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This privacy statement clarifies the type, extent and purpose of processing personal data (hereinafter referred to as "data") within our online offer and the associated websites, functions, contents and externally hosted online presences like social media profiles (hereinafter collectively referred to as “online offer“). the terminology used like “processing“ or “person in charge“, we explicitly refer to the definitions given in article 4 of the General Data Protection Regulation (GDPR).
– contact data (e.g. email addresses, telephone numbers).
– content data (e.g. text entries, pictures, videos).
– usage data (e.g. websites visited, interest in content, access time).
– meta-/communications data (e.g., device information, IP addresses).
Visitors and users of the online offer (data subjects are hereinafter collectively referred to as “users“).
– answering contact inquiries and communication with users.
“Personal data“ concerns all information referring to an identified or identifiable natural person (hereinafter “person concerned“); a natural person is deemed identifiable if she can be identified directly or indirectly, especially by assignment to an identifier like name, identification number, location data, online identification data (e.g. cookies) or to one or several other particular characteristics forming the physical, physiological, genetic, mental, economic, cultural or social identity of this natural person.
“Processing“ concerns every operation conducted with or without help of automated processes or any such operation sequence in connection with personal data. The term is far-reaching and practically includes any handling of personal data.
"Pseudonymization“ concerns the processing of personal data to the extent that any personal data can no longer be allocated to a specific person concerned without the involvement of additional information, as long as these additional information is kept separately and subject to technical and organizational measures which guarantee that that the personal data cannot be allocated to an identified or identifiable natural person.
"Profiling“ concerns any kind of automated processing of personal data with the purpose of evaluating certain personal aspects in relation to a natural person, especially to analyze and predict aspects regarding the performance, economic situation, health, personal preferences, interests, reliability, abode or change of location of this natural person.
“Person in charge“ refers to the natural or legal person, authority, institution or similar body solely or collectively deciding upon the purpose and means of processing personal data.
“Processor“ refers to the natural or legal person, authority, institution or similar body processing personal data on behalf of the person in charge.
We communicate the legal foundation of our data processing in accordance with article 13 GDPR. As long as the legal foundation is not mentioned in the privacy statement, the following shall apply: the legal foundation for obtaining the consents is Art. 6 Par. 1 lit. a and Art. 7 GDPR, the legal foundation for processing to fulfill our services and implement contractual measures as well as answering inquiries is Art. 6 Par. 1 lit. b GDPR, the legal foundation for processing to fulfill our legal obligations is Art. 6 Par. 1 lit. c GDPR, and the legal foundation for processing to safeguard our legitimate interests is Art. 6 Par. 1 lit. f GDPR. In case vital interests of the person concerned or any other natural person require the processing of personal data, Art. 6 Par.1 lit. d GDPR serves as legal foundation.
We take suitable technical and organizational measures in accordance with Art. 32 GDPR in consideration of the latest state of technology, the implementation costs and the type, extent, circumstances and purposes of processing as well as the different occurrence probabilities and seriousness of the risk for the rights and freedoms of natural persons to guarantee a level of protection adequate to the potential risk.
The measures particularly include the protection of confidentiality, integrity and availability of data by controlling the physical access as well as the respective data concerning access, entry, transfer, ensuring of availability and division. We furthermore set up procedures ensuring the exercise of rights by persons concerned, deletion of data and reaction to endangerment of data. We also consider the protection of personal data in the development and selection of hardware, software and procedures in accordance with the principles of data protection by means of technological design and privacy-friendly default settings (Art. 25 GDPR).
Provided we are revealing, transmitting or providing access to data in the course of processing towards other individuals or companies (processors or third parties), this solely happens on the basis of legal permission (e.g. when transmitting data to third parties, like payment service providers, is required for the fulfilment of contract in accordance with Art. 6 Par. 1 lit. b GDPR), you have given express consent, a legal obligation exists or on the basis of our legitimate interests (e.g. for the deployment of agents, webhosts, etc.).
Provided we are assigning third parties with processing of data on the basis of an “order processing contract“, this happens on the basis of Art. 28 GDPR.
Provided we are processing data in a third country (i.e. outside of the European Union (EU) or the European Economic Area (EEA) or in case this happens within the utilization of third party services or by disclosure and transmission of data to third parties, this only occurs for the purpose of fulfilment of our (pre)contractual obligations, on the basis of your consent, on the basis of legal obligation or on the basis of our legitimate interest.
Conditionally upon legal or contractual permissions, we process data or have data processed in a third country only in the presence of the particular preconditions given under Art. 44 ff. GDPR. This means the processing may occur on the basis of special guarantees, like the existence of an officially recognized data privacy standard similar to the GDPR (e.g. the “Privacy Shield“ for the US) or in compliance with particular, officially recognized contractual obligations ( so-called “standard contractual clauses“).
You have the right to obtain a confirmation whether or not respective data is processed and the right to obtain information about these data as well as the right to obtain a copy of these data in accordance with Art. 15 GDPR.
In accordance with Art. 16 GDPR, you have the right to request the completion and rectification of your incorrect personal data.
In accordance with Art. 17 GDPR, you have the right to have your personal data deleted immediately, or to demand a restricted processing of your data in accordance with Art. 18 GDPR.
In accordance with Art. 20 GDPR, you have the right to receive all personal data that you have provided and to request the transmission of the data to other persons in charge.
You also have the right to file a complaint before the responsible regulatory authority.
You have the right to revoke any consent in accordance with Art. 7 Par. 3 GDPR with effect for the future.
You can object the future processing of your personal data in accordance with Art. 21 GDPR at any time. The objection may particularly occur against the processing for the purpose of direct marketing.
“Cookies“ are small files which are saved onto the users' computers. Numerous pieces of information can be saved within cookies. A cookie primarily serves to safe user information (e.g. the device the cookie is saved on) during or after the visit of an online offer. Temporary cookies, “session cookies“ or “transient cookies“ are cookies which are deleted immediately after the user leaves an online offer or closes his browser. Such cookies safe the content of your shopping cart in an online shop or your login status for example. “Permanent“ or “persistent“ cookies are cookies which remain saved even after closing your browser.
They serve to remember the login status for example, when users visit the website after several days again. Such cookies can also safe user interests useful for range measurements or marketing purposes. “Third-party cookies“ are cookies offered by providers not responsible for the online offer (cookies by the person in charge are referred to as “first-party cookies). We can deploy temporary and permanent cookies and hereby inform you with our privacy statement.
In case users do not want cookies to be saved on their computers, we kindly ask to deactivate the respective option in the system preferences of their browser. Cookies saved can be deleted in the browsers system preferences. Excluding cookies may lead to functional limitations of the online offer.
A general objection against the application of cookies used for online marketing purposes can be declared in a large number of services, especially regarding tracking, via the US-American website http://www.aboutads.info/choices/ or the European website http://www.youronlinechoices.com/. The storage of cookies can furthermore be achieved via deactivating the respective option in the system preferences of the browser. Please not that deactivating cookie storage may result in functional limitations of the online offer.
The data processed by us in accordance with Art. 17 and 18 GDPR are deleted or restricted in processing. As long as not explicitly stated within the frame of this privacy statement, the data stored by us is deleted when it is no longer necessary for its intended purpose and when no statutory storage obligations prevent it. Provided data is not deleted to their relevance for other and lawful purposes, their processing is limited. This means the data is locked and not processed for any other means. This particularly counts for data which has to be stored due to commerce and tax law reasons.
Following the legal specifications in Germany, storage takes place particularly for 10 years in accordance with §§ 147 Section 1 AO, 257 Section 1 No. 1 and 4, Section 4 German Commercial Code (books, records, status reports, vouchers, trading books, documents relevant for taxation, etc.). and 6 years in accordance with § 257 Section 1 No. 2 and 3, Section 4 German Commercial Code (commercial letters).
Following the legal specifications in Austria, storage takes place particularly for 7 years in accordance with § 132 Section 1 Austrian Federal Tax Code (accounting records, receipts/invoices, accounts, vouchers, business papers, statement of revenue and expenditure, etc.), for 22 years in connection with properties and for 10 years regarding documents in connection with electronically supplied services, telecommunication services, broadcasting and television services provided to non-entrepreneurs within EU countries and for those making use of the mini one-stop shop (MOSS).
We additionally process - contractual data (e.g. contractual object, duration, customer category) – payment data (e.g. bank details, payment history) of our clients, interested parties and business partners for the purpose of providing contractual services, services and customer care, marketing, advertisement and market research.
We process data of our customers, clients and persons interested (uniformly referred to as “customers“) in accordance with Art. 6 Par. 1 lit. b. GDPR, in order to provide our contractual or pre-contractual services for them. The data processed on this occasion – the type, the extent, the purpose and the necessity of their processing is determined by the underlying contract at hand. Among the those generally are inventory data, master data of the customers (name, address, etc.), as well as their contact data (email address, telephone number, etc.), the contractual data (content of the order, fees, duration, information regarding the mediated companies/insurances/services) and payment details (commissions, payment history, etc.).
We can furthermore process information regarding the characteristics and circumstances of persons or their belongings if this is subject of our contract. This may include information regarding personal circumstances, mobile or immobile material assets. In the course of our assignment, it may also be necessary to process particular categories of data in accordance with Art. 9 Par. 1 GDPR, especially information regarding the health of a person. Where necessary, we request express consent by the customers in accordance with Art. 6 Par. 1 lit. a., Art. 7, Art. 9 Par. 2 lit. a. GDPR.
Provided necessary for the fulfilment of contract or legally required, we reveal or transmit customer data for the purpose of coverage inquiries, completion and development of contracts to providers of the services concerned/properties/insurers/reinsurers/estate agent pools, technical service providers, other service providers, like cooperating associations, as well as financial service providers, credit institutions and investment companies as well as social insurance agencies, tax authorities, tax consultants, legal advisers, auditors, insurance Ombudsmen and the Federal Financial Supervisory Authority (BaFin). We can furthermore assign subcontractors, e.g. sub-agents. We request express consent by customers in case such a revelation or transmission is necessary (as might be the case for particular categories of data in accordance with Art. 9 GDPR).
The deletion of data is carried out after the expiration of legal warranty obligations or similar, whereas storage necessity is reviewed every three years; otherwise the statutory storage obligations apply. Under German law in the insurance and financial sector, mandatory archiving particularly exists for consultant protocols (5 years), estate agent contract notes (7 years), brokerage agreements (5 years), relevant trading documents (generally 6 years) and fiscally relevant documents (10 years).
We process the data of our contractual partners and interested parties as well as other customers, clients and contractual partners (uniformly referred to as “contractual partners“) in accordance with Art. 6 Par. 1 lit. b GDPR, to fulfil our contractual or pre-contractual services towards you. The personal data processed in the course, the type, extent, purpose and necessity of their processing are determined on the basis of the underlying contractual relationship.
Among the processed data are the master data of our contractual partners (e.g: names and addresses), contact data (e.g. email addresses and telephone numbers) as well as contractual data (e.g. services delivered, contractual content, contractual communication, names of contact persons) and payment details (e.g. bank accounts, payment history).Generally, we do not process any particular categories of personal data, except they are components of an assigned or contractual processing.
We process data necessary for the justification and fulfilment of our contractual services and always indicate the necessity of disclosure, as long as it is not evident for the contractual partner. Disclosure to external persons or companies solely takes place if it is necessary in the course of contracting. In processing the data given to us in the course of an order, we act according to the instructions of the customer and legal requirements.
In the course of using of our online offer, we can save the IP address and time of the respective user action. Storage happens in accordance with our legitimate interest as well as the users' interest for protection against misuse and other unauthorized utilization. Transferring data to third-parties does not happen generally, except necessary for the pursuance of our claims in accordance with Art. 6 Par.1 lit. f. GDPR or in case a legal obligation exists in accordance with Art. 6 Par. 1 lit. c GDPR.
The deletion of the data is carried out when it is no longer required for the fulfilment of contractual or legal obligations as well as the handling of possible warranty or other obligations. Storage necessity of personal data is reviewed every three years. Otherwise, the statutory preservation duties apply.
We process personal data in the course of administrative tasks like organization of our company, accounting and fulfilment of legal obligations, e.g. filing. Here we process the exact same data which we process in the course of fulfilling our contractual services. The legal foundation for processing the data are Art. 6 Par. 1 lit. c. GDPR and Art. 6 Par. 1 lit. f. GDPR.
Processing affects customers, interested parties, business partners and website visitors. The purpose and interest of the data processing is in administration, accounting, office organization and filing of data, all of them tasks which serve the preservation of our business activities, carrying out our responsibilities and providing our services. Deleting data with regard to contractual services and contractual communication conforms to the activities mentioned under these processing operations.
We hereby disclose or transmit data to the financial management, consultants, e.g. tax consultants or auditors as well as other toll-gate systems and external payment service providers.
In order to run our business economically and to recognize market trends as well as desires of contract partners and users, we analyze the personal data available to us with regard to business transactions, contracts, inquiries, etc. We hereby process inventory data, communication data, contract data, payment details, user data, metadata on the basis of Art. 6. Par. 1 lit. f. GDPR, whereas persons affected are contract partners, interested parties, customers, visitors and users of our online offer.
Analyses happen for the purpose of business assessment, marketing and market research. We can herby take profiles of registered users into account, including the information on services used for example. Analyses serve the increase of user-friendliness as well as optimizing our proposals and our business efficiency. These analyses are intended solely for ourselves and are not disclosed externally, as long as these are not anonymous analyses with summarized values.
Provided these analyses or profiles are personal, they are deleted with termination of the user or anonymized, two years after conclusion of contract the latest. Total business analyses and general tendency determinations are otherwise created anonymously as far as possible.
During the initial contact with us (e.g. via contact form, email, telephone or via social media) personal data of the user is stored for processing the contact request in accordance with Art. 6 Par. 1 lit. b. GDPR. The user data can be stored in a customer-relationship-management system (CRM system) or in comparable request organization systems.
Inquiries are deleted as long as they are no longer required. The storage necessity is reviewed every two years. Legal archiving obligations furthermore apply.
The subsequent information is intended to inform you about the contents of our newsletter, the procedure of registration, dispatch and analysis as well as your rights of objection. By signing up for our newsletter, you automatically agree to the reception and the procedures described.
Content of the newsletter: we dispatch newsletters, emails and other electronic notifications with promotional information (hereinafter referred to as "newsletter“) only with consent of the recipient or on the basis of legal permission. Provided the contents of a newsletter are specifically outlined during the course of registration, they are relevant for the user's consent. Our newsletters furthermore contain information on our services and ourselves.
Double opt-in process and logging: the registration for our newsletter uses the so-called double opt-in process. This means you are receiving an email after your registration in which you are asked for the confirmation of your email address. This confirmation is necessary, to avoid registrations with foreign email addresses. Newsletter registrations are logged in order to prove the registration process in accordance with legal requirements. This requires the storage of the application date, application time as well as the IP address. Your changes are furthermore logged in the personal data stored by the mail-handling service provider.
Registration data: in order to register for the newsletter, it is sufficient to enter your email address. We optionally ask you to enter a name for the purpose of personal address in the newsletter.
Dispatching the newsletter and the related performance measurement happens on the basis of consent by the recipient in accordance with Art. 6 Par. 1 lit. a., Art. 7 GDPR in connection with § 7 Section 2 No. 3 AAUC or in case consent is not necessary, on the basis of our legitimate interest in direct marketing in accordance with Art.6 Par. 1 lit. f. GDPR in connection with §7 Section 3 AAUC.
Logging the registration procedure happens on the basis of our legitimate interest in accordance with Art. 6 Par. 1 lit. f. GDPR. Our interest is directed towards a user-friendly and secure newsletter system, which serves our business interests as well as the expectations of the users and which also allows proofs of consents.
Termination/revocation: you can always terminate the subscription to our newsletter, i.e. revoke your consent. A link to terminate your subscription of the newsletter can be found at the very end of every newsletter. We can store the signed-out email addresses for up to three years on the basis of our legitimate interests before deleting them in order to prove a previously given consent. Processing this data is limited to the purpose of a potential defense of claims. An individual request for deletion is possible at any time, as long as the existence of a previously given consent is confirmed.
The mail-handling service provider is applied on the basis of our legitimate interest in accordance with Art. 6 Par. 1 lit. f. GDPR and a job processing contract in accordance with Art. 28 Par. 3 p. 1 GDPR.
The mail-handling service provider can utilize the personal data of the recipients in pseudonymous form, i.e. without allocation to a user for the optimization or improvement of his services, e.g. for technical optimization of the dispatch and the representation of the newsletter or for statistical purposes.
The mail-handling service provider does not utilize the personal data of our newsletter recipients however, to directly contact them or to pass on their personal data to third parties.
The newsletters contain a so-called “web-beacon“, i.e. a file in the size of a pixel which can be retrieved by our server, or the server of our mail-handling service provider in case we are utilizing one, when opening the newsletter. In the course of the retrieval, technical information like information regarding your browser and operating system, as well as IP address and time of access are collected. This information is used for the technical improvement of the services by means of the technical data or the target groups and their reading behavior by means of their places of retrieval (determinable on the basis of their IP address) or the times of access.
The assessment whether the newsletter was opened, when it was opened and which links were clicked are also part of the statistical survey. This information can be allocated to the individual newsletter recipients due to technical reasons. However, it is neither our aspiration, nor the one of the mail-handling service provider, to observe individual users. The evaluations rather help us to recognize the reading behavior of our users and to adjust our contents for them or to send different contents according to their interests.
A separate revocation of the performance measurement is not possible unfortunately. In this case, the entire newsletter subscription needs to be cancelled.
The hosting services used by us serve the provision of the following services: infrastructure and platform services, computing capacity, storage space and database services, email dispatch, security services as well as technical maintenance services which we utilize for the purpose of operating this online offer.
We, or rather our hosting service provider thereby processes inventory data, contact data, content data, contract data, user data, meta and communication data of clients, interested parties and visitors of this online offer on the basis of our legitimate interest in an efficient and secure provision of this online offer in accordance with Art. 6 Par. 1 lit. f. GDPR in connection with Art. 28 GDPR (signing of an order data processing contract).
We, or rather our hosting service provider collects data about every access on the server on which the respective service is hosted on the basis of our legitimate interest in accordance with Art. 6 Par. 1 lit. f. GDPR (so-called server log files). Access data include e.g. name of the website retrieved, data file, date and time of access, data volume transferred, report on successful access, browser type and version, the operating system of the user, referrer URL (the previously visited website), IP address and the requesting provider.
Log file information is stored for security reasons (e.g. for solution and prevention of abuses or defraudation) for a maximal duration of 7 days and subsequently deleted. Data requiring ongoing storage for evidentiary purposes is excluded from erasure until the final clarification of the respective incident.
Google is is certified under the Privacy Shield agreement and is thus guaranteeing to comply with the European level of data protection (https://www.privacyshield.gov/participant?id=a2zt000000001L5AAI&status=Active). Google will use this information on our behalf to analyze the use of our online offer by the user, to create reports about the activities within this online offer and to deliver us additional services in connection with the use of this online offer and the internet usage. Pseudonymous user profiles can thereby be created on the basis of the data processed.
We only apply Google Analytics with activated IP anonymization. This means that the IP address of the user is shortened by Google within member states of the European Union or in other signatories of the agreement on the European Economic Area (EEA). The complete IP address is only transmitted to and stored at a Google server in the US in exceptional cases.
Additional information on data usage by Google, configuration options and possibilities of appeal can be found in the privacy statement by Google (https://policies.google.com/technologies/ads) as well as in the settings for the display of advertisings by Google (https://adssettings.google.com/authenticated). Personal data of users are deleted or anonymized after 14 months.
We apply Google Analytics in the form of “Universal-Analytics“. “Universal Analytics“ describes a procedure by Google Analytics in which user analysis happens on the basis of pseudonymous user IDs, and in which pseudonymous profiles of the users are created with information from the application of different devices (so-called cross-device tracking).
In the course of the reach measurement by Matomo, the following data is processed on the basis of our legitimate interests (i.e. interest in the analysis, optimization and economic operation of our online offer in accordance with Art. 6 Par. 1 lit. f. GDPR): the type of browser you are using and the browser version, the operating system you are using, your country of origin, date and time of the server request, the number of visits, your length of stay on the website as well as the external links activated by yourself. The IP address of the user is anonymized before storage.
Users can always disagree with the anonymous data collection by the program Matomo with effect for the future by following the link below. In this case, a so-called opt-out cookie is stored in your browser resulting in Matomo not collecting session data anymore. If users delete their cookies, this also means that the opt-out cookie will be deleted and therefore requires reactivation by the users.
The logs containing user data are deleted after 6 months the latest.
[Please insert the IFRAME by Matomo with the opt-out cookie here (and activate IP anonymization in the settings)].
We operate online presences within social networks and platforms to communicate with active customers, persons interested and users and to inform them about our services. Please note that user data may be processed outside of the European Union. This can result in risks for the users as the enforcement of user right might be complicated. With regard to all US service providers certified under the Privacy Shield, we point out that they are obliged to guarantee the same data protection level of the European Union.
As a rule, user data is also processed for market research and advertising purposes. User profiles can therefore be created on the basis of consumer behavior and their according user interests. These user profiles in turn can be used to generate advertisements within and outside of the platform, substantially reflecting the users’ interests. For these purposes, cookies are generally saved on the computers of the users, storing the consumer behaviors and interests of the users.
The user profiles may furthermore serve to save data independent from the device applied by the users (especially if the users are members of the respective platform and are logged in). Processing personal data of the users happens on the basis of our legitimate interests in effective information of the users and communication with the users in accordance with Art. 6 Par. 1 lit. f. GDPR. In case users are asked for the express consent for processing their data by the respective providers (i.e. expressing consent via activating a respective check box or via clicking a respective button), the legal basis for processing the data is Art. 6 Par. 1 lit. a. and Art. 7 GDPR).
For a more detailed presentation of the respective processing and possibilities of objection (opt-out), we explicitly refer to the following linked information by the suppliers. Also regarding information inquiries and assertion of user rights, we point out that these can be most effectively enforced directly at the suppliers. Only the providers have the respective access to the user data and can take measures as well as provide information. In case you need help nonetheless, please feel free to address us directly.
- Facebook (Facebook Ireland Ltd., 4 Grand Canal Square, Grand Canal Harbour, Dublin 2, Irland) – privacy terms: https://www.facebook.com/about/privacy/, opt-out: https://www.facebook.com/settings?tab=ads and http://www.youronlinechoices.com, Privacy Shield: https://www.privacyshield.gov/participant?id=a2zt0000000GnywAAC&status=Active.
- Google/ YouTube (Google LLC, 1600 Amphitheatre Parkway, Mountain View, CA 94043, United States) – privacy terms: https://policies.google.com/privacy, opt-out: https://adssettings.google.com/authenticated, Privacy Shield: https://www.privacyshield.gov/participant?id=a2zt000000001L5AAI&status=Active.
- Instagram (Instagram Inc., 1601 Willow Road, Menlo Park, CA, 94025, United States) – privacy terms/ opt-out: http://instagram.com/about/legal/privacy/.
- Twitter (Twitter Inc., 1355 Market Street, Suite 900, San Francisco, CA 94103, United States) – privacy terms: https://twitter.com/de/privacy, opt-out: https://twitter.com/personalization, Privacy Shield: https://www.privacyshield.gov/participant?id=a2zt0000000TORzAAO&status=Active.
We integrate content and service offers by third parties within our online offer on the basis of our legitimate interests (i.e. interest in the analyses, optimization and economic operation of our online offer in accordance with Art. 6 Par. 1 lit. f. GDPR) to integrate their contents and services, e.g. videos or fonts (hereinafter uniformly referred to as “contents“).
This always requires that the third-party providers of these contents recognize the IP address of the user, as their contents cannot be send to the user’s browser without the IP address. The IP address is therefore necessary for the display of these contents. We endeavor to only apply such contents whose respective providers solely use the IP address for delivering their contents. Third-party providers can furthermore use so-called pixel tags (invisible graphics, also referred to as “web beacons“) for statistical reasons or marketing purposes. Pixel tags may help to analyze information like visitor traffic on the pages of this website.
This pseudonymous information can also be stored in cookies on the device of the user and can contain technical information regarding the browser and operating system, linking websites, time of access as well as additional information regarding the use of our online offer and can also be linked to such information from different sources.
We can integrate videos of the platform “Vimeo“ by the service provider Vimeo Inc., Attention: Legal Department, 555 West 18th Street New York, New York 10011, United States. Privacy terms: https://vimeo.com/privacy. We point out that Vimeo might apply Google Analytics and hereby refer to the privacy terms (https://www.google.com/policies/privacy) as well as the opt-out possibilities for Google Analytics (http://tools.google.com/dlpage/gaoptout?hl=de) or the settings by Google for the use of data for marketing purposes (https://adssettings.google.com/.).
We integrate videos of the platform “YouTube“ by the service provider Google LLC, 1600 Amphitheatre Parkway, Mountain View, CA 94043, United States. Privacy terms: https://www.google.com/policies/privacy/, opt-out: https://adssettings.google.com/authenticated.
We integrate maps of the service “Google Maps“ by the service provider Google LLC, 1600 Amphitheatre Parkway, Mountain View, CA 94043, United States. Among the personal data processed are particularly the IP addresses and user location data, which are not collected without consent however (normally in the course of the mobile device settings). The data may be processed in the United States. Privacy terms: https://www.google.com/policies/privacy/, opt-out: https://adssettings.google.com/authenticated.
On the basis of our legitimate interests (i.e. interests in the analysis, optimization and economic operation of our online offer in accordance with Art. 6 Par. 1 lit. f. GPDR), we are using social plugins (“plugins“) of the social network facebook.com, which is operated by Facebook Ireland Ltd., 4 Grand Canal Square, Grand Canal Harbour, Dublin 2, Ireland (“Facebook“). The plugins can display interaction elements or contents (e.g. videos, graphics or texts) and are recognizable via one of the Facebook logos (white “f“ on blue tile, the terms “Like“, “Gefällt mir“ or a “thumb up“-sign) or are marked with the amendment “Facebook Social Plugin“. The list and layout of the Facebook Social Plugins can be reviewed under the following link: https://developers.facebook.com/docs/plugins/. Facebook is certified under the Privacy Shield agreement and is thus guaranteeing to comply with the European level of data protection (https://www.privacyshield.gov/participant?id=a2zt000000001L5AAI&status=Active).
When a user accesses a function of this online offer which contains such a plugin, his device will automatically establish a direct connection to the servers of Facebook. The content of the plugin is directly transmitted to the device of the user by Facebook and integrated into the online offer through the device. Thereby, usage profiles of the users can be created from the personal data processed. We therefore have no influence on the extent of data Facebook is collecting with the help of this plugin and want to inform the users accordingly.
By implementing plugins, Facebook receives the information that a user has visited the respective website of the online offer. If the user is logged in to Facebook, Facebook can allocate the visit to a Facebook account. When users interact with the plugins, for example pressing the like button or writing a comment, the respective information is directly transmitted from their device to Facebook and stored. Even if a user is not a member of Facebook, there is still the possibility that Facebook might find out and store his IP address. Following official statements of Facebook, only anonymized IP addresses are stored in Germany.
The purpose and extent of the collected data, the processing and application of this data through Facebook, as well as the referring rights and configuration options for protecting the user privacy can be reviewed in the privacy terms of Facebook: https://www.facebook.com/about/privacy/.
https://www.facebook.com/settings?tab=ads or via the US American website http://www.aboutads.info/choices/ or the European website http://www.youronlinechoices.com/. The settings are platform-independent, i.e. they are saved and adopted for every device, e.g. desktop computer or mobile devices.
(https://www.privacyshield.gov/participant?id=a2zt000000001L5AAI&status=Active). Privacy terms: https://twitter.com/de/privacy, opt-out: https://twitter.com/personalization.
Within our online offer, functions and contents of the service Instagram can be integrated, provided by the Instagram Inc., 1601 Willow Road, Menlo Park, CA, 94025, United States. This content may include pictures, videos, texts and buttons with which users can share contents of this online offer within Instagram. As long as users are members of the Instagram platform, Instagram can allocate the access to the abovementioned contents and functions to the respective user profiles. Privacy terms of Instagram: http://instagram.com/about/legal/privacy/.

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Justia › US Law › US Case Law › US Supreme Court › Volume 274 › Bedford Cut Stone Co. v. Stone Cutters' Assn.
1. A combination or conspiracy of union stone-cutters to restrain the interstate commerce of certain building stone producers by declaring their stone "unfair" and forbidding members of the union to work upon it in building construction in other states, for which it was extensively bought and used, and thereby coercing or inducing local employers to refrain from purchasing it, is a violation of the Anti-Trust Act. Pp. 274 U. S. 45, 274 U. S. 54.
2. The fact that the ultimate object was to unionize the cutters and carvers of stone at the quarries of the producers did not make the combination lawful. P. 274 U. S. 47.
3. A private suit to enjoin a combination violative of the Sherman Act will lie under § 16 of the Clayton Act where there is a dangerous probability of injury to the plaintiff, though no actual injury has been suffered. P. 274 U. S. 54.
of stone-cutters, and some of its constituent locals and their officers.
Petitioners, Bedford Cut Stone Company and 23 others, all, with one or two exceptions, Indiana corporations, are in the business of quarrying or fabricating, or both quarrying and fabricating, Indiana limestone in what is called the Bedford-Bloomington district in the State of Indiana. Their combined investment is about $6,000,000, and their annual aggregate sales amount to about $15,000,000, more than 75 percent of which are made in interstate commerce to customers outside the State of Indiana. The Journeymen Stone Cutters' Association of North America, sometimes called and hereinafter referred as the "General Union," is an association of mechanics engaged in the stone-cutting trade. It has a constitution, bylaws, and officers, and an income derived from assessments upon its members. Its principal headquarters are in Indiana, and it has a membership of about 5,000 persons, divided into over 150 local unions, located in various states and in Canada, each of such local unions having its own bylaws, officers, and income derived from like assessments. By virtue of his membership, each member of these local unions is a member of the General Union. The members of the General Union and allied locals throughout the United States are stone cutters, carvers, curb cutters, curb setters, bridge cutters, planermen, lathemen, and carborundum moulding machine operators engaged in the cutting, patching, and fabrication of all natural and artificial stones, and the General Union claims jurisdiction over all of them.
them from combining and conspiring together to commit, and from committing, various acts in restraint of interstate commerce in violation of the federal Anti-Trust Act, c. 647, 26 Stat. 209, and to petitioners' great and irreparable damage. The Federal District Court for the District of Indiana, after a hearing, refused a preliminary injunction, and subsequently, on final hearing, entered a decree dismissing the bill for want of equity. On appeal, this decree was affirmed by the court of appeals upon the authority of an earlier opinion in the same case. 9 F.2d 40.
"members were to rigidly enforce the rule to keep off all work started by men working in opposition to our organization, with the exception of the work of Shea-Donnelly, which firm holds an injunction against our association."
Stone produced by petitioners by labor eligible to membership in respondents' unions was declared "unfair;" and the president of the General Union announced that the rule against handling such stone was to be promptly enforced in every part of the country. Most of the stone workers employed, outside the State of Indiana, on the buildings where petitioners' product is used are members of the General Union, and in most of the industrial centers, building construction is on a closed shop union basis.
"unfair." The contractor personally had no trouble of any kind with the union, and no other reason for the strike than that stated above existed. B. F. James, a member and an acting officer of the General Union, testified that the local union, in conducting its strike against a local builder, had no choice in the matter; that they had their orders from the General Union, with which they complied; that there was no difference or feeling whatever between the union and the local employer; that the fight was with the Bedford stone producers, and they were trying to affect them through the local employer.
"Q. And you people have no choice in the matter, you are just complying with the orders from the International [General Union]?"
"A. We have no choice whatever."
"Q. Probably, if it was left up to you people here, knowing this employer as you do, why your organization here, local organization, would not strike on this man?"
"A. I don't believe we would; no."
"Q. But you have got to follow the orders of your international organization?"
of substitutes to take the natural stone's place in the building material market that it behooves the natural stone employers to do their utmost to see that no handicap is in its way, and it is a well known fact that, when any material is known to have labor grievances, it retards that material in the building market, as the building public do not want the stigma on their building that it was built by 'unfair labor,' and they are also afraid of stoppage of work and unnecessary disputes while their building is in course of construction, and no one can blame them for that."
In the Colorado inquiry, the witness James further testified that the strike order did not make any allowance for stone theretofore ordered. "We were trying to affect the Bedford people through the local man."
"Q. So the only person injured would be your own local man, who is your employer, and your personal friend, is that it?"
"A. In a way. If it was finished that way, he would be the only one hurt. We are not fighting on this Denver man. We are trying to force these people through the other subcontractors all over the country."
"Q. You are trying to force the Bedford to employ members of your union to do this work?"
"Q. And, irrespective of who it hurts, that is the object?"
"A. That is the object. It is done from our headquarters."
"Q. Mr. Fernald, or anybody else, they have got to get out of the road; that is the object?"
"A. We are trying to gain this point, irrespective of who it hurts."
that of coercing or inducing the local employers to refrain from purchasing such product. To accept the assertion made here to the contrary would be to say that the order and the effort to enforce it were vain and idle things, without any rational purpose whatsoever. And, indeed, on the argument, in answer to a question from the bench, counsel for respondents very frankly said that, unless petitioners' interstate trade in the so-called unfair stone were injuriously affected, the strikes would accomplish nothing.
entirety; and, when so regarded, the local transactions become a part of the general plan and purpose to destroy or narrow petitioners' interstate trade. Montague & Co. v. Lowry, 193 U. S. 38, 193 U. S. 45-46. In other words, strikes against the local use of the product were simply the means adopted to effect the unlawful restraint. And it is this result, not the means devised to secure it, which gives character to the conspiracy.
Respondents' chief contention is that "their sole and only purpose . . . was to unionize the cutters and carvers of stone at the quarries." And it may be conceded that this was the ultimate end in view. But how was that end to be effect? The evidence shows indubitably that it was by an attack upon the use of the product in other states to which it had been and was being shipped, with the intent and purpose of bringing about the loss or serious reduction of petitioners' interstate business, and thereby forcing compliance with the demands of the unions. And, since these strikes were directed against the use of petitioners' product in other states, with the plain design of suppressing or narrowing the interstate market, it is no answer to say that the ultimate object to be accomplished was to bring about a change of conduct on the part of petitioners in respect of the employment of union members in Indiana. A restraint of interstate commerce cannot be justified by the fact that the ultimate object of the participants was to secure an ulterior benefit which they might have been at liberty to pursue by means not involving such restraint. Anderson v. Shipowners' Association, 272 U. S. 359; Duplex Co. v. Deering, 254 U. S. 443, 254 U. S. 468; Ellis v. Inman, Poulsen & Co., 131 F. 182, 186.
were leveled only against production, and that the strikers (p. 265 U. S. 471) "did nothing which in any way directly interfered with the interstate transportation or sales of the complainants' product," and the decision rests upon the ground that there was an entire absence of evidence or circumstances to show that the defendants, in their conspiracy to coerce complainants, were directing their scheme against interstate commerce. United Mine Workers v. Coronado Co., supra, pp. 259 U. S. 408-409, is to the same effect.
"The mere reduction in the supply of an article to be shipped in interstate commerce by the illegal or tortious prevention of its manufacture or production is ordinarily an indirect and remote obstruction to that commerce. But when the intent of those unlawfully preventing the manufacture or production is shown to be to restrain or control the supply entering and moving in interstate commerce, or the price of it in interstate markets, their action is a direct violation of the Anti-Trust Act."
because of their palpable intent to achieve their purpose by direct obstruction of that commerce."
Respondents cite and rely upon Hopkins v. United States, 171 U. S. 578, and Anderson v. United States, 171 U. S. 604. But of those cases we need say no more than that they involved agreements which neither in purpose nor in necessary result related to or had any direct effect upon interstate commerce.
With a few changes in respect of the product involved, dates, names, and incidents, which would have no effect upon the principles established, the opinion in Duplex Co. v. Deering, supra, might serve as an opinion in this case. The object of the boycott there was precisely the same as it is here, and the interferences with interstate commerce, while they were more numerous and more drastic, did not differ in essential character from the interferences here. A short statement of the case will make this clear.
installation of presses, notified repair shops not to do repair work on the presses, threatened union men with loss of union cards and the blacklist if they assisted in installing the presses, and resorted to other methods of preventing the sale and delivery of complainant's presses in interstate commerce.
"a combination not merely to refrain from dealing with complainant, or to advise or by peaceful means persuade complainant's customers to refrain ('primary boycott'), but to exercise coercive pressure upon such customers, actual or prospective, in order to cause them to withhold or withdraw patronage from complainant through fear of loss or damage to themselves should they deal with it."
"carting, installation, use, operation, exhibition, display, or repairing of any such press or presses, . . . and especially from using any force, threats, command, direction, or even persuasion with the object or having the effect of causing any person or persons to decline employment, cease employment, or not seek employment, or to refrain from work or cease working under any person, firm, or corporation being a purchaser or prospective purchaser of any printing press or presses from complainant. . . ."
"within the class of restraints of trade aimed at compelling third parties and strangers involuntarily not to engage in the course of trade except on conditions that the combination imposes,"
"every contract, combination or conspiracy, in whatever form, of whatever nature, and whoever may be the parties to it, which directly or necessarily operates in restraint of trade or commerce among the several states."
In United States v. Brims, 272 U. S. 549, a criminal case, this Court dealt with a combination of manufacturers, contractors, and carpenters in Chicago, having for its object the destruction of the competition of nonunion mills in Wisconsin and elsewhere by the employment in Chicago of union carpenters only, with the understanding that they would refuse to install nonunion made millwork. There was evidence tending to show that so-called outside competition was cut down, and thereby interstate commerce directly and materially impeded, and that this result was within the intention of the combination, which, upon these facts, was held to be in violation of the Anti-Trust Act.
"To hold that the restraint of trade under the Sherman Anti-Trust Act, or on general principles of law, could be enjoined, but that the means through which the restraint was accomplished could not be enjoined would be to render the law impotent."
In cases arising outside the Anti-Trust Act, involving strikes like those here under review against so-called unfair products, there is a sharp conflict of opinion. On the one hand, it is said that such a strike is justified on the ground of self-interest; that the injury to the producer is inflicted not maliciously, but in self-defense; that the refusal of the producer of deal with the union and to observe its standards threatens the interest of all its members and the members of the affiliated locals, and that a strike against the unfair material is a mere recognition of this unity of interest, and, in refusing to work on such material, the union is only refusing to aid in its own destruction. The opposite view is illustrated by such cases as Toledo, etc., Ry. Co., 54 F. 730; Thomas v. Cincinnati, etc. Ry. Co., 62 F. 803, 817 et seq.; Moores v. Bricklayers' Union, 23 Wkly.Cin.Law Bul. 48, affirmed by the Supreme Court of Ohio without opinion, 51 Ohio St. 605; Burnham v. Dowd, 217 Mass. 351; Purvis v. United Brotherhood, 214 Pa. 348; Booth & Bro. v. Burgess, 72 N.J.Eq. 181, 188, 196; Piano & Organ Workers v. P. & O. Supply Co., 124 Ill.App. 353.
But with this conflict we have no concern in the present case. The question which it involves was presented and considered in the Duplex Co. case, supra, as the prevailing and the dissenting opinions show, and there it was plainly held that the point had no bearing upon the enforcement of the Anti-Trust Act, and that, since complainant had a clear right to an injunction under that act as amended by the Clayton Act, it was "unnecessary to consider whether a like result would follow under the common law or local statutes."
"Congress, with the right to control the field of interstate commerce, has so legislated as to prevent resort to practices which unduly restrain competition or unduly obstruct the free flow of such commerce, and private choice of means must yield to the national authority thus exerted."
& Co. v. United States, supra, p. 196 U. S. 396; Vicksburg Waterworks Co. v. Vicksburg, 185 U. S. 65, 185 U. S. 82; Thomson Machine Co. v. Brown, 89 N.J.Eq. 326, 328.
From the foregoing review, it is manifest that the acts and conduct of respondents fall within the terms of the Anti-Trust Act, and petitioners are entitled to relief by injunction under § 16 of the Clayton Act, c. 323, 38 Stat. 730, 737, by which they are authorized to sue for such relief "against threatened loss or damage by a violation of the antitrust laws," etc. The strikes, ordered and carried out with the sole object of preventing the use and installation of petitioners' product in other states, necessarily threatened to destroy or narrow petitioners' interstate trade by taking from them their customers. That the organizations, in general purpose and in and of themselves, were lawful, and that the ultimate result aimed at may not have been illegal in itself, are beside the point. Where the means adopted are unlawful, the innocent general character of the organizations adopting them or the lawfulness of the ultimate end sought to be attained, cannot serve as a justification.
I concur in this result upon the controlling authority of Duplex Co. v. Deering, 254 U. S. 443, 254 U. S. 478, which, as applied to the ultimate question in this case, I am unable to distinguish.
"even persuasion with the object or having the effect of causing any person or persons to decline employment, cease employment, or not seek employment, or to refrain from work or cease working under any person, firm, or corporation being a purchaser or prospective purchaser of any printing press or presses from complainant. . . ."
P. 254 U. S. 478.
These views, which I should not have hesitated to apply here, have now been rejected again, largely on the authority of the Duplex case. For that reason alone, I concur with the majority.
The constitution of the Journeymen Stone Cutters' Association provides: "No member of this association shall cut, carve or fit any material that has been cut by men working in opposition to this association."
For many years, the plaintiffs had contracts with the association under which its members were employed at their several quarries and works. In 1921, the plaintiffs refused to renew the contracts because certain rules or conditions proposed by the journeymen were unacceptable.
"that, if employers will not employ our members in one place, we will decline to work for them in another, or to finish any work that has been started or party completed by men these employers are using to combat our organization."
"After long negotiations and failure to reach a new working agreement, the union officers ordered that none of its members should further cut stone which had already been partly cut by nonunion labor, with the result that, on certain jobs in different states, stonecutters who were members of the union declined to do further cutting upon such stone. Where, as in some cases, there were few or no local stonecutters except such as belonged to the union, the completion of the buildings was more or less hindered by the order, the manifest object of which was to induce appellants to make a contract with the union for employment of only union stonecutters in the Indiana limestone district. It does not appear that the quarrying of stone, or sawing it into blocks, or the transportation of it, or setting it in the buildings, or any other building operation, was sought to be interfered with, and no actual or threatened violence appears, no picketing, no boycott, and nothing of that character."
enemies. They were seeking to destroy it. And the danger was great.
The plaintiffs are not weak employers opposed by a mighty union. They have large financial resources. Together, they ship 70 percent of all the cut stone in the country. They are not isolated concerns. They had combined in a local employers' organization. And their organization is affiliated with the national employers' organization called "International Cut Stone & Quarrymen's Association." Standing alone, each of the 150 journeymen's locals is weak. The average number of members in a local union is only 33. The locals are widely scattered throughout out the country. Strong employers could destroy a local "by importing scabs" from other cities. And many of the builders by whom the stonecutters were employed in different cities are strong. It is only through combining the 5,000 organized stonecutters in a national union, and developing loyalty to it, that the individual stonecutter anywhere can protect his own job.
affected by the order of the union officials. The individual stonecutter was thus clearly innocent of wrongdoing unless it was illegal for him to agree with his fellow craftsmen to refrain from working on the "scab" cut stone because it was an article of interstate commerce.
The manner in which the journeymen's unions acted was also clearly legal. The combination complained of is the cooperation of persons wholly of the same craft, united in a national union, solely for self-protection. No outsider -- be he quarrier, dealer, builder, or laborer -- was a party to the combination. No purpose was to be subserved except to promote the trade interests of members of the Journeymen's Association. There was no attempt by the unions to boycott the plaintiffs. There was no attempt to seek the aid of members of any other craft by a sympathetic strike or otherwise. The contest was not a class struggle. It was a struggle between particular employers and their employees. But the controversy out of which it arose related not to specific grievances, but to fundamental matters of union policy of general application throughout the country. The national association had the duty to determine, so far as its members were concerned, what that policy should be. It deemed the maintenance of that policy a matter of vital interest to each member of the union. The duty rested upon it to enforce its policy by all legitimate means. The association, its locals and officers, were clearly innocent of wrong doing unless Congress has declared that for union officials to urge members to refrain from working on stone "cut by men working in opposition" to it is necessarily illegal if thereby the interstate trade of another is restrained.
"The acts embraced the following, with others: warning customers that it would be better for them not to purchase, or, having purchased, not to install, presses made by complainant, and threatening them with loss should they do so; threatening customers with sympathetic strikes in other trades; notifying a trucking company usually employed by customers to haul the presses not to do so, and threatening it with trouble if it should; inciting employees of the trucking company, and other men employed by customers of complainant, to strike against their respective employers in order to interfere with the hauling and installation of presses, and thus bring pressure to bear upon the customers; notifying repair shops not to do repair work on Duplex presses; coercing union men by threatening them with loss of union cards and with being blacklisted as 'scabs' if they assisted in installing the presses; threatening an exposition company with a strike if it permitted complainant's presses to be exhibited, and resorting to a variety of other modes of preventing the sale of presses of complainant's manufacture in or about New York City, and delivery of them in interstate commerce, such as injuring and threatening to injure complainant's customers and prospective customers, and persons concerned in hauling, handling, or installing the presses."
Pp. 254 U. S. 463-464.
"There should be an injunction against defendants and the associations represented by them, and all members of those associations, restraining them, according to the prayer of the bill, from interfering or attempting to interfere with the sale, transportation, or delivery in interstate commerce of any printing press or presses manufactured by complainant, or the transportation, carting, installation, use, operation, exhibition, display, or repairing of any such press or presses, or the performance of any contract or contracts made by complainant respecting the sale, transportation, delivery, or installation of any such press or presses, by causing or threatening to cause loss, damage, trouble, or inconvenience to any person, firm, or corporation concerned in the purchase, transportation, carting, installation, use, operation, exhibition, display, or repairing of any such press or presses, or the performance of any such contract or contracts, and also and especially from using any force, threats, command, direction, or even persuasion with the object or having the effect of causing any person or persons to decline employment, cease employment, or not seek employment, or to refrain from work or cease working under any person, firm or corporation being a purchaser or prospective purchaser of any printing press or presses from complainant, or engaged in hauling, carting, delivering, installing, handling, using, operating, or repairing any such press or presses for any customer of complainant. Other threatened conduct by defendants or the associations they represent, or the members of such associations, in furtherance of the secondary boycott should be included in the injunction according to the proofs."
purpose of the action taken and in the scope of the combination. The combination there condemned was not, as here, the cooperation for self-protection only of men in a single craft. It was an effort to win by invoking the aid of others, both organized and unorganized, not concerned in the trade dispute. The conduct there condemned was not, as here, a mere refusal to finish particular work begun "by men working in opposition to" the union. It was the institution of a general boycott not only of the business of the employer, but of the businesses of all who should participate in the marketing, installation, or exhibition of its product. The conduct there condemned was not, as here, action taken for self-protection against an opposing union installed by employers to destroy the regular union with which they long had had contracts. The action in the Duplex case was taken in an effort to unionize an open shop. Moreover, there, the combination of defendants was aggressive action directed against an isolated employer. Here, it is defensive action of working men directed against a combination of employers. The serious question on which the court divided in the Duplex case was not whether the restraint imposed was reasonable. It was whether the Clayton Act had forbidden federal courts to issue an injunction in that class of cases. See p. 254 U. S. 464.
in the trade dispute, but by the aid of the vast forces of organized labor affiliated with them through the American Federation of Labor.
"The respondent manufacturers found their business seriously impeded by the competition of material made by nonunion mills located outside of Illinois. . . . They wished to eliminate the competition of Wisconsin and other nonunion mills, which were paying lower wages and consequently could undersell them. . . . The local manufacturers, relieved from the competition that came through interstate commerce, increased their output and profits; they gave special discounts to local contractors; more union carpenters secured employment in Chicago, and their wages were increased. These were the incentives which brought about the combination."
In United Mine Workers v. Coronado Co., 259 U. S. 344, United Leather Workers v. Herkert, 265 U. S. 457, Industrial Association v. United States, 268 U. S. 64, as in Hopkins v. United States, 171 U. S. 578, Anderson v. United States, 171 U. S. 604, Montague & Co. v. Lowry, 193 U. S. 38, and Swift & Co. v. United States, 196 U. S. 375, the questions put in issue were not the reasonableness of the restraint, but whether the restraint was of interstate commerce.
without aiding and abetting the enemy. Observance by each member of the provision of their constitution which forbids such action was essential to his own self-protection. It was demanded of each of loyalty to the organization and to his fellows. If, on the undisputed facts of this case, refusal to work can be enjoined, Congress created by the Sherman Law and the Clayton Act an instrument for imposing restraints upon labor which reminds one of involuntary servitude. The Sherman Law was held in United States v. United States Steel Corporation, 251 U. S. 417, to permit capitalists to combine in a single corporation 50 percent of the steel industry of the United States, dominating the trade through its vast resources. The Sherman Law was held in United States v. United Shoe Machinery Co., 247 U. S. 32, to permit capitalists to combine in another corporation practically the whole shoe machinery industry of the country, necessarily giving it a position of dominance over shoe manufacturing in America. It would indeed be strange if Congress had by the same Act willed to deny to members of a small craft of workingmen the right to cooperate in simply refraining from work when that course was the only means of self-protection against a combination of militant and powerful employers. I cannot believe that Congress did so.
* The contrary view was unsuccessfully contended for by Mr. Justice Harlan, dissenting, in Standard Oil Co. v. United States, 221 U. S. 1, 221 U. S. 85, 221 U. S. 100.


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II. OF THE TRUE GOD.
III. OF THE FALL OF MAN.
IV. OF THE WAY OF SALVATION.
VI. OF THE FREENESS OF SALVATION.
VII. OF GRACE IN REGENERATION.
VIII. OF REPENTANCE AND FAITH.
IX. OF GOD’S PURPOSE OF GRACE.
XI. OF THE PERSEl’ERANCE OF SAINTS.
XII. OF THE HARMONY OF THE LAW AND THE GOSPEL.
XIII. OF A GOSPEL CHURCH.
We believe that a visible Church of Christ is a congregation of baptized believers,  associated by covenant in the faith and fellowship of the gospel;  observing the ordinances of Christ;  governed by his laws,  and exercising the gifts, rights, and privileges invested in them by his Word;  that its only scriptural officers are Bishops, or Pastors, and Deacons,  whose qualifications, claims, and duties are defined in the Epistles to Timothy and Titus.
XIV. OF BAPTISM AND THE LORD’S SUPPER.
XV. OF THE CHRISTIAN SABBATH.
XVII. OF THE RIGHTEOUS AND THE WICKED.
XVIII. OF THE WORLD TO COME.
 2 Timothy 3:16, 17; 2 Peter 1:21; 1 Samuel 23:2; Acts 1:16; iii. 21; John 10:35; Luke 16:29-31; Psalm 119. Romans 3:1, 2.
 2 Timothy 3:15; 1 Pet. i. 10-12; Acts 11:14; Romans 1:16; Mark 16:16; John 5:38, 39.
 Proverbs 30:5, 6; John 17:17; Revelation 22:18, 19; Romans 3:4.
 Romans 2:12; John 12:47, 48; 1 Corinthians 4:3, 4; Luke 10:10-16; xii. 47, 48.
 Philippians 3:16; Ephesians 4:3-6; Philippians 2:1, 2; 1 Corinthians 1:10; 1 Pet. iv. 11.
 1 John 4:1; Isaiah 8:20; 1 Thess. v. 21; 2 Corinthians 13:5; Acts 17:11; 1 John 4:6; Jude 3. 5; Ephesians 6:17; Psalm 119:59, 60; Philippians 1:9-11.
 John 4:24; Psalm 147:5; lxxxiii. 18; Hebrews 3:4; Romans 1:20; Jeremiah 10:10.
 Exodus 15:11; Isaiah 6:3; 1 Pet. i. 15, 16; Revelation 4:6-8.
 Mark 12:30; Revelation 4:11; Matthew 10:37; Jeremiah 2:12, 13.
 Matthew 28:19; John 15:26; 1 Corinthians 12:4-6; 1 John 5:7.
 John 10:30; v. 17; xiv. 23; xvii. 5, 10; Acts 5:3, 4; 1 Corinthians 2:10, 11; Philippians 2:5, 6.
 Ephesians 2:18; 2 Corinthians 13:14; Revelation 1:4, 5; comp. ii., vii.
 Genesis 1:27; i. 31; Ecclesiastes 7:29; Acts 16:26; Genesis 2:16.
 Romans 5:19; John 3:6; Psalm 51:5; Romans 5:15-19; viii. 7.
 Isaiah 53:6; Genesis 6:12; Romans 3:9-18.
 Ephesians 2:1-3; Romans 1:18; i. 32; ii. 1-16; Galatians 3:10; Matthew 20:15.
 Ezekiel 18:19, 20; Romans 1:20; iii. 19; Galatians 3:22.
 Ephesians 2:5; Matthew 18:11; 1 John 4:10; 1 Corinthians 3:5-7; Acts 15:11.
 John 3:16; i. 1-14; Hebrews 4:14; xii. 24.
 Philippians 2:6, 7; Hebrews 2:9; ii. 14; 2 Corinthians 5:21.
 Isaiah 42:21; Philippians 2:8; Galatians 4:4, 5; Romans 3:21.
 Isaiah 53:4, 5; Matthew 20:28; Romans 4:25; iii. 21-26; 1 John 4:10; ii. 2; 1 Corinthians 15:1-3; Hebrews 9:13-15.
 Hebrews 1:8; i. 3; viii. 1; Colossians 3:1-4.
 Hebrews 7:25; Colossians 2:9; Hebrews 2:18; vii. 26; Psalm 89:19; xiv.
 Acts 13:39; Isaiah 3:11, 12; Romans 8:1.
 Romans 5:17; Titus 3:5, 6; 1 Pet. iii. 7; 1 John 2:25; Romans 5:21.
 Romans 4:4, 5; v. 21; vi. 23; Philippians 3:7-9.
 Romans 5:19; iii. 24-26; iv. 23-25; 1 John 2:12.
 Romans 5:1, 2; v. 3; v. 11; 1 Corinthians 1:30, 31; Matthew 6:33; 1 Timothy 4:8.
 Romans 16:26; Mark 1:15; Romans 1:15-17.
 John 5:40; Matthew 23:37; Romans 9:32; Proverbs 1:24; Acts 13:46.
 John 3:19; Matthew 11:20; Luke 19:27; 2 Thessalonians 1:8.
 John 3:3; iii. 6, 7; 1 Corinthians 1:14; Revelation 8:7-9; xxi. 27.
 2 Corinthians 5:17; Ezekiel 36:26; Deuteronomy 30:6; Romans 2:28, 29; v. 5; 1 John 4:7.
 John 3:8; i. 13; James 1:16-18; 1 Corinthians 1:30; Philippians 2:13.
 1 Pet. i. 22-25; 1 John 5:1; Ephesians 4:20-24; Colossians 3:9-11.
 Ephesians 5:9; Romans 8:9; Galatians 5:16-23; Ephesians 3:14-21; Matthew 3:8-10; vii. 20; 1 John 5:4, 18.
 Mark 1:15; Acts 11:18; Ephesians 2:8; 1 John 5:1.
 John 16:8; Acts 2:37, 38; xvi. 30, 31.
 Luke 18:13; xv. 18-21; James 4:7-10; 2 Corinthians 7:11; Romans 10:12, 13; Psalm 51.p> Romans 10:9-11; Acts 3:22, 23; Hebrews 4:14; Psalm 2:6; Hebrews 1:8; viii. 25; 2 Timothy 1:12.
 2 Timothy 1:8, 9; Ephesians 1:3-14; 1 Pet. i. 1, 2; Romans 11:5, 6; John 15:15; 1 John 4:19; Hosea 12:9.
 2 Thessalonians 2:13, 14; Acts 13:48; John 10:16; Matthew 20:16; Acts 15:14.
 Exodus 33:18, 19; Matthew 20:15; Ephesians 1.ll; Romans 9:23, 24; Jeremiah 31:3; Romans 11:28, 29; James 1:17, 18; 2 Timothy 1:9; Romans 11:32-36.
 l 1 Corinthians 4:7; i. 26-31; Romans 3:27; iv. l6; Colossians 3:12; 1 Corinthians 3:5-7; xv. 10; 1 Pet. v. 10; Acts 1:24: 1 Thess. ii. 13; 1 Pet. ii. 9; Luke 18:7; John 15:10; Ephesians 1:16; 1 Thess. ii. 12.
 2 Timothy 2:10; 1 Corinthians 9:22; Romans 8:28-30; John 6:37-40; 2 Peter 1:10.
 Romans 8:28-30; Isaiah 42:16; Romans 11:29.
 2 Peter 1:10, 11; Philippians 3:12; Hebrews 6:11.
 1 Thess. iv. 3; 1 Thess. v. 23; 2 Corinthians 7:1; xiii. 9; Ephesians 1:4.
 Proverbs 4:18; 2 Corinthians 3:18; Hebrews 6:1; 2 Peter 1:5-8; Philippians 3:12-16.
 John 2:29; Romans 8:5; John 3:6; Philippians 1:9-11; Ephesians 1:13, 14.
 Philippians 2:12, 13; Ephesians 4:11, 12; 1 Pet. ii. 2; 2 Peter 3:18; 2 Corinthians 13:5; Luke 11:35; ix. 23; Matthew 26:41; Ephesians 6:18; iv. 30.
 John 8:31; 1 John 2:27, 28; iii. 9; v. 18.
 1 John 2:19; John 13:18; Matthew 13:20, 21; John 6:66-69; Job 17:9.
 Romans 8:28; Matthew 6:30-33; Jeremiah 32:40; Psalm 121:3; xci. 11, 12.
 Philippians 1:6; ii. 12, 13; Jude 24, 25; Hebrews 1:14; 2 Kings 6:16; Hebrews 13:5; 1 John 4:4.
 Romans 3:31; Matthew 5:17; Luke 16:17; Romans 3:20; iv. 15.
 Romans 7:12; vii. 7, 14, 22; Galatians 3:21; Psalm 119.p> Romans 8:7, 8; Joshua 24:19; Jeremiah 13:23; John 6:44; v. 44.
 Romans 8:2, 4; x. 4; 1 Timothy 1:5; Hebrews 8:10; Jude 20, 21; Hebrews 12:14; Matthew 16:17, 18; 1 Corinthians 12:28.
 1 Corinthians 1:1-13; Matthew 18:17; Acts 5:11; viii. 1; xi. 31; 1 Corinthians 4:17; xiv. 23; 3 John 1 Timothy 3:5.
 Acts 2:41, 42; 2 Corinthians 8:5; Acts 2:47; 1 Corinthians 5:12, 13.
 1 Corinthians 11:2; 2 Thessalonians 3:6; Romans 16:17-20; 1 Corinthians 11:23; Matthew 18:15-20; 1 Corinthians 5:6; 2 Corinthians 2:7; 1 Corinthians 4:17.
 Matthew 28:20; John 14:15; xv. 12; 1 John 4:21; John 14:21; 1 Thess. iv. 2; 2 John Galatians 6:2; all the Epistles.
 Ephesians 4:7; 1 Corinthians 14:12; Philippians 1:27; 1 Corinthians 12:14.
 Philippians 1:1; Acts 14:23; xv. 22; 1 Timothy 3. Titus 1.p> Acts 8:36-39; Matthew 3:5, 6; John 3:22, 23; iv. 1, 2; Matthew 28:19; Mark 16:16; Acts 2:38; viii. 12; xvi. 32-34; xviii. 8.
 Matthew 28:10; Acts 10:47, 48; Galatians 3:27, 28.
 Romans 6:4; Colossians 2:12; 1 Pet. iii. 20, 21; Acts 22:16.
 Acts 2:41, 42; Matthew 28:19, 20; Acts and Epistles.
 1 Corinthians 11:20; Matthew 26:26-29; Mark 14:22-25; Luke 22:14-20.
 1 Corinthians 11:28; v. 1, 8; x. 3-32; xi. 17-32; John 6:26-71.
 Acts 20:7; Genesis 2:3; Colossians 2:16, 17; Mark 2:27; John 20:19; 1 Corinthians 16:1, 2.
 Exodus 20:8; Revelation 1:10; Psalm 118:24.
 Isaiah 58:13, 14; lvi. 2-8.
 Hebrews 10:24, 25; Acts 11:26; xiii. 44; Leviticus 19:30; Exod. 46. 3; Luke 4:16; Acts 17:2, 3; Psalm 26:8; lxxxvii. 3.
 Romans 13:1-7; Deuteronomy 16:18; 1 Samuel 23:3; Exodus 18:23; Jeremiah 30:21.
 Matthew 22:21; Titus 3:1; 1 Pet. ii. 13; 1 Timothy 2:1-8.
 Acts 5:29; Matthew 10:28; Daniel 3:15-18; vi. 7-10; Acts 4:18-20.
 Matthew 23:10; Romans 14:4; Revelation 19:16; Psa.lxxii. 1l; ii.; Romans 14:9-13.
 Malachi 3:18; Proverbs 12:26; Isaiah 5:20; Genesis 18:23; Jeremiah 15:19; Acts 10:34, 35; Romans 6:16.
 Romans 1:17; vii. 6; 1 John 2:29; iii. 7; Romans 6:18, 22; 1 Corinthians 11:32; Proverbs 11:31; 1 Pet. iv. 17, 18.
 1 John 5:19; Galatians 3:10; John 3:36; Isaiah 57:21; Psalm 10:4; Isaiah 55:6, 7.
 Proverbs 14:32; Luke 16:25; John 8:21-24; Proverbs 10:24; Luke 12:4, 5; ix. 23-26; John 12:25, 26; Ecclesiastes 3:17; Matthew 7:13, 14.
 1 Pet. iv. 7; 1 Corinthians 7:29-31; Hebrews 1:10-12; Matthew 24:35; 1 John 2:17; Matthew 28:20; xiii. 39, 40; 2 Peter 3:3-13.
 Acts 1:11; Revelation 1:7; Hebrews 9:28; Acts 3:21; 1 Thess. iv. 13-18; v. 1-11.
 Acts 24:15; 1 Corinthians 15:12-59; Luke 14:14; Daniel 12:2; John 5:28, 29; vi. 40; xi. 25, 26; 2 Timothy 1:10; Acts 10:42.
 Matthew 13:49; xiii. 37-43; xxiv. 30, 31; xxv. 31-33.
 Matthew 25:35-41; Revelation 22:11; 1 Corinthians 6:9, 10; Mark 9:43-48; 2 Peter 2:9; Jude 7; Philippians 3:19; Romans 6:32; 2 Corinthians 5:10, 11; John 4:36; 2 Corinthians 4:18.
 Romans 3:5, 6; 2 Thessalonians 1:6-12; Hebrews 6:1, 2; 1 Corinthians 4:5; Acts 17:31; Romans 2:2-16; Revelation 20:11, 12; 1 John 2:28; iv. 17.

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LINDA HURD vs. MICHAEL DEL SIGNORE.
It was error to direct a verdict for the defendant in this action of tort arising out of a collision between the automobile in which the plaintiff was a passenger and the automobile driven by the defendant travelling in the opposite direction. There was testimony by the plaintiff, the defendant, and a police officer who was called to the scene of the accident and who interviewed the defendant and the driver of the automobile in which the plaintiff had been a passenger (the plaintiff's driver). Portions of the testimony by each witness, which the jury could have chosen to believe, disregarding other portions (Calderone v. Wright, 360 Mass. 174, 176 ; Donovan v. DiPaolo, 4 Mass. App. Ct. 576, 577-578 , and cases cited), would have permitted the jury to form a coherent picture of the collision from which they could have found that the defendant was negligent. The police officer testified that the road was "slippery, ic[y], narrow [about fifteen feet] with hard snow on the side." The jury could have found that the defendant was travelling downhill and saw the other automobile about one hundred yards ahead of him, and that the plaintiff's driver "pulled to the right as far as he could." The collision caused both automobiles to be "totalled." Under the road conditions which the jury could have found to exist it was for them to determine (1) whether the defendant's speed, as indicated by his testimony (ten to fifteen miles an hour), or as indicated by the extent of the damage caused by the collision, was excessive (G. L. c. 90, Section 17; see Hennessey v. Moynihan, 272 Mass. 165, 167-168 ; McKeague v. Henry Jenkins Transp. Co. Inc. 323 Mass. 404, 405-406 ; Costello v. Hansen, 327 Mass. 264 ; Interstate Busses Corp. v. McKenna, 329 Mass. 1, 3 ), (2) whether the defendant was travelling to the left of the middle of the road in violation of G. L. c. 89, Section 1 (see Calderone v. Wright, supra, and Donovan v. DiPaolo, supra), or (3) whether the testimony that the brakes locked, coupled with the defendant's testimony that "I slowed down as fast as I could," indicated insufficient caution in applying the brakes (see Arnold v. Brereton, 261 Mass. 238, 241-242 ; Hennessey v. Moynihan, 272 Mass. 165, 167 ; contrast Goyette v. Amor, 294 Mass. 355, 357  [no evidence that the brakes were applied suddenly]), or (4) whether there was a combination of one or more of (1) through (3). The cases cited by the defendant holding that unexplained skidding is not evidence of negligence are inapposite. Neither the plaintiff nor the defendant testified to skidding, and the jury could have discounted the police officer's testimony that the plaintiff's driver told him that the defendant had skidded. Moreover, even if the jury had accepted the testimony concerning skidding they could have found that it was "caused or accompanied by negligence." Costello v. Hansen, 327 Mass. at 265. See Wrenn v. Domar, ante, 777 (1977).
RALPH E. WALLACE & another vs. BUILDING INSPECTOR OF WOBURN & others.
Superior Court of an action attacking the validity of an amendment to the zoning ordinance of the city of Woburn. We see nothing in this case which permits us to interfere with the judgment of the city, expressed in that amendment, to enlarge a business district by shifting a parcel of land to that district from an adjoining residential district. Peters v. Westfield, 353 Mass. 635, 637, 639-640 (1968). Martin v. Rockland, 1 Mass. App. Ct. 167 (1973). Apart from the bare fact of the change and some unsupported assertions in their brief, the plaintiffs have presented practically no evidence to sustain their heavy burden of proving beyond reasonable doubt that the amendment is invalid because it conflicts with a constitutional provision or does not fall within the scope of The Zoning Enabling Act. Lanner v. Board of Appeal of Tewksbury, 348 Mass. 220, 228 (1964). Martin v. Rockland, supra. Raymond v. Building Inspector of Brimfield, 3 Mass. App. Ct. 38, 43 (1975). The recommendation by the planning board adverse to the amendment on the ground that "an extension of the business zone at this time would not be in the best interest to the city of Woburn" was no more than advisory in nature. Caires v. Building Commr. of Hingham, 323 Mass. 589, 595-596 (1949). Noonan v. Moulton, 348 Mass. 633, 639 (1965). Vagts v. Superintendent & Inspector of Bldgs. of Cambridge, 355 Mass. 711, 714 (1969). Raymond v. Building Inspector of Brimfield, supra, at 40. The controlling judgment was that of the legislative body of the city. The plaintiffs complain that they were not allowed to ask the chairman of the planning board what items were discussed in reaching its recommendation (which was favorable to the plaintiffs and which, therefore, they were not attempting to impeach). But they made no offer of proof and, in any event, "[w]hat the planning board was told by those favoring or opposing rezoning was of no consequence . . . [T]he evidence heard by the board was of no materiality in a court proceeding to determine the validity of the ordinance." Barrett v. Building Inspector of Peabody, 354 Mass. 38, 45 (1968). The trial judge also properly foreclosed an attempt to prove through one of the plaintiffs, who had testified that fill had been transported to the locus, that such transportation was illegal. We fail to see how this could be relevant to the plaintiffs' present contention that the amendment is invalid; nor was an offer of proof made indicating any such relevance.

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This dispute arises from an agreement between CanWest and MTG, as amended by a November 10, 2004 Letter Agreement (“Agreement”), to jointly acquire assets of the JPost Group from Hollinger International Inc. The Agreement provides for the acquisition of these assets in two steps: (1) through a bid developed with CanWest, MTG was to acquire the shares of Palestine Post Limited (“PPL”), which operates the JPost Group’s businesses, followed by (2) transfer of the acquired assets to a newly formed entity owned jointly by CanWest and MTG on a 50/50 basis. According to CanWest, the Agreement provides that CanWest has the right to appoint four of the seven members of the new entity’s Board of Directors and to establish editorial policy in consultation with MTG.
CanWest claims that after successfully bidding for the shares of PPL, MTG breached the Agreement by, inter alia, refusing to transfer the assets to an entity jointly owned with CanWest on a 50/50 basis, frustrating CanWest’s right to control the Board and establish editorial policy, and refusing to include CanWest in major decisions.
During the course of dealings between the parties after MTG purchased JPost Group’s assets, CanWest attempted to obtain assurances from MTG of MTG’s willingness to proceed with the Agreement. On January 14, 2005, CanWest received a letter from the law firm Skadden, Arps, Slate, Meagher & Flom LLP (“Skadden, Arps”), which (1) advised CanWest that they represented MTG and were responding on its behalf, and (2) indicated that MTG refused to give CanWest the requested assurances. Consequently, and pursuant to the Agreement,3 on January 20, 2005, CanWest initiated arbitration proceedings with the American Arbitration Association in New York seeking specific performance of the Agreement. Can West’s instant order to show cause to maintain the status quo until the arbitration is concluded ensued.
CanWest argues that a temporary restraining order and preliminary injunction to preserve the status quo are necessary to, inter alia, prevent transfer, disposal or encumbering of JPost Group’s assets before the arbitration is concluded, to prevent actions that would render the parties’ joint business plan impossible to pursue, and to preserve CanWest’s contractual right to make certain Board appointments.
CanWest argues that since MTG remains in sole control of the businesses and assets of JPost Group, a temporary restraining order is required to prevent MTG from disposing of assets and from taking other action that could irreparably harm the business and potentially render the arbitration meaningless. CanWest alleges that MTG has already taken actions which would require the approval of a 50 percent co-owner or the Board of Directors of the entity, in the following respects: MTG fired senior management executives at the Jerusalem Post, hired new a Chief Executive Officer and Chief Financial Officer (or their Israeli equivalents) for the JPost Group, appointed a new executive to manage the North American components of the JPost Group’s business, amended material agreements instrumental to the continued operation and success of the publication, and has closed down the JPost Group’s printing operation in England. CanWest also contends that MTG plans to sell other JPost Group assets valued at more than US$4.0 million.
CanWest also argues that the likelihood of CanWest’s success on the merits is established, given that MTG’s correspondence and statements demonstrate MTG’s refusal to transfer the JPost Group’s asset to a new entity or to negotiate in good faith as required by the express terms of the Agreement. Further, the balance of equities favors CanWest, in that CanWest will continue to suffer irreparable injury in the absence of an injunction, while any inconvenience suffered by MTG as a result of such an injunction would be minimal, in light of the expeditious nature of the arbitration.
In signing the Order to Show Cause, the Court ordered that pending the hearing on CanWest’s order to show cause, MTG was prohibited from engaging in various activities4 that would alter the status quo. Pursuant to CanWest’s submissions, the Court ordered that service by hand of a copy of the order to show cause and temporary restraining order, together with all supporting papers upon Skadden, Arps, attorneys for MTG, on or before January 24, 2005 be deemed good and sufficient service. CanWest served such papers pursuant to this provision.
In response, MTG moves to dismiss the petition, arguing that the Court lacks personal jurisdiction over MTG to issue preliminary relief since MTG has not been served in conformity with CPLR 403(c) and the Hague Convention.
MTG asserts that it is an Israeli corporation with headquarters in Israel, and that it does not have a place of business anywhere in the United States. MTG further contends that Israel (and the United States) are signatories to the Hague Convention. Therefore, the procedures of the Hague Convention govern service of originating process in the instant case and pre-empt the ordinary civil practice rules relating to service. Since the Hague Convention procedures apply to any process that initiates a lawsuit and secures jurisdiction over an adverse party, such procedures extend not only to the petition herein, but also to the order to show cause to the extent such order serves as a basis for establishing jurisdiction. Further, in acceding to the Hague Convention, the State of Israel specifically objected, in Article 10 therein, to any mode of service other than through official Israeli judicial channels (infra at page 8).
MTG states that Skadden, Arps has not been appointed as MTG’s agent for the receipt of process. Therefore, MTG argues, CanWest’s attempt to serve process on MTG’s local attorneys, Skadden, Arps, represents an improper attempt to circumvent the Hague Convention. In moving for injunctive relief, CanWest failed to establish whether Skadden, Arps should be treated as MTG’s agent for service of judicial process. And, mere letter-writing by a local attorney is insufficient to warrant a finding that the attorney was authorized to accept service on the foreign client’s behalf. Further, Skadden, Arp’s representation of MTG in the arbitration (where the Hague Convention does not apply) does not constitute authority to accept service in any judicial proceedings.
MTG further argues that CanWest cannot rely on CPLR 403(d), which authorizes the court to grant an order to show cause to be served in lieu of a notice of petition “at a time and in a manner specified therein.” CPLR 403(d) is inapplicable where the respondent resides overseas. In any event, CPLR 403(d) cannot dispense with the strict requirements of the Hague Convention.
MTG further contends that its receipt of Motion Sequence 001 does not invest the Court with jurisdiction or cure the underlying legal defects in service.
During oral argument, CanWest argued that service upon MTG’s counsel Skadden, Arps, was sufficient to confer personal jurisidiction over MTG because (1) the Hague Convention does not apply; (2) alternate service under CPLR 311(b) applies, since service pursuant to the Hague Convention would be impracticable; and (3) MTG is estopped from arguing that Skadden, Arps is not its agent for service of process, given that (a) Skadden, Arps has appeared in the arbitration seeking relief from the arbitration organization and the instant injunction relates directly to such arbitration and (b) Skadden, Arps’s letter indicated that it represented MTG.
In response, MTG argued, inter alia, that alternate service under CPLR 311(b) is permitted where service upon a foreign corporation within 120 days is impracticable, and only three days has elapsed since the commencement of this proceeding.
“[I]n light of the U.S. Supreme Court’s reading of “service” in the Hague Convention as a term of art, referring specifically to the process that initiates a lawsuit and secures jurisdiction over an adversary party” (Sardanis v. Sumitomo Corp., 279 AD2d 225, 229 [1st Dept 2001]), to effectuate service on a party in another country which is a signatory to the Hague Convention, the serving party must comply with the provisions of the Convention when documents must be transmitted abroad to effectuate service (20 U.S. Treaties 361, TIAS No. 6638, Art. 1 ; see 2 NY Prac §17:1; Marcus v. Five J Jewelers Precious Metals Industry Ltd., 2002 WL 1610576 [Supreme Court, New York County 2002]).
At one point in the not too distant past, the First Department held that service upon a corporation in accordance with section 307 of the Business Corporation Law was effectuated in compliance with Article 10 (a) of the Hague Convention where the Secretary of (New York) State sent notice of such service and a copy of process by registered mail, to defendant in Japan (Philip v. Monarch Knitting Machinery Corp., 169 AD2d 603 [1st Dept 1991], overruled by Sardanis v. Sumitomo Corp., 279 AD2d 225, supra). In so holding, the First Department observed that, in adopting the Convention, Japan interposed objections only to paragraphs (b) and (c) of Article 10, not paragraph (a) and further, placed no limitations or modifications upon Article 10(a) (Zwerling v. Zwerling, 167 Misc 2d 782 [Supreme Court New York County 1995]). Upon this basis, the First Department found that service of process, effected by registered mail upon defendant, at its principal office in Japan, conformed with Article 10(a) of the Hague Convention (Zwerling, supra). However, such service has since been determined as ineffective (see Sardanis v. Sumitomo Corp., 279 AD2d 225 [1st Dept 2001]). The First Department in Sardanis (supra) found that service of process effected on the defendant, a Japanese corporation, which had no business address or designated agent in New York, by service on the New York Secretary of State under Business Corporation Law §307, was insufficient to effect personal jurisdiction over the defendant.
the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.
b) the State of Israel, in its quality as State of destination, will, in what concerns Article 10, paragraphs b) and c), of the Convention, effect service of judicial documents only through the Directorate of the Courts, and only where an application for such service emanates from a judicial authority or from the diplomatic or consular representation of a Contracting State. (Emphasis added).
Thus, under the Hague Convention as adopted by Israel, the only method available to CanWest to properly effectuate service on MTG is through the Israeli Central Authority, in this case, the Directorate of the Courts.
To circumvent the mandatory provisions of the Hague Convention, parties can contractually agree to an alternative method of service (2 NY Prac §17:1). Although, the parties herein expressly agreed to permit application to any court in the State of New York to seek injunctive relief to maintain the status quo pending the resolution of any dispute before the arbitrator (see Agreement ¶9), the Agreement is devoid of any indication that the parties agreed to circumvent the service requirements under the Hague Convention. Thus, such terms of the Agreement do not obviate the need for service to comport with the guidelines of the Hague Convention. Failure to present evidence that MTG agreed to an alternative method of service is fatal to CanWest’s attempt to find an exception to the Hague Convention.
Additionally, CPLR 311(b) is inapplicable, since CanWest failed to establish, at this juncture, that service pursuant to the Hague Convention would be impracticable.
ORDERED that petitioner’s Order to Show Cause (Sequence 001) dated January 21, 2005, as amended, is returnable on July 19, 2005, 11:00 a.m., Part 35 and the temporary stay issued on January 21, 2005 is lifted.
1. CanWest’s order to show cause bears sequence #001. MTG’s order to show cause bears sequence #002. These orders to show cause are addressed herein and sequence 002 is decided herein.
2. The Facts recited in this section are alleged in CanWest’s order to show cause.
3. According to CanWest, the Agreement provides for binding arbitration in New York, New York. The Agreement further permits either party to apply to any court in the State of New York to seek injunctive relief to maintain the status quo until the arbitration award is rendered or the controversy is otherwise settled. CanWest requested an expedited arbitration.
vii. entering into any new contracts, commitments, agreements or business relationships, except as required in the ordinary course of business.
5. Further, to the extent that provisions of the Hague Convention are inconsistent with the service provisions of the CPLR, the supremacy clause of the United States Constitution dictates that the terms of the treaty supersede state law (U.S. Const., Art. VI, 2).
6. This decision has been modified for publication.


text:
11KBW members advise and represent governments, state entities, corporations and individuals in relation to a wide range of disputes raising issues of public international law.
Acting for claimants and respondents in investor-State disputes under bilateral investment treaties. State clients include the Hashemite Kingdom of Jordan (Alghanim v. Jordan, ICSID Case No. ARB/13/38; taxation); Islamic Republic of Pakistan (TCCA v. Pakistan, ICSID Case No. ARB/12/1; mining). Instructions for claimants include Karmer v. Georgia, ICSID Case No. ARB/08/19; construction).
International commercial arbitration pursuant to investment contracts. Recent cases include acting for the Respondent in TCCA v. Province of Balochistan ICC Case No. 18347/VRO/AGF; mining).
Advising the Respondent in Mauritius v United Kingdom, Annex VII arbitration under the Law of the Sea Convention (“the Chagos Islands case”).
Disputes before the Aarhus Convention Compliance Committee and Espoo Convention Implementation Committee.
Cases before the European Court of Human Rights including, most recently, Jaloud v The Netherlands (UK intervening) (Grand Chamber) concerning extra-territorial jurisdiction in relation to the shooting of a civilian in Iraq.
Serdar Mohammed v. Minsitry of Defence (pending before the Supreme Court), claims alleging that UK Armed Forces had no power to detain suspected insurgents in Afghanistan. Preliminary issues concern international humanitarian law, Crown Act of State and Article 5 ECHR.
Belhaj & anor v Straw & ors (pending before the Supreme Court), claims alleging UK complicity in rendition to Libya. Preliminary issues concern state immunity foreign Act of State doctrine.
Cases concerning the application of UN and EU international sanctions regimes to individuals and corporations including Bank Mellat v HM Treasury  UKSC 38 and 39. Members of Chambers act for both sides in this long-running dispute.
R (Noor Khan) v Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 24, case concerning UK assistance regarding US drone strikes in the Federally Administered Tribunal Areas of Pakistan. Raising questions of IHL, including combat immunity.
Advising the Defendant in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 3)  EWHC 1502 (Admin), concerning the inadmissibility of diplomatic documents.
Advising on international obligations in the context of overseas aid to war-affected regions in Africa.
Former assistant legal adviser, UK Foreign and Commonwealth Office.
Acting for the United States in USA v Nolan  UKSC 63, case concerning collective redundancy consultation, state immunity and the status of foreign military bases in the UK.
Acting for foreign states and state officials in matters involving State immunity and diplomatic immunity.
Advising multinational corporations in relation to compliance with corporate social responsibility and International Labour Organisation standards.
Advising a south east European state on the justiciability in the English High Court of civil damages claims by officials of the state against an official appointed under the auspices of an international body.
President, Commonwealth Secretariat Arbitral Tribunal.
Judge, Administrative Tribunal of the Bank for International Settlements.
Standing Counsel to the European Bank for Reconstruction and Development.
‘When should there be a duty to investigate UK military action abroad?’, PLP conference, 21 April 2016.
‘Uses and abuses of unincorporated treaties’, ALBA seminar, 2 February 2016.
‘Recent developments: international law in the UK courts’, GLS International Law Conference, 14 October 2015.
‘International law in domestic courts’, GLS International Law Course, 9 June 2015.
‘Deploying PIL as a sword or shield in domestic litigation’, YPLG seminar, 14 May 2015.
Several short pieces on EJIL:Talk!, the Blog of the European Journal of International Law.

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