Droit international général

On 20 June 2022, the CJEU rendered its judgment in London Steam-Ship Owners’ Mutual Assistance Association Ltd v Spain. The judgment, which dramatically altered the understanding of the arbitration exception under the Brussels instruments, gave rise to heated comments and debates, including an on-line symposium on this blog.

On 6 October 2023, the English High Court rendered a new judgment in the case where Justice Butcher discussed, inter alia, the meaning of the CJEU jugdment and the extent to which he was bound by it.

Interestingly, the insurers had initiated a second arbitration in 2019 which was still in progress when the CJEU delivered its judgment. As a result, the arbitrator, Sir Peter Gross, also had to express views on the meaning of the CJEU judgment in the two partial awards he made on 6 January 2023 and 27 March 2023.

The English proceedings are highly complex, with a number of challenges initiated by each of the parties against the various arbitral awards and application to enforce the Spanish judgment. Without getting into all these details, I focus below on the issues addressed by the CJEU and how they were perceived and addressed by the English court.

Concept of Judgment in Article 34(3) Brussels I

A first argument made by Spain before the English court was that the English judgments on the arbitral awards were no relevant ‘local’ judgments for the purposes of Article 34(3), as they were not judgments of ‘a judicial body of a Contracting State deciding on its own authority on the issues between the parties’. (Solo Kleinmotoren GmbH v Emilio Boch [1994] ECR I-2237).

Justice Butcher ruled that the CJEU confirmed that the argument based on Solo Kleinmotoren was incorrect.

123. In the judgment of the CJEU, at paras. [48-50], the CJEU said that a judgment entered in terms of an arbitral award was capable of being regarded as a ‘judgment’ within the meaning of Article 34(3). In that regard, the CJEU pointed out at para. [49] that the concept of a ‘judgment’ set out in Article 32 was a broad one and ‘covers any judgment given by a court of a Member State, without its being necessary to draw a distinction according to the content of the judgment in question, provided that it has been, or has been capable of being, the subject, in the Member State of origin and under various procedures, of an inquiry in adversarial proceedings’. At para. [50] the CJEU said that this interpretation of the concept of ‘judgment’ in Article 34(3) was supported by the purpose of the provision, which was to protect the integrity of a Member State’s internal legal order. At para. [53] the CJEU said that, ‘a judgment entered into in the terms of an arbitral award is capable of constituting a ‘judgment’ within the meaning of Article 34(3) …’.

A second argument made by Spain before the English Court was that the whole of the English proceedings, and the resulting English s. 66 Judgments (declaring the first arbitral awards enforceable in England), fell within the arbitration exception to the applicability of the Brussels Regulation enshrined in Article 1(2)(d). Spain’s contention was that a non-Regulation judgment, or at least a judgment which is a non-Regulation judgment because it falls within the arbitration exception, did not count as a relevant ‘home’ judgment for the purposes of Article 34(3).

Again, Justice Butcher ruled that the CJEU confirmed that the argument, that he labelled ‘the material scope point’, was incorrect.

142. (…) the Court’s reference, at para. [50], to the purpose of Article 34(3) as being the protection of the integrity of a Member State’s legal order is relevant to this point as it is to the ‘Solo’ point. Further at paras [51-52], the CJEU said that it was ‘apparent from the Court’s case-law that the exclusion of a matter from the scope of Regulation No.44/2001 does not preclude a judgment relating to that matter from coming within the scope of Article 34(3) of that regulation and, accordingly, preventing the recognition of a judgment given in another Member State with which it is irreconcilable’, and made reference to Hoffmann v Krieg. 

Jurisdictional Qualifications of the CJEU

The most novel, far reaching and debatable aspects of the ruling of the CJEU were, however, the introduction of new requirements relating to lis pendens and the privity of jurisdiction clauses.

Readers will recall that the CJEU ruled that where a judicial decision resulting in an outcome equivalent to the outcome of an arbitral award could not have been adopted by a court of the Member State of enforcement without infringing the provisions and the fundamental objectives of the Brussels I regulation, in particular as regards the relative effect of an arbitration clause included in the insurance contract in question and the rules on lis pendens contained in Article 27 of that regulation, the judgment on the arbitral award cannot prevent the recognition of a judgment given by a court in another Member State.

The issue before both the arbitrator and the English court was whether this part of ruling had deprived the arbitrator from its jurisdiction and thus prevented the operation of Art. 34(3), as the relevant arbitral awards should be set aside for lack of jurisdiction.

Both of them rejected the argument on the ground that they were not bound by answers to questions not referred to the CJEU.

209. I have also reached the conclusion (as did Sir Peter Gross at paragraph [122(3)] of the Gross First Award) that, if the CJEU purported to answer a question not or falling outside those referred to it, the national court would not be bound to follow any such purported answer, though it would not lightly so hold. This appears to me to be the corollary of the limited jurisdiction established by Article 267 of the TFEU. (Reference to precedents omitted)

Justice Butcher then concluded:

214. Applying the principles set out above, in my judgment the CJEU, in paragraphs [54] to [73] of its Judgment, gave answers to questions which had not been referred to it, and which this Court had refused to refer. In doing so, it trespassed on the facts of the case.

215. Thus, the first two questions referred to the CJEU in relation to Article 34(3) raised clearly defined issues of EU law. They asked whether a s. 66 judgment was capable of falling within Article 34(3) in light of two specific points, the ‘Solo point’, and the material scope point. The nature of the questions and the reasons why they were asked were set out both in the Reference Judgment, and very clearly in the Reasons for the Reference section of the Order for Reference.

216. There was no question aimed at whether there were other reasons why Article 34(3) might be inapplicable, and specifically no question directed at whether Article 34(3) might be inapplicable because the English s. 66 Judgments had been entered in circumstances where the English Court could not have entertained the claim which was the subject of the Spanish proceedings. That, in my view, raised different questions (including but certainly not limited to different questions of EU law).

Justice Butcher then wondered whether, although he was not bound, he would still want to follow the CJEU. He ruled he would not.

236. Further, while I am clearly entitled to have regard to the reasoning of the CJEU in those paragraphs, if I am not bound by them I would not follow them. In my judgment they fail to give effect to the exclusion of arbitration from the Regulation, and they fail to have regard to the jurisprudence of the ECJ/CJEU which has recognised that the arbitration exception is effective to exclude arbitration in its entirety, including proceedings in national courts the subject matter of which is arbitration, in particular the decisions in Marc Rich & Co AG v Società Italiana Impianti PA (The ‘Atlantic Emperor’) (Case C-190/89), and Proceedings Concerning Gazprom OAO (Case C-536/13).

237. Instead I would follow, and may be bound by, the reasoning of the Court of Appeal in The Prestige (Nos. 3 and 4), in relation to an argument which was raised there with reference to Assens Havn, to the effect that an analogy with that case indicated that the Award Claims there under consideration did not fall within the ‘arbitration exception’ to the Regulation. The argument of the States was that the reasoning in Assens Havn, which was to do with an exclusive jurisdiction clause in a liability insurance policy, was ‘equally applicable to an arbitration clause’. At [79]-[84] the Court of Appeal said this:

(…)

[84] For these reasons we hold that the reasoning in Assens Havn cannot apply to an arbitration clause. We note that this is also the view of Professor Briggs (Civil Jurisdiction and Judgments, 7th ed (2021), para. 9.05). Accordingly the “arbitration” exception applies to the Award Claims and jurisdiction must be determined in accordance with domestic law principles.’

Res Judicata as English Public Policy

The English judgment also addressed the argument of whether res judicata was a principle of English public policy, and whether the Spanish judgment could be denied recognition under the public policy exception in Article 34(1), on the ground that the English judgments declaring enforceable the first arbitral awards were res judicata.

Justice Butcher found that the Spanish judgments would also be contrary to public policy on that ground, but the argument was subsidiary, given that he had already found that the Spanish judgments should be denied recognition on the ground of Article 34(3).

Assessment

The most interesting part of the English judgment is its interpretation and treatment of the most controversial aspects of the CJEU judgment, namely the jurisdictional qualifications.

The debates before the English court show how far reaching the CJEU judgment might be and raise the issue of whether the CJEU has indeed laid down jurisdictional requirements for arbitrators.

On the one hand, a narrow reading of the CJEU judgment could be that nowhere does it expressly say that it has a bearing on the jurisdiction of arbitrators. And that, in the case at hand, it had not ruled on the issue of whether Spain was bound to arbitrate. This, I understand, was the position of the arbitrator. Justice Butcher reported:

77. At [126] Sir Peter Gross considered whether the CJEU Judgment had any bearing on his jurisdiction as an arbitrator. He concluded that, whatever its ambit in other respects, the CJEU Judgment said nothing at all about his jurisdiction; and that he entertained no doubt at all about his having jurisdiction.

78. At [127]-[132] Sir Peter Gross considered whether the CJEU Judgment had decided that Spain had not been obliged to arbitrate its dispute with the Club and hence was not in breach of any equitable obligation by pursuing its Article 117 claims and seeking to enforce the Spanish Judgment. The Arbitrator found that the CJEU Judgment did not contain any such decision. He said (at [130]) that ‘Part 2’ of the CJEU Judgment went to the status of English court judgments, not whether Spain was in breach of its obligation to arbitrate. He said (at [131]) that the CJEU Judgment had said nothing about whether Spain had been obliged to pursue its dispute in arbitration, and that he could see no proper basis for reading in any such decision.

On the other hand, a less cautious reading of the CJEU judgment is that it has indeed laid down jurisdictional requirements for arbitrators. Spain made the argument repeatedly (which is fair enough).

Justice Butcher avoided addressing the issue by ruling that he was not bound by that part of the CJEU judgment. But the views he expressed when he declined to consider the CJEU judgment persuasive enough to follow it may well reveal that he did think that the CJEU has indeed laid down jurisdictional requirements.

Debate to be continued, on the Continent.

The latest issue of the Dutch Journal on Private International Law (NIPR) has been published.

NIPR 2023 issue 3

EDITORIAL

M.J. de Rooij, Het leed van de circulerende Unieburger en het Europese begrip van de favor divortii [The suffering of the circulating Union citizen and the European concept of favor divortii] / p. 381-384

ARTICLES

C. Vanleenhove, The Hague Judgments Convention versus national regimes of recognition and enforcement: a comparison between the Convention and the Belgian Code of Private International Law / p. 385-399

Abstract
The adoption of the Hague Judgments Convention marks a landmark step in the Judgments Project that the Hague Conference on Private International Law has undertaken since 1992 in the context of transnational disputes in civil and commercial matters. The creation of a uniform set of core rules on the recognition and enforcement of foreign judgments in a cross-border civil and commercial setting promotes effective access to justice and facilitates multilateral trade, investment, and mobility. As far as Belgium is concerned, in the relationship with other non-EU Contracting States the Convention will replace the Code of Private International Law that since 2004 has governed the recognition and enforcement of third State judgments in Belgium. The entry into force of the Convention calls for a comparison of the Convention’s regime with that of the Code of Private International Law. As the two instruments fall within the same ballpark in terms of their openness and given the Convention’s deferral to more favourable domestic rules, the Convention adds another avenue through which a successful party can enforce its foreign judgment in Belgium. From the Belgian perspective the potential circulation of Belgian judgments in other Contracting States with stringent national rules on enforcement perhaps constitutes the most considerable benefit of the Convention.

G. van Calster, Brussels Ia and the Hague Judgments Convention: a note on non-domiciled parties and on reflexive jurisdictional rules / p. 401-407

Abstract
The process that led to the Hague Judgments Convention was inspired by the ‘Brussels regime’ (the EU’s approach to encouraging the free movement of judgments in civil and commercial matters). In the present note I explore two likely areas of tension between Brussels Ia and the Hague Convention: the limited circumstances where non-EU domiciled defendants will nevertheless be captured by the EU jurisdictional rules; and the developing ‘reflexive effect’ of exclusive jurisdictional gateways. I suggest that the EU would do well seriously to consider a reflexive application of its exclusive jurisdictional rules, and that the current review of Brussels Ia would be a good opportunity to do so.

A.A.H. van Hoek, F. van Overbeeke, Over open eindes en nauwere banden: een nieuw hoofdstuk in de Van den Bosch/Silo-Tank-saga / p. 409-420

Abstract
In this brief contribution we pay attention to the latest judgment of the Dutch Supreme Court in the protracted litigation over the employment conditions of Hungarian truck drivers who perform international transport operations on behalf of a Dutch logistics company while being officially employed by a Hungarian sister company of the Dutch firm. The case led to the CJEU judgment FNV/Van den Bosch, C-815/18, ECLI:EU:C:2020:976 (NIPR 2021-55) where the application of the Posting of Workers Directive to this scenario was discussed. The current case pertains to the law that is applicable to the individual employment contracts under Article 8 Rome I.

We comment on the problem of identifying the place from where the work is habitually performed in the case of highly mobile transport operations, the root of which lays in pertaining EU caselaw. We also discuss the fact that the Dutch Supreme Court applied the criteria mentioned in the Schlecker case (C-64/12, ECLI:EU:C:2013:551, NIPR 2013-347) in a strict manner, without taking the specific context of the Schlecker case fully into account. Finally, we recommend that the Court of Appeal of Amsterdam (to which the case has been referred) should submit further preliminary questions to the CJEU: 1. Should the reason why workers are covered by the social security system of their home country be taken into account when weighing the relevance of this criterion – and more particularly, what relevance does the insurance status have in transport cases?; 2. Which factors should (or may) be taken into account to establish a closer connection when the applicable law is determined on the basis of the establishment through which the worker was employed?

European Law Institute (ELI) has recently launched a new project devoted to the proposal of the EU Regulation on the Recognition of Foreign Filiations.

The ELI Project Team wants to scrutinise the rules of the proposal  from four specific perspectives: children’s, LGBTI persons’ and women’s fundamental rights, and the underlying EU primary law, especially concerning the free movement of citizens.

The works within the project will be conducted under the accelerated procedure, with the aim of having results by February 2024. Based on its analysis, the Project Team wants to develop a Position Paper, in which provisions of the proposal will be scrutinized and alternative formulations proposed. Additionally, the Position Paper will be supplemented with explanations and comments. Model Rules in the form of desirable amendments to the proposal will also be drafted.

The ELI Project Team consists of Claire Fenton-Glynn, Cristina Gonzalez Beilfuss, Fabienne Jault-Seseke, Martina Melcher, Sharon Shakargy, Patrick Wautelet, Laima Vaige with Susanne Gössl and Ilaria Pretelli acting as Reporters.

On 2 October 2023 the Kick-Off Webinar of the Project was held. Here is a summary of discussions and a recording of the whole meeting.

Posts on this blog devoted to the same proposal and academia’s reactions to it may be found here, here and here.

Written by Mayela Celis

The eighth meeting of the Special Commission on the Practical Operation of the 1980 Child Abduction Convention and the 1996 Child Protection Convention will be held from 10 to 17 October 2023 in The Hague, the Netherlands. For more information, click here.

One of the key documents prepared for the meeting is the Global Report – Statistical study of applications made in 2021 under the 1980 Child Abduction Convention, where crucial information has been gathered about the application of this Convention during the year 2021. However, these figures were perhaps affected by the Covid-19 pandemic as indicated in the Addendum of the document (see paragraphs 157-167, pp. 33-34). Because it refers to a time period in the midst of lockdowns and travel restrictions, it is not unrealistic to say that the figures of the year  2021 should be taken with a grain of salt. For example, the overall return rate was the lowest ever recorded at 39% (it was 45% in 2015). The percentage of the combined sole and multiple reasons for judicial refusals in 2021 was 46% as regards the grave risk exception (it was 25% in 2015). The overall average time taken to reach a final outcome from the receipt of the application by the Central Authority in 2021 was 207 days (it was 164 days in 2015). While statistics are always useful to understand a social phenomenon, one may only wonder why a statistical study was conducted with regard to applications during such an unusual year – apart from the fact that a Special Commission meeting is taking place and needs recent statistics -, as it will unlikely reflect realistic trends (but it can certainly satisfy a curious mind).

Other documents that are also worth noting are the following (both Preliminary Documents and Information Documents):

Child abduction and asylum claims

• Prel. Doc. No 16 of August 2023 – Discussion paper on international child abduction return applications where the taking parent lodged a parallel asylum claim. This document submits the following for discussion and includes a useful annex with decisions rendered in the UK, Canada and USA about this issue (SC stands for Special Commission):

43. The SC may wish to discuss how the issue of delays in processing the asylum claims could be addressed when a return application is presented, and what the solutions could be to avoid such delays ultimately pre-empting a return application under the 1980 Child Abduction Convention, in particular:

a. Bearing in mind the confidentiality rules that apply to asylum proceedings, consideration can be given to whether general information can be shared, where possible and appropriate, (between authorities of the requested State/country of asylum only) for example, regarding timeframes and average duration periods, steps or stages of such proceedings.

b. Where possible and appropriate, consideration can be given to whether asylum claims can be treated and assessed on a priority basis when a return application is presented under the 1980 Child Abduction Convention.

c. Consideration can be given to whether stays of return proceedings can be avoided in order to prevent that allegations are made concerning the settlement of the child in the new environment, and whether an eventual stay can only be considered regarding the implementation and enforcement of the return order. 

44. The SC may wish to discuss to what extent it is possible to have some level of coordination or basic exchange of information between the different spheres of the government and competent authorities that process the different proceedings, when/if allowed by the relevant domestic laws and procedures and respectful of confidentiality and judicial independence principles. Where possible and appropriate, such coordination could:

a. Encompass, for example, that the competent authority responsible for the return application informs the competent authority responsible for the asylum claim of the return application.

b. Include establishing procedures, guidelines or protocols to ensure that both proceedings are dealt with expeditiously.

This is a sensitive topic that deserves attention, as disclosing that a child is present in a specific State can have a great impact on the safety of the person seeking asylum (usually, the parent).

Transfer of jurisdiction under 1996 Child Protection Convention

• Prel. Doc. No 17 of August 2023 – Transfer of jurisdiction under the 1996 Child Protection Convention (Arts 8 and 9). It is submitted the following:

55. The SC may wish to consider adopting the following Conclusions and Recommendations:

a. The SC invited Contracting States, which have not done so already, to consider designating, in accordance with the Emerging Guidance regarding the Development of the IHNJ, one or more members of the judiciary for the purpose of direct judicial communications within the context of the IHNJ.

b. Recalling Article 44 of the 1996 Convention, the SC encouraged Contracting States to designate the authorities to which requests under Articles 8 and 9 are to be addressed, as such a designation could greatly assist in improving the processing times of requests for a transfer of jurisdiction. Depending on domestic policies and requirements relating to the judiciary, Contracting States may choose to designate a member of the IHNJ (if applicable) and / or the Central Authority to receive requests for transfers of jurisdiction.

c. The SC encouraged authorities requesting a transfer of jurisdiction to, in the first place, informally consult their counterparts in the requested State, to ensure that their requests are as complete as possible and that all necessary information and documentation is furnished from outset to meet the requirements of the requested State.

d. Recalling Principle 9 of the Emerging Guidance regarding the Development of the IHNJ,139 the SC encouraged Central Authorities that are involved in a transfer of jurisdiction request and judges engaging in direct judicial communications pertaining to a request for a transfer of jurisdiction to keep one another informed regarding the progress and outcome of such a request. Doing so could further assist in addressing delays and enhance the efficiency of processing requests under Article 8 or 9 of the 1996 Convention.

e. The SC invited the PB to circulate the questionnaire annexed to Prel. Doc. No 17 of August 2023 to all Contracting States to the 1996 Convention, with a view collecting information from judges and Central Authorities regarding requests under Article 8 or 9. The SC further invited the PB to review Prel. Doc. No 17, in the light of the responses from Contracting States, and to submit the revised version of Prel. Doc. No 17 to the Council on General Affairs and Policy (CGAP). The SC noted that it will be for CGAP to determine the next steps in this area (e.g., whether there is a need to form a Working Group consisting of judges and representatives from Central Authorities to identify good practices pertaining to requests for a transfer of jurisdiction under the 1996 Convention). 

The transfer of jurisdiction (as foreseen in those articles) is sometimes little known in some civil law States (in particular, Latin America) so these suggestions are very much welcome.

Placement or provision of care of a child (incl. kafala) under the 1996 Child Protection Convention

• Prel. Doc. No 20 of September 2023 – Placement or provision of care of the child in another Contracting State under the 1996 Child Protection Convention (Art. 33). Interestingly, this document includes as annex Working Document No 10 Proposal from the delegation of Morocco about “The Kafala procedure as established by the law of 10 September 1993 on abandoned children” of 30 September 1996. This Prel. Doc. suggests the following:

64. The SC may want to discuss what clearly falls within the scope of application of Article 33 of the 1996 Convention and what clearly falls out of the scope of application of Article 33. 

65. The SC may want to consider discussing the use of the term “approved” in C&R No 42 of the 2017 SC as it does not appear in Article 33 of the 1996 Convention. 

66. The SC may want to consider whether additional information should be provided in the Country Profile for the 1996 Convention in addition to what appears under Sections 16 to 19 and 36 of the draft Country Profile to assist with the implementation of Article 33.

67. The SC may want to consider developing a Guide, illustrated by examples, to assist Contracting States with the implementation and operation of Article 33. In addition to covering issues relating to the scope of application of Article 33, the Guide could cover the different issues of procedure relating to Article 33 as presented in this Prel. Doc. Such a Guide would raise awareness as to the mandatory nature of Article 33. The SC may wish to recommend that such a Guide be developed by a Working Group. 

68. The SC may want to consider the need to develop a model recommended form for the purpose of requests under Article 33.

The conclusions suggested in this document are very much needed, in particular given that the operation of Article 33 of the 1996 Convention in the Contracting States is far from ideal (the FAMIMOVE project is studying this Article in the context of kafala).

The Guide to Good Practice on the grave risk exception (art. 13(1)(b)) under the Child Abduction Convention – pointing to a mistake in the Guide

• Info. Doc. No 6 of October 2023 – “A mistake waiting to happen: the failure to correct the Guide to Good Practice on Article 13(1)(b)” – Article by Professor Rhona Schuz and Professor Merle Weiner. I fully endorse the position adopted by Professors Schuz and Weiner and have included my views on this issue in a previous post see here and have discussed this at length in my recent book on international child abduction.

The Note of the International Social Service (ISS) where it highlights (perhaps rightfully), among other things, that the Malta Process and the Central Contact Points are underutilized

• Info. Doc. No 1 of February 2023 – ISS – General information & Response to Prel. Doc. No 2 of October 2022

The Note of the International Association of Child Law Researchers showcases the new publication Research Handbook on International Child Abduction: The 1980 Hague Convention (Cheltenham: Edward Elgar Publishing, 2023) – We will be preparing a book review, which will be posted on CoL – stay tuned!

• Info. Doc. No 4 of September 2023 – International Association of Child Law Researchers (IACLaR) – Observer Note

 

The judgment by the CJEU in Club la Costa (decision of 14 September 2023, Case C-821/21), has already been analysed from a jurisdictional perspective in a previous post. In the same decision, the court also addresses an important issue regarding the applicable law under the Rome I Regulation.

Facts

Remember that a British resident had entered for private purposes into a timeshare contract with a British company (Club La Costa) through the latter’s Spanish branch. This contract concerned tourist accommodation in Spain. Subsequently, the British resident had brought a suit in Spain.

The standard terms of the contract stipulated that it shall be governed by English law. However, Spanish law, as the law of the place of the immovable, was more favourable for the British resident than English law. (In particular, Spanish law requires the contract to be entered into the land registry as well as to specify the accommodation and the precise duration of the time-share, see the parallel decision rendered on a similar contract on the same day in Case C-632/21, JF and NS v Diamond Resorts Europe et al.)

Legal Issues

In essence, the Spanish court wanted to know whether it could apply Spanish law to the dispute. For this, it had to overcome the choice of law in the contract as well as the consumer protection provisions, which both pointed to English law. If the choice of law was incompatible with Article 3, and Article 6 Rome I did not apply because it was unfavourable to the consumer, the application of Spanish law might have been justified, e.g. under Article 4(1)(c) Rome I (for a discussion whether this provision governs timeshare contracts, see Case C-632/21, JF and NS v Diamond Resorts Europe et al.).

The Spanish court therefore asked the CJEU (1) whether it would be compatible with Article 3 Rome I to consider a choice-of-law clause in standard terms as valid, (2) whether the business partner could also rely on the consumer protection provision of Article 6 Rome I, and (3) whether it could ignore the law of the consumer’s habitual residence where the law that would normally govern the contract (in the absence of consumer protection) is more favourable to the consumer in the particular case.

The Validity of the Choice of Law in Standard Terms

For the first question, concerning the validity of a choice-of-law clause in a standard contract term, the CJEU could refer to its precedent in VKI v Amazon (Case C-191/15). There, it had held that such a clause is valid only if it does not lead the consumer into error about the continued application of the mandatory rules of the law of its habitual residence.

In the present case, the law of the habitual residence of the consumer was selected in the standard term. Hence, there was no risk of any error of the consumer. The CJEU thus deemed the clause to be valid.

Can Businesses Rely on Consumer Protection and can the Consumer Waive such Protection?

The second and third question were answered together by the CJEU. In this regard, it held that the consumer protection provision of Article 6 Rome I is

not only specific, but also exhaustive, so that the conflict-of-law rules laid down in that article cannot be amended or supplemented by other conflict-of-law rules laid down in that regulation, unless they are expressly referred to in that article” (para 78).

This is an important ruling with potential relevance for many disputes (e.g. it was also applied in the parallel case in Case C-632/21, JF and NS v Diamond Resorts Europe et al.). From a theoretical perspective, this ruling means that the law designated by Article 6 Rome I is an objective conflict-of-laws rule and not merely a unilateral defence by the consumer.

Assessment

This decision has two consequences.

First, the consumer protection provision can also be relied upon by the business party to the contract. This makes a lot of sense. If it were otherwise, the business would have to wait for the consumer to choose her preferred law before it could assess the legal situation.

Second, the ruling means that the consumer cannot waive the protection of Article 6 Rome I. Indeed, this is just the mirror image of the first consequence, because if the consumer could waive the protection, then  it would be impossible for the business to rely on the provision. Therefore, this consequence must be applauded too.

It should be noted, however, that the situation in the law of jurisdiction is different on the latter point. According to the CJEU, the consumer can waive the protection by Article 18(1) Brussels I bis Regulation (see decision in Wurth Automotive, Case C-177/22 and the comment by Marion Ho-Dac). This can be easily explained, though, because already the wording of this provision makes it clear that it benefits exclusively the consumer and that the business cannot rely on this protective head of jurisdiction. It is different with Article 6 Rome I, which determines the law governing consumer contracts objectively, and thus for both parties.

— Thanks to Verena Wodniansky-Wildenfeld, Felix Krysa and Paul Eichmüller for reviewing this post.

Magdalena Pfeiffer (Charles University Prague) and Anatol Dutta (Ludwig-Maximilians-Universität München) will be hosting a workshop on the Proposal for a EU Regulation on Parenthood and the Creation of a European Certificate of Parenthood (discussed here) on 24 November 2023 in Prague.

Further information can be found on the flyer.

Caroline Sophie Rapatz, University of Kiel, has just published her German-language Habilitationsschrift on “European Union Private International Law – Role Model or Hegemony? Delimitations and Effects in Relation to National and International Conflict of Laws” (Das Internationale Privatrecht der EU – Vorbild oder Vormacht? Abgrenzungen und Wirkungen im Verhältnis zum nationalen und völkerrechtlichen Kollisionsrecht, Beiträge zum ausländischen und internationalen Privatrecht 139, Mohr Siebeck 2023 (XXVI, 693 p.)  The book analyses the consequences of the Europeanisation of private international law (PIL) for the traditional regulatory levels of national and international (treaty and convention) conflict-of-laws rules and for the system of conflict-of-laws as a whole. The author has kindly provided has with the following summary of her insights:

Originally, PIL was a national matter: Legal systems provided their own conflict-of-laws rules as a supplement to their substantive private law. In the course of the 20th century, harmonised rules for individual issues or areas of PIL were created through numerous bilateral treaties and multilateral conventions. As specific supplements and narrow exceptions, these could be integrated smoothly into the overall systematic structure of the national PIL concepts. Since the turn of the millennium, however, the unification of PIL in Europe through EU Regulations, directly applicable and replacing the Member States’ national rules, has added a new regulatory level – leading to today’s complex multi-level system. Within a few years, the EU conflict-of-laws Regulations have cut wide swathes into both national and international PIL, with considerable consequences triggered by their implementation. Simultaneously, the EU Regulations are incomplete with regard to several key issues and an overall system at the European level can only be surmised – it is left to the other regulatory levels to provide solutions for the problems caused by these lacunae. On the other hand, an increasingly strong influence of the assertion of European values can be observed.

The monograph examines EU PIL’s expansive claim to application vis-à-vis the traditional regulatory levels, focusing on the direct and indirect effects of the European instruments in the current network of conflict-of-laws rules. What consequences does the Europeanisation of various areas of PIL entail for the national conflict-of-laws concepts of the individual Member States and for the existence and the future of PIL treaties and conventions? An in-depth analysis based on representative examples shows that after only a decade, the initial approach to the European unification of PIL through separate, area-specific Regulations is already causing massive difficulties in practice. In the near future, a fundamental reorientation and reconceptualization of EU PIL will be unavoidable.

The introduction (Part I – Das EU-IPR als neue Regelungsebene [EU Conflict-of-Laws as a New Regulatory Level]) places the objective of the study in the current context of academic discussion and outlines its structure and method. The current state of the interplay of national, treaty/convention and European conflict-of-laws rules is presented and the basic relationships between the different regulatory levels established.

The first step of the in-depth analysis explores the direct effects of EU PIL (Part II – Konturen des EU-Kollisionsrechts [Contours of EU Conflict-of-Laws]). The intention for the European PIL instruments to be applied is outlined by their material scope of application. More or less clearly formulated positive demands for application entail a displacement of the Member States’ conflicts rules previously applicable; negative delimitations limit each EU Regulation’s application with regard to certain issues in favour of national rules, treaties and conventions or other European instruments. Frequently these European gaps are motivated by the endeavour to avoid conflicts – resulting, however, in selective exceptions with regard to problematic aspects.

Due to the primacy of the EU Regulations over the Member States’ PIL, the relationship between these two levels focuses on the scope of the different conflicts rules determined at the European level – crystallized in questions of characterisation with regard to individual legal institutions. On the one hand, under the European Regulations some areas have been expanded considerably compared to the previous understanding in Member States’ national PIL, to the detriment of the latter. On the other hand, politically sensitive issues which in principle fall within the material scope of the European PIL instruments are often deliberately excluded from them. This unilateral European determination of the scope of the EU instruments results in a considerable curtailment of the areas left to the national regulatory level – but at the same time the Member States need to close the gaps of the European PIL Regulations, the extent of which is not always clearly determined.

For the relationship between European Regulations and international agreements, an initial practical challenge lies in the identification of the existing bilateral treaties and multilateral conventions. An exemplary overview illustrates the diversity and variety of the conflict-of-laws rules of international origin competing with the EU rules. A remedy to the current information deficit in this regard is urgently needed; a solution might lie in the creation of a European central information platform. The interplay of European and international conflicts rules is subject to a broad spectrum of different coordination mechanism. Generally, it is characterised by the primacy of pre-existing agreements between Member States and Third States over EU Regulations, which necessitates exceptions of varying scope from the EU conflicts rules.

Additional difficulties arise with regard to intertemporal issues as the application of European and national conflict-of-laws rules overlaps in transitional phases and the coordination of the temporal scope of application of European and international instruments is not always entirely smooth.

On the whole, the material scope of application of European PIL proves to be fragmentary. Shifts and gaps on the EU level force the Member States to react within their remaining ambit, the prima facie unaffected conflict-of-laws rules in treaties and conventions are facing highly complex coordination issues in their interplay with the new European rules. EU PIL self-determines its scope of application, motivated by European interests. This proves dangerous in several respects – first and foremost because it hardly takes into account the repercussions that a scope of Europeanisation “according to the EU’s taste” entails for the formally unaffected other regulatory levels.

A second step of analysis scrutinises the influences of Europeanisation on national and international PIL that go beyond the European Regulations’ direct application (Part III – Wirkungen des EU-Kollisionsrechts [Effects of EU Conflict-of-Laws]). The Member States’ conflicts systems cannot limit their reaction to simple deletions, but constantly need to ensure the compatibility of the remaining national rules with EU PIL and fill the gaps of the latter. In the Member States’ PIL, various approaches can be identified: an upholding or establishment of independent national conflicts rules, an orientation of the national rules towards their new European context, or a renunciation of national rules in favour of an extended or analogous application of the EU Regulations. A closer look at these mechanisms shows that the issues remaining for the national regulatory level can only be solved with a view to the European developments. In addition to this “pull effect” of European PIL, an increasingly strong influence of EU primary law has to be taken into account. The requirements the ECJ is deriving from the fundamental freedoms have an ever-growing impact on the Member States’ national PIL. A primary law duty to recognise (personal) status would lead to a fundamental upheaval of the conception of conflict-of-laws, which could ultimately only be implemented reasonably on the European level. The discussion of controversial questions of legal policy is currently shifting to the establishment of limits for the consequences of the fundamental freedoms for conflict-of-laws rules – which frequently entails the direct confrontation of European and Member State national values. In the meantime, the PIL rules formally remaining at the national level are under the de facto compulsion to adapt to the European circumstances and requirements in all regards and areas: genuine national conflict-of-laws rules are increasingly disappearing.

The impact of Europeanisation on treaty and convention PIL is more subtle, but no less momentous. The unchanged conflicts rules of the international instruments are no longer applied in their original context of national PIL, but now interact with EU PIL. Different approaches led to coordination problems and friction losses; the direct comparison with the modern European rules frequently makes the older treaty and convention PIL appear outdated and disadvantageous. In the case of multilateral conventions, the necessity of a uniform interpretation in all Member States harbours the additional danger of a shift in interpretation caused by European predominance. Concerning the further developments on the international level, the EU holds a considerable power position. In terms of competence, it increasingly replaces its Member States; in terms of content, reforms and new instruments at the international level only have a realistic chance if they are compatible with EU approaches and values. The EU’s participation in multilateral conventions can contribute to a global harmonisation of PIL – but the de facto supremacy of the European positions and the current lack of an effective institutional counterweight are cause for concern. The explosive potential of these imbalances for both legal technique and legal politics should not be overlooked, and more attention granted to the frequently overlooked relationship between the European and international regulatory levels.

In addition, the effects of the Europeanisation of PIL reach beyond conflict of laws – as a look at some exemplary consequences for substantive law and international civil procedure illustrates.

At all levels, EU PIL thus results in extensive “long-distance effects” far beyond the technical scope of its legal instruments. It proves to be a deceptive pretence that the other regulatory levels remain unaffected: in practice, the leeway formally remaining for national, treaty and convention PIL rules is rapidly dwindling. Resistance against the replacement and pulling mechanisms in favour of European approaches and ideas is hardly possible.

These findings lead to the conclusion that the current European approach to unifying PIL by selective legal instruments is not suitable for the future (Part IV – Die Zukunft des EU-Kollisionsrechts [The Future of EU Conflict-of-Laws]). The relationship between the different regulatory levels needs to be redefined with awareness of the far-reaching European influence on all conflict-of-laws areas. In relation to the Member States’ PIL, the EU must either exercise self-restraint and permanently leave clearly delineated areas to the national level, or it must resolutely take the step towards full harmonisation. Building on this decision, the international instruments of PIL can then be re-evaluated and restructured in relation to Third States. While a critical review and streamlining of the Member States’ inventory of treaties and conventions is desirable, their primacy must not be undermined. For the creation of new global instruments, an active European participation is to be hoped for – but not a unilateral EU dominance. Finally, the first decade of practical application of EU conflict-of-laws has brought to light some need for improvement also within the European regulatory level.

In the 21st century, conflict-of-laws cannot be imagined without EU PIL. At the moment, its relationship to national, treaty and convention PIL is at a conceptual crossroads. In the very near future, the failed approach of individual EU Regulations will have to be replaced by a coherent and flexible model of coordination which takes into account the interests and needs of all participants and regulatory levels.

The group-of-companies doctrine allows attributing obligations of one group member to another. It may also be used to justify a head of jurisdiction to sue all members of one group at the same place.

Yet this doctrine does not apply under the Brussels I bis Regulation, at least not in the consumer contract context, as the CJEU has held in Club la Costa (judgment of 14 September 2023, Case C-821/21). In the same decision, the Court also clarified the burden of proof regarding the domicile of a corporation. The points of the judgment addressing the applicable law under the Rome I Regulation will be commented in a subsequent post.

Facts

A British resident had entered for private purposes into a timeshare contract through the Spanish branch of a British company (Club La Costa). The contract stipulated the exclusive jurisdiction of the courts of England and Wales.

The consumer then brought a claim in a Spanish court against Club La Costa, which apparently went into liquidation subsequently, and various other British companies belonging to the same group.

Legal Issues

The Spanish court asked the CJEU whether the term ‘other party to the contract’ in Article 18(1) Brussels I bis Regulation could also refer to other group members. It furthermore wanted to know how the group members would have to prove that they are not domiciled in Spain but abroad.

Ruling on the Group-of-Companies Doctrine

The CJEU first underlines that the application of Article 18(1) Brussels I bis Regulation presupposes the existences of a contract, and that it is decisive “that the parties to the dispute are also the parties to the contract in question” (para 48) (on the wider scope of Article 7(1) Brussels I bis in this respect, see CJEU, Joined Cases C-274/16, C-447/16 and C-448/16, flightright v Air Nostrum, paras 62-65). Therefore, a consumer’s action under this head of jurisdiction must be brought against the other party to the contract (para 50). Consequently, it cannot be brought against other members of the group, with whom the consumer had been contractually linked as well, but not by the timeshare contract.

The Court of Justice distinguishes this case from its decision in Maletic (Case C-478/12). In the latter, a consumer couple had booked a vacation trip with an internet platform and a travel agency. The CJEU had ruled at the time that the contractual relationship with the platform operator was ‘inseparably linked’ to that with the travel agency and that both would therefore fall under the consumer heads of jurisdiction of the Brussels I Regulation. This is, however, not the case with the contracts between the consumer and the members of the group in Club La Costa, which can be neatly separated from each other.

Ruling on the Proof of Corporate Domicile

The second question requires a little more explanation. The domicile of corporations is determined by Article 63(1) Brussels I bis in a three-fold manner (statutory seat, central administration and principal place of business), with a special definition of the statutory seat of British companies in Article 63(2). The burden of proof for these places is a procedural question, thus falling outside the scope of the Brussels I bis Regulation.

Yet the reference for a preliminary ruling reported the opinion of some Spanish courts which interpret Article 63(2) Brussels I bis Regulation as merely creating a ‘presumption of fact’. If it were ascertained that a defendant company carries out activities in Spain, the international jurisdiction of the Spanish courts would be justified. Hence, it would be for the defendants to show that their domicile is located outside of Spain (para 31).

The CJEU gives this interpretation short shrift. It underlines that Article 63 Brussels I bis must be subject to autonomous interpretation under EU law (para 60). The provision gives the consumer the right to choose between the three locations set out there (para 63). Hence, it does not limit the consumer’s choice (para 64), but on the contrary expands it. The provision of Article 63(2) Brussels I bis, in turn, provides a clarifying definition of the statutory seat of English companies (para 65). It can therefore not be accepted that these provisions would merely create presumptions that could be rebutted (para 66).

Assessment

On both points, the ruling of the CJEU is clear, straight-forward, and firmly anchored in the text of the Regulation. The binding wording must be upheld against the tendency to disregard it when this suits the consumer in the individual case. As important as the goal of consumer protection is, it does not justify bending the rule of law.

— Thanks to Paul Eichmüller for reviewing this post.

 

The first edition of the HAIL Advanced Courses in Hong Kong, organised in cooperation with with the Asian Academy of International Law and (AAIL) and the Hong Kong Department of Justice, will take place on 11-15 December 2023 with a focus on “Current Trends on International Commercial and Investment Dispute Settlement“.

For this special programme, the Secretary-General of The Hague Academy of International Law (Professor Jean-Marc Thouvenin) has invited leading academics and practitioners from around the world to Hong Kong, including Diego P. Fernández Arroyo (Science Po, Paris), Franco Ferrari (New York University),  Natalie Morris-Sharma (Attorney-General’s Chambers, Singapore), Matthias Weller (University of Bonn) and Judge Gao Xiaoli (Supreme People’s Court, China), who will deliver five expert lectures on:

Lecture 1: ‘The United Nations Convention on International Settlement Agreements Resulting from Mediation’ (Natalie Morris-Sharma)
Lecture 2: ‘Investor-State Dispute Settlement’ (Diego P. Fernández Arroyo)
Lecture 3: ‘International Commercial Arbitration’ (Franco Ferrari)
Lecture 4: , ‘Settlement of International Disputes before Domestic Courts’ (Matthias Weller)
Lecture 5: ‘Latest Developments of Dispute Resolution in China’ (Judge Gao Xiaoli)

This course is free of charge. However, full attendance is mandatory. Interested candidates are invited to send the completed application form to events@aail.org by 13 October 2023. All applications are subject to review. Succesful applicants will receive email confirmation by October 31. Registered participants will have pre-course access to the HAIL e-learning platform that provides reading materials prepared by the lecturers. A certificate of attendance will be awarded to participant with a perfect attendance record.

For further information provided by the organisers, please refer to the attached HAIL eFlyer and application form.

Wuhan University and Fudan University are co-organising an International Symposium “Legalisation of Foreign Relations in China” on 14 Oct 2023. This symposium will discuss the two most important developments in Chinese law relating to foreign relations, i.e. the Foreign Relations Law and the Foreign State Immunities Law. Some presented articles will be published in the special session of the Chinese Journal of Transnational Law. This symposium will be held in person and online. Everyone is welcome. For more information and the link to attend the symposium online, please follow the event page: https://online.fliphtml5.com/nrdjx/fnwu/

On Tuesday, October 10, 2023, the Hamburg Max Planck Institute will host its 37th monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CEST). Diego P. Fernández Arroyo (Sciences Po Law School) will speak, in English, about

Transnational Commercial Arbitration as Private International Law Feature

A significant part of private international law (PrIL) disputes is nowadays solved by means of arbitration. At the same time, the range of arbitrable issues has been growing up for decades. Consequently, arbitration is no longer ignored by PrIL scholars, who, nevertheless, hesitate about how to deal with it. Many of them are only attracted by the fact that arbitral tribunals are often confronted to ordinary problems of determining the law applicable to a particular issue. Through the lens of this classical-PrIL approach, they identify sometimes conflict-of-law rules in arbitration instruments. Without denying any interest to this option, we will try to provide a more comprehensive view, starting by revising the very respective notion of arbitration and PrIL as well as their interaction, and concluding to challenge the excessive role played by the seat of the arbitration.

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

A book edited by Anselmo Reyes, Wilson Lui, and Kazuaki Nishioka on Choice of Law and Recognition in Asian Family Law has just been published in the Hart Studies in Private International Law -Asia.

The blurb read as follows:

This thematic volume in the series Studies in Private International Law – Asia outlines the general choice of law and recognition rules relating to family matters of 15 Asian jurisdictions: Mainland China, Hong Kong, Taiwan, Japan, South Korea, Singapore, Malaysia, Vietnam, Cambodia, Myanmar, the Philippines, Indonesia, Thailand, Sri Lanka and India. The book examines pressing questions and proposes ways in which their systems may be reformed. A concluding chapter considers the extent to which Asian cross-border family law systems can and should be harmonised.

The book provides a comprehensive analysis of cross-border family law challenges, including child surrogacy, child abduction, the recognition of same-sex unions, the recovery of maintenance, and the regulation of intercountry adoption. These are among the matters now testing Asian institutions of private international law and acting as forces for their modernisation.

With contributions by leading Asian private international law experts, the book proposes necessary reforms for each of the jurisdictions analysed as well as for Asia as a whole.

A book edited by Kazuaki Nishioka on Treatment of Foreign Law in Asia  has just been published in the Hart Studies in Private International Law -Asia.

The blurb read as follows:

How do Asian courts ascertain, interpret, and apply a foreign law as the law governing the merits of the case? What should judges do if parties do not raise or disagree on the content of foreign law? This thematic volume in the Studies in Private International Law – Asia series analyses the treatment of foreign law before judicial authorities, that is, how the courts of Asian states deal with the proof of foreign law in court litigation involving cross-border elements.

The individual chapters cover 15 Asian jurisdictions: Mainland China, Hong Kong, Taiwan, Japan, South Korea, Singapore, Malaysia, Vietnam, Cambodia, Myanmar, the Philippines, Indonesia, Thailand, Sri Lanka, and India.

The Introduction and Conclusion examine similarities and differences in the approaches taken by the 15 Asian states with a view to assessing the extent to which those approaches are consistent or different from each other. The book also puts forward suggestions for harmonising differing approaches, especially between Asian common law and civil law states.

The book is a one-stop reference guide on the treatment of foreign law in Asia and will be indispensable to judges, practitioners, and scholars not just in Asia, but worldwide.

Lydia Lundstedt, Senior Lecturer in Private International Law at the Stockholm University and in Intellectual Property Law at the Linköping University, has accepted the invitation of the editors of the blog to present her recent book, titled ‘Cross-Border Trade Secret Disputes in the European Union: Jurisdiction and Applicable Law’, published by Edward Elgar.

In today’s knowledge-based and data-driven economy, information is a company’s most valuable asset. The most common form of legal protection for information are laws that protect trade secrets. In contrast to patents, copyright, and trademarks, whose importance for protecting intangible assets is well-recognised, trade secret protection has often come in their shadow as the less important form of protection. The importance of legal protection for trade secrets is however gaining acceptance and many states have sharpened their laws on trade secret protection. In determining the form and level of trade secret protection, states consider (often constitutional) rules on the freedom of information, the freedom to compete and operate a business, employee mobility, and privacy. Depending on the social, political, and economic environment of the state, the form and level of protection may vary considerably.

To ensure a ‘sufficient and consistent level’ of protection under the laws of all the Member States, the European Union (EU) enacted Directive 2016/943 on the Protection of Undisclosed Know-how and Business Information (Trade Secrets) against their Unlawful Acquisition, Use and Disclosure. The Directive is in the form of a minimum directive, so Member States may provide for more far-reaching protection. Complicating matters is the fact that trade secret protection is a bit of a ‘strange bird’, which is reflected in the diverging doctrinal basis for trade secret protection. This divergence continues even after the implementation of the Trade Secret Directive, where some Member States continue to provide protection under unfair competition law, others have introduced a sui generis form of protection, and one Member State protects trade secrets as an intellectual property (IP) right. In addition, all Member States continue to protect trade secrets under contract law, and under the legal systems of some Member States, a trade secret holder may raise concurrent claims based on contractual and non-contractual grounds.

Trade secret protection is even more diverse on the international level. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) guarantees only a minimum level of protection for ‘undisclosed information’ and leaves a wide margin of discretion with respect to how Members can afford protection. The inclusion of trade secret protection in a treaty on intellectual property adds to the confusion about the correct classification of trade secrets.

With the ease of digital communications, employee migration, and international trade, trade secret violations can easily have a cross-border, and even a global dimension.  Unlike physical assets, information can move at the speed of light and become ubiquitous instantaneously.  In this respect, trade secrets are like (traditional) IP rights in that trade secrets and IP rights consist of commercially valuable information that are often exploited over national borders in order to take full advantage of their economic potential. In another respect, however, trade secrets differ from IP rights, which pursuant to the territoriality principle, may be in the public domain in some states without affecting their protection in others. This is not the case for trade secret protection because if the information becomes freely accessible, it will no longer fulfil the criterium of secrecy that is required for its continued protection.

Within the EU, one would expect that the environment would be conducive for the litigation of cross-border trade secret disputes because the rules on private international law are harmonised at the EU level. Despite this, cross-border litigation and enforcement of trade secrets is considered to be extremely difficult and is also rare. This may be due to the varying doctrinal bases for trade secret protection and the fact that trade secret violations can take place in contractual and non-contractual contexts. Moreover, if the trader secret holder brings proceedings against a former employee, weaker party rules will affect the choice of forum and applicable law. Another complicating factor is that in some cases, jurisdiction and the applicable law is based on the location of damage, which is difficult to localise as trade secrets are intangible and can be acquired, disclosed, and used everywhere. What is more, there may be a number of potential defendants located in different countries that allegedly violated the trade secrets, and it may be difficult to join them all in one proceeding and under one law.

The book investigates how the EU private international law rules can be interpreted to facilitate the objectives of the EU Trade Secret Directive when trade secrets are litigated and enforced over national borders. A basic assumption for this study is that effective and consistent protection of trade secrets in cross-border situations is facilitated when the parties can resolve their dispute before one court that has jurisdiction over the entire dispute and under one law, resulting in a judgment capable of being enforced in all Member States. When analysing which Member States have jurisdiction and which law or laws are applicable as well as the scope of the jurisdiction and of the applicable law, the book considers the competing interests of the parties and the EU public interest in general.

The book concentrates on three common categories of defendants, namely, contractual partners, employees, and competitors, and describes and analyses where each respective category of defendant can be sued and what law(s) is(are) applicable from an EU private international law perspective. The book also considers whether any of the rules in the Trade Secret Directive might be overriding mandatory rules, public policy (ordre public), or non-excludable rules that displace corresponding rule in the lex causae.

Jürgen Samtleben just published a collection of his work on the PIL of Latin America; he kindly shared the following announcement with us:

Jürgen Samtleben has authored numerous articles over the years on private international law and international civil procedure in Latin America. These contributions have now been updated and systematically organized into a single volume, thereby offering a unique overview of the conflict of laws in Latin American countries. The collection of articles in German, Spanish and English is supplemented by a comprehensive volume containing the relevant statutory materials in their original language as well as in German translation.

The indices of volume I (‘Rechtsordnungen’) and volume II (‘Gesetzestexte’) can be found here and here. More information is available here.

A webinar on early marriages, organised by the Interest Group on Private International Law of SIDI, the Italian Society of international Law, will take place on 5 October 2023 at 4 pm CET.

The event will specifically concern the decision of the German Federal Constitutional Court, of 2023, on the constitutionality of the German law combating child marriages of 2017, and aims to provide comparative reflections on early marriages and their regulation in national and international law.

The main speaker will be Nadjma Yassari (Max Planck Institute for Comparative and International Private Law), while Giacomo Biagioni (University of Cagliari) will act as a discussant.

The webinar, in English, will be broadcast through Microsoft Teams. Those interested in attending are invited to use this link to connect as the webinar begins. No registration is required.

I have already reported that the UK Supreme Court ruled on the meaning of a “matter” in Article II(3) of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NYC) in its judgment of 20 September 2023 in Republic of Mozambique v Privinvest Shipbuilding SAL (Holding) [2023] UKSC 32.

On the very same day, the Privy Council, speaking through Lord Hodge (other judges were Lord Reed (President), Lord Lloyd-Jones, Lord Briggs, and Lord Kitchin), gave a judgment on Article II(3) NYC in FamilyMart China Holding Co Ltd v Ting Chuan (Cayman Islands) Holding Corporation [2023] UKPC 33. This case was decided on appeal from the Court of Appeal of the Cayman Islands.

While there is a degree of overlap between the two judgments, the facts of the two cases are different and FamilyMart raised a broader range of issues.

Facts

A traveller to the Far East can be surprised by the number of convenience stores and the range of goods and services they offer. This case concerns a dispute between FamilyMart China Holding Co Ltd (“FMCH”) and Ting Chuan (Cayman Islands) Holding Corporation (“Ting Chuan”), the shareholders of China CVS (Cayman Islands) Holding Corp (“Company”), a Cayman Islands company that operates some 2,400 convenience stores in China under the “FamilyMart” brand.

The relationship between the shareholders is governed by a shareholders’ agreement, which contains a clause providing that “any and all disputes in connection with or arising out of this Agreement [shall be] submitted for arbitration” in Beijing.

In 2018, FMCH presented a petition in a Cayman Islands court to wind up the Company on the just and equitable ground under the Companies Law (2018 Revision). The petition was based on alleged misconduct by Ting Chuan in connection with the management of the Company. Ting Chuan applied to strike out or stay the petition under section 4 of the Foreign Arbitral Awards Enforcement Act, which applies to foreign arbitrations and implements Article II(3) NYC into Cayman Islands law. It provides as follows:

Staying of certain court proceedings — If any party to an arbitration agreement, or any person claiming through or under him, commences any legal proceedings in any court against any other party to the agreement, or any person claiming through or under him, in respect of any matter agreed to be referred, any party to the proceedings may at any time after appearance, and before delivering any pleadings or taking any other steps in the proceedings, apply to the court to stay the proceedings; and the court, unless satisfied that the arbitration agreement is null and void, inoperative or incapable of being performed or that there is not in fact any dispute between the parties with regard to the matter agreed to be referred, shall make an order staying the proceedings.

Kawaley J in the Grand Court struck out a part of the petition and granted a stay of the remainder. The Court of Appeal overturned this decision on the basis that no part of the winding up petition was arbitrable and that, consequently, the arbitration agreement was “inoperative”. The parties agreed that the dispute fell within the scope of the arbitration clause. The central dispute was whether the FMCH’s petition had made the matters raised in that petition non-arbitrable.

Judgment

To decide the appeal, the UKPC had to rule on the meaning of a “matter” and “inoperative” in section 4 of the Foreign Arbitral Awards Enforcement Act/Article II(3) NYC.

Regarding the first issue, the UKPC essentially set out, albeit in more detail, and relied on the same principles that the UKSC set out and applied in Mozambique. Since I addressed this issue in a previous post, here I want to focus on the second issue, namely the meaning of “inoperative” and the arbitrability of the subject matter and the remedies sought in the court proceedings.

The UKPC stated that there are two broad circumstances in which an arbitration agreement may be inoperative: (1) where certain types of dispute are excluded by statute or public policy from determination by an arbitral tribunal; and (2) where the award of certain remedies is beyond the jurisdiction which the parties can confer through their agreement on an arbitral tribunal. The UKPC referred to the first type as “subject matter non-arbitrability” and to the second as “remedial non-arbitrability” ([70]).

The underlying concept of subject matter non-arbitrability is that there are certain matters which in the public interest should be reserved to the courts or other public tribunals for determination ([72]). For example, by preventing parties by agreement from contracting out of an employee’s right to have access to an employment tribunal and the courts, section 203 of the UK Employment Rights Act 1996 and section 144(1) of the UK Equality Act 2010 preserve a right of access to the courts ([71]). Similarly, a subject matter will be non-arbitrable if “there is an inherent conflict between arbitration and the public policy considerations involved in that particular type of dispute” ([71], referring to [44] of the SGCA case of Larsen]. While there is no agreement internationally as to the kinds of subject matter or dispute which fall within subject matter non-arbitrability ([72]), the court can refer to the jurisprudence of the courts of other common law jurisdictions ([74]).

Remedial non-arbitrability is concerned with the circumstance in which the parties have the power to refer matters to arbitration but cannot confer on the arbitral tribunal the power to give certain remedies. There is a general consensus in the common law world that the power to wind up a company lies within the exclusive jurisdiction of the courts ([75]). There is also a general consensus that an arbitral tribunal can grant inter partes remedies, such as ordering a share buy-out in proceedings for relief for unfairly prejudicial conduct in the management of a company under section 994 of the UK Companies Act 2006. This is because no third party has a legal interest and there is no public element in the dispute ([76]).

That is why even in an application to wind up a company there may be matters in dispute, such as allegations of breaches of a shareholders’ agreement or of equitable duties arising out of the parties’ relationship, which can be referred to an arbitral tribunal, notwithstanding that only a court can make a winding up order ([77], [78]).

Following these principles, the UKPC decided that some matters were arbitrable, while others were non-arbitrable. Arbitrable matters were: whether FMCH had lost trust and confidence in Ting Chuan and the management of the Company; and whether the parties’ relationship had irretrievably broken down. A stay was granted and the parties were referred to arbitration in relation to these matters. Non-arbitrable matters were: whether it was just and equitable to wind up the company; whether an order should be made requiring Ting Chuan to sell its shares to FMCH; or whether a winding up order should be made. The parties were not referred to arbitration in relation to these matters. Nevertheless, a stay was ordered because the determination of the arbitrable matters would be an essential precursor to the assessment of the non-arbitrable matters.

Commentary

This is an important judgment that offers not only an authoritative interpretation of the concept of a “matter” in Article II(3) NYC (like its sister UKSC judgment in Mozambique) but also of the concept of “inoperative” in this provision.

Importantly, the UKPC clarified the difference between “subject matter non-arbitrability” and “remedial non-arbitrability”. However, the judgment can be criticised on two bases.

First, the efforts of the UKPC to decide the case by reference to comparative law are commendable. Still, the court’s focus on the jurisprudence from the “leading arbitration jurisdictions in the common law world” ([57]; similarly [74], [75], [77]) has a whiff of parochialism. The same criticism can be levelled at the UKSC judgment in Mozambique, which focused on the jurisprudence of the “leading jurisdictions involved in international arbitration in the common law world” ([71] of that judgment).

Second, the court could have gone a step further in its dealing with the concepts of “inoperative” and set out some kind of test for determining whether or not a matter is arbitrable. Provisions like 203 of the UK Employment Rights Act 1996 and section 144(1) of the UK Equality Act 2010 that expressly prohibit contracting out are an exception. When it comes to non-arbitrability for reasons of public policy, one is left to wonder when exactly “there is an inherent conflict between arbitration and the public policy considerations involved in that particular type of dispute” or when there is “no public element in the dispute”. The instruction to the courts to look at “the jurisprudence of the courts of other common law jurisdictions” to answer these questions is not necessarily helpful. Can the courts look at the jurisprudence of the courts of non-common law jurisdictions, which are the majority of NYC jurisdictions and include some very important arbitration centres? Does this instruction even make much sense in a world where the NYC and the UNCITRAL Model Law have done so much to transcend the common law – civil law divide in international commercial arbitration?

Article 1 of the following decision confirms the participation of Ireland to e-Codex: Commission Decision (EU) 2023/2099 of 28 September 2023 confirming the participation of Ireland in Regulation (EU) 2022/850 of the European Parliament and of the Council on a computerised system for the cross-border electronic exchange of data in the area of judicial cooperation in civil and criminal matters (e-CODEX system), OJEU L 241, 29.9.2023, p. 144

Source: http://data.europa.eu/eli/dec/2023/2099/oj

A new conflict of laws article was just published today on the African Journal of International and Comparative Law. It is titled: CSA Okoli, A Yekini & P Oamen, “The Igiogbe Custom as a Mandatory Norm in Conflict of Laws: An Exploration of Nigerian Appellate Court Decisions.”

The abstract reads as follows:

Under the Igiogbe custom of the Bini Kingdom of Edo State Nigeria, the eldest surviving son exclusively inherits the ancestral home of his deceased father. This custom is a mandatory norm in conflict of laws. Litigation on the custom has been described as a matter of life and death. There is a widely shared view among academic writers, practitioners, and judges that this customary law is absolute. Contrary to this popular view, this work argues that the Igiogbe custom can be displaced by statute and other customary or religious laws. To substantiate this position, this article examines all the reported appellate court decisions on the Igiogbe custom and other connected principles. It is often taken for granted that every Bini man is subject to customary law, thereby leading to the overriding application of the Igiogbe custom. Recent developments in case law suggest otherwise. There is a conflict of personal law question that is often ignored in most litigation concerning the Igiogbe. Careful consideration of this question can potentially lead to the application of other systems of succession law (statutory, religious, and other customary laws) other than the Igiogbe custom. Besides, these conflict of laws techniques and constitutional human rights norms can be used to strike the appropriate balance between competing interests and reasonable legitimate expectations of the deceased and their heirs.

 

Originally posted in the NGPIL website

The Nigeria Group on Private International Law “(NGPIL”) invites submissions for the annual NGPIL Conflict of Laws’ Competition. The winner will be awarded for the best essay on any aspect of Nigerian conflict of laws. Entries will be accepted from the following: an undergraduate and/or postgraduate scholar studying in Nigeria, or any Nigerian lawyer five years call or below practising and residing in Nigeria. The essay should be unpublished at the time of submission. Submitted essays should be in the English language. Submitted essays should also be within five to eight thousand words. Competitors may be citizens of any nation, age or gender but must be an undergraduate and/or postgraduate scholar studying in Nigeria, or any lawyer below five years post-call experience practising and residing in Nigeria.

The first prize is  150,000 Naira (NGN), and the winner of the competition will be encouraged to publish the paper in any high-quality peer reviewed journal on private international law (conflict of laws). The second prize is  90,000 Naira (NGN), and third prize is  60,000 Naira (NGN). The prize is sponsored by and will be awarded by NGPIL.

Submissions to the Prize Committee must be received no later than January 15, 2024. Entries should be submitted by email in Word or pdf format. The winner will be announced no later than 2 months after the deadline. Decisions of the NGPIL on the winning essay and on any conditions relating to this prize are final. Submissions and any queries should be addressed by email to ngpilaw@gmail.com. All submissions will be acknowledged by e-mail.

Previous Winners

Oluwabusola Fagbemi (Winner for the 2022/2023 session)

Solomon Adegboyo (Winner for the 2021/2022 session)