Droit international général

When I reviewed Szpunar AG’s Opinion in C-195/15 Mulhaupt /SCI Senior Home, I predicted (it’s a safe prediction, nothing whiz-bang about it) that the Court would probably come to the same conclusion in less words and with less references to the overall context.

It did. It cherry-picked the AG’s arguments and came to the same conclusion. Of particular note is its insistence, with the AG, that even though a derogation must be interpreted strictly, it is nonetheless appropriate to ensure that the exception is not deprived of its effectiveness.

Please refer to my review of the AG’s Opinion for more detail. Final conclusion: security created by virtue of a provision of national law, such as that at issue in the main proceedings, by which the real property of a person owing real property taxes is, by operation of law, to be subject to a public charge and that property owner must accept enforcement of the decision recording that tax debt against that property, constitutes a ‘right in rem’ for the purposes of that article.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 5.7.1 ).

On 23 October 2016, AG Szpunar delivered his opinion in the case of Agro Foreign Trade & Agency Ltd v Petersime NV (C‑507/15). He suggested the Court to rule as follows.

Article 17 of Directive 86/653/EEC on the coordination of the laws of the Member States relating to self-employed commercial agents requires mandatory protection of a commercial agent who carries out his activity in the internal market. It does not preclude a law of a Member State according to which such protection is not afforded for a commercial agent who carries out his activity outside the internal market.

Neither the 1963 Agreement establishing an Association between the European Economic Community and Turkey, nor the 1972 Additional Protocol thereto, preclude a law of a Member State according to which protection under Directive 86/653 is only afforded where a commercial agent carries out his activity in that Member State and not where a principal is established in that Member State and a commercial agent is established in and carries out his activity in Turkey.

L’Avvocato generale Szpunar ha presentato il 23 ottobre 2016 le sue conclusioni nella causa Agro Foreign Trade & Agency Ltd v Petersime NV (C‑507/15). A suo avviso, la Corte dovrebbe statuire quanto segue.

L’art. 17 della direttiva 86/653/CEE relativa al coordinamento dei diritti degli Stati Membri concernenti gli agenti commerciali indipendenti esige in termini imperativi la protezione dell’agente che svolge la propria attività nel mercato interno. Come tale, esso non è di ostacolo a una legge di uno Stato Membro che riconosca una simile protezione a un agente la cui attività si sviluppi al di fuori del mercato interno.

Né l’Accordo di associazione del 1963 tra la Comunità economica europea e la Turchia né il suo Protocollo addizionale del 1972 sono d’ostacolo a una legge di uno Stato Membro in forza della quale la protezione garantita ai sensi della Direttiva 86/653 opera solo nell’ipotesi in cui l’agente svolge la propria attività in detto Stato Membro e non invece nell’ipotesi in cui il preponente sia stabilito in tale Stato Membro e l’agente svolga la propria attività in Turchia.

The EBS Law School in cooperation with Clifford Chance will host the EBS Law School Arbitration Day on 18 November 2016 organized by Professor Dr. Matthias Weller and Dr. Alexandra Diehl.

The event will focus on the quest for improved systems of arbitration. Topics will be:

• Dispute Resolution in Asia: Dominated by the Singaporean Merlion?
• The Iran-United States Claims Tribunal: a role model for international arbitration?
• TTIP and CETA: On a Road to Nowhere or to Success?

The speakers are:

• Claudia Annacker, Cleary Gottlieb, Paris
• Simon Greenberg, Clifford Chance, Paris
• Elan Krishna, Clifford Chance, Singapore
• Dr. Cristina Hoss, Legal Adviser to Judge Bruno Simma, Iran-US Claims Tribunal, Den Haag
• Prof. Dr. R. Alexander Lorz, Secretary for Public Education, German State of Hesse, Wiesbaden
• Representative from US Consulate General Frankfurt
• Prof. Dr. André Schmidt, EBS Business School/University Witten-Herdecke
• Prof. Dr. Mathias Wolkewitz, General Counsel Legal, Taxes, Insurances, Wintershall AG

The lectures as well as the panel discussions will be in English. The event will start at 1.30 p.m. in Lecture Room “Sydney” at EBS Law School in Wiesbaden.

For further information and registration see here.

Symeon C. Symeonides, Choice of Law, Oxford University Press, 2016, ISBN 9780190496722, pp. 840, USD 225.

Choice of Law provides an in-depth sophisticated coverage of the choice-of-law part Conflicts Law (or Private International Law) in torts, products liability, contracts, forum-selection and arbitration clauses, insurance, statutes of limitation, domestic relations, property, marital property, and successions. It also covers the constitutional framework and conflicts between federal law and foreign law. The book explains the doctrinal and methodological foundations of choice of law and then focuses on its actual practice, examining not only what courts say but also what they do. It identifies the emerging decisional patterns and extracts predictions about likely outcomes.

As my review of Szpunar AG’s Opinion in Nikiforidis highlighted, on the issue of temporal applicability to continued contracts, the AG suggested along the lines of Rome I Article 10’s regime (the von Munchausen or the ‘bootstrap’ principle) that the lex causae has to determine the moment of ‘conclusion’.

The employment relationship at issue is conducted in Germany and subject to German law, which does not permit reductions in remuneration similar to those to which the Hellenic Republic had recourse (as a result of austerity).

The Court held last week and points out (at 20) that if the Rome I Regulation did not apply to the main proceedings, Article 34 of the EGBGB (the relevant provisions  of residual German private international law concerning contractual relationships) would permit it to take into account the overriding mandatory provisions of another State. Provisions like those are exactly why the UK and Luxembourg in particular (concerned about financial services contracts subject to their laws) insisted on Article 9 Rome I seriously constraining the room for manoeuvre of the forum.

Different from its AG, the Court squarely rejects (at 30) any role here for Article 10. In support, it refers to the original proposal of the European Commission with a view to the adoption of what eventually became Rome I. COM(2005) 650 referred to ‘contractual obligations’: ‘‘contractual obligations arising after its entry into application’; as opposed to the Regulation’s eventual use of ‘‘contracts’ concluded as from 17 December 2009.

At 34: ‘Whilst the reference, proposed by the Commission, to contractual obligations arising after the entry into application of that regulation covered, in addition to contracts concluded after its entry into application, the future effects of contracts concluded before then, that is to say, obligations arising from the latter after then, this is not so in the case of the wording of Article 28 of the Rome I Regulation, which covers exclusively contracts concluded on or after 17 December 2009, the date on which that regulation became applicable pursuant to Article 29 thereof. It follows that, contrary to what the referring court envisages, any agreement by the contracting parties, after 16 December 2009, to continue performance of a contract concluded previously cannot have the effect of making the Rome I Regulation applicable to that contractual relationship without thwarting the clearly expressed intention of the EU legislature.’

Now, I have admittedly only quickly scanned the travaux preparatoires in writing up this post, yet I do think the Court’s conclusion on this point may be misguided. It was Parliament which introduced ‘contracts’ as opposed to ‘contractual obligations’. It did so in response to the EC’s proposed sentence which read in full

‘It shall apply to contractual obligations arising after its entry into application. However, for contractual obligations arising before its entry into application, this Regulation shall apply where its provisions have the effect of making the same law applicable as would have been applicable under the Rome Convention of 1980.’

Parliament proposed lifting the first sentence into a separate Article and to drop the second sentence altogether, citing ‘Unlike in the case of torts and delicts, contracts are entered into deliberately and voluntarily. It is essential for the parties to know that the provisions on applicable law contained in this Regulation will apply only to contracts concluded after its date of application. Therefore proceedings brought after the date of application concerning contracts concluded before that date will apply the Rome Convention.’

This intervention therefore I believe was targeted at avoiding debates on equality between Rome I and Rome Convention outcomes. No indication was given that the change from ‘contractual obligations’ to ‘contract’ was of any specific relevance for the debate.

However, in the end that discussion in my view does not really matter because the Court itself does subsequently admit that its observation, that the Regulation cannot mean that ‘any, even minor, variation made by the parties, on or after 17 December 2009, to a contract initially concluded before that date were sufficient to bring that contract within the scope of the Rome I Regulation’ (at 35) , should not negate that

‘the possibility remains, as the Commission has pointed out in its written observations, that a contract concluded before 17 December 2009 may be subject, on or after that date, to a variation agreed between the contracting parties of such magnitude that it gives rise not to the mere updating or amendment of the contract but to the creation of a new legal relationship between the contracting parties, so that the initial contract should be regarded as having been replaced by a new contract, concluded on or after that date, for the purposes of Article 28 of the Rome I Regulation.’ (at 37).

Whether such ‘new legal relationship’ has been formed in casu, is down to the national court to decide. The CJEU does not give any indication whatsoever of what law is to guide that court in that decision. A European ius commune? I don’t see it. Lex fori? Perhaps. But that would encourage forum shopping. Lex causae? But the Court had dismissed Article 10 of having any relevance. I am at a loss.

Now, to the question of overriding mandatory requirements (please refer again to my review of Szpunar AG’s Opinion for context): here the Court I believe misses the mark. After pointing out, justifiably (and in contrast with the AG), that Article 9 needs to be interpreted restrictively, it holds that ‘the list, in Article 9 of the Rome I Regulation, of the overriding mandatory provisions to which the court of the forum may give effect is exhaustive. (at 49).

Check.

This means Article 9 of the Rome I Regulation must be interpreted ‘as precluding the court of the forum from applying, as legal rules, overriding mandatory provisions other than those of the State of the forum or of the State where the obligations arising out of the contract have to be or have been performed. Consequently, since, according to the referring court, Mr Nikiforidis’s employment contract has been performed in Germany, and the referring court is German, the latter cannot in this instance apply, directly or indirectly, the Greek overriding mandatory provisions which it sets out in the request for a preliminary ruling.’ (at 50).

Check.

But then, at 52:

‘On the other hand, Article 9 of the Rome I Regulation does not preclude overriding mandatory provisions of a State other than the State of the forum or the State where the obligations arising out of the contract have to be or have been performed from being taken into account as a matter of fact, in so far as this is provided for by a substantive rule of the law that is applicable to the contract pursuant to the regulation.‘

And in conclusion, at 53:

Accordingly, the referring court has the task of ascertaining whether Laws No 3833/2010 and No 3845/2010 are capable of being taken into account when assessing the facts of the case which are relevant in the light of the substantive law applicable to the employment contract at issue in the main proceedings.

Err, here I really do not follow. Surely such de facto circumvention of Article 9’s restrictive scope, negates its effet utile. If and when a law other than the lex causae may be taken into account ‘as a matter of fact’, the Rome modus operandi is to say so: see in this respect in particular Article 17 Rome II. And what would ‘taking into account as a matter of fact’ mean for the case at issue?

Now you see it, now you don’t. In West Tankers the Court took effet utile to extreme length. Here it arguably entirely negates it. I am not convinced.

Geert.

(Handbook of) European Private international law, 2nd ed. 2016. Chapter 2, Heading 2.2.8.3, Chapter 3, Heading 3.2.5 , heading 3.2.8.

Helmerich & Payne International v. Venezuela

On Wednesday, November 2, 2016, the Supreme Court will hear oral arguments in the case of Helmerich & Payne International v. Venezuela.  The Court granted certiorari to resolve a circuit split regarding the proper pleading standard needed to allege an expropriation claim for purposes of the Foreign Sovereign Immunities Act’s (FSIA) expropriation exception.  The FSIA provides that a foreign state and its agencies and instrumentalities “shall be immune from the jurisdiction” of federal and state courts except as provided by international agreements and by exceptions contained in the statute.  28 U.S.C. § 1604; see 28 U.S.C. § 1605-§ 1607.  The exception involved here is the expropriation exception.  That exception provides that a “foreign state shall not be immune from the jurisdiction of the courts of the United States or of the States in any case . . . in which rights in property taken in violation of international law are in issue” and there is a specified commercial-activity nexus to the United States. 28 U.S.C. § 1605(a)(3).  The Court will resolve whether a plaintiff needs only to plead some non-frivolous facts that could show an expropriation to survive a motion to dismiss or does a plaintiff need to plausibly allege that an expropriation occurred in violation of international law.

Venezuela, the Petitioner, and the United States, as amicus curiae in support of Venezuela, argue that for a case to come within the scope of Section 1605(a)(3), the complaint must assert a claim that is legally sufficient to satisfy the provision’s substantive requirements. According to the United States, “[w]hen the foreign state challenges the legal sufficiency of the complaint’s jurisdictional allegations under Federal Rule of Civil Procedure 12(b)(1), the district court must determine whether the plaintiff’s allegations, if true, actually describe a ‘tak[ing] in violation of international law’—that is, conduct that is prohibited by international expropriation law—and identify ‘rights in property’ that were impaired as a result of the foreign state’s conduct.  If those substantive requirements are not satisfied, the foreign state is immune from suit both federal and state courts, the district court lacks subject-matter jurisdiction, and the claim must be dismissed.”  Brief of the United States as Amicus Curiae at 7-8.

Helmerich, the Respondent, argues that “nothing in the FSIA displaces the longstanding, widespread practice that the possibility a claim might fail on its merits does not defeat the court’s jurisdiction to decide the merits, at least where the claim is not ‘clearly . . . immaterial and made solely for the purpose of obtaining jurisdiction’ or ‘wholly insubstantial and frivolous.’” Brief of Respondent at 14.

This case has the potential to be a blockbuster, as it will define when suits against foreign governments get through the courthouse door. The Court’s interpretation of the pleading standard for the expropriation exception will also impact the pleading standards for the FSIA’s other exceptions, such as the commercial activity exception and noncommercial tort exceptions.  The fact that the U.S. Government will participate in oral argument as amicus curiae in support of Venezuela will also be noteworthy, given that the Obama Administration recently suffered its first override of a presidential veto when the House and Senate voted against the President’s objection to a bill that amended the FSIA to allow family members to sue Saudi Arabia over claims it aided or financed the Sept. 11 terrorist attacks.

In its judgment of 7 July 2016, in the case of Hőszig Kft. v Alstom Power Thermal Services (case C-222/15), the Court of Justice ruled as follows.

Article 23(1) of Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I) must be interpreted as meaning that a jurisdiction clause which, first, is set out in the client’s general terms and conditions, referred to in the instruments witnessing the contracts between those parties and forwarded upon their conclusion, and, secondly, designates as courts with jurisdiction those of a city of a Member State, meets the requirements of Article 23 relating to the consent of the parties and the precision of the content of such a clause.  

Nella sentenza del 7 luglio 2016 relativa alla causa Hőszig Kft. c. Alstom Power Thermal Services (causa C-222/15), la Corte di giustizia ha affermato quanto segue.

L’art. 23, par. 1, del regolamento (CE) n. 44/2001 concernente la competenza giurisdizionale, il riconoscimento e l’esecuzione delle decisioni in materia civile e commerciale (Bruxelles I), dev’essere interpretato nel senso che una clausola attributiva di giurisdizione che, da un lato, sia stata stipulata nell’ambito delle condizioni generali di contratto del committente, menzionate negli atti contenenti i contratti inter partes e trasmesse all’atto della loro conclusione, e che, dall’altro, designi quali giudici competenti quelli di una città di uno Stato membro, soddisfa i requisiti del suddetto art. 23, relativi al consenso tra le parti ed alla precisione del contenuto di tale clausola.

On 2 December a Conference on Family law and Moroccan nationals living abroad will take place in Brussels. This conference will be in French.

Here is the background:
In 2004 Morocco adopted a new Family Code (MFC). On the occasion of the 10th anniversary of the entry into force of the MFC (2004-2014) a comparative research on the application of the MFC in Europe and Morocco has been undertaken under the direction of Professor Marie-Claire Foblets (Max Planck Institute Halle and KULeuven). For five European countries with the largest population of Moroccan residents (Belgium, France,
Italy, the Netherlands and Spain) an in-depth analysis of the case law available since 2004 has been made. This analysis provides a more concrete idea of the problems raised by the application of the MFC since 2004 and especially of the legal problems affecting the family lives of Morrocan nationals living abroad (MNAs). Besides the analysis of the case law of the European countries, a study of the Moroccan case law concerning MNAs and a field study at three Moroccan consulates in Europe have been undertaken.

The full programme and enrolment information are available here (link at the bottom of the page).

The Academy of European Law (ERA) will host a conference on the new Regulation (EU) 655/2014 establishing a European Account Preservation Order (EAPO), which will become operational from January 2017. The conference, which will take place on 1–2 December 2016 in Trier (Germany), will focus on the practical implications of the new instrument for commercial parties, including banks.

Key topics will be:

• The EAPO and its interplay with other EU Regulations and national law
• Obligations of the banks operating in the Member States
• Scope and procedure for obtaining an EAPO
• Enforcing and resisting enforcement of an EAPO
• Maintaining surprise vs protecting the debtor
• EAPO, US and UK (worldwide) freezing orders

The conference language will be English. The event is organized by Dr Angelika Fuchs (ERA). The programme is available here.

The confirmed speakers are:

• Gilles Cuniberti, Professor at the University of Luxembourg
• Joseph Delhaye, Head Legal and Senior Vice President at the State and Savings Bank, Luxembourg
• Pietro Franzina, Associate Professor at the University of Ferrara
• Sarah Garvey, Counsel and Head of Litigation KnowHow and Training, Allen & Overy LLP, London
• Burkhard Hess, Professor and Director of the Max Planck Institute for International, European and Regulatory Procedural Law, Luxembourg
• Clara Mara-Marhuenda, Counsel Dispute Resolution, Arendt & Medernach, Luxembourg
• Fernando de la Mata, Partner, Baker & McKenzie SLP, Barcelona
• Brandon O’Neil, Senior Associate, Allen & Overy LLP, London
• Philippe-Emmanuel Partsch, Partner, Arendt & Medernach, Luxembourg
• Katharina Raffelsieper, Avocate, Thewes & Reuter – Avocats à la Cour, Luxembourg
• Daniel Staehelin, Professor, Attorney and Notary Public, Partner, Kellerhals Carrard, Basel
• Heinz Weil, Avocat & Rechtsanwalt, Chairman of the European Committee of the German Federal Bar (BRAK), Weil & Associés, Paris

Registrations before 1 November 2016 will benefit from an “early bird” rebate. After this deadline, however, discounts will be available for young lawyers and academics. For further information and registration, please see the conference website.

By a judgment of 21 June 2016 (No 19599), the First Chamber of the Italian Court of Cassation held that the recognition of a child as the son of two mothers (the woman who gave birth to the child, and the woman who donated her ova for the purposes of the medically assisted procreation), as indicated in a birth certificate issued abroad, is not incompatible with the Italian public policy. In the Court’s view, the recognition is in fact necessary to guarantee the right of the child to the cross-border continuity of his personal and social identity.

Nella sentenza 21 giugno 2016 n. 19599, la Prima Sezione della Corte di cassazione ha ritenuto che non sia contrario all’ordine pubblico italiano il riconoscimento dello stato di figlio di un bambino che, secondo un certificato di nascita rilasciato all’estero, risulta nato da due madri (l’una avendolo partorito, l’altra avendo donato gli ovuli necessari alla procreazione medicalmente assistita). Ciò in considerazione dell’interesse del minore alla continuità della propria identità personale e sociale attraverso le frontiere.

In C-471/15 Sjelle Autogenbrug, Bot AG opined a few weeks ago. I find myself curiously drawn to VAT cases these days. Especially since I reported how in a VAT case, the CJEU perhaps accidentally came to a major decision on the Aarhus Convention. Also have a look for instance on how the same AG discusses ‘cultural services’ within the context of VAT (C-592/15 BFI). Or perhaps it is because I have a past (and potentially, a future) in customs duties and excise.

It is particularly interesting to ponder how terminology that is used across the board in EU law, specifically also regulatory law, is interpreted in the context of VAT. (Incidentally the Advocate General gives an excellent summary of VAT rules and why VAT can /should be set-off between traders). In the case at hand, Directive 2006/112 provides i.a. the following definition for second-hand goods: “second-hand goods” means movable tangible property that is suitable for further use as it is or after repair, other than works of art, collectors’ items or antiques and other than precious metals or precious stones as defined by the Member States; 

Sjelle Autogenbrug I/S is a vehicle reuse undertaking whose main activity is the resale of used motor vehicle parts which it removes from end-of-life vehicles. It also engages in the environmental and waste treatment of end-of-life vehicles, a service for which it charges a standard price. Lastly, a lesser part of the undertaking’s overall turnover derives from the sale of scrap metal remaining after removal of the motor vehicle parts. Sjelle Autogenbrug purchases end-of-life vehicles — which are either vehicles whose lifespan has expired or total write-offs — from individuals and insurance companies who do not declare VAT on sales made. Sjelle Autogenbrug currently declares VAT pursuant to the applicable general rules. In 2010, it asked the tax authorities to apply the special margin scheme for second-hand goods to its activity of reselling used motor vehicle parts taken from end-of-life vehicles. The authorities refused.

Since the goods are reintroduced into the distribution chain, the taxable dealer is liable for VAT when he resells the goods. However, as the taxable dealer did not pay VAT when he purchased the second-hand goods from the non-taxable individual, he cannot deduct such VAT from the amount to be paid to the State, being an amount comprised exclusively of the VAT charged upon resale of those goods. This results in a lack of VAT neutrality and in the double taxation of the goods (at 26). The margin scheme was adopted to alleviate that difficulty. It aims to harmonise the rules applicable to the acquisition of new goods subject to VAT which are later resold as second-hand goods and to prevent double taxation and the distortion of competition between taxable persons in the area of second-hand goods.

The Danish government submits that the use in that provision of the words ‘as it is’ demonstrates that, in order to be classified as ‘second-hand goods’, the goods must retain their identity, which is not the case with spare parts since Sjelle Autogenbrug acquires, first of all, a complete vehicle. Furthermore, it argues that even if those spare parts could be classified as ‘second-hand goods’, it would not be possible to apply the margin scheme because the purchase price of the spare parts cannot be precisely determined.

Bot AG disagrees:

• the EU legislature did not intend to exclude goods originating from a single whole which could be separated, such as parts taken from end-of-life vehicles (at 33)
• the key factor in the classification of goods as ‘second-hand goods’ is that the used goods must retain the characteristics they had when new (at 35). He refers in this context also tho the end-of life-vehicles Directive, 2000/53, which defined ‘reuse’ as ‘any operation by which components of end-of-life vehicles are used for the same purpose for which they were conceived’. ‘Motor vehicle parts fall squarely within that definition since, even when separated from the vehicle, they retain their original characteristics as they will be reused for the same purpose in another vehicle. The fact that those parts were removed from the vehicle is therefore of little consequence.‘ (at 35)

The Advocate General further considered that were the special margin scheme not to be applied, dealers of second hand spare parts would be disfavoured vis-a-vis those dealing in new spare parts. Hardly indeed a result that would be conducive to the circular economy.

EU waste law does not employ the notion ‘second hand goods’. In practice these goods have raised all sorts of demarcation issues. Summarising all these, if one and the same good is simply passed on to ‘a second hand’, ie the original owner no longer has a use for it but it can be passed on by someone else who will employ it for its original purpose and without there being a need for treatment or processing, it should not be regarded as waste.

It is only be looking into all nooks and crannies of EU law that  ambitious projects like the circular economy will be a real success. Current Opinion is a good illustration of such successful consideration.

Handbook of EU Waste Law, second ed. 2016, Chapter 1.

Infringement of personality rights, including invasion of privacy, is exempt from the Rome II Regulation on applicable law for non-contractual relations. TLT at the High Court shows how distinct national laws may look upon the issue of quantification of damages very differently. Robin Hopkins reviews precedent and the case itself here, and One Crown Office Row zoom in on the case itself here. This case did not involve conflict of laws, however I thought I would highlight it anyway, for it is common knowledge that national laws assess damages in cases like these very differently.

It is worth pointing out in this respect that infringement of personality rights is exempt from Rome II not because it is irrelevant. Rather the contrary: it is very relevant indeed and no agreement could be found on an applicable law rule.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 4.

The program of the conference Politics and Private International Law (?) is now available. As announced on this blog, the conference will be held on 6 and 7 April 2017 at the University of Bonn. The registration deadline is February 28th 2017. Further information are available here.

È disponibile il programma della convegno Politics and Private International Law (?) che, come segnalato in un post precedente, si svolgerà il 6 e il 7 aprile 2017 presso l’Università di Bonn. Il termine per la registrazione è il 28 febbraio 2017. Maggiori informazioni a questo indirizzo.

In a judgment of 25 July 2016 (No 15343), the First Chamber of the Italian Court of Cassation held that the application of the law of Pakistan, specifically, the application of the rules that allow marriage proceedings to be conducted over the telephone or by telematic means (subject to certain conditions, such as the presence of witnesses), is not incompatible with the Italian public policy.

Nella sentenza 25 luglio 2016 n. 15343, la Prima Sezione della Corte di cassazione ha escluso che produca effetti contrari all’ordine pubblico italiano la norma pakistana, resa applicabile in forza del richiamo di cui all’art. 28 della legge 31 maggio 1995 n. 218, che ammette — a certe condizioni, come la presenza di testimoni — che uno dei coniugi possa prestare il proprio consenso non già personalmente di fronte all’autorità officiante ma per via telefonica o telematica.

The EUFam’s Project’s Consortium is glad to announce that the first version of the EUFam’s case-law database, filled in the past months by all partners of the project, is now available for public consultation.

Currently, the database contains data concerning over 400 decisions applying the European Union Regulations on cross-border litigation in family matters, issued by the courts of Bulgaria, Croatia, Czech Republic, France, Germany, Greece, Italy, Slovakia, and Spain.

The consortium will keep the database up to date and publish new versions of the file in the upcoming months in the section ‘Public Database’ of the EUFam’s website, in order to keep it up-to-date with the new cases that all partners will classify until December 2017, date of the end of the project.

Website: www.eufams.unimi.it

Facebook page: www.facebook.com/eufams

On the project:

The Project ‘Planning the future of cross-border families: a path through coordination’ (EUFam’s – JUST/2014/JCOO/AG/CIVI/7729) aims at analysing is the practice of several Member States concerning the application of EU Regulations No 2201/2003, No 1259/2010, No 4/2009, and No 650/2012, as well as the 2007 Hague Maintenance Protocol, and the 2007 Hague Recovery Convention.

The purpose of the research activity is to identify the difficulties met by courts and practitioners in applying the rules laid down in the regulations, and to collect and share the solutions and best practices adopted by them in order to overcome such issues.

Partners of the Project are: the University of Milan (coordinator), the University of Heidelberg, the University of Osijek, the University of Valencia, the University of Verona, the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law, the Italian Family Lawyers Association (AIAF), the Spanish Family Lawyers Association (AEAFA), the Italian Judicial Academy (SSM), and the Croatian Judicial Academy.

The EUFam’s Project is co-funded by the Directorate-General for Justice and Consumers of the European Commission, within the programme ‘Projects to support judicial cooperation in civil or criminal matters’ (Justice Programme).

The e-mail contact for further information is: eufams@unimi.it

On 26 October 2016 the University of Macerata will host a conference on the Digital Single Market. The programme is available here.

Il 26 ottobre 2016 l’Università di Macerata ospiterà un convegno sul mercato unico digitale. Il programma è disponibile qui.

Massimo V. Benedettelli, Five Lay Commandments for the EU Private International Law of Companies, in Yearbook of Private International Law, 2015/2016, p. 209-251.

While praising European company law as a “cornerstone of the internal market”, the EU institutions have devoted limited attention to issues of competent jurisdiction, applicable law and recognition of judgments which necessarily arise when companies carry out their business on a cross-border basis. This is a paradox, especially if one considers that in this area the EU often follows a policy of “minimal harmonization” of the laws of the Member States and that this policy leads to the co-existence of a variety of different rules and institutions directly or indirectly impinging on the regulation of companies, thus to possible conflicts of jurisdictions and/or laws. The European Court of Justice’s “Centros doctrine” fills this gap only partially: this is due not only to the inherent limits of its case-law origin, but also to various hidden assumptions and corollaries on which it appears to be grounded and which still need to be unearthed. Hence, time has come for a better coordination of the legal systems of the Member States in the field of company law, possibly through the enactment of an ad hoc instrument. To be properly carried out, however, such coordination requires a preliminary clarification of what the EU private international law of companies really is and how it should be handled at the current stage of the European integration. This article tries to contribute to such clarification by proposing five main guidelines, in the form of “commandments” for the European legislator, courts and practitioners. It is submitted that, first, one should understand the different scope of the three legal disciplines (EU law, private international law and company law) which interact in this field so as to assess when and to what extent the lack of coordination of the Member States’ domestic laws may affect the achievement of the objectives pursued by the EU. As a second analytical step, the impact that the EU constitutional principles of subsidiarity and proportionality may have on the scope of the relevant regulatory powers of the EU and of the Member States should be determined. Third, the issue of “characterization” should be addressed so that the boundaries of company law vis-à-vis neighbouring disciplines (capital markets law, insolvency law, contract law, tort law) are fixed throughout the entire EU legal space in a uniform and consistent way. Fourth, the Member States’ legal systems should be coordinated on the basis of the “jurisdictional approach” method (which de facto inspires the ECJ in Centros and its progenies) by granting a role of prominence to the Member State under the laws of which a company has been incorporated. Fifth, any residual conflict which may still arise among different Member States in the regulation of a given company should be resolved, in principle, by respecting the will of the parties to the corporate contract and the rights “to incorporate” and “to re-incorporate” which they enjoy under EU law. In the author’s opinion, an EU private international law of companies developed on the basis of these guidelines not only would achieve a fair balance between the needs of the integration and the Member States’ sovereignty, but would also create a framework for a European “market of company law” where a “virtuous” forum and law shopping could be performed in a predictable and regulated way.

In its judgment of 18 October 2016 regarding the case of Nikiforidis (Case C‑135/15), the Court of Justice ruled as follows.

(1)      Article 28 of Regulation No 593/2008 on the law applicable to contractual obligations (Rome I) must be interpreted as meaning that a contractual employment relationship that came into being before 17 December 2009 (the date on which the Regulation became applicable) falls within the scope of the regulation only in so far as that relationship has undergone, as a result of mutual agreement of the contracting parties which has manifested itself on or after that date, a variation of such magnitude that a new employment contract must be regarded as having been concluded on or after that date, a matter which is for the referring court to determine.

(2)      Article 9(3) of Regulation No 593/2008 must be interpreted as precluding overriding mandatory provisions other than those of the State of the forum or of the State where the obligations arising out of the contract have to be or have been performed from being applied, as legal rules, by the court of the forum. The Regulation, however, does not preclude the court from taking such other overriding mandatory provisions into account as matters of fact in so far as this is provided for by the national law that is applicable to the contract pursuant to the regulation. This interpretation is not affected by the principle of sincere cooperation laid down in Article 4(3) TEU. 

Regarding the opinion delivered by SG Szpunar in this case, see here.  

Nella sentenza del 18 ottobre 2016 relativa al caso Nikiforidis (causa C-135/15), la Corte ha affermato quanto segue.

(1)      L’art. 28 del regolamento n. 593/2008 sulla legge applicabile alle obbligazioni contrattuali (Roma I) dev’essere interpretato nel senso che un rapporto contrattuale di lavoro sorto prima del 17 dicembre 2009 (la data di applicabilità del regolamento) rientra nell’ambito di applicazione di tale regolamento solo nei limiti in cui detto rapporto ha subito, per effetto di un consenso reciproco delle parti contraenti che si sia manifestato a decorrere da tale data, una modifica di ampiezza tale da dover ritenere che sia stato concluso un nuovo contratto di lavoro a decorrere dalla medesima data, circostanza che spetta al giudice del rinvio determinare.

(2)      L’art. 9, par. 3, del regolamento n. 593/2008 deve essere interpretato nel senso che esso esclude che norme di applicazione necessaria diverse da quelle dello Stato del foro, o dello Stato nel quale gli obblighi derivanti dal contratto devono essere o sono stati eseguiti, possano essere applicate, in quanto norme giuridiche, dal giudice del foro. Esso non osta, tuttavia, a che il giudice prenda in considerazione siffatte altre norme di applicazione necessaria in quanto elementi di fatto nei limiti in cui ciò è previsto dal diritto nazionale applicabile al contratto in forza delle disposizioni di tale regolamento. Detta interpretazione non è rimessa in discussione dal principio di leale cooperazione enunciato all’articolo 4, paragrafo 3, TUE.

Vedi qui una sintesi delle conclusioni presentate in questa causa dall’Avvocato Generale Szpunar.

On 29 September 2016, Wilmer Cutler Pickering Hale and Dorr LLP and Wolters Kluwer co-hosted a seminar in London to mark the launch of the special BREXIT issue of the Kluwer Journal of International Arbitration. The speakers comprised of the authors of the articles within the BREXIT issue, who discussed varied topics relating to Brexit and private international law. Leading the seminar were Professor Dr Maxi Scherer, special counsel at Wilmer Cutler Pickering Hale and Dorr LLP and the journal’s general editor, and Dr Johannes Koepp, partner at Baker Botts LLP and the special issue editor.

The speakers, who were of both academic and professional acclaim, provided interesting insights and lively debate on the multifaceted impacts that Brexit could have on the UK’s legal landscape. Topics included Brexit’s effect on: London as a seat for international dispute resolution; recognition and enforcement of foreign judgments; UK competition litigation and arbitration; and intellectual property disputes.

This post, which has been kindly sent to me by Reyna Ge (BCL Candidate, University of Oxford) serves to provide an overview of the presentations and issues raised. A full recording of the seminar is available here, with a shortened version including the highlights of the event here.

London as a Seat of International Dispute Resolution in Europe

Michael McIlwrath, Global Chief Litigation Counsel of GE Oil & Gas, presented via videoconference “An Unamicable Separation: Brexit Consequences for London as a Premier Seat of International Dispute Resolution in Europe”. In determining the impact that Brexit might have on London as a seat for international commercial arbitration, he suggested that London would lose cases in the short- to medium- term, while long-term growth would be subject to other assumptions. However, he also noted that Brexit would most likely not impact the trend of increased growth in the appointment of UK arbitrators.

EU Law and Constitutional Law Questions

Dr Holger Hestermeyer, Shell Reader in International Dispute Resolution, King’s College London, presented “How Brexit Will Happen: A Brief Primer on EU Law and Constitutional Law Questions Raised by Brexit”. Dr Hestermeyer explained that Article 50 of the Treaty of the European Union required a Member State to make a decision to withdraw from the EU in accordance with that State’s constitutional law, with the conclusion that the referendum itself was not legally binding. It is controversial whether a binding decision ought to be made by the Government on the basis of royal prerogative (as argued by the UK Government) or on the basis of a Parliamentary decision. Dr Hestermeyer also explored the process of leaving the EU, which would comprise negotiations for a “divorce agreement” and “future agreement”. This raised questions concerning the conduct of negotiations, the need for ratification of such agreements by the EU Member States and the UK, and the potential involvement of the European Free Trade Association States (“EFTA States”).

Brexit and the Brussels Regime

Sara Masters QC and Belinda McRae, barristers practising at 20 Essex Street Chambers in London, presented “What Does Brexit Mean for the Brussels Regime?” They examined what would be the effect of Brexit on the two main instruments on the allocation of jurisdiction and on the recognition and enforcement of foreign judgments, the Brussels I Regulation (Recast) (“Recast Regulation”) and the Lugano II Convention.

McRae explained the three academic possibilities that could arise if no agreement or decisions be made in this area, and concluded that a lack of action by the government concerning this framework would be very concerning for commercial parties.

Masters QC stated that the best outcome would be to negotiate a regime that is as close to the Recast Regulation as possible. The next best alternative would be to accede to the Lugano II Convention, even though this would mean that the innovations introduced by the Recast Regulation would not be present. Otherwise, the UK could accede to the Hague Choice of Court Convention, which could be a good short-term solution as it has the advantage of not being dependent on the reciprocity of the EU.

UK Competition Litigation and Arbitration

Paul Gilbert, Counsel at Cleary Gottlieb Steen & Hamilton LLP, presented “Impact of Brexit on UK Competition Litigation and Arbitration”. Gilbert commented that there were signs that the UK government was moving toward a “hard Brexit” in relation to competition law. This would mean that more cases would be looked at within the UK, instead of providing Brussels with the sole jurisdiction over cases such as cartels.

Gilbert noted that the effect on competition litigation, in the form of follow-on actions, would be more difficult to predict. Following Brexit, EU cases would no longer be binding. Even if the UK decides to apply UK competition law consistently with EU law, future EU Commission decisions may not make further reference to the position in the UK on competition matters and thus make alignment difficult. Additionally, it was unclear what information would be released to claimants, and a finding of infringement pursuant to EU law may not necessarily be a basis for bringing a damages claim in a UK court. The implementation of the Damages Directive in the EU would also impact competition law.

Intellectual Property Litigation and Arbitration

Annet van Hooft, Partner at Bird & Bird LLP, presented “Brexit and the Future of Intellectual Property Litigation and Arbitration”. She noted that Brexit has impacted the creation of the Unitary Patent Court (“UPC”). Whether the UK would ratify the UPC regime and the future of the subdivision of the UPC that was to be located in London are two examples of issues arising from Brexit. The UPC, therefore, would experience delays in implementation.

Regarding trademarks and designs, while UK trademarks and designs would be unaffected, there would be uncertainty concerning the future treatment of community trademarks and designs in the UK. Van Hooft noted further uncertainty concerning database rights, the enforcement of pan-EU relief for unitary rights, exhaustion and licenses.

Intra- and Extra-EU Bilateral Investment Treaties

Markus Burgstaller, Partner at Hogan Lovells International LLP, presented “Possible Ramifications of the UK’s EU Referendum on Intra- and Extra-EU BITs”. With regard to intra-EU BITs, Burgstaller argued that such BITs would likely be found to be incompatible with EU law, and noted that the European Commission had called for the termination of the intra-EU BITs as early as in 2006. However, many States had not terminated these BITs, as was the case with the UK. Currently, the ECJ is set to rule upon the compatibility of intra-EU BITs in the case of the Netherlands-Slovakia BIT. Upon UK withdrawing from the EU, the intra-EU BITs would lose their intra-EU character.

Comments and discussion

Following presentation by the speakers, lively debate was entertained concerning the topics. The speakers and participants highlighted the importance of seeking agreement on matters such as BITs and the replacement for the Brussels Regime with the EU, for the purpose of promoting legal certainty. The potential for growth in the use of international arbitration, for the purposes of capitalising on the recognition and enforcement framework provided by the New York Convention, was also raised.

By Implementing Regulation (EU) 2016/1823 of 10 October 2016, the European Commission has established the forms referred to in Regulation (EU) No 655/2014 of 15 May 2014 on the European Account Preservation Order (EAPO) procedure, an ex parte procedure that applies in cross-border cases and is intended to allow creditors to preserve funds in bank accounts under uniform conditions in all EU Member States (with the exception of the UK and Denmark). The procedure will become available on 18 January 2017.

The forms established by the Commission include, inter alia, the form to be used by the creditor to apply for a EAPO, the forms to be used by the court for the issue and the revocation of a EAPO, and the form to be used by the debtor to apply for a remedy against a EAPO. Each form comes with an explanatory text providing practical guidelines.

The Commission is now expected to make publicly available the information that the Member States, pursuant to Article 50 of Regulation No 655/2014, were required to provide before 18 July 2016 as regards the organisation of the EAPO procedure in their legal systems (such as the courts designated as competent to issue a EAPO and the authorities charged with the enforcement of EAPOs).