Droit international général

Colleagues at the University of Heidelberg are organising this conference on 20 Januari 2023 at the

Auditorium of the Neue Universität at Heidelberg University, Universitätsplatz 1, 69117 Heidelberg.

Simultaneous interpretation will be provided in German, English and French.

Background:

The European Succession Regulation (Reg. 650/12) is due for evaluation ten years after its entry into force in August 2015 (Art. 82 Reg. 650/12).

The European Commission must submit its report on the application of the European Succession Regulation by 18 August 2025.

The upcoming evaluation gives an opportunity to reflect on various questions in light of the practical experience gained so far. Although the European Succession Regulation has proven successful in practice, there are many open questions which the ever-growing body of European Court of Justice case-law has not yet answered. These questions fuel a lively debate, both internationally and within the Member States. Hence, the outcome of the evaluation process is not predictable and the German view is only one of many that will contribute to the political decision-making process. Contrasting national views must be reconciled.

The first findings of a pan-European study on the experiences and expectations of legal practice with regard to Reg. 650/12 are now available. The study (MAPE Successions) is carried out by the Council of the Notariats of the European Union (C.N.U.E.) with the cooperation of the German Federal Chamber of Notaries (Bundesnotarkammer).

This study is an opportunity to map out the future objectives of the discussion on the evaluation of Reg. 650/12 from the perspective of academia and legal practice. At the same time, the conference provides a broad circle of legal practitioners with the opportunity to feed their experiences and insights into the reform process and discuss with renowned stakeholders.

Participation is free, but registration is required by 5 January 2023: notareg@igr.uni-heidelberg.de

Programme:

1 p.m. Welcome reception with lunchtime snack

2.15 p.m. Welcoming address and introduction

Prof. Dr. Christian Baldus, Heidelberg

2.30 p.m. The European Succession Regulation in the System of European Private International and Procedural Law: More “Brussels-Rome 0” after the Revision?

Prof. Dr. Martin Gebauer, Tübingen, Judge at the Higher Regional Court of Stuttgart

3.15 p.m. Presentation of the MAPE Successions study: What do practitioners expect from the revision of the European Succession Regulation?

Notary Christian Schall, LL.M. (Edinburgh), Marktheidenfeld

4 p.m. Questions and discussion

4.15 p.m. Coffee break

4.45 p.m. The European Succession Regulation in German judicial practice

Dr. Carl-Friedrich Nordmeier, Judge at the Regional Court of Frankfurt

5.30 p.m. Panel discussion followed by questions from the audience: European experiences with the application of the European Succession Regulation

Presenter: Notary Dr. Thomas Raff, Ludwigshafen

France, Maître de conférences HDR Paul Klötgen, Nancy

Luxembourg, Notary Anja Holtz, Esch-sur-Alzette

Poland, Notary Tomasz Kot, Krakow, Vice President of the Polish Chamber of Notaries (Krajowa Rada Notarialna)

Portugal, Notary Prof. Sofia Henriques, Lisbon

Sweden, Attorney Ulf Bergquist, Stockholm

Spain, Notary Dr. Isidoro Calvo Vidal, A Coruña

7 p.m.Closing remarks

Notary Dr. Andrea Stutz, Konstanz, Vice President of the Chamber of Notaries of Baden-Württemberg

7.15 p.m. End of conference

In a judgment of 7 September 2022, the French supreme court for private and criminal matters (Cour de cassation) addressed several issues arising out of applications to declare enforceable judgments wrongfully filed under the Brussels I Regulation.

While the Brussels I bis Regulation does not provide for a declaration of enforceability of judgments anymore, the Succession and Matrimonial Property Regulations still do.

In 1997, the European Commission granted € 132,000 to an agency for local democracy in Croatia to offer training to local officials. With the grant came various reporting obligations to the Commission within 18 months. The individual who received the grant did not comply with them. The European Commission sued him in Croatian courts and obtained in April 2012 a judgement from a Croatian court ordering restitution of the monies.

As the debtor had relocated in France, the Commission sought to enforce the Croatian judgment in France under the Brussels I Regulation. It obtained a certificate from the Croatian court in 2014, and, in 2015, a declaration of enforceability of the judgment from an officer of a French court.

The debtor appealed to the court of appeal of Colmar (France), which declared the application for a declaration of enforceability inadmissible, on the ground that it fell outside of the scope of the Brussels I Regulation.

It is not always easy to navigate the rules on the scope of EU regulations, including, it seems, for the European Commission itself…

Croatia acceded to the European Union and to the Brussels I Regulation in 2013. In this case, therefore, not only had the proceedings been initiated before Croatia acceded, but the judgment had also been rendered the year before.

The transitional provisions in the Brussels I Regulation (Article 66) provide that, for the rules on recognition and enforcement of judgments to apply, the judgment should, at the very least, have been made after the entry into force of the Regulation, depending, in particular, on whether the Lugano Convention applied before the entry into force of the Regulation (Article 66(2)).

An interesting question was that of the powers of the French Court of Appeal. The first instance French authority had declared the Croatian judgment enforceable on the basis of the Brussels I Regulation. The power of the Court of Appeal was defined by Article 45(1) of the Regulation, which provides:

The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only on one of the grounds specified in Articles 34 and 35. (…)

As most readers will know, the grounds in arts 34 and 35 do not include that the judgment did not fall within the scope of the Regulation. Indeed, the Cour de cassation recalled that the CJEU ruled in Case C-139/10 (Prism Investments BV) that a declaration of enforceability could only be revoked on the grounds in Articles 34 and 35.

Interpreted literally, this would mean that a court of appeal could not review the first instance decision in so far as it would have found wrongly that the regulation applied.  As Adrian Briggs wrote in his treatise on Civil Jurisdiction and Judgments, Article 45(1) should “not be taken completely seriously”.

The Cour de cassation rules that Article 45 should be interpreted as limiting the power of the court of appeal to the verification of the existence of a ground in Articles 34 and 35 and the applicability of the regulation (the court suggests that this also flows from the case law of the CJEU).

While it seems clear that the court of appeal should have the power to review the applicability of the Regulation, it is unclear whether this should be considered as mandated by Article 45. If the Regulation does not apply, Article 45 should not either. The remedy should thus be, rather, that the action seeking a declaration of inadmissibility under the Regulation should be declared as inadmissible, for the Regulation would not apply.

After the European Commission was reminded about the date Croatia acceded to the EU, it logically decided that it would thus seek to enforce the Croatian judgment under the French common law of judgments.

The debtor, however, argued that the judgment of the Court of appeal dismissing the first action under the Brussels I Regulation was res judicata, and that the European Commission could not relitigate the case under a different regime.

Under French law, res judicata extends to all arguments which could have been raised in the first proceedings. This, in effect, means parties to French proceedings are under an obligation to raise immediately all possible arguments in support of their claim. In this case, the European Commission would only be given one chance to demonstrate its mastery of the law of foreign judgments.

The Cour de cassation, however, rules that, in the context of an appeal under Article 43 of the Regulation, the European Commission could not have made any argument under the French common law of judgments. As a result, the judgment of the court of appeal should not prevent the Commission from making these arguments in a new action.

By: Naimeh Masumy (Swiss International School) naimehmasoomy@gmail.com

Following the decision of the English Court of Appeal in Lenkor Energy Trading DMCC v Puri[ 2021] EWCA Civ 770, in which the Court of Appeal upheld the enforcement of the Dubai court’s judgment concerning a dishonored cheque, the Ministry of Justice Issued a letter, urging the Dubai courts to enforce judgments of the English courts under the principle of reciprocity.

Background: The evolving nature of enforcing a foreign judgment in the UAE

Whether a foreign judgment can be enforced in the UAE depends on the jurisdiction that the judgment was issued and the nature of the respective judgment.  Generally, the enforcement of foreign judgments in the UAE is governed by statutory regimes.  Under UAE Law, the enforcement of foreign judgments is governed by Cabinet Decision No. 57/2018 on the Regulations of Federal Law No. 11/1992 on the Civil Procedure Code (as amended).

Article 85(2) of the Cabinet Resolution sets out a few requirements for the enforcement of foreign judgments.  In particular, Article 85(2) of the Cabinet Resolution provides, amongst other things, the following conditions:

• Finality: The Article explicitly mentions that the judgments need to be final and conclusive, as well as consistency with the law of that foreign state;
• Inconsistency of judgments with domestic judgments: The second requirement is that the enforced judgment and/or order does not conflict with a judgment previously issued by the UAE Courts;
• No violation of public policy or morality: Additional common requirement stipulated under Article 85 (2) is that the foreign judgment should not involve anything that potentially violates public order or morality.

Additionally, the UAE is a party to a number of treaties facilitating the reciprocal enforcement of judgments.  The most relevant are the GCC Convention for the Execution of Judgments, Delegations and Judicial Notifications 1996 ( GCC Convention). The UAE has also entered into bilateral treaties for the reciprocal recognition and enforcement of foreign judgments, including treaties with India, China, and France.  However, in the absence of a treaty between the UAE and England for the mutual recognition of civil judgments, the Dubai Courts of Cassations demonstrated proclivities so far to decline to enforce a civil judgment from English Courts.  A cogent example is the Ruling of No. 269 of 2006, wherein the UAE Court of Cassation refused to enforce a civil judgment from English Courts.  Similarly, the English Courts were reluctant to enforce UAE Court Judgments.

However, there has been a discernable shift in the existing legal framework of the UAE, particularly in relation to the foreign judgments issued in the common law jurisdictions.  As discussed, the enforcement of foreign judgments in the UAE are only governed by the statutory regime and the bilateral agreement; thus the common law principles such as reciprocity did not historically play a vital role in the enforcement of foreign judgment.  However, the recent decision of the English High Court propelled a shift in the legal approaches adopted by the UAE domestic courts.  The decision of the Lenkor Energy Trading DMCC v Puri [ 2021] EWCA Civ 770 reinforced the UAE Ministry of Justice to issue a Directive, confirming that in the absence of a treaty for mutual recognition of judgments, the Lenkor decision has established the principle of reciprocity required for enforcement of an English Court judgment in the UAE.

Implications of the Directive

This directive can be regarded as a welcome development in the enforcement of English Court judgments in the UAE.  Further, the Directive will potentially enhance the confidence of parties that seek to resolve their disputes in an English Court where the counterparty might be located in the UAE or has some tangible asset in the UAE.  Finally, the Directive facilitates the enforcement of arbitration awards rendered by foreign jurisdictions in the UAE.

Cornwall Renewable Developments Ltd v Wright, Johnston & Mackenzie LLP [2022] EWHC 3259 (Ch) is the appeal against [2022] EWHC 441 (Ch) which I flagged here. The jurisdictional challenge concerns the allocation of jurisdiction within the UK. However by statutory instruction in the Civil Jurisdiction and Judgments Act 1982 (CJJA), account must be taken of the Brussels Regime and CJEU authority on same.

The question is essentially what the ‘place of performance of the obligation in question’ is for legal advice, in this case provided by a Scottish law firm with no place of business yet near-inevitably some dual qualified Scots-E&W lawyers, introduced by an intermediary to an England (Cornwall in fact)-based client viz a development in Cornwall. I have before flagged the difficulty of the ‘obligation in question’ part of the question in light of the unclear, if any, remaining authority of CJEU De Bloos (an issue which unfortunately will not be entertained soon by the CJEU now that the Sao Paolo Panels case has been withdrawn).

Of note (as the judge also does [75] is that the CJJA does not in relevant section have the benefit of the additional clarification in Brussels Ia’s Article 7(1)b: ) ‘for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:…in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided;’, although in the case of legal services essentially submitted by phone and e-mail, this might have created its own discussion as the judge’s discussion here also shows.

The result is exactly the kind of rigmarole which forum contractus often leads to, with the principles listed by Smith R [45] ff. The judge confirms [63] after consideration that the first judge was not wrong (this is an appeal, not a de novo assessment) to conclude that the principal “obligation in question” was to provide advice and agreements to the Claimant for negotiation and execution by parties in England, with the intention that they would satisfy Cornwall Council’s planning rules so that planning permission would be granted, and the development could proceed; and that the place where this obligation was to be performed, despite research etc being done from Scotland, was indeed England.

The judgment is (probably too, for a jurisdictional issue) lengthy and I am sure one can find fault with some of the applications of the authorities yet all of this emphasises the urgent need for law firms to include choice of court in their standard retainer agreements.

Best wishes for 2023!

Geert.

Forum contractus ('courts for place of performance of the obligation in question') for intra-UK conflicts, inspired by Brussels regime
What is that place for legal advice?

Cornwall Renewable Developments v Wright Johnston & Mackenzie [2022] EWHC 3259 (Ch)https://t.co/etoIhjqmgg https://t.co/bIx8L143pb

— Geert Van Calster (@GAVClaw) January 3, 2023

On Tuesday, January 10, 2022, the Hamburg Max Planck Institute will host its 29th monthly virtual workshop Current Research in Private International Law at 11:00 a.m. – 12:30 p.m. (CET). Guangjian Tu (University of Macau) will speak, in English, about the topic

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.

The Young Property Lawyers’ Forum (YPLF) invites junior researchers to submit proposals for presentations given at its 12th annual meeting, to take place at the European Legal Studies Institute, University of Osnabrück, Germany, on 1 and 2 June 2023.

The theme of this year’s conference is Property Law and Its Boundaries and it can be dealt with from a wide range of perspectives, including but not limited to, doctrinal, theoretical, and comparative. Topics can cover, e.g., core areas of property law doctrine, intellectual property, or property law’s intersections with environmental law, family law, criminal law, administrative law, etc.

Junior researchers (graduate level up to 5 years after conferral of doctoral degree) are invited to submit abstracts of presentations to be given at the conference. Abstracts can be of completed (but unpublished) drafts and, in keeping with the YPLF’s mission as an informal network to exchange ideas, abstracts on works in progress are encouraged.

Abstracts should be sent via email to yplf@yplf.net by 1 February 2023.

The call for papers can be found here. For more information on the conference, see here.

Written by NIE Yuxin and LIU Chang, Wuhan University Institute of International Law

1. Background

The present Civil Procedure Law of China (hereinafter “CPL”) was enacted in 1990 and has been amended four times. All amendments made no substantive adjustments to the foreign-related civil procedure proceedings. In contrast with legislative indifference, foreign-related cases in the Chinese judicial system have been growing rapidly and call for modernization of the foreign-related civil procedure law. On 30 December 2022, China’s Standing Committee of the National People’s Congress issued the “Civil Procedure Law of the People’s Republic of China (amendment draft)”. Amendments are proposed for 29 articles, 17 of which relate to special provisions on foreign-related civil procedures, including rules on the jurisdiction, service abroad, taking of evidence abroad and recognition and enforcement of judgements.

2. Jurisdiction

Special jurisdiction: Present special jurisdiction rules apply to “disputes concerning contract or other property rights or interests”. The literal interpretation may suggest non-contractual or non-propertary disputes are excluded. The amendment draft extends special jurisdiction rules to cover “disputes relating to property right or interest, and right or interest other than property” (Art. 276, para. 1). The amendment draft provides proceedings may be brought before the courts “where the contract is signed or performed, the subject matter of the action is located, the defendant has any distrainable property, the tort or harmful event occurred, or the defendant has any representative office” (Art. 276, para. 1). Furthermore, “the Chinese court may have jurisdiction over the action if the dispute is of other proper connections with China” (Art. 276, para. 2).

Choice of court agreement: A special provision on the choice of court agreement is inserted in the foreign-related procedure session (Art. 277), which states: “If the place actually connected to dispute is not within the territory of China, and the parties have agreed in written that courts of China are to have jurisdiction, Chinese courts may exercise jurisdiction. The competent court shall be specified according to provisions on hierarchical jurisdiction and exclusive jurisdiction of this law and other laws of China.” In contrast to Art. 35 on choice of court agreement in purely domestic cases, Art. 277 partly partially abolished the constraint prescribed in Art. 35, which requires the chosen forum to have practical connection to the dispute. When the party chose Chinese court to exercise jurisdiction, there will be no requirement for actually connection between the dispute and chosen place. But it does not state whether Chinese court should stay jurisdiction if a foreign court is chosen, and whether the chosen foreign court must have practical connections to the dispute. This is an obvious weakness and uncertainty.

Submission to jurisdiction: Art. 278 inserted a new provision on submission to jurisdiction: “Where the defendant raises no objection to the jurisdiction of the courts of China and responds to the action by submitting a written statement of defence or brings a counterclaim, the court of China accepting the action shall be deemed to have jurisdiction.”

Exclusive jurisdiction: The draft article expands the categories of disputes covered by exclusive jurisdiction (Art. 279), including disputes arising from: “(1) the performance of contracts for Chinese-foreign equity joint ventures, Chinese-foreign contractual joint ventures or Chinese-foreign cooperative exploration and exploitation of natural resources in China; (2) the formation, dissolution, liquidation and effect of decisions of legal persons and other organizations established within the territory of China; (3) examining the validity of intellectual property rights which conferred within the territory of China.” Not only matters relating to Chinese-foreign contractual cooperation, but the operation of legal persons and other organizations and the territoriality of intellectual property rights are deemed key issues in China.

Jurisdiction over consumer contracts: The proposal inserts protective jurisdiction rule for consumer contracts (Art. 280). paragraph 1 of this article provides “(w)hen the domicile of consumer is within the territory of China but the domicile of operator or its establishment is not”, which permits a Chinese consumer to sue foreign business in China. Paragraph 2 restricts the effect of standard terms on jurisdiction. It imposed the operator the “obligation to inform or explicate reasonably” the choice of court clause, otherwise the consumer may claim the terms are not part of the contract. Furthermore, even if consumers are properly informed of the existence of a choice of court clause, if it is “obviously inconvenient for the consumer” to bring proceedings in the chosen court, the consumer may claim the terms are invalid. In other words, the proposal pays attention to the fairness of a choice of court clause in consumer contracts both in procedure and in substance.

Jurisdiction over cyber torts: With regard to cyber torts, Art. 281 of the draft states: action for cyber torts may be instituted in the Chinese court if: (1) “computer or other information device locates in the territory of China”; (2) “the harmful event occurs in the territory of China”; (3) “the victim domiciles in the territory of China”.

3. Conflict of Jurisdiction, Lis pendens and Forum Non Conveniens

Parallel litigation and exclusive jurisdiction agreements: Art. 282 states: “If one party sues before a foreign court and the other party sues before the Chinese court, or if one party sues before a foreign court as well as the Chinese court, for the same dispute, the Chinese court having jurisdiction under this law may exercise jurisdiction. If the parties have agreed in writing on choosing a foreign court to exercise jurisdiction exclusively, and that choice does not violate the provisions on exclusive jurisdiction of this law or involve the sovereignty, security or social public interests of China, the Chinese court may dismiss the action.” The first part of this article deals with parallel litigation. It allows the Chinese court to exercise jurisdiction over the same dispute pending in a foreign court. The second part of this article provides exception to exclusive jurisdiction agreements. Although Chinese courts are not obliged to stay jurisdiction in parallel proceedings, they should stay jurisdiction in favour of a chosen foreign court in an exclusive jurisdiction clause, subject to normal public policy defence.

First-seized court approach: If the same action is already pending before a foreign court, conflict of jurisdiction will happen. First-seized court approach encourages the latter seized court to give up jurisdiction. The draft implements this approach in China. Art. 283 states: “Where a foreign court has accepted action and the judgment of the foreign court may be recognized by Chinese court, the Chinese court may suspend the action with the party’s written application, unless: (1) there is choice of court agreement indicating to Chinese court between the parties, or the dispute is covered by exclusive jurisdiction; (2) it is obviously more convenient for the Chinese court to hear the case. Where foreign court fails to take necessary measures to hear the case, or is unable to conclude within due time, the Chinese court may remove the suspension with the party’s written application.” This provision is the first time that introduces the first-in-time or lis pendens rule in China. But the doctrine is adopted with many limitations. Firstly, the foreign judgment may be recognised in China. Secondly, Chinese court is not the chosen court. Thirdly, Chinese court is not the natural forum. The lis pendens rule is thus fundamentally different from the strict lis pendens rule adopted in the EU jurisdiction regime, especially it incorporates the consideration of forum conveniens. Furthermore, it is also necessary to reconcile the first-in-time provision with the article on parallel proceedings, which states Chinese courts, in principle, can exercise jurisdiction even if the dispute is pending in the foreign court.

Res judicata: Paragraph 3 of Art. 283 state: “Once the foreign judgment has been fully or partially recognized by Chinese court, and the parties institute an action over issues of the recognized content of the judgement, Chinese court shall not accept the action. If the action has been accepted, Chinese court shall dismiss the action.”

Forum non conveniens: Even if the conflict of jurisdiction has not actually arisen, the Chinese court may decline jurisdiction in favour of the more appropriate court of another country. The defendant should plead forum non conveniens or challenge jurisdiction. Applying forum non conveniens should meet four prerequisites. (1) “Since major facts of disputes in a case do not occur within the territory of China, Chinese court has difficulties hearing the case and it is obviously inconvenient for the parties to participate in the proceedings”. (2) “The parties do not have any agreement for choosing Chinese court to exercise jurisdiction”. (3) “The case does not involve the sovereignty, security or social public interests of China”. (4) “It is more convenient for foreign courts to hear the case” (Art. 284, para. 1). This article also provides remedy for the parties if the proceedings on foreign court do not work well. “Where foreign court declined to exercise jurisdiction over the dispute, failed to take necessary measures to hear the case, or is unable to conclude within due time after Chinese court’s dismissal, the Chinese court shall accept the action which the party instituted again.” (Art. 284, para. 2).

4. Judicial Assistance

Service of process on foreign defendants: One of the amendment draft’s main focuses is to improve the effectiveness of foreign-related legal proceedings. In order to achieve this goal, the amendment draft introduces multiple mechanisms to serve process abroad.

Before the draft, the CPL has provided the following multiple service methods: (1) process is served in the manners specified in the international treaty concluded or acceded to by the home country of the person to be served and China; (2) service through diplomatic channels; (3) if the person to be served is a Chinese citizen, service of process may be entrusted to Chinese embassy or consulate stationed in the country where the person to be served resides; (4) process is served on a litigation representative authorized by the person to be served to receive service of process; (5) process is served on the representative office or a branch office or business agent authorized to receive service of process established by the person to be served within the territory of China; (6) service by post; (7) service by electronic means, including fax, email or any other means capable of confirming receipt by the person to be served; (8) if service of process by the above means is not possible, process shall be served by public notice, and process shall be deemed served three months after the date of public notice.[1]

Article 285 of the draft outlines two new methods to serve a foreign natural person not domiciled in China. First, if the person has a cohabiting adult family member in China, the cohabiting adult family member shall be served (Art. 285, para. 1(g)). Second, if the person acts as legal representative, director, supervisor and senior management of his enterprise established in the territory of China, that enterprise shall be served (Art. 285, para. 1(f)). Similarly, a foreign legal person or any other organization may be served on the legal representative or the primary person in charge of the organization if they are located in China (Art. 285, para. 1(h)). It is clear that by penetrating the veil of legal persons, the amendment draft increases the circumstances of alternative service between relevant natural persons and legal persons.

Amongst the amendments to the CPL, there are points relating to service by electronic means that are worthy of note. Compared to traditional ways of service, service by electronic means is usually more convenient and more efficient. The position in respect of service by electronic means, both before and after the amendment to the CPL, is that such service is permitted. A major innovation introduced by the amendment draft is that the service can now be conducted via instant messaging tools and specific electronic systems, if such means are legitimate service methods recognized in the state of destination (Art. 285, para. 1(k)). It meets the urgent demand of both sides in lawsuits by improving the delivery efficiency.

Party autonomy in service abroad is also accepted. The validity of service by other means agreed to by the person served is recognized, provided that it is permitted by the state of the person served (Art. 285, para. 1(l)).

If the above methods fail, the defendant may be served by public notice. The notice should be publicized for 60 days and the defendant is deemed served at the end of the period. Upon the written application of the party, the above methods and the way of service by public notice may be made at the same time provided that the service by public notice is not less than 60 days and the litigation rights of the defendant are not affected (Art. 285, para. 2).

Investigation and collection of evidence:

Prior to the draft, the CPL stipulated that Chinese and foreign courts can each request the other to provide judicial assistance in acquiring evidence located in the territory of the other country, in accordance with treaty obligations and the principle of reciprocity. Chinese courts can take evidence abroad generally via two channels. First, evidence overseas can be acquired according to treaty provisions. In the absence of treaties, foreign evidence can only be obtained through diplomatic channels based on the principle of reciprocity.[2]

Article 286 of the draft provides more varied methods to collect foreign evidence. Firstly, foreign evidence can be acquired according to the methods specified in the international treaties concluded or acceded to by both the country where the evidence is located and China. Secondly, the evidence can also be obtained through diplomatic channels. Thirdly, for a witness with Chinese nationality, the Chinese embassy or consulate in the country of the witness will be entrusted to take the evidence on behalf of the witness. Fourthly, via instant messenger tools or other means. Access to electronic evidence stored abroad faces the dilemma of inefficient bilateral judicial assistance, controversial unilateral evidence collection and inadequate functioning of multilateral conventions.[3] The application of modern information technology, such as video conferencing and teleconferencing, can overcome the inconvenience of distance, saving time and costs. It is the mainstream of international cooperation to apply modern technology in the field of extraterritorial evidence-taking. For example, in 2020, the EU Parliament and Council revised the EU Evidence Regulation. The most important highlight of the EU Evidence Regulation is the emphasis on the digitalization of evidence-taking and the use of modern information technology in the process of evidence-taking.[4] On this basis, the amendment draft proposes that the court may, with the consent of the parties, obtain evidence through instant messenger tools or other means, unless prohibited by the law of the country where the evidence is collected (Art. 286).

5. Recognition and enforcement of foreign judgments and arbitral awards

Grounds for non-recognition and non-enforcement of foreign judgments: Recognition and enforcement shall not be granted if (1) the foreign court has no jurisdiction over the case in accordance with the provisions of Article 303; (2) the respondent has not been legitimately summoned or has not been given a reasonable opportunity to be heard or to argue, or the party who is incapable of litigation has not been properly represented; (3) the judgment or ruling has been obtained by fraud; (4) the court of China has issued a judgment or ruling on the same dispute, or has recognized and enforced a judgment or ruling issued by a court of a third country on the same dispute; (5) it violates the Chinese general principles of the law or sovereignty, national security or public interests of China (Art. 302).

After several amendments and official promulgation, the CPL has not significantly changed the requirements for the recognition and enforcement of foreign judgments. In China, reciprocity as a prerequisite for recognition of foreign judgments continues to play a dominating role in China. The difficulty of enforcing foreign judgments is one of the major concerns in the current Chinese conflicts system when applying the principle of reciprocity, impeding the development of international cooperation in trade and commerce. The local judicial review process may become more transparent thanks to this new draft. However, the key concern, the reciprocity principle, is still left unaltered in this draft.

In addition, if the foreign judgment for which recognition and enforcement are sought involves the same dispute as that being heard by a Chinese court, the proceedings conducted by the Chinese court may be stayed. If the dispute is more closely related to China, or if the foreign judgment does not meet the conditions for recognition, the application shall be refused (Art. 304).

Lack of jurisdiction of the foreign court: One of the grounds for non-recognition and non-enforcement of foreign judgments is that the foreign court lacks jurisdiction (See Art. 302). Article 303 provides that the foreign courts shall be found to have no jurisdiction over the case in the following circumstances: (1) The foreign court has no jurisdiction over the case pursuant to its laws; (2) Violation of the provisions of this Law on exclusive jurisdiction; (3) Violation of the agreement on exclusive choice of court for jurisdiction; or (4) The existence of a valid arbitration agreement between the parties (Art. 303).

Recognition and enforcement of foreign arbitral awards: If the person sought to be enforced is not domiciled in China, an application for recognition and enforcement may be made to the Chinese intermediate court of the place of domicile of the applicant or of the place with which the dispute has an appropriate connection (Art. 306). The inclusion of the applicant’s domicile and the court with the appropriate connection to the dispute as the court for judicial review of the arbitration significantly facilitates the enforcement of foreign awards. A major uncertainty, however, is how “appropriate connection” is defined. The amendment draft remains silent on the criterion.

6. Conclusion

The amendment draft presents efforts to actively correspond to the trends in the internationalization of the civil process along with the massive ambition to build a fair, efficient, and convenient civil and commercial litigation system. It offers more comprehensive and detailed rules that apply to all proceedings involving foreign parties. The amendment draft is significant both in terms of its impact on foreign-related civil procedures and the continuing open-door policy. It demonstrates that China is growing increasingly law-oriented to provide more efficient and convenient legal services to foreign litigants and to safeguard the country’s sovereignty, security and development interests. On the other hand, the proposal also includes discrepancy and uncertainty, especially whether the practical connection for choice of foreign court is still required, what is the relationship between the first-in-time rule and the rule permitting parallel proceedings, whether reciprocity should be reserved for recognition and enforcement of foreign judgments. It is also noted that although anti-suit injunction is used in Chinese judicial practice, the proposal does not include a provision on this matter. Hopefully, these issues may be addressed in the final version.

[1] The CPL, Art. 274.

[2] The CPL, Art. 284.

[3] Liu Guiqiang, ‘China’s Judicial Practice on the Taking of Evidence Abroad in Civil and Commercial Matters: Current Situation, Problems and Solutions’ (2021) 1 Wuhan University International Law Review, 92, 97.

[4] Regulation (EU) 2020/1783 on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters (Taking of Evidence Recast). Official Journal of the European Union [online], L 405, 2 December 2020.

Written by Madeleine Petersen Weiner/Marc-Philippe Weller

In this article, we critically assess the question of where to locate the “event giving rise to the damage” under Art. 7 Rome II in CO2 reduction claims. This controversial – but often overlooked – question has recently been given new grounds for discussion in the much discussed “Milieudefensie et al. v. Shell” case before the Dutch district court in The Hague. In this judgment, the court had to determine the law applicable to an NGO’s climate reduction claim against Royal Dutch Shell. The court ruled that Dutch law was applicable as the law of the place where the damage occurred under Art. 4 (1) Rome II and the law of the event giving rise to the damage under Art. 7 Rome II as the place where the business decision was made, i.e., at the Dutch headquarters. Since according to the district court both options – the place of the event where the damage occurred and the event giving rise to the damage – pointed to Dutch law, this question was ultimately not decisive.

However, we argue that it is worth taking a closer look at the question of where to locate the event giving rise to the damage for two reasons: First, in doing so, the court has departed from the practice of interpreting the event giving rise to the damage under Art. 7 Rome II in jurisprudence and scholarship to date. Second, we propose another approach that we deem to be more appropriate regarding the general principles of proximity and legal certainty in choice of law.

1. Shell – the judgment that set the ball rolling (again)

The Dutch environmental NGO Milieudefensie and others, which had standing under Dutch law before national courts for the protection of environmental damage claims, made a claim against the Shell group’s parent company based in the Netherlands with the aim of obliging Shell to reduce its CO2 emissions. According to the plaintiffs, Shell’s CO2 emissions constituted an unlawful act. The Dutch district court agreed with this line of reasoning, assuming tortious responsibility of Shell for having breached its duty of care. The court construed the duty of care as an overall assessment of Shell’sobligations by, among other things, international standards like the UN Guiding Principles of Human Rights Responsibilities of Businesses, the right to respect for the private and family life under Art. 8 ECHR of the residents of the Wadden region, Shell’s control over the group’s CO2 emissions, and the state’s and society’s climate responsibility etc. This led the district court to ruling in favor of the plaintiffs and ordering Shell to reduce its greenhouse gas emissions by 45% compared to 2019.

In terms of the applicable law, the court ruled that Dutch law was applicable to the claim. The court based its choice of law analysis on Art. 7 Rome II as the relevant provision. Under Art. 7 Rome II, the plaintiff can choose to apply the law of the event giving rise to the damage rather than the law of the place where the damage occurred as per the general rule in Art. 4 (1) Rome II. The court started its analysis by stating that “climate change, whether dangerous or otherwise, due to CO2 emissions constitutes environmental damage in the sense of Article 7 Rome II”, thus accepting without further contemplation the substantive scope of application of Art. 7 Rome II.

The court went on to find that the adoption of the business policy, as asserted by the plaintiffs, was in fact “an independent cause of the damage, which may contribute to environmental damage and imminent environmental damage with respect to Dutch residents and the inhabitants of the Wadden region”. The court thereby declined Shell’s argument that Milieudefensie’s choice pointed to the law of the place where the actual CO2 emissions occurred, which would lead to a myriad of legal systems due to the many different locations of emitting plants operated by Shell.

2. The enigma that is “the event giving rise to the damage” to date

This line of reasoning marks a shift in the way “the event giving rise to the damage” in the sense of Art. 7 Rome II has been interpreted thus far. To date, there have been four main approaches: A broad approach, a narrower one, one that locates the event giving rise to the damage at the focal point of several places, and one that allows the plaintiff to choose between several laws of events which gave rise to the damage.

(1.) The Dutch district court’s location of the event giving rise to the damage fits into the broad approach. Under this broad approach, the place where the business decision is made to adopt a policy can qualify as a relevant event giving rise to the damage. As a result, this place will usually be that of the effective headquarters of the group. On the one hand, this may lead to a high standard of environmental protection as prescribed by recital 25 of the Rome II Regulation, as was the case before the Dutch district court, which applied the general tort clause Art. 6:162 BW. On the other hand, this may go against the practice of identifying a physical action which directly leads to the damage in question, rather than a purely internal process, such as the adoption of a business policy.

(2.) Pursuant to a narrower approach, the place where the direct cause of the violation of the legal interest was set shall be the event giving rise to the damage. In the case of CO2 reduction claims, like Milieudefensie et al. v. Shell, that place would be located (only) at the location of the emitting plants. This approach – while dogmatically stringent – may make it harder to determine responsibility in climate actions as it cannot necessarily be determined which plant led to the environmental damage, but rather the emission as a whole results in air pollution.

(3.) Therefore, some scholars are in favor of a focal point approach, according to which the event giving rise to the damage would be located at the place which led to the damage in the most predominant way by choosing one focal point out of several events that may have given rise to the damage. This approach is in line with the prevailing opinion regarding jurisdiction in international environmental damage claims under Art. 7 Nr. 2 Brussels I-bis Regulation. In practice, however, it may sometimes prove difficult to identify one focal point out of several locations of emitting plants.

(4.) Lastly, one could permit the victim to choose between the laws of several places where the events giving rise to the damage took place. However, if the victim were given the option of choosing a law, for example, of a place that was only loosely connected to the emissions and resulting damages, Art. 7 Rome II may lead to significantly less predictability.

3. Four-step-test: A possible way forward?

Bearing in mind these legal considerations, we propose the following interpretation of the event giving rise to the damage under Art. 7 Rome II:

First, as a starting point, the laws of the emitting plants which directly lead to the damage should be considered. However, in order to adequately mirror the legal and the factual situations, the laws of the emitting plants should only be given effect insofar as they are responsible for the total damage.

If there are several emitting plants, some of which are more responsible for greenhouse gas emissions than others, these laws should only be invoked under Art. 7 Rome II for the portion of their responsibility regarding the entire claim. This leads to a mosaic approach as adopted by the CJEU in terms of jurisdiction for claims of personality rights. This would give an exact picture of contributions to the environmental damage in question and would be reflected in the applicable law.

Second, in order not to give effect to a myriad of legal systems, this mosaic approach should be slightly moderated in the sense that courts are given the opportunity to make estimations of proportions of liability in order not to impose rigid calculation methods. For example, if a company operates emitting plants all over the world, the court should be able to roughly define the proportions of each plant’s contribution, so as to prevent potentially a hundred legal systems from coming into play to account for a percentile of the total emissions.

Third, as a fall-back mechanism, should the court not be able to accurately determine each plant’s own percentage of responsibility for the total climate output, the court should identify the central place of action in terms of the company’s environmental tort responsibility. This will usually be at the location of the emitting plant which emits the most CO2 for the longest period of time, and which has the most direct impact on the environmental damage resulting from climate change as proclaimed in the statement of claim.

Fourth, only as a last resort, should it not be possible to calculate the contributions to the pollution of each emitting plant, and to identify one central place of action out of several emitting plants, the event giving rise to the damage under Art. 7 Rome II should be located at the place where the business decisions are taken.

This proposal is discussed in further detail in the upcoming Volume 24 of the Yearbook of Private International Law.

How did things go with the EAPIL blog in 2022? The following statistics provide some answers.

About 315 posts have been published over the last twelve months. More than 80 of these consisted of reports of, or comments on, court rulings (we mostly covered rulings by the Court of Justice of the European Union, but we also dealt with rulings given by the European Court of Human Rights and by domestic courts). Some 40 posts were about new or contemplated normative texts. The remaining posts mostly concerned new scholarly works or upcoming academic events.

No less than 40 posts were authored by guests, rather than the blog’s permanent editors. The EAPIL blog aims to foster dialogue among anybody interested in private international law, so new inputs are always welcome! For inquiries and submissions, please write an e-mail to blog@eapil.org or to pietro.franzina@unicatt.it.

The aggregate number of visits and “unique visitors” has increased, compared with last year (+2,8% and +19%, respectively). Interaction with readers remained intense in 2022, as attested by the comments that the blog’s posts attracted (120 in total). The number of subscribers, i.e., those who asked to be notified of new posts, raised to 600, i.e., about 170 more than one year ago.

Our Twitter account and LinkedIn profile also witnessed an increase in interactions.

The three most read posts, among those published in 2022, were Jurisdictional Immunities: Germany v. Italy, Again, on the proceedings instituted by Germany against Italy before the International Court of Justice in April;  Humpty-Dumpty, Arbitration, and the Brussels Regulation: A View from Oxford, by Adrian Briggs, concerning the ruling of the Court of Justice in the case of London Steam-Ship Owners’ Mutual Assistance Association Ltd v Spain; and Marco Buzzoni’s CJEU Adds a New Piece to the ‘Mosaic’ in Gtflix Tv.

The posts that attracted the highest number of written comments were Martina Mantovani’s Notaries and EU PIL: Taking Stock of 5 Years of Case Law, Felix Wilke’s The Silent Death of Conflict-of-Law Provisions in EU Directives?, and Erik Sinander’s Danish Supreme Court: No Tort Liability under Danish Law for Green Desert Operation in Iraq.

Many thanks to all readers, guests and commenters for feeding the exchanges.

2023 will be a year of innovations regarding the blog – and, generally, the website – of the European Association of Private International Law (various improvements are currently being studied, and will be announced in due course). The support of the blog’s community will be more important than ever!

With all best wishes for the New Year from the editors!

Ronán Feehily authored International Commercial Mediation – Law and Regulation in Comparative Context, recently published by Cambridge University Press.

In this comprehensive comparative study, Ronán Feehily analyses the legal and regulatory issues surrounding international commercial mediation and discusses their implications in a range of settings. While existing literature tends to cover mediation in general, Feehily places the commercial mediation process in its legal and regulatory context, offering an original contribution to the field. The book identifies the controversies that arise from the mediation process across numerous jurisdictions and discusses them in detail. Comparing the mediation process in Europe, North America and Australia, as well as other common, civil and ‘mixed’ jurisdictions, Feehily demonstrates where systemic differences are transcended and where they are significant. Organised systematically and written in an accessible style, Feehily offers an international, holistic guide to the commercial mediation process.

More information available here.

Naivi Chikoc Barreda (University of Ottawa) authored a book titled Succession internationale et dispositions spéciales de la lex rei sitae – Contribution à l’étude de l’impérativité internationale en matière successorale, published by L’Harmattan.

The English summary reads as follows:

While the unity of the applicable law has unquestionably dominated the history of the harmonization of conflict rules in matters of succession, from the first Hague conventions drafts to Regulation (EU) No 650/2012, its scope has always been nuanced by the special rules of the lex situs. These derogatory provisions have borrowed several techniques of intervention. Initially associated with the public policy clause, their admissibility subsequently transited through a substantially oriented choice-of-law rule, before crystallizing in an atypical clause for the application of overriding mandatory provisions. 

These special rules challenge the conceptual premises of a pyramidal understanding of the “lois de police” built on the paradigm of the domestic mandatory rule. This first monograph on the subject proposes a reflection on the “contradictions” at the heart of the traditional notion of “lois de police”, confronted with the particularities of the succession concerning assets subject to economic, family or social purposes, the conservation of which is often ensured by substantive rules respecting the deceased’s individual autonomy.

The EAPIL blog goes on “Winter Break mode”, meaning that only few posts will be published over the next few days. But stay tuned: blogging will resume as usual on 9 January 2023.

We wish you all the best for the festive season!

The Court of Justice yesterday held, without Opinion AG (justifiably in my view), in Case C-98/22 Eurelec Trading Sarl, on yet again the interpretation of ‘civil and commercial’ to determine the scope of application of Brussels Ia.

The dispute in the main proceedings is between the Ministre français de
lʼÉconomie et des Finances and two Belgian companies: Eurelec, a pricing and purchasing negotiation centre founded by the French Leclerc group and the German Rewe group, and Scabel, which acts as an intermediary between Eurelec and the French and Portuguese regional purchasing centres of the Leclerc group. Two French undertakings are also parties to the dispute: the Leclerc groupʼ national purchasing centre which negotiates the annual framework contracts with the French suppliers (ʻGALECʼ) and the association of E Leclerc distribution centres (ʻACDLECʼ).

Following an investigation conducted between 2016 and 2018, the Economic Affairs and Finance Minister suspected that potentially restrictive practices were being implemented in Belgium by Eurelec in respect of suppliers established in France. The Minister brought an action against those four companies before the Paris courts,  seeking a declaration ia that the practices consisting in (i) requiring suppliers to accept Belgian law as lex contractus (said to circumvent French lois de police), and (ii) imposing seriously reduced returns, were abusive.

The French Government argue with reference to CJEU Movic that ʻacting in the general interest should not be confused with the exercise of public powersʼ, and that one should distinguish the inquiry stage from the judicial proceedings, in particular, that the criterion for applicability of the Brussels Ia Regulation is the use made of evidence and not the rules for collecting it.

The CJEU disagrees. [26] the claim is based on evidence procured during searches which an ordinary litigation party cannot make resort to, and [27] the procedure at issue involves ia an administrative (not a criminal) fine being sought, which is not a request than can be made by an ordinary civil party. [29] The procedure is one which follows from acta iure imperii, the exercise of public power. [29] CJEU Movic is distinguished for in that case no fine was being sought, merely an end to the restrictive practices as well as damages, which both are claims that can also be made by ordinary parties. The latter once again means that depending on what is included in a claim, BIa may or may not be engaged.

Geert.

European Private International Law, 3rd ed. 2021, paras 2.28 ff concluding at 2.65.

#CJEU yesterday C-98/22 Eurelec
French Finance Ministry's attempt to impose (civil) fines on Belgian corporation in action aimed at anti-competitive behaviour, is actum iure imperii, does not fall within scope of Brussels Ia 'civil and commercial' claimshttps://t.co/mdQ3EwGJ9z

— Geert Van Calster (@GAVClaw) December 23, 2022

Almost six years have passed since 18 January 2017, when Regulation (EU) No 655/2014 establishing a European Account Preservation Order (EAPO) procedure to facilitate cross-border debt recovery in civil and commercial matters became applicable in full.

A conference will be held in Milan, at the Catholic University of the Sacred Heart, on 3 March 2023, from 9.45 to 17, to discuss the operation of the EAPO Regulation in light of practice and case law.

Speakers include Gilles Cuniberti (University of Luxembourg), Elena D’Alessandro (University of Torino), Fernando Gascón Inchausti (Complutense University, Madrid), Katharina Lugani (Heinrich Heine University, Düsseldorf), Antonio Leandro (University of Bari), Raffaella Muroni (Catholic University of the Sacred Heart), Elena Alina Ontanu (Tilburg University), Carlos Santalò Goris (Max Planck Institute, Luxembourg), María Luisa Villamarín López (Complutense University, Madrid), and Caterina Benini (Catholic University of the Sacred Heart).

The conference will also offer an opportunity to present an article-by-article commentary of the EAPO Regulation, edited by Elena D’Alessandro and Fernando Gascón Inchausti, recently published by Edward Elgar in its Commentaries in Private International Law series. Augusto Chizzini (Catholic University of the Sacred Heart) and Luca Radicati di Brozolo (former professor of the Catholic University of the Sacred Heart, now partner at ArbLit, Milan) will exchange views on this work.

Some of the presentations will be delivered in English, others in Italian, with simultaneous interpretation.

Attendance is free, but prior registration is required. Details regarding registration will be provided in early January 2023, together with the detailed programme of the event.

For information, please write an e-mail to Pietro Franzina at pietro.franzina@unicatt.it.

Written by Mayela Celis

This year has been marked by the high number of EU instruments that have been adopted (and entered into force) or that have started to apply in the European Union, which are directly or indirectly related to the modernisation of the service of judicial and extrajudicial documents and the taking of evidence in civil or commercial matters.

These developments include three (full-fledged) regulations and two Commission implementing regulations. In addition, two Commission implementing decisions were adopted on 20 December 2022 concerning a related topic (i.e. e-CODEX). We have previously reported on this here and here. While the great number of EU instruments in this field and their interrelationship can be daunting to a non-European, they seem to provide a smooth and flexible way forward for EU Member States.

Undoubtedly, such legislative efforts attest to the commitment of EU institutions to modernise this area of Private International Law, in particular by making the electronic transmission of requests for service and the taking of evidence, as well as other communications, a reality at least from 2025 onwards (for more information, see below).

In my view, this goes beyond anything that currently exists among States (at any level) regarding judicial cooperation as the electronic transmission of requests for both service and the taking of evidence is usually done in a piecemeal approach or lacks the necessary security safeguards, including data protection.

On 1 July 2022 two recast Regulations started to apply in the European Union:

1. Regulation (EU) 2020/1784 of the European Parliament and of the Council of 25 November 2020 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents) (recast). See, in particular, Articles 5 (means of communication), 6, 19 (electronic service), 25, 27 and 28;
2. Regulation (EU) 2020/1783 of the European Parliament and of the Council of 25 November 2020 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (taking of evidence) (recast). See, in particular, Articles 7 (transmission), 8, 12(4), 19 (direct taking of evidence), 20 (videoconferencing), 25, 27 and 28.

These two regulations modernise this field in two distinctive ways.

First and foremost these regulations contain provisions dealing with the means of communication to be used by transmitting agencies, receiving agencies, courts and central bodies through a secure and reliable decentralised IT system. This primarily intends to replace the cumbersome paper transmission of requests and other documents and in this way, speed up proceedings.

For those of you who are wondering what a “decentralised IT system” is, please note that it has been defined in both recast versions as a “network of national IT systems and interoperable access points, operating under the individual responsibility and management of each Member State, that enables the secure and reliable cross-border exchange of information between national IT systems”.

Secondly, these regulations provide for the actual service by electronic means and the taking of evidence by videoconferencing or other distance communications technology. The Service Regulation has included a provision regarding electronic service of documents by allowing this to take place by means of qualified electronic registered delivery services (see EU Regulation (EU) 910/2014) or by email, both requiring (thankfully and rightfully, I must note) the prior express consent of the addressee; on the other hand, the Evidence Regulation provides for the direct taking of evidence by videoconferencing or other distance communication technology.

With respect to the implementation of the decentralised IT system, two Commission Implementing Regulations were adopted and entered into force in 2022:

1. Commission Implementing Regulation (EU) 2022/423 of 14 March 2022 laying down the technical specifications, measures and other requirements for the implementation of the decentralised IT system referred to in Regulation (EU) 2020/1784 of the European Parliament and of the Council;
2. Commission Implementing Regulation (EU) 2022/422 of 14 March 2022 laying down the technical specifications, measures and other requirements for the implementation of the decentralised IT system referred to in Regulation (EU) 2020/1783 of the European Parliament and of the Council.

It should be noted that the decentralised IT system as an obligatory means of communication to be used for the transmission and receipt of requests, forms and other communication will start applying from 1 May 2025 (the first day of the month following the period of three years after the date of entry into force of the Commission Implementing Regulations above-mentioned).

Interestingly, Recital 3 of the Commission Implementing Regulations indicates that “[t]he decentralised IT system should be comprised of the back-end systems of Member States and interoperable access points, through which they are interconnected. The access points of the decentralised IT system should be based on e-CODEX.” Designating e-CODEX as the system on which access points should be based is in my view a breakthrough, given the apparent ambivalent feelings of some regarding such system.

The Annexes of these Commission Implementing Regulations provide more information as to the specificities of the system and indicate that:

• “The Service of Documents (SoD) exchange system is an e-CODEX based decentralised IT system that can carry out exchanges of documents and data related to the service of documents between the different Member States in accordance with Regulation (EU) 2020/1784. The decentralised nature of the IT system would enable data exchanges exclusively between one Member State and another, without any of the Union institutions being involved in those exchanges.”

• “The Taking of Evidence (ToE) exchange system is an e-CODEX based decentralised IT system that can carry out exchanges of documents and messages related to the taking of evidence between the different Member States in accordance with Regulation (EU) 2020/1783. The decentralised nature of the IT system would enable data exchanges exclusively between one Member State and another, without any of the Union institutions being involved in those exchanges.”

This takes us to the new EU instruments relating to e-CODEX.

As a matter of fact, a brand-new Regulation on e-CODEX has entered into force this year:

• Regulation (EU) 2022/850 of the European Parliament and of the Council of 30 May 2022 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), and amending Regulation (EU) 2018/1726 (Text with EEA relevance).

This regulation explains e-CODEX in detail and specifies that the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA) will take over the administration of e-CODEX.

In particular, I would like to highlight Recitals 7 and 8 of the Regulation (EU) 2022/850, which explain what e-CODEX is and which read as follows:

“(7) The e-CODEX system is a tool specifically designed to facilitate the cross-border electronic exchange of data in the area of judicial cooperation in civil and criminal matters. In the context of increased digitalisation of proceedings in civil and criminal matters, the aim of the e-CODEX system is to improve the efficiency of cross-border communication between competent authorities and to facilitate citizens’ and businesses’ access to justice. Until the handover of the e-CODEX system to the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA), established by Regulation (EU) 2018/1726 of the European Parliament and of the Council, the e-CODEX system will be managed by a consortium of Member States and organisations with funding from Union programmes (the ‘entity managing the e-CODEX system’).”

“(8) The e-CODEX system provides an interoperable solution for the justice sector to connect the IT systems of the competent national authorities, such as the judiciary, or other organisations. The e-CODEX system should therefore be viewed as the preferred solution for an interoperable, secure and decentralised communication network between national IT systems in the area of judicial cooperation in civil and criminal matters.”

As previously indicated, two Commission Implementing Decisions have been adopted this week:

• Commission implementing decision (EU) …/… of 20.12.2022 on the technical specifications and standards for the e-CODEX system, including for security and methods for integrity and authenticity verification;
• Commission implementing decision (EU) …/… of 20.12.2022 on the specific arrangements for the handover and takeover process of the e-CODEX system.

The Annexes of the Commission Implementing Decisions are particularly interesting as they provide all the specificities of the system and its handover.

All in all this looks very promising to the long-awaited modernisation of this field in the European Union.

The programme for the fourth German Conference for Young Scholars in Private International Law has been released.

The conference will be held at the Sigmund Freud University in Vienna, 23-24 February 2023.

The speakers will present papers in German and English on different aspects of the general topic “Deference to the foreign – empty phrase or guiding principle of private international law?”.

The keynote speech will be delivered by Professor Horatia Muir Watt (Sciences Po) and a panel discussion will provide practical insights.

Please register here in order to participate. Attendance will be in-person only, free of charge. The organisers can be contacted at ipr@sfu.ac.at.

Nazia Yaqub (Leeds Beckett University, UK) authored a book titled Parental Child Abduction to Islamic Law Countries – A Child Rights Analysis of the Legal Framework, published by Hart / Bloomsbury in its Studies in Private International Law.

As the world becomes smaller, family law is becoming truly global, giving rise to more and more questions for private international law. This book looks at the sensitive and complex question of child abduction, with a unique child rights perspective. Taking Islamic law as its case study, it delves into child abduction in key jurisdictions from Iran to Saudi Arabia and Libya to Pakistan. Rigorous doctrinal analysis is enhanced by empirical insights, namely interviews with abductees, parents and professionals. It is an excellent guide to a complicated field.

 The table of contents can be accessed here.

The Court of Appeal in Teva UK Ltd & Anor v Novartis AG [2022] EWCA Civ 1617 has reaffirmed the principle that while it is not as such unkosher to petition the English courts subsequently to use the spin-off value of that judgment in other jurisdictions (related in some way to using English courts for discovery purposes), it is not proper for E&W courts to make a declaration solely for the purpose of influencing a decision by a foreign court on an issue governed by the law of that very foreign court (here: Germany).

In the case at issue, the claim involves an Arrow declaration (a declaration that a product, process or use was lacking in novelty or obvious as at the priority date of a patent application) with respect to a German patent (admittedly subject to European law which is largely harmonised with the UK approach).

Per Arnold LJ [51-52]

It is not the function of the courts of England and Wales to provide advisory opinions to foreign courts seised of issues which fall to be determined in accordance with their own laws. The English courts have no special competence to determine such issues. If anything, it is likely that they have less competence than the local courts. It makes no difference that the English court and the foreign court are applying the same basic law. Furthermore, comity requires restraint on the part of the English courts, not (to adopt Floyd LJ’s graphic phrase) jurisdictional imperialism. Otherwise the English courts would be enabling forum shopping.

In saying this, I am assuming that the parties have full and unimpeded access to the foreign court. I recognise that the position might possibly be different if that were not the position; but it is not necessary to consider this further for the purposes of the present case, since there is no suggestion that either of these parties lacks full and unimpeded access to the courts of Germany or Country A.

Geert.

Comity, forum shopping
Assisting a foreign court to decide an issue under its own law is not a legitimate reason for the grant of declaratory (patent infringement) relief by the courts of E&W

Teva UK Ltd & Anor v Novartis AG [2022] EWCA Civ 1617 https://t.co/3vQldi2ple

— Geert Van Calster (@GAVClaw) December 9, 2022

The proceedings of the Conference on the Notary’s Role in Private International Law (L’office du notaire en droit international privé) which took place on 25-26 November 2021 in Toulouse University, have been published by Dalloz.

The book, edited by Estelle Gallant, contains eighteen contributions (in French) from experts of private international law, scholars or practitioners, namely.

Contriibutors form academia include: Hugues Kenkack (Toulouse), Fabienne Jault-Seseke (Paris-Saclay), Patrick Wautelet (Liège), Pierre Callé (Paris-Saclay), Christine Bidaud (Lyon 3), Hugues Fulchiron (Lyon 3), Eric Fongaro (Bordeaux), Michel Farge (Grenoble-Alpes), A. d’Abbadie d’Arrast (Toulouse), Hélène Péroz (Nantes), Nathalie Joubert (Bourgogne-Dijon), Sara Godechot-Patris (Paris-Est Créteil), Sandrine Clavel (Paris-Saclay), Marc Nicod (Toulouse), Lukas Rass-Masson (Toulouse), Estelle Gallant (Toulouse) & Cyril Nourissat (Lyon 3).

The following authors are either notaries or legal practitioners working with notaries: Caroline Deneuville (Paris), Richard Crône (Paris), François Tremosa (Toulouse), Mariel Revillard, Marion Nadaud (Bordeaux).

The volume deals with three main topics: (1) the notary as an authority in private international law; (2) Reception and circulation of documents; (3) the drawing up of documents. It is complemented by sectoral analyses on divorce, matrimonial property regimes and international succession, and by concluding remarks on the main findings of the research.

The blurb (originally in French) reads:

The main objective of the research is to identify precisely the instruments and rules or methods of private international law the notary has to use and implement in his European and international notarial practice, whether he is drawing up or receiving deeds in his office, or circulating them across borders, in the European Union or outside the Union.

Against this background, the book’s contributions are drawing up the contours of the notary’s role in private international law, analysing and discussing its foundations, consequences and challenges.

The table of contents of the book can be accessed here.

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

(These abstracts can also be found at the IPRax-website under the following link: https://www.iprax.de/en/contents/)

R. Wagner: European account preservation orders and titles from provisional measures with subsequent account attachments

The enforcement of a claim, even in cross-border situations, must not be jeopardised by the debtor transferring or debiting funds from his account. A creditor domiciled in State A has various options for having bank accounts of his debtor in State B seized. Thus, he can apply for an interim measure in State A according to national law and may have this measure enforced under the Brussels Ibis Regulation in State B by way of attachment of accounts. Alternatively, he may proceed in accordance with the European Account Preservation Order Regulation (hereinafter: EAPOR). This means that he must obtain a European account preservation order in State A which must be enforced in State B. By comparing these two options the author deals with the legal nature of the European account preservation order and with the subtleties of enforcement under the EAPOR.

H. Roth: The „relevance (to the initial legal dispute)“ of the reference for a preliminary ruling pursuant to Article 267 TFEU

The preliminary ruling procedure under Article 267 of the Treaty on the Functioning of the European Union (TFEU) exists to ensure the uniform interpretation and application of EU law. The conditions under which national courts may seek a preliminary ruling are based on the established jurisdiction of the European Court of Justice (CJEU) and are summarised in Article 94 of the Rules of Procedure of the CJEU. One such condition is that the question referred to the court must be applicable to the decision in the initial legal dispute. Any future judgement by the referring court must thereafter be dependant on the interpretation of Union law. When cases are obviously not applicable, the European Court dismisses the reference for a preliminary ruling as inadmissible. The judgement of the CJEU at hand concerns one of these rare cases in the decision-making process. The sought-after interpretation of Union law was not materially related to the matter of the initial legal dispute being overseen by the referring Bulgarian court.

S. Mock/C. Illetschko: The General International Jurisdiction for Legal Actions against Board Members of International Corporations – Comment on OLG Innsbruck, 14 October 2021 – 2 R 113/21s, IPRax (in this issue)

In the present decision, the Higher Regional Court of Innsbruck (Austria) held that (also) Austrian courts have jurisdiction for investors lawsuits against the former CEO of the German Wirecard AG, Markus Braun. The decision illustrates that the relevance of the domicile of natural persons for the jurisdiction in direct actions for damages against board members (Art 4, 62 Brussels Ia Regulation) can lead to the fact that courts of different member states have to decide on crucial aspects of complex investor litigation at the same time. This article examines the decision, focusing on the challenges resulting from multiple residences of natural persons under the Brussels Ia Regulation.

C. Kohler: Lost in error: The ECJ insists on the “mosaic solution” in determining jurisdiction in the case of dissemination of infringing content on the internet

In case C-251/20, Gtflix Tv, the ECJ ruled that, according to Article 7(2) of Regulation No 1215/2012, a person, considering that his or her rights have been infringed by the dissemination of disparaging comments on the internet, may claim, before the courts of each Member State in which those comments are or were accessible, compensation for the damage suffered in the Member State of the court seized, even though those courts do not have jurisdiction to rule on an application for rectification and removal of the content placed online. The ECJ thus confirms the “mosaic solution” developed in case C-509/09 and C-161/10, eDate Advertising, and continued in case C-194/16, Bolagsupplysningen, for actions for damages for the dissemination of infringing contents on the internet. The author criticises this solution because it overrides the interests of the sound administration of justice by favouring multiple jurisdictions for the same event and making it difficult for the defendant reasonably to foresee before which court he may be sued. Since a change in this internationally isolated case law is unlikely, a correction can only be expected from the Union legislator.

T. Lutzi: Art 7 No 2 Brussels Ia as a Rule on International and Local Jurisdiction for Cartel Damage Claims

Once again, the so-called “trucks cartel” has provided the CJEU with an opportunity to clarify the interpretation of Art. 7 No. 2 Brussels Ia in cases of cartel damage claims. The Court confirmed its previous case law, according to which the place of damage is to be located at the place where the distortion of competition has affected the market and where the injured party has at the same time been individually affected. In the case of goods purchased at a price inflated by the cartel agreement, this is the place of purchase, provided that all goods have been purchased there; otherwise it is the place where the injured party has its seat. In the present case, both places were in Spain; thus, a decision between them was only necessary to answer the question of local jurisdiction, which is also governed by Art. 7 No. 2 Brussels Ia. Against this background, the Court also made a number of helpful observations regarding the relationship between national and European rules on local jurisdiction.

C. Danda: The concept of the weaker party in direct actions against the insurer

In its decision T.B. and D. sp. z. o. o. ./. G.I. A/S the CJEU iterates on the principle expressed in Recital 18 Brussels I bis Regulation that in cross-border insurance contracts only the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules. In the original proceedings – a joint case – the professional claimants had acquired insurance claims from individuals initially injured in car accidents in Poland. The referring court asked the CJEU (1) if such entities could be granted the forum actoris jurisdiction under Chapter II section 3 on insurance litigation against the insurer of the damaging party and (2) if the forum loci delicti jurisdiction under Art. 7(2) or 12 Brussels I bis Regulation applies under these conditions. Considering previous decisions, the CJEU clarified that professional claimants who regularly receive payment for their services in form of claim assignment cannot be considered the weaker party in the sense of the insurance section and therefore cannot rely on its beneficial jurisdictions. Moreover, the court upheld that such claimants may still rely on the special jurisdiction under Art. 7(2) Brussels I bis Regulation.

C. Reibetanz: Procedural Consumer Protection under Brussels Ibis Regulation and Determination of Jurisdiction under German Procedural Law (Sec. 36 (1) No. 3 ZPO)

German procedural law does not provide for a place of jurisdiction comparable to Article 8 (1) Brussels Ibis Regulation, the European jurisdiction for joinder of parties. However, according to Sec. 36 ZPO, German courts can determine a court that is jointly competent for claims against two or more parties. In contrast to Art. 8 (1) Brussels Ibis Regulation, under which the plaintiff has to choose between the courts that are competent, the determination of a common place of jurisdiction for joint procedure under German law is under the discretion of the courts. Since EU law takes precedence in its application over contrary national law, German courts must be very vigilant before determining a court at their discretion. The case is further complicated by the fact that the prospective plaintiff can be characterised as a consumer under Art. 17 et seq. Brussels Ibis Regulation. The article critically discusses the decision of the BayObLG and points out how German judges should approach cross-border cases before applying Sec. 36 ZPO.

M.F. Müller: Requirements as to the „document which instituted the proceedings“ within the ground for refusal of recognition according to Art 34 (2) Brussels I Regulation

The German Federal Court of Justice dealt with the question which requirements a document has to comply with to qualify as the “document which instituted the proceedings” within the ground for refusal of recognition provided for in Art 34 (2) Brussels I Regulation regarding a judgment passed in an adhesion procedure. Such requirements concern the subject-matter of the claim and the cause of action as well as the status quo of the procedure. The respective information must be sufficient to guarantee the defendant’s right to a fair hearing. According to the Court, both a certain notification by a preliminary judge and another notification by the public prosecutor were not sufficiently specific as to the cause of action and the status quo of the procedure. Thus, concerning the subject matter of the claim, the question whether the “document which instituted the proceedings” in an adhesion procedure must include information about asserting civil claims remained unanswered. While the author approves of the outcome of the case, he argues that the Court would have had the chance to follow a line of reasoning that would have enabled the Court to submit the respective question to the ECJ. The author suggests that the document which institutes the proceedings should contain a motion, not necessarily quantified, concerning the civil claim.

B. Steinbrück/J.F. Krahé: Section 1032 (2) German Civil Procedural Code, the ICSID Convention and Achmea – one collision or two collisions of legal regimes?

While the ECJ in Achmea and Komstroy took a firm stance against investor-State arbitration clauses within the European Union, the question of whether this will also apply to arbitration under the ICSID Convention, which is often framed as a “self-contained” system, remains as yet formally undecided. On an application by the Federal Republic of Germany, the Berlin Higher Regional Court has now ruled that § 1032 (2) Civil Procedural Code, under which a request may be filed with the court to have it determine the admissibility or inadmissibility of arbitral proceedings, cannot be applied to proceedings under the ICSID Convention. The article discusses this judgment, highlighting in particular that the Higher Regional Court chooses an interpretation of the ICSID Convention which creates a (presumed) conflict between the ICSID Convention and German law, all the while ignoring the already existing conflict between the ICSID Convention and EU law.

L. Kuschel: Copyright Law on the High Seas

The high seas, outer space, the deep seabed, and the Antarctic are extraterritorial – no state may claim sovereignty or jurisdiction. Intellectual property rights, on the other side, are traditionally territorial in nature – they exist and can be protected only within the boundaries of a regulating state. How, then, can copyright be violated aboard a cruise ship on the high seas and which law, if any, ought to be applied? In a recent decision, the LG Hamburg was confronted with this quandary in a dispute between a cruise line and the holder of broadcasting rights to the Football World Cup 2018 and 2019. Unconvincingly, the court decided to circumnavigate the fundamental questions at hand and instead followed the choice of law agreement between the parties, in spite of Art. 8(3) Rome II Regulation and opting against the application of the flag state’s copyright law.

T. Helms: Validity of Marriage as Preliminary Question for the Filiation and the Name of a Child born to Greek Nationals in Germany in 1966

The Higher Regional Court of Nuremberg has ruled on the effects of a marriage on the filiation and the name of a child born to two Greek nationals whose marriage before a Greek-orthodox priest in Germany was invalid from the German point of view but legally binding from the point of view of Greek law. The court is of the opinion that – in principle – the question of whether a child’s parents are married has to be decided independently applies the law which is applicable to the main question, according to the conflict of law rules applicable in the forum. But under the circumstances of the case at hand, this would lead to a result which would be contrary to the jurisprudence of the Court of Justice on names lawfully acquired in one Member State. Therefore – as an exception – the preliminary question in the context of the law of names has to be solved according to the same law which is applicable to the main question (i.e. Greek law).

K. Duden: PIL in Uncertainty – failure to determine a foreign law, application of a substitute law and leaving the applicable law open

A fundamental concern of private international law is to apply the law most closely connected to a case at hand – regardless of whether this is one’s own or a foreign law. The present decision of the Hanseatic Higher Regional Court as well as the proceedings of the lower court show how difficult the implementation of this objective can become when the content of the applicable law is difficult to ascertain. The case note therefore first addresses the question of when a court should assume that the content of the applicable law cannot be determined. It examines how far the court’s duty to investigate the applicable law extends and argues that this duty does not seem to be limited by disproportionate costs of the investigative measures. However, the disproportionate duration of such measures should limit the duty to investigate. The comment then discusses which law should be applied as a substitute for a law whose content cannot be ascertained. Here the present decision and the proceedings in the lower court highlight the advantages of applying the lex fori as a substitute – not as an ideal solution, but as the most convincing amongst a variety of less-than-ideal solutions. Finally, the note discusses why it is permissible as a matter of exception for the decision to leave open whether German or foreign law is applicable.

M. Weller: Kollisionsrecht und NS-Raubkunst: U.S. Supreme Court, Entscheidung vom 21. April 2022, 596 U.S. ____ (2022) – Cassirer et al. ./. Thyssen-Bornemisza Collection Foundation

In proceedings on Nazi-looted art the claimed objects typically find themselves at the end of a long chain of transfers with a number of foreign elements. Litigations in state courts for recovery thus regularly challenge the applicable rules and doctrines on choice of law – as it was the case in the latest decision of the U.S. Supreme Court in Cassirer. In this decision, a very technical point was submitted to the Court for review: which choice-of-law rules are applicable to the claim in proceedings against foreign states if U.S. courts ground their jurisdiction on the expropriation exception in § 1605(3)(a) Federal Sovereign Immunities Act (FSIA). The lower court had opted for a choice-of -aw rule under federal common law, the U.S. Supreme Court, however, decided that, in light of Erie and Klaxon, the choice-of-law rules of the state where the lower federal courts are sitting in diversity should apply.