The air disaster in the Alpes de Haute Provence on March 24
2015 on the GERMANWINGS flight n ° 4U9525 Barcelona-Düsseldorf, made 150
victims of 18 different nationalities who were on board the Airbus plane
A320.

Among these nationalities, there were 70 Germans, 50 Spaniards, 3 British, 1
Belgian, 1 Danish, 1 Dutch, 3 Argentines, 2 Colombians, 2 Mexicans, 2
Venezuelans, 1 Chilean, 2 Americans, 2 Australians, 2 Japanese, 3 Kazakhs, 2
Iranians, 1 Israeli, 2 Moroccans.

Analysis of the black box of the cockpit sound recordings
reveals that the co-pilot was alone in the cabin whose door he locked
before disconnecting the autopilot to descend
the device in the mountains.

Due to the different treatment of compensation depending on the location,
circumstances and those responsible for the accident it is important that the public do
call on lawyers specialized in the defense of victims of disasters
because their experience is essential to the implementation of a
negotiation with those responsible for the accident and their insurers in order to obtain
the highest compensation for the families of the victims.

It is ultimately the insurance and reinsurance companies that provide the
airlines and aircraft manufacturers responsible for paying
compensation ordered by the courts.

In practice, these insurance companies seek an amicable arrangement
with the beneficiaries of the victims in consideration of the risk of conviction
to which their customers are exposed. This risk is generally determined by the
economic and moral prejudice suffered by the beneficiaries of the victims as well
only by moral prejudice suffered by the victims themselves likely
to have entered their heritage before their death.

The Montreal Convention of May 28, 1999 establishes objective liability
without fault capped at 113,100 SDR or 140,000 Euros. However, when it is
established that the accident is due to the fault of the air carrier there is no longer a ceiling
compensation.

In this case, the circumstances of the co-pilot's suicidal and criminal act are
established and constitute a fault of the airline, responsible for its
employees.

To this responsibility due to the piloting fault can be added the fault resulting from the lack of precaution concerning the respect of the requirement generally applied by the airline companies of presence at any time of 2 people in the cockpit and that resulting from the locking cabin access door trap.

When the accident occurs on an airline from a poor country, the
damages awarded against those responsible for the accident are often
limited to a small amount capped at € 140,000 from the Montreal Convention in
the absence of fault. Therefore, the insurer tends to take this amount
as the upper limit of his friendly proposal.

On the other hand, when the accident is likely to be judged by a court
American, the risk of conviction can vary between 1 Million and 4 Million US
$. This is why insurers will offer much more than € 140,000 as
amicable to protect themselves from this risk of high conviction.

This is also true when the airline and the insurer agree on
the need for fair and prompt compensation to victims,
because of the blatantness of his wrongs and the urgency to preserve his reputation.

We see the point of knowing the circumstances of the accident well to assess
the possible responsibilities of the various stakeholders and assess the strategy the
better suited to the interests of victims.

Generally it is in the USA that we get the most compensation
strong. This is explained by the efficiency of the American Common Law system in
regarding the establishment of evidence (the discovery system) and the fact that it
are jurors who decide on responsibilities and their compensation and that
these are much more generous than the professional judges of the courts of
civil right. American case law shows compensation on average
4 times the highest compensation in France.

But still it is necessary to seize a Court that it is competent according to the
rules of international and national jurisdiction. The Convention of
Montreal of May 28, 1999 provides that the Courts competent to know the
Air crash disputes are in principle the following:

1. The court of the domicile of the carrier (Germany),
2. The court of the principal seat of its exploitation (Germany),
3. The court of the place where he has an establishment by whose care the contract was concluded (to be checked in each of the countries in which the passengers bought their tickets)
4. The court of the place of destination (Germany)
5. The court of a State party where the passenger has his permanent and main residence at the time of the accident (in this case, the 18 countries of residence of the passengers)

In the present case, the jurisdiction rules mainly designate Germany since the airline is German and the travel destination is Germany. The Spanish courts also have jurisdiction over the place where the transport contract was concluded and the country of permanent and principal residence of the numerous Spanish victims. The courts of the 18 countries concerned will also have jurisdiction over victims who have their permanent residences there.

To these heads of jurisdiction is added the jurisdiction of the country of the head office of the manufacturer of the Airbus A320 aircraft in the event of an action based on the aircraft's manufacturing defects, an action which is not necessarily brought before the court designated by the Montreal Convention which applies to air carriers.

AIRBUS SAS under French law is part of the European EADS consortium
which has several head offices in Europe and includes various subsidiaries in France, in
Germany, Spain and England as well as 12 European manufacturing sites.
Consequently, a civil liability action against Airbus could be brought
before various European courts.

The American courts could also have jurisdiction on the one hand for
2 American victims and on the other hand, to know responsibility
possible from an American supplier of AIRBUS.

However, as the largest number of connecting points in this case
takes back to Germany, the competent American courts could refuse to
hear about this case in the name of the principle of "forum non conveniens" which
allows a court to declare itself incompetent for the benefit of another court in
name of a good administration of justice.

For the reasons mentioned above, the defense strategy of the
interests of the families of the victims while retaining the possibility of initiating proceedings
in various jurisdictions for as long as possible. The prescription of the action in
liability against the airline is 2 years.

Due to the multiple nationalities of the victims, the importance
considerable of this catastrophe on the reputation of the airlines
GERMANWINGS and Lufthansa, and on the reputation of Airbus, as well as
the influence exerted by American jurisprudence in matters of compensation,
we believe that the compensation that could be obtained will be very
higher than the amount of € 140,000 provided for by the Montreal Convention; according to
us, at least around 1,500,000 $.

We bet that the LUFTHANSA group will offer generous compensation in view of the extent of its responsibility for this tragedy quickly revealed by the investigation and analysis of the ship's recordings.

The air disaster of GERMANWINGS flight n ° 9U9525 Barcelona-Düsseldorf, which occurred
on March 24th 2015 in the Alps of Haute Provence, caused 150 victims of 18 different
nationalities, all of whom were aboard the Airbus A320 plane.

Amongst these were 70 Germans, 50 Spaniards, 3 English, 1 Belgian, 1 Danish, 1 Dutch, 3
Argentinians, 2 Columbians, 2 Mexicans, 2 Venezuelans, 1 Chilean, 2 Americans, 2
Australians, 2 Japanese, 3 Kazakhs, 2 Iranians, 1 Israeli, 2 Moroccans.

Analysis of the black box with sound recordings of the pilot's cabin reveals that the co-pilot
was alone in the cabin and had locked the access door before disconnecting the autopilot in
order to proceed to the descent of the aircraft in the middle of mountains.

Because damages will be treated differently depending on the place, the circumstances and
the entities / persons liable for the accident, it is important that the public call upon attorneys
specialized in the defense of victims of aircraft accidents, as their experience will be essential
in setting a negotiation strategy with those responsible for the accident and their insurers, in
order to obtain the highest compensation for the victim's families.

The onus is ultimately on insurance and reinsurance companies that insure flight companies
and aircraft manufacturers to pay the damages set by tribunals.

In practice, these insurance companies will seek an amicable settlement with the right-
holders of the victims, in light of the risk of conviction their clients face. This risk is generally
determined by the economic and moral harms suffered by the right-holders of the victims, as
well as moral damages of the victims themselves, if this right is acquired before their
passing.

The Montreal Convention of May 28th 1999 institutes an objective no fault liability capped at
113,100 SDR or 132,688 euros. However, when it is established that the accident is due to
the air carrier's fault, damages are no longer capped.

In the present case, the circumstances of the suicidal and criminal act of the co-pilot are
established and they constitute a fault by the air carrier, who is liable for its employees.

To this liability for the handling of the airplane, we could add the faults resulting from lack of
precautions with respect to the requirements generally applied by airline companies that 2
people be present at all times in the cockpit, as well as to the automatic locking of the cabin's
access door.

When an accident occurs with an airline company of a poorer country, damages to which
those liable for the accident are sentenced are often limited, in the absence of fault, to the
small capped sum of 132,688 € of the Montreal Convention.

On the other hand, if the case of the accident is likely to be brought in front of an American court, the order to pay damages may vary between 1 Million to 4 Million US $. For this reason, to protect themselves from the risk of a higher award insurers will offer a lot more than 132 688 € as settlement money.

This may also occur when, in light of flagrancy of its faults and the urgency to preserve its
reputation, the airline company and its insurer agree to proceed to a fair and prompt
compensation of victims.

We can therefore note the importance of understanding the circumstances of the accident in
order to evaluate the potential liability of the various actors and assess the strategy that will
be better suited to preserve the victims' interests.

Generally, it is in the USA that we can obtain higher damages. This is explained by the
efficiency of the American Common Law system with regards establishing evidence (the
discovery system) as well as the fact juries decide on liability and the amount of damages,
and they are usually more generous than professional judges in tribunals of civil law
jurisdictions. American case law shows that damages they award are 4 times higher than the
highest amount granted in France.

In order to sixteen a court however, it must have jurisdiction according to international and
national rules. The Montreal Convention of May 28th 1999 states that courts having
jurisdiction to hear air crash cases are namely:

1. Courts in the country where the transporter is domiciled (Germany),
2. Courts of its main place of activity (Germany),
3. Courts of the place where it possesses an establishment through which the contract was concluded (to be verified in each country in which the passengers bought their tickets),
4. Courts of the place of destination (Germany),
5. Courts of a country where a passenger had his / her permanent and principal residence at the time of the accident (in this case, the 18 countries where the passengers resided).

In this case, jurisdictional rules essentially point to Germany since the airline company is German and the destination of the trip was Germany. Spanish tribunals are also competent, as it is the place where the contract of carriage was concluded, as well as the country of permanent and principal residency of the numerous Spanish victims.

The tribunals of the 18 concerned countries will also be competent regarding the victims that have their permanent residency there. To these grounds for jurisdiction, we can add jurisdiction of the country of the head office of the manufacturer of the Airbus A320 plane, in case an action on grounds of manufacturing defect of the aircraft is brought, an action that not necessarily brought in front of a jurisdiction designated by the Montreal Convention, which applies to carriers.

The company AIRBUS SAS, incorporated under French law, is part of a European consortium EADS having many head offices in Europe, and owning various subsidiaries in France, Germany, Spain, and in Great Britain, as well as 12 European manufacturing sites.

As a consequence, a civil liability action against Airbus may be brought in front of various European tribunals. American tribunals could also have jurisdiction on the one hand in regards to the 2 American victims, and on the other hand in regards to the potential liability of an American supplier of the AIRBUS.

However, because a greater number of criteria link this case to Germany, American courts having jurisdiction may refuse to hear the matter in the name of the “forum non conveniens” principle, which allows a court to forfeit its jurisdiction to the benefit of another, in the name of good administration of justice.

For the reasons stated above, it is necessary to evaluate the strategy for defending the interests of the victims' families by conserving the possibility to engage an action in various jurisdiction for as long as possible. The time limitation to begin liability action against the airline company is 2 years.

Because of the multiplicity of the victims' nationalities, the important consequence of this
catastrophe on the reputation of the airline companies GERMANWINGS and Lufthansa, on
the reputation of the Airbus company, as well as the influence of American jurisprudence in
regards to damages, we believe that the damages that may be granted will be highly superior
to the 132 688 € provided for in the Montreal Convention; According to us, it will be at a
minimum around 1,500,000 $.

We can bet that LUFTHANSA will offer a generous indemnification in light of the magnitude
of its liability in this tragedy, which was rapidly revealed by investigations and analysis of the
recordings on board.

When international arbitration takes place under the auspice of the ICC and where
the seat is Paris, unless the parties expressly provide for a specific law to regulate
proceedings, the laws of the seat, ie of France, are generally held to govern procedural
issues, and this, whether the Arbitrator (s) or parties are French or not.

French procedural rules for arbitration are provided in the French Civil Code of Procedure. On May 1st 2011 however, a new Decree n ° 2011-48 of January 2011 came into effect, changing certain procedural rules that had been enacted by the previous Decree N ° 81-500 of 1981.

When it comes to means of recourses against arbitral awards, the new law of 2011 provides for certain novelties in the areas of national and international arbitration:

I. In a national arbitration

Under the old law of 1981, direct appeal of an arbitral award was the general rule and it was up to the parties to provide otherwise in their arbitration agreement (1). This has been completely reversed in the new 2011 law: awards shall not be subject to appeal unless otherwise agreed by the parties (2).

Such an appeal can be brought as soon as the ICC award is rendered. However, the deadline to bring the action has shortened with the new law: the recourse is no longer admissible if not filed within a month from notification of the award (3), whereas parties had until one month from service of an award that had been opposed with the enforcement formula (4) (domesticated) under the prior law.

Under both the old and the new law, the appeal filed within the legal deadline suspends enforcement of the arbitral award (5).

II. In international arbitration

The 2011 law unambiguously sets that an action to set aside is now the only possible recourse against arbitral awards, where they've been rendered in France (6). The law of 1981 also provided for this possibility but did not explicitly exclude other recourses, such as an appeal (7).

It is important to distinguish between a direct appeal of an arbitral award, which allows the Court of Appeals to amend the arbitral award, which may still be enforced, and an action to set aside which annuls an award that could therefore no longer be enforced, and which may only be brought on one of the listed legal grounds of article 1520 the Civil Code of Procedure (8):

1. the arbitral tribunal was wrongfully retained or denied jurisdiction,
2. the arbitral tribunal was improperly constituted,
3. the arbitral tribunal ruled without complying with the mission conferred upon it,
4. the principle of due process was not complied with, or
5. recognition or enforcement of the award is contrary to international public policy. ”

Though an appeal is always possible against a court decision granting or refusing
enforcement of an arbitral award, a direct appeal of the arbitral award is now expressly
prohibited in the context of international arbitration.

Under both the old and new law, the recourse may be brought as from the rendering of the award (9), but again, the deadline has been shortened with the new law: parties now have until a month from notification of the award to commence the appeal (10), whereas they previously had until a month of service of an award declared enforceable (11). In an international arbitration an award rendered in France must be properly served in compliance with French procedures, namely by a French process server.

An important novelty of the new law is that the deadline and the filing of actions to set aside no longer suspend enforcement of the award (12), which was the case under the previous 1981 text (13). This is however tempered by the sitting judge's (14) power to suspend or set conditions for enforcement, if it considers it may seriously harm a party's rights.

Two additional issues regarding appeal / setting aside recourses:

Transitional rules

In asking which law to follow, the old or the new, in determining recourse rights against an
arbitral award, Article 3 of the 2011 Decree explains that:

1. The new national arbitration rule reversing the prior rule, which granted an of right possibility of direct appeal and made actions to set aside the exception, only applies if the agreement to arbitrate dates after May 1st 2011 (date of entry into force of the Decree) ; As a consequence, if the agreement dates after May 1st 2011 direct appeal of the award is not possible unless parties agree otherwise, but if it dated before May 1st 2011, the appeal is possible, unless otherwise agreed by the parties.
2. The new rule stating that an appeal or action to set aside may not suspend enforcement of awards in international arbitration applies only if the arbitral award is rendered after May 1st 2011.
   So, if the arbitral award is dated after May 1st 2011 the deadline or the filing of an action to set aside, or an appeal (of a decision granting or refusing enforcement and not of the award itself) will not suspend enforcement, but if the award is rendered after May 1st, it will.
3. Other than a few other exceptions in the transitional rules, other provisions of the 2011 law apply as of May 1st 2011. As a consequence, the new shortened deadline to commence recourses, ie ending a month from notification of award, applies as of May 1st in both national and international arbitration. So, regardless of when the agreement to arbitrate was signed, the award rendered or the arbitral tribunal constituted, parties now only have until one month from notification of, no longer an exequatured award (which takes longer to obtain), but of a simple arbitral award, to begin their recourse,.

Notification and Service of arbitral award

When is an arbitral award successfully notified: is service (by bailiff) required or is simple
notification enough? The question is important in assessing the starting point of the month-
long deadline to begins to recourse.

The difference is also of high importance since service to a party living abroad will necessarily increase the delay to begin a recourse by 2 months (15), therefore granting opposing party 3 months to begin setting aside action in the case of arbitration.

Simple notification, on the other hand, does not impose this additional “distance delay”. In
fact, its content and form has yet to be defined by courts. The procedure is therefore less
constraining.

The prior 1981 law allowed only one notification method in both national and international arbitration: service by way of bailiff (16). Simple notification was not an option.

The 2011 rules are slightly more lenient, allowing parties to opt for simple notification in
some cases:

a / International arbitration

In international arbitration, notification must be done by way of service through bailiff, unless otherwise agreed by the parties (17).

The question therefore becomes: when could we consider that parties have agreed to simple
notification? In institutional arbitration, does adopting arbitration rules that provide for
notification by the institution constitute agreement to simple notification of the award?

A recent Court of Appeals case (18) qualified notification by way of service as a procedural guarantee and set that parties must unequivocally manifest their will to renounce this guaranty.

As a consequence, though ICC Rules of Arbitration provide that the Secretariat shall notify arbitration awards to the parties, an agreement to adhere to such rules does not constitute unequivocal and manifest renunciation to service by bailiff and is not enough to count as notification (19). At the most, such notification by the Secretariat only releases ICC's duty of notification and does not replace the parties' obligations (20).

In other words, in an international ICC arbitration an award rendered in France must be properly served in compliance with French procedures, unless parties expressly renounce to this, or else there will be no fixed deadline for bringing setting aside proceedings in front of the French court of appeals (21).

b / National arbitration

Though the new Decree states that notification of national arbitration awards must be generally done through service process unless parties agree otherwise (22), its specific provisions on remedies do not impose such a distinction23, unlike the provisions on international arbitration (as seen in par. at)).

This is confirmed by a recent Court of Appeals decision where the only reasons stated by the
judge for not retaining the date of notification by way of registered letter with
acknowledgment of receipt was the fact that the photocopy of the receipt was illegible and
did not allow to affirm what exactly was sent and by whom24. It was solely on grounds off
evidentiary difficulties that the court retained the later date of service by bailiff as the starting
date of the month-long period to begin action.

In national arbitration therefore, it seems that the rule is less strict and parties need not
expressly renounce to notification by way of service in order to use simple notification
methods.

© Copyright Weissberg & Weissberg - 2015

***

(1) Article 1482 of Code of Civil Procedure, as enacted by Decree N ° 81-500 of 1981

(2) Article 1489 of Decree N ° 2011-48 of 13 January 2011

(3) Article 1494 of Decree N ° 2011-48 of 13 January 2011

(4) Enforced by a national court decision; Article 1486 of Code of Civil Procedure, as enacted by Decree N ° 81-500 of 1981

(5) Article 1496 of Decree N ° 2011-48 of 13 January 2011, Article 1486 of Code of Civil Procedure, as enacted by Decree N ° 81-500 of 1981

(6) Article 1518 of Decree N ° 2011-48 of 13 January 2011

(7) Article 1504 of Code of Civil Procedure, as enacted by Decree N ° 81-500 of 1981

(8) Article 1520 of Decree N ° 2011-48 of 13 January 2011, and 1502 of of Code of Civil Procedure, as enacted by Decree N ° 81-500 of 1981

(9) Article 1519 of Decree N ° 2011-48 of 13 January 2011, and 1505 of Code of Civil Procedure, as enacted by Decree N ° 81-500 of 1981

(10) Article 1519 of Decree N ° 2011-48 of 13 January 2011

(11) Article 1505 of Code of Civil Procedure, as enacted by Decree N ° 81-500 of 1981

(12) Article 1526 of Decree N ° 2011-48 of 13 January 2011

(13) Article 1506 of Code of Civil Procedure, as enacted by Decree N ° 81-500 of 1981

(14) “Support Judge” in French

(15) Article 643 and 680 Code of Civil Procedure

(16) Articles 1486 and 1503 of Code of Civil Procedure, as enacted by Decree N ° 81-500 of 1981

(17) Article 1519 of Decree N ° 2011-48 of 13 January 2011

(18) CA Paris, pole 1, ch. 1, July 4 2013, n ° 12/08215

(19) Antoine KIRRY and Geoffroy GOUBIN, Un progrès en trompe l’oeil : le nouveau texte sur la notification des sentences rendues en France en matière d’arbitrage international : 2014 procedures, study 5, para. 4

(20) CA Paris, pole 1, Ch.1, March 6, 2014

(21) Articles 651 and onward of the Civil Code of Procedure

(22) Article 1484 of Code of Civil Procedure

(23) Article 1494 of Code of Civil Procedure

(24) CA Lyon, Ch. 8, October 14, 2014, N ° 13/03727

The regulation has just come into force in France, two years after its publication in the official European journal.

This regulation, directly applicable in the French legal order since Saturday January 10, will allow litigants from a member country of the European Union to avail themselves of a court decision in another country of the Union without having recourse to an exequatur procedure in order to carry out the enforcement of the decision in the country where the law is invoked.

The execution of court decisions within the EU allows in particular a decision in civil or commercial matters, enforceable in a member state, to automatically obtain enforceability in any other EU country.

The new rules will also allow employees working in the EU to take legal action against an employer established in a third country before the courts of the Member State in which they usually work.

In addition, legal certainty for choice of court agreements between companies will be strengthened: previously, it was possible to circumvent choice of court agreements by bringing the dispute before the courts of another Member State (instead of designated court), so as to postpone the settlement of the dispute. These new rules thus put an end to these abusive maneuvers by guaranteeing the priority of the designated court, in the event of parallel proceedings.

Dispute resolution and supervision

1. Dispute resolution

CETA puts in place simplified and organized dispute resolution mechanisms such as
voluntary mediation, investment arbitration and expedited arbitration for situations
urgent.

The agreement aims to promote the transparency, efficiency and speed of the procedures for
resolution via innovative mechanisms such as the development of resolution procedures
of custom litigation for certain sectors (such as work, environment, services
and taxes).

2. Monitoring

Several committees and sub-committees are set up to oversee and facilitate implementation
and implementation of the Agreement, as well as to promote dialogue between the Parties on all
CETA topics.

Transparency provisions have also been drafted to ensure that each
Party will have access to information (such as laws and regulations) that may affect
the operability of the Agreement.

© Weissberg & Weissberg 2015

All articles on CETA

All articles on CETA
1. Elimination of agricultural tariffs
2. Elimination of industrial tariffs
3. Services and labor mobility
4. Investment protection
5. Public procurement
CETA - 8. Dispute resolution and monitoring
CETA - 7. Sustainable development, environment and work
CETA - 8. Dispute resolution and monitoring

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