, the United Nations Commission on International Trade Law adopted the revised UNCITRAL Arbitration Rules (the “Rules”).
The original UNCITRAL Arbitration Rules were adopted in 1976 and have been used for the settlement of a broad range of disputes, including disputes between private commercial parties where no arbitral institution is involved, investor-State disputes, State-to-State disputes and commercial disputes administered by arbitral institutions.
The revision is aimed at enhancing the efficiency of arbitration under the Rules and does not alter the original structure of the text, its spirit or drafting style.
The Rules, as revised, include more provisions dealing with, among others, multiple parties arbitration and joinder, liability, and a procedure to object to experts appointed by the arbitral tribunal. A number of innovative features contained in the Rules aim to enhance procedural efficiency, including revised procedures for the replacement of an arbitrator, the requirement for reasonableness of costs and a review mechanism regarding the costs of arbitration. The Rules also include more detailed provisions on interim measures.
The Rules will take effect from 15 August 2010 and will be presumed to apply to all arbitration agreements referring to UNCITRAL arbitration concluded after that date, unless the parties have agreed otherwise.
On 26 May 2010 ISVAP, the Italian insurance regulator, following a two-stage consultation process which began a couple of years ago, published Regulation No 35 (the “Regulation”) on the disclosure duties of insurance undertakings (with particular reference to pre-contractual information to proposed insured) and the advertisement of insurance products.
The Regulation shall apply to undertakings operating in the Italian market both under the freedom of establishment as set out in Article 49 of the Treaty and under the freedom to provide cross border services as set out in Article 56 of the Treaty.
The main purpose of the Regulation, which will come into force on 1 December 2010, is to strengthen the transparency and clarity of documents used in the offer of insurance products. The Regulation does not apply to reinsurance.
For the purpose of consolidating the duties of transparency and disclosure for insurance undertakings, ISVAP has introduced the obligation to deliver to the policyholders an information booklet (“fascicolo informativo“) containing all general and special terms and conditions applicable to the insurance contract, the proposal form and a information notice (“nota informativa“).
In detail, the information booklet shall include:
With regards to the information notice, ISVAP has developed new and more detailed schemes which shall include specific “warnings” concerning inter alia exclusions, limits and deductibles of the cover making references to each article of the terms and conditions of policy. For this reason it will be necessary to prepare an information notice for each single product which contains the information requested by ISVAP and the specific references to the related terms and conditions.
The Regulation includes prescribed forms of pre-contract information notice which are dependent upon class of business. These are:
The purpose of the Information Notice is to enable the proposed insured to “come to a reasoned conclusion concerning contractual rights and obligations”, as set forth in article 185 of the Code of Private Insurance Code (the “Code”).
Since these forms are standard forms they cannot cover all specific aspects of all insurance contracts. Accordingly, each undertaking shall need to supplement them with additional clauses to ensure that the information notice meets the Regulation’s requirements.
Particular attention shall be given to those provisions regarding “policyholders’ and insureds’ burdens and obligations, nullity, time-limits, exclusions, suspension and limitation of the guarantee, subrogation” which shall be highlighted in accordance to Section 166 of the Code, as implemented by the Regulation.
Moreover, the Regulation requires that the terms and conditions specify the policyholders’ premium payment obligations and highlight the risk that false or incomplete pre-contractual statements or representations by the policyholder may prejudice their right to performance of the contract.
In all cases, pursuant to Section 166 of the Code, the obligation to highlight the clauses mentioned above regarding the information notice shall also apply to any other part of the information booklet including the terms and conditions of policy and any other documents delivered to the policyholder prior to on or after inception of the policy.
Finally, a declaration of the contracting party confirming delivery of the information booklet shall be always included into the policy pursuant to Section 32.2 of the Regulation.
The obligations of disclosing the Information Booklet shall apply to all new insurance contracts concluded on or after 1 December 2010.
The European Commission has adopted a Regulation (see Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices) block exempting agreements between manufacturers and distributors for the sale of products and services.
The Regulation and accompanying Guidelines take into account the development, in the last 10 years, of the Internet as a force for online sales and for cross-border commerce, something that the Commission wants to promote as it increases consumer choice and price competition.
The basic principle remains that companies are free to decide how their products are distributed, provided their agreements do not contain price-fixing or other hardcore restrictions, and both manufacturer and distributor do not have more than a 30% market share. Approved distributors are free to sell on the Internet without limitation on quantities, customers’ location and restrictions on prices.
The new rules introduce the same 30% market share threshold for distributors and retailers to take into account the fact that some buyers may also have market power with potentially negative effects on competition. This change is beneficial for small and medium-sized enterprises (SME’s), whether manufacturers or retailers, which could otherwise be excluded from the distribution market.
This does not mean agreements between companies with higher market shares are illegal. Only that they must assess whether their agreements contain restrictive clauses and, whether they would be justified.
The new rules also specifically, address the question of online sales. Once authorised, distributors shall be free to sell on their websites as they do in their traditional shops and physical points of sale. For selective distribution, this means that manufacturers cannot limit the quantities sold over the Internet or charge higher prices for products to be sold online. The Guidelines further clarify the concepts of “active” and “passive” sales for exclusive distribution. Terminating transactions or re-routing consumers after they have entered their credit card details showing a foreign address will not be accepted.
With the new rules in force, dealers will now have a clear basis and incentives to develop online activities to reach, and be reached, by customers throughout the EU and fully take advantage of the internal market.
The new rules will come into force on 1 June 2010 and will be valid until 2022, with a one-year transitional phase.