Droit international général

 The third issue of 2022 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:

Giovanna Adinolfi, Professor at the University Milan, States’ Economic Measures to Counter Cyberattacks: Disentangling Their (Il)Legitimacy under International Law

The present contribution draws the attention on measures adopted by States to tackle actual or potential cross-border cyberattacks and that may have an impact on international commercial transactions. With a look to the more recent practice, the distinction is proposed between response measures (addressed against those held responsible for cyber operations that have caused an injury to the target State) and anticipatory or preventive measures (intended to prevent cyberattacks). Against this backdrop, the issue is addressed as to whether both types of measures represent international unlawful acts which find a justification within the international legal order.

Bruno Barel, Associate Professor at the University of Padua, Le notificazioni nello spazio giuridico europeo dopo il regolamento (UE) 2020/1784 (Service of Documents in the European Judicial Area after Regulation (EU) 2020/1784) [in Italian]

The second recast of the uniform rules on the service of judicial and extrajudicial documents in civil or commercial matters introduced three innovative elements of particular relevance to the original framework, that dates back to the year 2000 (and which had already been subjected to recasting in 2007). Two of these novel provisions relate to the technological evolution of remote communications, and they consist of the institution of a common IT system for the telematic transmission of acts and documents between national authorities and of the – albeit timid and prudent – opening to direct forms of service by electronic means between individuals, thus surpassing the mediation of authorities. The third – and equally careful – novel provision attempts to reinforce the assistance between the authorities of different Member States aimed at identifying the address of the person to be served. Moreover, the most innovative part of the regulation will be fully operational only in 2025, in expectation of the full development of the decentralised IT system.

The following comments are also featured:

Pietro Franzina, Professor at the Catholic University of the Sacred Heart – Milan,  Il ruolo degli Incoterms nella determinazione convenzionale del luogo della consegna: note critiche sulla giurisprudenza della Cassazione (The Role of Incoterms in the Determination by Agreement of the Place of Delivery: Critical Notes on the Case Law of the Italian Court of Cassation) [in Italian]

By a recent ruling (Order No 20633 of 28 June 2022), the Italian Supreme Court addressed the issue of the role played by Incoterms in the determination of the place of delivery of the goods for the purposes of Article 7 No 1(b), of Regulation No 1215/2012 of 20 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. As in previous rulings on the same subject, the Supreme Court was reluctant to regard the incorporation of Incoterms into a contract as signalling the parties’ agreement on the place of delivery. Specifically, the Supreme Court dismissed the claim by the Italian seller that the contract in question had been agreed “EXW” its own premises in Italy: the Court acknowledged that the goods had in fact been picked up by a carrier hired by the buyer at the seller’s premises, but found that the parties had failed to agree “clearly” on the place of delivery, as it could not be established that the parties had unequivocally intended to make the seller’s premises the place of delivery of the goods for the purposes of jurisdiction. The paper contends that the approach of the Italian Supreme Court contradicts the principles laid down by the Court of Justice in Car Trim and Electrosteel. The approach is unpersuasive in two respects. First, the Supreme Court regards the parties’ agreement on the place of delivery as a derogation from the “general rule” whereby delivery must be understood to be due, for jurisdictional purposes, at the place of final destination of the goods (whereas, according to the Court of Justice, the latter is just a residual rule, which applies where the parties have failed to agree on the place of delivery). Secondly, the Supreme Court disregards the rules of interpretation adopted by the International Chamber of Commerce to describe the parties’ obligations under the different Incoterms, and follows, instead, its own understanding of the Incoterms concerned: actually, the Supreme Court asserted in the decision reviewed that, “as a rule”, the Incoterm EXW only relates to the allocation of the costs of transport and the transfer of risk, and has no bearing as such on the determination of jurisdiction.

Michele Grassi, Research Fellow at the University of Milan, Riconoscimento del rapporto di filiazione omogenitoriale e libertà di circolazione all’interno dell’Unione europea (Recognition of Same-Sex Parentage and Freedom of Movement within the European Union) [in Italian]

This paper aims to provide a critical analysis of the judgment rendered by the Court of Justice of the European Union in the Pancharevo case, where the Court was confronted with the sensitive issue of same-sex parenthood and its recognition in the context of free movement rights within the Union. The investigation focuses on the functional approach adopted by the Court of Justice in the application of the mutual recognition principle, and its possible implications on the recognition of same-sex parenthood for wider purposes, not directly linked to the exercise of free movement rights

Finally, this issue features the following book review by Francesca C. Villata, Professor at the University of Milan: Jason Grant ALLEN, Peter HUNN (eds.), Smart Legal Contracts. Computable Law in Theory and Practice, Oxford University Press, Oxford, 2022, pp. XIV-513.

CA Indosuez (Switzerland) SA & Anor v Afriquia Gaz SA & Anor [2022] EWHC 2871 (Comm) is largely a case of statutory construction (here: of the amended Civil Procedure Rules – CPR).

It transpires from current judgment that similar issues were discussed (yet eventually did not need determination) in Naftiran Intertrade Company (Nico) Limited and Anor v G.L. Greenland Limited and Anor [2022] EWHC 896 (Comm) (unpublished).

I do not often copy /paste big chunks of judgment let alone the facts parts of them, however here I feel it is quite necessary: [1] ff, in summary:

Gulf Petroleum FZC, the First Part 20 Defendant (“GP”) had trade finance facilities with CA Indosuez (Switzerland) SA (the Claimant: “CAIS”) and with UBS Switzerland AG (the Second Part 20 Defendant: “UBS”).

Afriquia Gaz SA and Maghreb Gaz SA, the Defendants and Part 20 Claimants (“AG” and “MG”), purchased a cargo of butane from GP.  GP assigned to CAIS the debt represented by the purchase price.  GP issued its invoices to AG and MG on 23 July 2020 and CAIS sent notices of assignment on 27 and 28 July 2020.

However on 19 August 2020 AG and MG paid, by SWIFT, the sums due to GP’s account with UBS. The funds were received into one of GP’s accounts with UBS and then transferred to what appears to have been its loan or overdraft account.

GP instructed UBS to transfer the sums received to CAIS. UBS refused. It claimed to have been entitled to set off those sums against GP’s liabilities to it.

By Rule 20.1 of the Civil Procedure Rules, the purpose of Part 20 of the CPR is “to enable counterclaims and other additional claims to be managed in the most convenient and effective manner”. CAIS commenced this claim against AG and MG for the purchase price, a claim in debt. AG and MG denied liability but added (Part 20) claims against GP and UBS for the sums received, and in unjust enrichment and for liability as constructive trustee. Following the exchange of expert reports on Swiss law, AG and MG have accepted that their claim against UBS based on an alleged constructive trust must fail, and that the claim in unjust enrichment will only arise in certain circumstances.

GP is incorporated in the UAE.  The sale contract with AG and MG contained an exclusive jurisdiction agreement in favour of the High Court in London. The Part 20 Claim Form was issued with the following indorsement:

“[AG and MG] are permitted to serve the [Part 20] Claim on [GP] pursuant to CPR r.6.33(2)(b)(v) and Article 25 of the Judgments Regulation because [GP] is a party to an agreement … conferring exclusive jurisdiction within Article 25 of the Judgments Regulation.  [AG and MG] are permitted to serve the [Part 20] Claim on [UBS] out of the jurisdiction pursuant to CPR r.6.33(1)(b)(i) and Article 6(3) of the Lugano Convention.

The reference to Article 6(3) was a mistake for Article 6(2).

The Part 20 Claim Form against GP and UBS was issued on 30 December 2020, before the end of the Brexit transition period. UBS declined to instruct solicitors to accept service in England. AG and MG meanwhile on 20 January 2021 obtained an order from Cockerill J extending the validity of the Part 20 Claim Form. The Part 20 Claim Form was served or purportedly served on UBS, out of the jurisdiction, on 9 March 2021.

Crucially, the Court’s permission for service out of the jurisdiction on UBS was not sought. Counsel for claimant informed the Court that those representing AG and MG considered at the time that no permission would be needed, on the basis that jurisdiction under the Lugano Convention, which existed at the date of issue of the Claim Form, was preserved. Counsel also contented that even if permission to serve out was required and had been sought, it would inevitably have been granted, as questions of appropriate forum (considered in an application for permission to serve out) were not relevant in the context of the Lugano Convention. 

UBS acknowledged service on 26 March 2021, indicating an intention to contest jurisdiction.  Current judgment focuses on that contestation.

Under the European Union Withdrawal Act 2018, implementing the EU Withdrawal Treaty, an implementation period came to an end at 23:00 GMT on 31 December 2020 (a day after the claim form that initiated current litigation was issued; also known as “IP completion day”). During the implementation period, obligations stemming from international agreements to which the EU was party continued to apply. Until IP completion day therefore the Lugano Convention applied to it by reason of the EU’s membership of the Convention. That clearly is no longer the case.

Essentially, E&W CPR was amended to include transitional provisions in relation to service out of the jurisdiction, which specifically maintain the pre-existing position that permission is not required for a claim form issued prior to withdrawal where jurisdiction is based on Brussels Ia. However, there is no equivalent saving for claim forms where jurisdiction exists under the Lugano Convention.

Knowles J [25] on the issue of permission, reaches the same conclusion as Ms Dias QC in Naftiran (above): namely that the widened A6.33(3) CPR rule applies to include Lugano Convention claims. That rule now reads

“6.33(3) The claimant may serve the claim form on a defendant out of the United Kingdom where each claim made against the defendant to be served and included in the claim form is a claim which the court has power to determine other than under [the Convention on Choice of Court Agreements concluded on 30th June 2005 at the Hague], notwithstanding that (a) the person against whom the claim is made is not within the jurisdiction; or (b) the facts giving rise to the claim did not occur within the jurisdiction.”

Having decided the issue of permission, the judge still had to decide whether Lugano conveys jurisdiction in this case. A 6(2) Lugano provides that a person domiciled in the state bound by the Convention may be sued “as a third party in an action on a warranty or guarantee, or in any other third party proceedings, in the court seised of the original proceedings, unless these were instituted solely with the object of removing him from the jurisdiction of the court which would be competent in his case;”

A core issue in current case is that the main claim is settled [12]; can the third party proceedings still continue in the main claim’s forum? The judge refers to CJEU C-365/88 Kongress Agentur (a Lugano case) and [44] holds that there is sufficiency of connection between the claims for jurisdiction to be established; that there is no authority for defendants’ proposition that only ‘exceptional circumstances’ may justify third-party proceedings to continue when the main claim is settled, and that in essence [41] sufficiency of connection between the third party claims and the main claim suffice for the former to continue in the latter’s jurisdictional home.

There are echoes here of potential for abuse per CJEU CDC, however that route was seemingly not pursued and on the facts would seem challenging to substantiate.

Geert.

Whether amended CPR implementing EU-UK withdrawal agreement requires (held: no) permission for service out in #Lugano Convention scenarios when it still applied
Also considers fate of anchored claim when main claim is settled
CA Indosuez ea v Afriquia Gaz https://t.co/GvNEAklFBv

— Geert Van Calster (@GAVClaw) November 14, 2022

A recent Briefing paper titled Updating the European digital identity framework, authored by Mar Negreiro and Maria Niestadt (from the European Parliamentary Research Services), may be of interest to the readers of this blog.

It deals with the proposal of the European Commission, released in June 2021, to create a “European Digital Identity” (EDI) and a dedicated “Wallet” for citizens and businesses in the European Union (hereafter ‘EDI Regulation proposal’).

General Background of a ‘European Digital Identity’ and its Dedicated ‘Wallet’

The ‘European Digital Identity Wallet’ (EDIW) aims to allow people and companies based in the EU, to store person identification data (e.g. name, address, gender, civil status) and electronic attestations of attributes (e.g. bank account, birth certificate, diploma, company statute) for cross-border use. It should also allow users to authenticate and access online public or private services (Article 6a of the EDI Regulation proposal). According to the European Commission, by means of this digital wallet, proving your identity and sharing electronic official documents across the EU Member States will be possible with ‘one click’ on your smartphone!

This legislative proposal surely is a coherent and necessary continuum of the digitalisation momentum in the Union, both in its economic (i.e. internal market policy) and judicial (i.e. judicial cooperation in civil and criminal) dimension. One of its main political objective is for the Member States and the Union to regain control over the identity of European citizens in the digital ecosystem. Indeed, the dominant tech platforms have been developing private forms of ‘digital ID’, competing with national legal identification schemes. Under the EDI Regulation proposal, the digital wallet should only be issued under the supervision of Member States (i.e. directly by the State or based on a mandate/recognition requirements from the State). The project also aims to support the empowerments of ‘EU digital citizens’ in the same vein as the Declaration on European Digital Rights and Principles recently put forward by the European Commission to ensure a human-centred digital transformation in the Union. Users should be “in full control” of the wallet (Article 6a (7) of the EDI Regulation proposal) based on the key-principles of the GDPR, such as the requirement of data minimisation.

However, the proposal also raises several concerns about, inter alia, the effectivity of data protection, the risk of exclusion of parts of European society, the system’s vulnerability to fraud and data loss. I propose to add to that list uncertainties with regard to private international law rules and their implementation in ‘EDIW context’. The first question that occurs to me is as follows: what will be the legal scope of the cross-border portability of the information contained in this digital wallet?

Legal Outlines of the European Digital Identity Wallet The Acquis based on the eDIAS Regulation

The EDIW proposal builds on the acquis of the eIDAS Regulation on electronic identification and trust services for electronic transactions in the internal market. This latter lays down the conditions for the mutual recognition, between EU Member States, of electronic identification means of natural and legal persons, based on national notified electronic identification schemes (Article 6). By consequence, the identity – unique by essence – of citizens and businesses based in a Member State can be established throughout the Union (or, at least, in the other Member States that have notified such schemes). Concretely, it should for instance allow a person, domiciled in one Member State, to open a bank account in another Member State remotely, via an electronic identification (eID). The bank should be able to verify the age and the legal identity of the client, his/her financial records and the paperwork could be signed online using e-signatures (see here for other ‘promotional’ examples).

For the proper functioning of the mutual recognition principle, the eIDAS Regulation provides for three “assurance levels” applicable to the electronic identification schemes; they characterise “the degree of confidence in electronic identification means in establishing the identity of a person” (see Recital 16 and Article 8). Against this background, mutual recognition of electronic identification means – used for authentication for an online service – is mandatory for the ‘host State’ only when the public body of the ‘home State’ uses the “substantial” or “high” assurance levels for accessing that service online (Article 6).

‘European Digital Identity Wallet’: What Does It Mean?

The EDI Regulation proposal goes further than the current eIDAS Regulation in making mandatory for all Member States to provide electronic identification means and to recognise the notified electronic identification schemes (eDIs) of other Member States. In that respect, it lays down common requirements for the issuing of European Digital Identity Wallets (EDIW) by Member States (Article 6a of the EDI Regulation proposal). These wallets are understood as “electronic identification means […] containing person identification data and which is used for authentication for an online or offline service” (see Article 1, (3) (a) (2) of the proposal, with the understanding that ‘authentication’ enables the electronic identification as well as the origin and integrity of data in electronic form to be confirmed).

By comparison with a more familiar concept, ID cards issued by EU Member States (following the implementation of Regulation 2019/1157 on strengthening the security of identity cards of Union citizens) are also characterised as ‘electronic identification means’ under the eIDAS Regulation and the EDI Regulation proposal. But the future EDIW is much more than a mere digital ID card. It is both “a product and service” that allows the user “to store identity data, credentials and attributes linked to her/his identity, to provide them to relying parties on request and to use them for authentication, online and offline, for a service […] and to create qualified electronic signatures and seals” (Article 1, (3) (i) point 42 of the proposal).

Legal Scope of the European Digital Identity Wallet

The digital wallet should, inter alia, allow the “validation” of person identification data and electronic attestations of attributes by relying parties. More widely, Member States should provide “validation mechanisms” to ensure that the “authenticity and validity” of the digital wallet can be verified. In that respect, the EDIW should meet the “high level of assurance”, by reference to the eIDAS Regulation (see above), in particular with regard to “identity proofing and verification” requirements. The high level of assurance is based on technical specifications, standards and procedures “the purpose of which is to prevent misuse or alteration of the identity” (Article 8, (2), c).

It is also worth mentioning that the EDI Regulation proposal lays down a minimum list of attributes (e.g. address, age, civil status, family composition, financial and company data), the authenticity of which should be verifiable electronically, at the request of the user, by qualified providers of electronic attestations of attributes, against the relevant authentic source at national level (Article 45d and Annex VI).

Eventually, the proposed EDIW framework does not appear very clear about the normative scope of trans-European data flows via the digital wallet, between (presumption of) authenticity and validity.

Some Private International Law Issues Raised by the EDIW The Legal Implication of the Mutual Recognition Technique

Beyond the strengthening of a common ‘technological infrastructure’, the ultimate goal of the ‘European Digital Identity Wallet’ (EDIW) is to ensure the cross-border recognition of Europeans’ legal identity and additional information about them (i.e. attestation of attributes such as certificates of birth or diplomas). This brings us to more familiar territory, starting with the core question of the legal significance of the mutual recognition technique in this specific context.

Mutual recognition should provide for a cross-border portability of the data stored within the digital wallet, such as age, gender, nationality or company data. In that respect, the relevant methodology may be based on the international circulation of foreign public documents that have consolidated a legal situation in a first Member State and whose legal consequences are expected in the host Member State (cf. the inspiring work of Professor Ch. Pamboukis). In the case of ‘non-decisional’ public documents (e.g. a professional qualification or a driving licence, ‘crystallised’ in the digital wallet issued by the State of origin), these documents should produce non-normative procedural effects of an evidentiary nature. The data stored in the digital wallet may also be presumed to be formally valid, which allows them to flow across legal borders: the person concerned may use them in the ‘host State digital jurisdiction’ in the same way as in his/her State of origin.

When the data contained in the digital wallet are no longer related to administrative/public aspects (e.g. diploma or driving licence mentioned above) but to personal status and individuality (e.g. name, domicile, civil status, family composition), the mutual recognition technique could take on a different meaning. Indeed, the public documents in question are no longer limited to ‘establishing’ a situation certified by a public authority but are of a ‘receptive’ type. The public authority issuing the public document has ‘received’ the private will expressed by the parties in order to authenticate it. In this context, it could be argued that the digital circulation of such a public document (e.g. a marriage or a name certificate) carries a presumption of validity of the legal situation (i.e. negotium) contained in it (i.e. instrumentum). This distinction is well-known among private international law experts and the suggested reasoning should be the same whether the information is ‘digitised’ or formalised in a paper document. Indeed, electronic attestation of attributes should have “the equivalent legal effect of lawfully issued attestations in paper form”, pursuant to the EDI Regulation proposal (Recital 27).

Critical Assessment

The future ‘European Digital Identity Wallet’ could have a real impact on the international recognition of personal and family status in the Union. The same could be said for the status of legal persons. For citizens and businesses, intra-European free movement would be strengthened and, in practice, greatly simplified.

The main methodological consequence from the private international law perspective should be the ‘eviction’ of the conflict-of-laws rules and reasoning. This is understandable insofar as, in practice, the presumption of probative value of a foreign public document, on the basis of mutual recognition, implies, in our view, a presumption of validity of the legal situation it contains (cf. here).

In the European context, this statement should be even more accurate, because of the remarkable influence of EU citizenship and fundamental rights (such as the right to privacy which applies to the identity of individuals) on conflict-of-laws. Several examples may be found in the caselaw of the CJEU, such as the recent Pancharevo judgment (commented on the blog) raising exactly this issue. For part of scholars and many Member States, this is however the pitfall to be avoided. But actually, the intra-European digital flow of personal data, via this European digital wallet, should instead reinforce this trend.

The Interplay Between the EDIW and Other Legal Instruments

It is important to note that the EDI Regulation proposal, like the current eIDAS Regulation, gives priority to other rules of EU and national law on specific sectors. In that respect, the proposal lays down that the (future) regulation “does not affect national or Union law related to the conclusion and validity of contracts or other legal or procedural obligations relating to sector specific requirements as regards form with underlying legal effects” (Article 2, §3). The issue of normative interplay between the EDIW framework and other important instruments will be crucial. This will be the case, inter alia, in the field of personal status, regarding Regulation 2019/1191 on Public Documents but probably also some ICCS conventions (such as Convention n°34 recently entered into force), as well as national rules on the international legal effects of public documents. This is also true for EU instruments which support the cross-border cooperation between public national authorities and the free movement of citizens and businesses, i.e. the IMI System and the Single Digital Gateway.

The ‘One-click EU Recognition’ is not yet ready to be the revolutionary new tool for private international law partitioners, but the European Digital Identity Wallet is definitively a topic for us!

Dr Benjamin Hayward*

The United Nations Convention on Contracts for the International Sale of Goods (‘CISG’), currently adopted by 95 States, is a treaty intended to harmonise the laws governing cross-border goods trade: and thereby promote trade itself.  So much is made clear in its Preamble:

The States Parties to this Convention, …

Being of the opinion that the adoption of uniform rules which govern contracts for the international sale of goods and take into account the different social, economic and legal systems would contribute to the removal of legal barriers in international trade and promote the development of international trade,

Have agreed as follows: …

Art. 7(1) CISG’s instruction for interpreters to have regard ‘to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade’ establishes a requirement of autonomous interpretation.  This, in turn, facilitates the CISG’s global jurisconsultorium: whereby courts, arbitrators, lawyers, academics, and other interested stakeholders can influence and receive influence in relation to the CISG’s uniform interpretation.  A recent publication edited by Peng Guo, Haicong Zuo and Shu Zhang, titled Selected Chinese Cases on the UN Sales Convention (CISG) Vol 1, makes an important contribution to this interpretative framework: presenting abstracts and commentaries addressing 48 Chinese CISG cases spanning 1993 to 2005, that may previously have been less accessible to wider international audiences.

A review of this case law collection discloses an interesting phenomenon affecting the CISG’s Chinese application: at least, until very recently.  Pursuant to Art. 142(2) General Principles of the Civil Law (which was effective in the People’s Republic of China until repealed as of 1 January 2021):

[I]f any international treaty concluded or acceded to by the People’s Republic of China contains provisions differing from those in the civil laws of the People’s Republic of China, the provisions of the international treaty shall apply, unless the provisions are ones on which the People’s Republic of China has announced reservations.

(Translation via Jie Luo.)

Numerous contributions to Guo, Zuo and Zhang’s volume – including by Wang, Guo and Zhang; Luo; Luo again; Wang; and Xu and Li – observe that some Chinese courts have interpreted this provision to require the CISG’s application only where it is inconsistent with non-harmonised Chinese law.  Whilst this approach to the CISG’s application is noteworthy for its inconsistency with international understandings of the treaty, it is arguably more noteworthy for highlighting that national law itself is often ‘where the relationship between the convention and national law is regulated’.[1]  Scholarship has given much attention to the success (or otherwise) of Art. 7(1) CISG in securing the treaty’s autonomous interpretation.  However, machinery provisions giving the CISG local effect in any given legal system (themselves being matters of ‘local legislative judgment’) have an apparently-underappreciated role to play, too.

Wang’s contribution quotes Han as writing that the Chinese inconsistency concept’s effective implementation of a reverse burden of proof in establishing the CISG’s application is a situation that ‘I am afraid … is unique in the world’.  On the contrary, and not unlike China’s former Art. 142(2) General Principles of the Civil Law, Australia’s CISG implementing Acts still ostensibly frame the treaty’s local application in terms of inconsistency.  The Sale of Goods (Vienna Convention) Act 1986 (NSW) s 6 is representative of provisions found across the Australian state and territory jurisdictions: ‘[t]he provisions of the Convention prevail over any other law in force in New South Wales to the extent of any inconsistency’.  Case law from Victoria and from Western Australia has read those jurisdictions’ equivalent inconsistency provisions as implying the CISG’s piecemeal application, only where particular provisions are inconsistent with local law.  Looking even further afield, Australia’s own use of the inconsistency device is far from unique.  Singaporean and Canadian legislation make use of the inconsistency concept, as does Hong Kong’s recently-promulgated CISG Ordinance.  In the latter case, the statutory interpretation risks associated with the adoption of an inconsistency provision were drawn to the Hong Kong Department of Justice’s attention.  However, Australia’s statutory model prevailed, perhaps in part because it has previously been put forward as a model for Commonwealth jurisdictions looking to implement the CISG.

At the risk of being slightly controversial, at least some scholarship addressing the failings of national CISG interpretations may have been asking the wrong question: or at least, missing an important additional question.  Instead of asking why any given court has failed to apply and respect Art. 7(1) CISG’s interpretative directive, we might instead (or also) usefully ask whether that given State’s CISG implementation legislation has been drafted so as to invite the local law comparisons that have then been made.  Some responsibility for problematic CISG interpretations might lie with the legislature, in addition to the judiciary.

In Australia, the Playcorp decision – Victoria’s inconsistency case referred to above – has been taken by subsequent cases in both the Federal Court and in the Full Federal Court of Australia as authority for the proposition that Art. 35 CISG’s conformity requirements equate to the implied terms contained in the non-harmonised Goods Act 1958 (Vic) s 19.  The Federal Court’s first-instance decision was itself then cited in New South Wales for that same proposition: leading to a problematic CISG interpretation that is now entrenched under multiple layers of precedent.  Whilst the equation being made here is rightly criticised in itself, it has Australia’s inconsistency provisions – in addition to our courts’ failures to apply Art. 7(1) CISG – resting at its core.

Guo, Zuo and Zhang’s Selected Chinese Cases on the UN Sales Convention (CISG) Vol 1 thereby makes a valuable contribution to the Convention’s jurisconsultorium: first, by virtue of its very existence, but secondly, by its additional disclosure of China’s former inconsistency struggles to the wider scholarly community.

[1] Bruno Zeller, ‘The CISG in Australasia: An Overview’ in Franco Ferrari (ed), Quo Vadis CISG?  Celebrating the 25th Anniversary of the United Nations Convention on Contracts for the International Sale of Goods (Bruylant, 2005) 293, 299.

 

* Senior Lecturer, Department of Business Law and Taxation, Monash Business School

Twitter: @LawGuyPI

International Trade and International Commercial Law research group: @MonashITICL

Disclosure: The author is a confirmed contributor to the forthcoming Selected Chinese Cases on the UN Sales Convention (CISG) Vol 3.

Their relevance is of course insignificant in light of the dreadful events that  triggered the judgments, however I thought I would flag the private international law elements in this week’s four Dutch judgments following the criminal prosecution of the suspects (now culprits) in the downing of MH17.

The judgment against Mr Pulatov was the  only one to respond to defence arguments actually made: he was the only one to have been represented (the other judgments were held in absentia). The judges extrapolate his arguments to the  other defendants to ensure some kind of proper representation, however they also explore further elements not raised by Mr Pulatov in the other judgments. This includes precisely the private international law elements for, it seems, no private claim was attached to the prosecution of Mr Pulatov while it was against the other defendants.

In this post I take the judgment against Mr Dubinskiy as the relevant text (structure and content of the other 2 judgments are essentially the same).

[12.4.1] discusses the possibility of judging the civil leg of a criminal suit. That the crimes could be prosecuted in The Netherlands is established on the basis of international criminal law of course, which is not the area of this blog. Jurisdiction for the civil leg is justified by reference to this being accepted international practice. Support (not: legal basis per se) is found by the court in Article 7(3) Brussels Ia:

A person domiciled in a Member State may be sued in another Member State:

as regards a civil claim for damages or restitution which is based on an act giving rise to criminal proceedings, in the court seised of those proceedings, to the extent that that court has jurisdiction under its own law to entertain civil proceedings;

and in the similar regime under the Lugano Convention. The court rejects a potential (this judgment as noted was issued in absentia) lis pendens argument vis-a-vis proceedings  in the United States. The court remarks that these judgments had already been issued before the Dutch criminal prosecution was initiated; that therefore there are no concurrent proceedings unto which a lis pendens argument could be raised; and that the US judgments reached the same conclusion.

Res judicata of the US judgments is dismissed as an element which would impact the Dutch judgments at this stage. The court does point out that res judicata may return at the enforcement stage of the damages part of the judgments, in that the victims will not be entitled to double compensation. Note that the US judgments included punitive damages which as readers will know is also a complicating factor for enforcement in the EU.

At 12.14.2 the court then turns to applicable law, for which it of course applies Rome II. With reference to CJEU C-350/14 Lazar, it dismisses the ‘extraordinary suffering’ of the relatives of the victims as ‘indirect damage’ under Rome II, instead exclusively taking the direct damage (the passing away) of the victims on Ukrainian territory as determinant for locus damni.

Dutch law is held not to be ‘manifestly more closely connected’ per A4(3) Rome II, despite the majority of the victims being Dutch. The court in this respect refers firstly to the link with Ukraine not being accidental (such as might be the case in ‘ordinary’ mass claims) but rather directly linked to the hostilities in Ukraine), moreover to the need to guard what it calls the ‘internal harmony’ of the judgment seeing as there are also non-Dutch relatives involved. This I find a touch unconvincing, particularly seeing as the court itself in the same para, with reference to Jan von Hein in Callies’ 2nd ed. of the Rome Regulations commentary, refers to the need to consider A4(3)’s escape clause individually, not collectively.

Geert.

Links to all 4 judgments:

https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBDHA:2022:12219

https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBDHA:2022:12218

https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBDHA:2022:12217

https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBDHA:2022:12216

Note the conflict of laws element in the civil suit's part of yesterday's #MH17 judgment:
jurisdiction per A7(3) Brussels Ia; no lis pendens or res judicata viz earlier US judgments; application of Ukranian law per Rome II

NL v Kharchenko et alhttps://t.co/d1QZXZwG96

— Geert Van Calster (@GAVClaw) November 18, 2022

The Greek Supreme Court of Cassation (Areios Pagos) rendered a very important decision at the end of June, which is giving the final blow to a period of procedural insanity. A provision in force since the 1st of January 2016 is forcing claimants to serve the document instituting proceedings abroad within 60 days following filing. Failure to abide by the rule results to the deletion of the claim as non-existent. As a consequence, the claimant is obliged to file a new claim, most probably being confronted with the same problem.

[Supreme Court of Cassation (Areios Pagos) nr. 1182/2022, available here.

 

Facts and judgment in first instance

The dispute concerns two actions filed on 31.01.2017 and 31.03.2017 against defendants living in Monaco and Cyprus respectively. The claimant served copies of the action by using the main channels provided for by the 1965 Hague Service Convention (for Monaco; entry into force: 1-XI-2007) and the Service of Process Regulation nr. 1393/2007. Service to the defendant in Monaco was effected on 08.05.2017, whereas service to the defendant in Cyprus on 19.06.2017. Both actions were dismissed as non-existent (a verbatim translation would be: non-filed) due to the belated service to the countries of destination [Thessaloniki Court of 1st Instance 2013/2019, unreported]. The claimant filed a second (final) appeal, challenging the judgment’s findings.

 

The overall picture before the decision of the Supreme Court

So far, the vast majority of Greek courts was following the rule in exactly the same fashion as the first instance court. Article 215 Para 2 of the Greek Code of Civil Procedure reads as follows: … the claim is served to the defendant within a term of 30 days after filing; if the defendant resides abroad or is of unknown residence, the claim is served within 60 days after filing. The rule applies exclusively to ordinary proceedings, i.e., mostly civil and commercial matters, with the exception of some pertinent disputes, which are regulated under a special Book of the Code of Civil Procedure [Book 4, Articles 591-465: Special Proceedings]

A countless number of motions were dismissed as a result of this rule since 2016. Courts were refusing claims even when the defendants were appearing before the court, submitting pleadings and raising their defense. Only claims addressed to defendants living in countries which are neither EU member states nor Hague Convention signatories, are ‘saved’. Article 134, in connection with Article 136 Greek of Code of Civil Procedure has established half a century ago the notorious system of fictitious service, akin to the French system of remis au parquet (Article 683 Code de Procédure Civile). This system still applies for countries such as the United Arab Emirates or Madagascar, however not for Cyprus or Monaco, due to the prevalence of the EU Regulation and the Hague Convention, anchored in the Constitution (Article 28). Hence, the non- production of a service certificate is no obstacle for the former, whereas any service certificate dated after the 60 days term is not considered good service for the latter, leading to the dismissal of the claim.

 

The decision of the Supreme Court

Against this background, the Supreme Court was called to address the matter for the first time after nearly six years since the introduction of the new provision.

The Supreme Court began with an extensive analysis of the law in force (Article 134 Code of Civil Procedure; EU Service Regulation; Hague Service Convention, and Article 215 Para 2 Code of Civil Procedure). It then pointed out the repercussions of the latter rule in the system of cross-border service, and interpreted the provision in a fashion persistently suggested by legal scholarship: The 60 days term should be related with the notification of the claim to the Transmitting Authority, i.e., the competent Prosecutor’s office pursuant to Article 134 Code of Civil Procedure and the declarations of the Hellenic Republic in regards to the EU Service Regulation and the Hague Service Convention.

The date of actual service should be disconnected from the system initiated by Article 215 Para 2 Code of Civil Procedure. The Supreme Court provided an abundance of arguments towards this direction, which may be summarized as follows: Violation of Article 9 Para 2 Service Regulation 1393/2007 (meanwhile Article 13 Para 2 Service Regulation 2020/1784); contradiction with the spirit of Article 15 of the Hague Service Convention, despite the lack of a provision similar to the one featured in the EU Regulation; violation of the right to judicial protection of the claimant, enshrined in the Greek Constitution under Article 20; violation of Article 6 (1) of the European Convention of Human Rights, because it burdens the claimant with the completion of a task which goes beyond her/his sphere of influence.

For all reasons above, the Supreme Court overturned the findings of the Thessaloniki 1st Instance court, and considered that service to the defendants in Monaco and Cyprus was good and in line with the pertinent provisions aforementioned.

 

The takeaways and the return to normality

The judgment of the Supreme Court has been expected with much anticipation. It comes to the rescue of the claimants, who were unjustly burdened with an obligation which was and still is not under their controlling powers. The judgment returns us back to the days before the infamous provision of Article 215 Para 2, where the domestic procedural system was impeccably finetuned with the EU Regulation and the Hague Service Convention.

Aygun Mammadzada (Swansea University) will be the main speaker at the upcoming MECSI Seminar, scheduled to take place on 22 November 2022, at the Catholic University of the Sacred Heart in Milan.

The title of the seminar is The Relationship between the Hague Choice of Court and the Hague Judgments Convention – A Major International Breakthrough?

Zeno Crespi Reghizzi (University of Milan) will serve as discussant.

Attendance is free, on site and on line (via MS Teams). Further information, including the link to join the seminar on line, are found here.

For queries, write an e-mail to pietro.franzina@unicatt.it.

[This post is cross-posted at the EAPIL blog.]

This is the last post in the series dedicated to the empirical analysis of the ECJ’s case law in the field of EUPIL. The previous posts can be found here and here.

This post is slightly different from its predecessors, as the angle of analysis is reversed. Rather than (just) analysing the characteristics of the ECJ’s case law in the field of EUPIL, this post purports to use such case law as an indicator of the transformations in the working methods of the ECJ itself. I refer back to my previous posts as concerns the methodology and definitions upon which this research is based.

The starting point of my analysis is the objective set out by Recital 6 of the Court’s Rules of Procedure (RoP): these aim at “maintain[ing] the Court’s capacity, in the face of an ever-increasing caseload, to dispose within a reasonable period of time of the cases brought before it”.

Chart 1  below shows, in this respect, that this objective is being pursued by the Court in a rather effective manner.

Chart 1

The red line in Chart 1 indicates the evolution over time of the Court of Justice’s overall workload (and not only of preliminary reference procedures). The numbers on the vertical axis shall therefore be interpreted as indicating the total amount of cases filed each year. As I could not find any official statistics pertaining to the 70s, 80s and early 90s, this data was obtained very pragmatically. I used the “advanced search” form on Curia.eu: for each year since 1976, I selected the time frame 01/01 to 31/12, filtering the results based on the type of court (Court of Justice), and the type of date (date of the lodging of the application initiating the proceedings). The red line portrays the results thus obtained. For the sake of consistency, I used this methodology for all the years between 1976 and 2022, even if official statistics are available since 1997. The divergence between the two sets of data (official and unofficial) is negligible (< 5 per year).

What happened in 1979? I am actually not sure. It looks like a huge number of cases on the status, remuneration and benefits of officials were filed that year. For most of these cases, there is no judgment, which probably means they were withdrawn at some point. Their effective impact on the workload of the ECJ remains therefore undetermined.

The line in dark green shows the average length (expressed in calendar days) of preliminary reference procedures in the field of EUPIL (this data is global, as it refers to cases decided with and without an Opinion of the AG, as well as cases that have been withdrawn and removed from the register).

The line in lighter green (which overlaps with the former until 2001) portrays the average length of preliminary references decided with an Opinion of the AG, the line in blue those which dispensed with it. The interruptions in the latter mean that there were no cases decided without an AG’s Opinion in the corresponding years.

Finally, the line in violet represents the average length of urgent preliminary reference procedures (PPUs) in the field of EUPIL. These cases, all dealing with family law, are decided with the support of the AG Opinion (formerly, a View) and a hearing. The average length of the proceedings remains remarkably low: to the present days, 80 calendar days (on this topic, see also this document).

Against this backdrop, the objective set out by Recital 6 seems met: the average length of (ordinary) preliminary reference procedures has been following, over the last years, a decreasing trend. How could the Court manage such result, despite its increasing workload?

Of course, there have been important institutional changes over these four decades: the progressive enlargements of the EU, the devolution of certain competences to the General Court and to the Civil Servant Tribunal (and back again) have all had an indisputable impact on the Court of Justice’s caseload. The purpose of this post, however, is to demonstrate that much was done also from the standpoint of internal (re)organization and working methods. In this respect, the analysis of the procedural treatment reserved over time to EUPIL preliminary references shows the noteworthy adaptability of the Court of Justice’s internal functioning and its ability to optimize the use of its resources. As we will see, there have been significant transformations as concerns the use of judicial formations (A), of the AGs’ Opinions (B) and of hearings (C). This will also be the opportunity to come back on the issue of informal specialization of the Members of the Court, which I remarked in my first post (D).

 A. The Transformations of Judicial Formations

Two important observations can be drawn from the stock chart below: first, EUPIL preliminary references have always represented a negligible part of the ECJ’s total caseload, having amounted to less than ten cases per year until the early 2000s. Second, there has been a considerable shift, over the years, as concerns the judicial formation adopted by the ECJ to decide on the questions raised by these cases.

Chart 2

In the early days of the ECJ’s activity under the 1971 Protocol on the interpretation of the 1968 Brussels Convention, most of the EUPIL preliminary references were decided by the full court. It must be assumed this was a clear and conscious stance taken by that Court with respect to EUPIL cases, and not just the indirect result of a different era, when the ECJ, counted only nine Members and had a very limited caseload, thus having the opportunity to resort to the plenum as the default judicial formation. To the contrary, it is apparent from the judgment rendered in Tessili that the Court could already operate in smaller deciding panels (two “Presidents of Chambers” are mentioned in the part of the decision listing the composition of the court).

The preference for the Full Court, manifested by this early case law, should come as no surprise: the cases decided by this formation between 1976 and 1980 (De Bloos, Mines des Potasse, LTU, to name a few) laid the foundations of modern EUPIL, defining extremely important methodological and terminological issues that still shape today’s way of approaching the new generation of EUPIL Regulations.

What was that “Full Court”, however? It was certainly nothing similar to today’s Full Court, regulated by Article 60 RoP and Article 16 of the Statute. It was admittedly surprising to note that the Full Court of the early days consisted of sometimes 9, sometimes 7 judges, following patterns whose underpinning logic is not immediately perceivable by the external observer. It looks like this “Full Court” was indeed a rather flexible judicial formation, counting a “bigger” and a “smaller” plenum, corresponding in essence to what we call today Full Court and Grand Chamber (I am drawing this information by this scholarly article of 2001).

With the exception of the initial period going from mid-70s until the 80s and another intermission in the early 90s, Chambers of five judges have remained the most common judicial formation for EUPIL cases. The first EUPIL preliminary reference deferred a Chamber of three judges was case 120/79, on maintenance obligations. Since then, this judicial formation has been seldom employed throughout three decades, having become more recurrent over the last years. This can be seen as an integral part of the ECJ’s overall attempt to optimize the use of its resources, including its personnel. Only 6 (7,6 %) of the cases deferred to a Chamber of three since 2003 was decided with the support of the Opinion (2003 being the point in time when the AG’s Opinion was no longer systematically required for all cases: see infra Section B). In practice, this means that these cases did not raise legal questions that, owing to their novelty, importance or technical complexity, called for the advisory intervention of the AG. A Chamber of three is overall more efficient when deciding this type of cases, insofar as the average length of the proceedings before it is 337 calendar days, compared to 437 calendar days that are needed, on average, by a Chamber of five to adjudicate without an Opinion.

A final word on the Grand Chamber which, as we know it, was created in 2003. Owusu was the first EUPIL preliminary reference assigned to this judicial formation, which has been used rather sparingly over time (only 3.8 % of EUPIL preliminary references were assigned to it). The period between 2006 and 2009 was marked, however, by a veritable boom of Grand Chamber cases. This was, after all, an “era of first times”: the first ever preliminary references on the Brussels IIbis Regulation (C-405/06) and on the 1980 Rome Convention (cases ICF and Koelzsch), as well as the first occasion for the ECJ to test the Brussels regime against the challenges brought along by the Internet (cases Pammer and Alpenhof, eDate).

B. The Opinion of the AG

Speaking of eDate, have you ever noticed that its “ancestor”, Shevill, has not one, but two Opinions, delivered by two different AGs? Same things for Marinari, also filed in 1993. As correctly indicated by AG Léger, it could “infrequently happe[n]…, by reason of the reopening of the oral procedure and as a result of happenstance in the order of business of the Court”, that two Opinions are delivered in the same case. The Shevill judgment explains, in this respect, that the case was initially assigned to the Sixth Chamber of the Court (chamber of five) and referred, after hearing the Opinion of AG Darmon in July 1994, « back to the Court », meaning the Full Court. The oral phase of the procedure was consequently reopened before this bigger judicial formation, and a new Opinion was delivered by a different AG, Mr. Léger. In Marinari, the issue was, again, the reopening of the oral phase of the procedure, without any referral to a different judicial formation. Again, two different AGs delivered an Opinion in the case. The fact triggering the second intervention of the AG is, therefore, the reopening of the oral phase of the procedure as such, and not the referral to a different judicial formation.

While the merits of having two different AGs delivering an Opinion in the same case could lie in the potentially different point of view introduced into the debate, thanks to a “fresh start” to the study of the case file, this working method could be deemed inefficient insofar as at least four different persons (the two AGs and their respective référendaires) are called to work on the same case from scratch (in practice, the two AGs adopted the same stance in both Marinari and Shevill).

The reopening of the oral procedure is only ordered in exceptional circumstances and is not a common occurrence. This has not happened again in EUPIL cases since 1993, but it could potentially happen. The new RoP provide, in Article 83, that the Court may at any time order the opening or reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information or where a party has submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute. It is worth noting, however, that today the reopening of the oral phase of the procedure no longer entails the intervention of two different Advocates General. I can mention two cases, both outside the field of EUPIL, where an order under Article 83 RoP was adopted: C-168/16 and, more recently, C-530/20. In both, a single AG delivered two subsequent Opinions. It seems therefore that the Court is nowadays favouring efficiency over the plurality of views, consistently with the general objective of reducing the length of the proceedings set out in Recital 6 RoP. Also noteworthy is that the involvement of a single AG in each case is now provided also for the delivery of Opinions (in French, Avis) requested in accordance with Article 218 (11) TFEU (Recital 5 RoP).

The biggest innovation concerning the role of the AG –  also made in the attempt to increasing the ECJ’s overall efficiency – happened in 2003. Before this date, the AG had to deliver an Opinion for all preliminary references brought before the Court. This explains why, up to that moment, 100% of the EUPIL preliminary references decided by a chamber of three judges came with an Opinion, whereas only the 7,6 % of the cases assigned to such judicial formation after 2003 called for the AG’s advisory intervention.

Nonetheless, Chart 3 below demonstrates that the great majority of EUPIL preliminary references is decided, even after 2003, with the support of the AG’s Opinion.

Chart 3

Of all EUPIL cases having dispensed with an Opinion, 60 % have been assigned to a chamber of three, and 40 % to a chamber of five. 16% have been decided through a reasoned order under Article 99 RoP (all of them adopted by a Chamber of three, except for C-518/99). The possibility to define a case by means of a reasoned order explains the existence of a certain number of cases decided without an Opinion even before 2003.

C. Hearings

Another area where the Court has striven to increase its efficiency concerns the holding of hearings. According to Recital 6 to the RoP, “in order to maintain the Court’s capacity, in the face of an ever-increasing caseload, to dispose within a reasonable period of time of the cases brought before it, it is also necessary to continue the efforts made to reduce the duration of proceedings before the Court, in particular by … providing for the Court to be able to rule without a hearing if it considers that it has sufficient information on the basis of all the written observations lodged in a case”. As I mentioned in my previous post, a hearing shall be held, according to Article 76 RoP, when it has been requested by an interested person that has not participated in the written phase of the procedure.

Chart 4 below shows the evolution in the use of hearings in EUPIL preliminary reference procedures.

Chart 4

The analysis of more than forty years of case law in a given field of law is also a journey through different drafting styles, used by the Court in its judgments. This is why, in a certain number of cases, it was not possible to determine whether or not a hearing was held. This concerns, in particular, the cases filed between 1984 and 1985. More recently, a certain number of judgments only mention the observations of the parties, without referring either to a “written procedure” or, more explicitly, to “a hearing”. Where there was no AG Opinion, or when this did not clarify this point, these cases were also classified in the “unsettled” category.

This said, it must be noted that the recent trend goes, quite indisputably, towards reducing the number of hearings held in EUPIL cases. Intuitively, holding a hearing will delay the procedure, and it makes sense to limit this effect to the cases where an oral procedure is necessary for the correct understanding of either the legal questions referred to the Court or of the context in which they were raised, as well as in the cases where it serves to preserve the right to be heard of the parties and the interested persons listed in Art. 23 of the Statute. Overall, hearings have been held in 14% of the cases assigned to a Chamber of three and in 62% of the cases decided by a Chamber of five. This percentage drops to 54.6 % in cases decided by a Chamber of five after the current RoP have come into force. There is, however, a certain number of EUPIL cases decided before 2012, whose judgment only contains references to the written phase of the procedure. It must be assumed that, therein, a hearing was not held, and that the possibility to dispense with the oral procedure existed also under the previous RoP.

D. The Specialization of Judges and AGs

To conclude this survey of the transformations made, in the quest for more efficiency, to the working methods of the ECJ, I wish to come back to the issue of informal specialization of judges and AGs, which I remarked in my first post, focusing solely on the 2015-2022 time frame.

I came back to this issue with ambivalent feelings, and I do not have any conclusive opinion on this topic, although I am keen on confirming my initial impression. Chart 5, below, shows the rate of intervention of different AGs in EUPIL cases since 1976.

Chart 5

The picture is indeed quite fragmented, but two observations are in order. First, just eight AGs have been in charge of 50% of the total EUPIL cases (right side of the pie chart), whereas the other 50% of cases is shared between 51 different AGs. Second, the eight AGs on the right side of the chart have all exercised their functions in recent times (late AG Bot, who was the first among them to arrive at the Court, was appointed in 2006). It could therefore be concluded that specialization of AGs – if any – is a relatively recent trend, with the last 15 years testifying of a certain tendency to see a smaller number of AGs systematically involved in EUPIL cases.

Chart 6 below is a variation of Chart 5, taking into account the evolution over time of appointments of AGs to EUPIL preliminary references (click here for a slightly larger picture).

Chart 6

In the attempt to increase the readability of the chart, only AGs having been appointed in more than five EUPIL cases have been named. The category “others”, in yellow, accounts for the remaining cases and groups 27 different AGs (for 74 cases). As remarked above, the specialization appears stronger in recent times, with the yellow category disappearing completely between 2011 and 2017. The recent spike in the yellow category has a clear explanation. AGs Jääskinen, Saugmandsgaard Øe and Bobek, who have been highly active in the field of EUPIL, have ceased their functions in 2019 and 2021 respectively. We are now, it seems, in a phase of transition, where new AGs have taken over and might develop, in the coming months/years, a similar informal specialization in EUPIL cases. Quite remarkable is, in this respect, AG Pikamäe, who already appears in the Chart despite his recent appointment.

The exact same situation exists with respect to Reporting Judges, with the notable difference that only two of the judges appearing on the right side of the pie chart are presently still working at the Court. In this domain domain, the turnover effect will be even higher in the coming months.

Chart 7

Chart 8. Click here for a slightly larger picture.

 

As I already mentioned, the specialization of AGs and Reporting Judges, if any, is purely informal, and should be taken as an objective data emerging from the analysis of existing case law: some among them have simply dealt with EUPIL cases more often than others. This approach could favour internal efficiency, since prior dealings with a certain subject matter could reduce the time needed for assessing the case and take a stance on the legal question it raises. It remains, at the same time, flexible enough to ensure the correct functioning of the Court (for example in terms of equitable distribution of cases among judges/AGs and the prompt dealing of PPUs and PPAs). A more rigid approach to specialization (such as the formal institution of specialized chambers) might jeopardize the achievement of this second “organizational” objective.

“From 9 to 11 November 2022, the First Meeting of the Special Commission (SC) on the Practical Operation of the 2000 Protection of Adults Convention was held in The Hague. […] The meeting resulted in the adoption of over 70 Conclusions & Recommendations […] Among other things, the SC confirmed that, in general, the Convention is operating smoothly and is fit for purpose. It also stressed the importance of seeing more States join the Convention. The SC also approved, in principle, the draft Practical Handbook, Implementation Checklist, and Country Profile under the 2000 Protection of Adults Convention, subject to their amendment in light of the latest comments by HCCH Members, the discussions that took place at the SC and their outcome, to be submitted for endorsement by the Council on General Affairs and Policy (CGAP). Delegates also discussed habitual residence, ex lege representation, instructions given and wishes made by an adult in anticipation of a future impairment, issues of recognition and enforcement, Central Authority co-operation, the use of existing recommended Model Forms, direct judicial communications, and possible amendments to the 2000 Protection of Adults Convention. The Conclusions & Recommendations adopted by the SC are available” at https://assets.hcch.net/docs/06db03d0-812c-42fb-b76d-4e6e05a91b3b.pdf.

Extract: “The SC recalled that the change of habitual residence is a question of fact which will be assessed by the competent authorities called upon to make a decision on this matter. The competent authority seised is the only one that has to determine the habitual residence of the adult and whether it has jurisdiction under the 2000 Convention. In this regard, the competent authority seised could consult, if necessary, the competent authorities of the former State of habitual residence, to obtain relevant information. For example, the competent authority seised can request information relevant to assess whether the habitual residence has changed, in order to determine if it can take jurisdiction under Article 5(2), or whether the former competent authority would continue to exercise jurisdiction under other grounds (e.g., Art. 7) or if it would be appropriate to request a transfer of jurisdiction under Article 8. Recalling Articles 32 and 34, the SC noted that cooperation can take place with a view to sharing information regarding the adult’s change of habitual residence. The SC further noted that this process should be conducted diligently and without delay. The SC reminded Contracting Parties that Article 29 generally provides Central Authorities with an opportunity to exchange information, including such information as may be relevant for the purposes of Article 5(2).

11 The SC noted that, where the habitual residence of the adult changes to another Contracting Party, the competent authorities of the new habitual residence will have primary jurisdiction. Through the

exchange of information under Articles 29 and 34, a competent authority may be alerted to the  change of residence of an adult, in order for this authority to determine whether it has jurisdiction to take measures of protection”

Source: https://www.hcch.net/en/news-archive/details/?varevent=884

This post was written by Pietro Franzina and Thalia Kruger, and is being published simultaneously on Conflictoflaws.net and on the EAPIL blog.

The delegations of more than thirty Member States of the Hague Conference on Private International Law attended the first meeting of the Special Commission charged with reviewing the operation of the Hague Hague Convention of 13 January 2000 on the international protection of adults of 13 January 2000 on the international protection of adults. The meeting took place in The Hague and online from 9 to 11 November 2022 (for a presentation of the meeting, see this post on Conflictsoflaw.net and this one on the EAPIL blog). A dozen organisations, governmental and non-governmental (including the Council of the Notariats of the European Union, the Groupe Européen de Droit International Privé and the European Association of Private International Law), were also in attendance.

The discussion covered a broad range of topics, leading to the conclusions and recommendations that can be found on the website of the Hague Conference. The main takeaways from the meeting, as the authors of this post see them, are as follows.

The Hague Adults Convention Works Well in Practice

To begin with, the Special Commission affirmed that the Convention works well in practice. No major difficulties have been reported either by central authorities instituted under the Convention itself or by practitioners.

Doubts occasionally appear with respect to some provisions. Article 22 for example provides that measures of protection taken by the authorities of a Contracting State “shall be recognised by operation of law in all other Contracting States”, unless a ground for refusal among those listed in the same provisions arises. A declaration of enforceability, as stipulated in Article 25, is only necessary where measures “require enforcement” in a Contracting State other than the State of origin.

Apparently, some authorities and private entities (e.g., banks) are reluctant to give effect to measures of protection that clearly do not require enforcement, such as a judicial measure under which a person is appointed to assist and represent the adult, unless that measure has been declared enforceable in the State where the powers of the appointed person are relied upon. The Special Commission’s conclusions and recommendations address some of these hesitations, so that they should now prove easier to overcome. Regarding exequatur, see para. 33, noting that “measures for the protection of an adult only exceptionally require enforcement under Article 25”, adding that this may occur, for instance, “where a decision is taken by a competent authority to place the adult in an establishment or to authorise a specific intervention by health care practitioners or medical staff”, such as tests or treatments. Other doubts are dealt with in the practical handbook prepared by the Working Group created within the Hague Conference in view of the meeting of the Special Commission. The draft handbook (first version publicly available), which the Special Commission has approved “in principle”, will be reviewed in the coming weeks in light of the exchanges that occurred at the meeting, and submitted to the Council on the General Affairs and Policy of the Conference for endorsement in March 2023).

Situations Exist in the Field of Adults’ Protection that Are Not (Fully) Regulated by the Convention 

The Convention deals with measures of protection taken by judicial and administrative authorities, and with powers of representation conferred by an adult, either by contract or by a unilateral act, in contemplation of incapacity. By contrast, nothing is said in the Convention concerning ex lege powers of representation. These are powers of representation that the law of some States (Germany, Austria and Switzerland, for example) confers on the spouse of the adult or a close relative or family member, for the purpose of protecting the adult. Their operation is generally confined to situations for which no measures have been taken and no powers of representation have been conferred by the adult.

The Special Commission acknowledged that ex lege powers of representation fall under the general scope of the Convention, but noted that no provision is found in the Convention that deals specifically with such powers. In practice, ex lege powers of representation may be the subject of cooperation between the authorities of Contracting Parties (notably as provided for under Chapter V), but, where the issue arises of the existence, the extent and the exercise of such powers, the courts and other authorities of Contracting States will rely on their own law, including, where appropriate, their conflict-of-laws rules.

There is yet another gap that the Special Commission discussed. The Commission observed that instructions given and wishes made by an adult in anticipation of a future impairment of their personal faculties (e.g., in the form of advance directives), similarly fall within the general scope of the Convention and are subject, as such, to the cooperation provisions in Chapter V. Whether or not a particular anticipatory act constitutes a power of representation for the purposes of Articles 15 and 16, on powers of representation conferred by the adult, is to be determined on a case-by-case basis. Some unilateral acts plainly come within the purview of Articles 15 and 16, as they actually include a conferral of powers on other persons. Others do not, and may accordingly be dealt with by each Contracting State in conformity with their own law.

States Do Not Currently See an Interest in Modifying the Convention

The question has been raised in preparation of the Special Commission whether the Convention ought to be amended, namely by a protocol to be negotiated and adopted in the framework of the Hague Conference on Private International Law. In principle, a protocol would have provided the States with the opportunity to fill the gaps described above, and address other concerns. However, under international law only those Contracting States that ratify the protocol would be bound by the modifications.

The Special Commission witnessed that, at this stage, no State appears to see an amendment as necessary.

Only one issue remains to be decided in this respect, namely whether the Convention should be modified in such a way as to include a REIO clause, that is, a clause aimed at enabling organisations of regional economic integration, such as the European Union, to join the Convention in their own right. The matter will be discussed at the Council on the General Affairs and Policy of the Conference of March 2023.

The decision lies, in fact, in the hands of the Union and its Member States, as this is currently the only Regional Economic Integration Organisation concerned by such a clause. Their decision will likely be affected by the approach that should be taken in the coming weeks concerning the proposal for a regulation on the protection of adults that the Commission is expected to present in the first half of 2023.

Efforts Should Now Be Deployed Towards Increasing the Number of Contracting Parties

The main problem with the Convention lies in the fact that only relatively few States (fourteen, to be precise) have joined it, so far. Several States stressed the importance of further promoting ratification of, or accession to, the Convention.

It is worth emphasising in this respect that the Hague Adults Convention builds, to a very large extent, on cooperation between Contracting States. This means that a State cannot fully benefit from the advantages of the Convention by simply copying the rules of the Convention into its own legislation, or by relying on such rules on grounds of judicial discretion (as it occurs in the Netherlands and to a large extent in England and Wales), but should rather become a party to it.

Various States expressed an interest in the Convention. The responses to the questionnaires circulated in preparation of the meeting of the Special Commission suggest that at least five States are actively contemplating ratification (Hungary, Italy, Luxembourg, Mexico and Sweden), and that others have considered ratification (Slovakia) or are considering it (Argentina). For its part, Malta signed the Convention on the occasion of the meeting of the Special Commission, and will likely ratify it in the not too distant future.

Tools to Enhance the Successful Operation of the Convention

Some of the practitioners present drew the participants’ attention to practical difficulties in the cross-border protection of adults. To minimise practical difficulties, the Permanent Bureau, in some instances together with the Working Group on the Adults Convention, developed a number of tools.

The first is an extensive country profile, to be completed by Contracting States and made available on the website of the Hague Conference. This profile includes various matters of national law, such as names and content of measures of protection, jurisdiction of courts or other authorities to issue these measures, transfer of jurisdiction, and names, forms and extent of powers of representation.

The second is a toolkit on powers of representation, which contains detailed information about the national laws of States that provided responses, on for instance who can be granted powers of representation, how this granting must take place, and the permitted extent of the representation.

Concluding remarks

All in all, the issue of the cross-border protection of Adults has rightly gained attention over the past ten years. While States amend their domestic legislation to be in conformity with the UN Convention on the Rights of Persons with Disabilities, they seem to be increasingly aware of the importance of ensuring cross-border continuity. This includes continuity of measures of protection issued by authorities such as courts, as well as the powers of representation granted by adults themselves. These matters of private international law require dialogue on the international and European Union level, more States to join the Convention, and tools to assist practice.

This post was written by Pietro Franzina and Thalia Kruger, and is being published simultaneously on Conflictoflaws.net and on the EAPIL blog.

The delegations of more than thirty Member States of the Hague Conference on Private International Law attended the first meeting of the Special Commission charged with reviewing the operation of the Hague Convention of 13 January 2000 on the international protection of adults. The meeting took place in The Hague and online from 9 to 11 November 2022 (for a presentation of the meeting, see this post on Conflictoflaws.net and this one on the EAPIL blog). A dozen organisations, governmental and non-governmental (including the Council of the Notariats of the European Union, the Groupe Européen de Droit International Privé and the European Association of Private International Law), were also in attendance.

The discussion covered a broad range of topics, leading to the conclusions and recommendation that can be found on the website of the Hague Conference (see here). The main takeaways from the meeting, as the authors of this post see them, are as follows.

The Hague Adults Convention Works Well in Practice

To begin with, the Special Commission affirmed that the Convention works well in practice. No major difficulties have been reported either by central authorities instituted under the Convention itself or by practitioners.

Doubts occasionally appear with respect to some provisions. Article 22 for example provides that measures of protection taken by the authorities of a Contracting State “shall be recognised by operation of law in all other Contracting States”, unless a ground for refusal among those listed in the same provisions arises. A declaration of enforceability, as stipulated in Article 25, is only necessary where measures “require enforcement” in a Contracting State other than the State of origin.

Apparently, some authorities and private entities (e.g., banks) are reluctant to give effect to measures of protection that clearly do not require enforcement, such as a judicial measure under which a person is appointed to assist and represent the adult, unless that measure has been declared enforceable in the State where the powers of the appointed person are relied upon. The Special Commission’s conclusions and recommendations address some of these hesitations, so that they should now prove easier to overcome. Regarding exequatur, see para. 33, noting that “measures for the protection of an adult only exceptionally require enforcement under Article 25”, adding that this may occur, for instance, “where a decision is taken by a competent authority to place the adult in an establishment or to authorise a specific intervention by health care practitioners or medical staff”, such as tests or treatments. Other doubts are dealt with in the practical handbook prepared by the Working Group created within the Hague Conference in view of the meeting of the Special Commission. The draft handbook (see here the first version publicly available), which the Special Commission has approved “in principle”, will be reviewed in the coming weeks in light of the exchanges that occurred at the meeting, and submitted to the Council on the General Affairs and Policy of the Conference for endorsement in March 2023).

Situations Exist in the Field of Adults’ Protection that Are Not (Fully) Regulated by the Convention

The Convention deals with measures of protection taken by judicial and administrative authorities, and with powers of representation conferred by an adult, either by contract or by a unilateral act, in contemplation of incapacity. By contrast, nothing is said in the Convention concerning ex lege powers of representation. These are powers of representation that the law of some States (Germany, Austria and Switzerland, for example) confers on the spouse of the adult or a close relative or family member, for the purpose of protecting the adult. Their operation is generally confined to situations for which no measures have been taken and no powers of representation have been conferred by the adult.

The Special Commission acknowledged that ex lege powers of representation fall under the general scope of the Convention, but noted that no provision is found in the Convention that deals specifically with such powers. In practice, ex lege powers of representation may be the subject of cooperation between the authorities of Contracting Parties (notably as provided for under Chapter V), but, where the issue arises of the existence, the extent and the exercise of such powers, the courts and other authorities of Contracting States will rely on their own law, including, where appropriate, their conflict-of-laws rules.

There is yet another gap that the Special Commission discussed. The Commission observed that instructions given and wishes made by an adult in anticipation of a future impairment of their personal faculties (e.g., in the form of advance directives), similarly fall within the general scope of the Convention and are subject, as such, to the cooperation provisions in Chapter V. Whether or not a particular anticipatory act constitutes a power of representation for the purposes of Articles 15 and 16, on powers of representation conferred by the adult, is to be determined on a case-by-case basis. Some unilateral acts plainly come within the purview of Articles 15 and 16, as they actually include a conferral of powers on other persons. Others do not, and may accordingly be dealt with by each Contracting State in conformity with their own law.

States Do Not Currently See an Interest in Modifying the Convention

The question has been raised in preparation of the Special Commission whether the Convention ought to be amended, namely by a protocol to be negotiated and adopted in the framework of the Hague Conference on Private International Law. In principle, a protocol would have provided the States with the opportunity to fill the gaps described above, and address other concerns. However, under international law only those Contracting States that ratify the protocol would be bound by the modifications.

The Special Commission witnessed that, at this stage, no State appears to see an amendment as necessary.

Only one issue remains to be decided in this respect, namely whether the Convention should be modified in such a way as to include a REIO clause, that is, a clause aimed at enabling organisations of regional economic integration, such as the European Union, to join the Convention in their own right. The matter will be discussed at the Council on the General Affairs and Policy of the Conference of March 2023.

The decision lies, in fact, in the hands of the Union and its Member States, as this is currently the only Regional Economic Integration Organisation concerned by such a clause. Their decision will likely be affected by the approach that should be taken in the coming weeks concerning the proposal for a regulation on the protection of adults that the Commission is expected to present in the first half of 2023.

Efforts Should Now Be Deployed Towards Increasing the Number of Contracting Parties

The main problem with the Convention lies in the fact that only relatively few States (fourteen, to be precise) have joined it, so far. Several States stressed the importance of further promoting ratification of, or accession to, the Convention.

It is worth emphasising in this respect that the Hague Adults Convention builds, to a very large extent, on cooperation between Contracting States. This means that a State cannot fully benefit from the advantages of the Convention by simply copying the rules of the Convention into its own legislation, or by relying on such rules on grounds of judicial discretion (as it occurs in the Netherlands and to a large extent in England and Wales), but should rather become a party to it.

Various States expressed an interest in the Convention. The responses to the questionnaires circulated in preparation of the meeting of the Special Commission suggest that at least five States are actively contemplating ratification (Hungary, Italy, Luxembourg, Mexico and Sweden), and that others have considered ratification (Slovakia) or are considering it (Argentina). For its part, Malta signed the Convention on the occasion of the meeting of the Special Commission, and will likely ratify it in the not too distant future.

Tools to Enhance the Successful Operation of the Convention

Some of the practitioners present drew the participants’ attention to practical difficulties in the cross-border protection of adults. To minimise practical difficulties, the Permanent Bureau, in some instances together with the Working Group on the Adults Convention, developed a number of tools.

The first is an extensive country profile, to be completed by Contracting States and made available on the website of the Hague Conference. This profile includes various matters of national law, such as names and content of measures of protection, jurisdiction of courts or other authorities to issue these measures, transfer of jurisdiction, and names, forms and extent of powers of representation.

The second is a toolkit on powers of representation, which contains detailed information about the national laws of States that provided responses, on for instance who can be granted powers of representation, how this granting must take place, and the permitted extent of the representation.

Concluding Remarks

All in all, the issue of the cross-border protection of Adults has rightly gained attention over the past ten years. While States amend their domestic legislation to be in conformity with the UN Convention on the Rights of Persons with Disabilities, they seem to be increasingly aware of the importance of ensuring cross-border continuity. This includes continuity of measures of protection issued by authorities such as courts, as well as the powers of representation granted by adults themselves. These matters of private international law require dialogue on the international and European Union level, more States to join the Convention, and tools to assist practice.

Carlos Santaló Goris, Researcher at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law and Ph.D. candidate at the University of Luxembourg, offers an analysis of some aspects of a judgment concerning the EAPO Regulation rendered by the District Court of Žilina (Okresný súd Žilina), Slovakia.

Can insolvency practitioners apply for a European Account Preservation Order (“EAPO”) against insolvent debtors to freeze their bank accounts? The District Court of Žilina (Okresný súd Žilina) in Slovakia confronted this issue in an EAPO application it received on January 2022. The EAPO Regulation expressly excludes the use of the EAPO Regulation for “claims against a debtor in relation to whom bankruptcy proceedings, proceedings for the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions, or analogous proceedings have been opened” (Art. 2(2)(c) EAPO Regulation). This is the same exclusion that can be found in Art. 1(2)(b) the Brussels I bis Regulation. Recital 8 of the EAPO Regulation reiterates that the Regulation “should not apply to claims against a debtor in insolvency proceedings” remarking that the EAPO “can be issued against the debtor once insolvency proceedings as defined in Council Regulation (EC) No 1346/2000 (now Regulation No 2015/848)”. At the same time, Recital 18 states that that exclusion should not prevent the use of an EAPO “to secure the recovery of detrimental payments made by such a debtor to third parties”.

In the instant Slovakian case, an insolvency practitioner requested an EAPO application against an insolvent debtor. The objective was to integrate the funds recovered through the EAPO into the insolvency estate. The insolvency practitioner applied for the EAPO once no assets were found in Slovakia. The EAPO application included a request to investigate the debtors’ bank accounts in Austria. One of the creditors suspected the debtor “had misappropriated funds and stashed them in offshore accounts”. The District Court of Žilina (Okresný súd Žilina) considered that, since the EAPO was requested against the debtor, such a request fell within the insolvency exclusion. Thus, the EAPO Regulation was not applicable. This court embraced the most literal sense of the insolvency exclusion. However, from a teleological perspective, the insolvency exclusion aims at preventing individual creditors from using the EAPO to undermine an insolvency estate during bankruptcy proceedings. In this case, the EAPO was used in favour of the insolvency estate. Had the EAPO been successful, it would have served to increase it.

The present case serves as an example to show that the boundaries of the EAPO insolvency exclusion are blurred. Perhaps, in the future, a similar case might reach the CJEU and help cast further light on the EAPO’s insolvency exclusion.

The Mexican Academy of Private International and Comparative Law (AMEDIP) will be holding its annual XLV Seminar entitled “Private International Law in the conformation of a new international order” (el derecho internacional privado en la conformación de un nuevo orden internacional) from 23 to 25 November 2022.

This will be a hybrid event. The seminar will take place at the Escuela Libre de Derecho (Mexico City). The registration fee is $300 MXN for students and $500 MXN for general public.

This event will be streamed live on AMEDIP’s social media channels. Participation is free of charge but there is a fee of $500 MXN if a certificate of attendance is requested (80% of participation in the event is required).

For more information, click here.

The program is available below.

 

Programa.

MIÉRCOLES 23 DE NOVIEMBRE DE 2022.

10:10 a 10:20 HRS. INAUGURACIÓN.

Mario Héctor Blancas Vargas

Vocal de la Junta Directiva

Escuela Libre de derecho

 

Elí Rodríguez Martínez.

Presidente de la Academia Mexicana de Derecho Internacional Privado y Comparado (AMEDIP).

  10:20 a 11:00 HRS CONFERENCIA MAGISTRAL    

Leonel Pereznieto Castro

“El Pluralismo de Leyes frente al Derecho Internacional Privado”

   

receso

11:00 – 11:10 hrs.

   

11:10 a 12:10 HRS. MESA I

 

“COOPERACIÓN PROCESAL INTERNACIONAL Y EL PROYECTO DE CÓDIGO NACIONAL DE PROCEDIMIENTOS CIVILES Y FAMILIARES”

 

Moderadora: Ligia C. González Lozano

Miembro de Número

Ponente

  Tema 1. José Roberto de Jesús Treviño Sosa.

(México) “La Cooperación Procesal Internacional en el marco del Proyecto de código Nacional de Procedimientos Civiles y Familiares”.

 

  2.  Carlos e. Odriozola Mariscal.

(México) “La regulación de la cooperación procesal internacional en el próximo Código Nacional de Procedimientos Civiles y Familiares: Reflexiones sobre su eficacia”.

  3. Jorge Alberto Silva Silva.

(México) “Cláusula de reciprocidad en el Proyecto de Código Nacional de Procedimientos Civiles y Familiares”.

  4. Nuria Marchal Escalona.

(España) “Hacia la digitalización en el ámbito de la cooperación transfronteriza en la justicia civil”.  

Preguntas y Respuestas

(20 mins).  

receso

12:30 – 12:50 hrs.

   

12:50 a 13:40 HRS. Mesa II

 

“CONTRATACIÓN INTERNACIONAL”

 

Moderadora: María Mercedes Albornoz.

Miembro de Número

  Ponente

  Tema 1. James A. Graham/Christian López Martínez.

    (México) “La Ley Aplicable a la Autonomía de la Voluntad en materia contractual”.

  2. Diego Robles Farías.

(México) “El desarrollo de la Cláusula ‘Rebus Sic Stantibus’ en el Derecho Comparado y en los instrumentos de Derecho Uniforme que regulan los contratos internacionales.”. 3. Alfonso Ortega Giménez.

(España) “Derecho Internacional Privado de la unión Europea y ‘Smart Contracts’ (contratos Inteligentes): Problemas de Competencia Judicial Internacional y de Determinación de la Ley Aplicable”.

   

Preguntas y Respuestas

(20 mins).

   

receso

14:00 – 16:00 hrs.

   

16:00 – 17:00 HRS.  

“PRESENTACIÓN DEL LIBRO: La Gestación por Sustitución en el Derecho Internacional Privado y Comparado”

 

Moderadora: Nuria González Martín.

Secretaria General de la Junta de Gobierno

  Participan: Adriana Dreyzin de Klor (Argentina)   Rosa Elvira Vargas Baca (México)   María Mercedes Albornoz (México)   Nuria González Martín (México)  

Preguntas y Respuestas

(20 mins).

   

receso

17:20 – 17:30 hrs.

  17:30 a 18:00 HRS.  Entrega de Constancias a Miembros Eméritos y de Número

 

Moderador: Elí Rodríguez Martínez.

Presidente de la Junta de Gobierno

 

JUEVES 24 DE NOVIEMBRE DE 2022.

 

10:00 a 10:40 HRS. CONFERENCIA MAGISTRAL

Miguel Ángel Reyes Moncayo

Consultor Jurídico Adjunto “A”

Secretaría de Relaciones Exteriores

 

Moderadora: Rosa Elvira Vargas Baca.

Vicepresidente de la Junta de Gobierno

 

Preguntas y Respuestas

(20 mins).

   

receso

11:00 – 11:10 hrs.

   

11:10 a 12:10 HRS.  

MESA III

“DERECHO INTERNACIONAL DE LA FAMILIA”

 

Moderadora: Martha Álvarez Rendón.

Vínculo Institucional con S.R.E.

Ponente

  Tema 1. María Mayela Celis Aguilar.

(Países bajos)

  “La implementación del Convenio de la Haya de 1980 sobre los Aspectos Civiles de la Sustracción Internacional de Menores en los regímenes nacionales: el caso de América Latina y México”.

  2. Manuel Hernández Rodríguez.

(México) “Los retos en México de la Adopción Internacional”.

 

  3. María Virginia Aguilar.

(México) “La Convención sobre los Derecho de las Personas con Discapacidad, un buen documento con ausencia de efectividad, errores y posibilidades”.

  4. Jorge Orozco González.

(México) “Consideraciones en torno a la compensación conyugal por causa de muerte. Análisis de la sentencia de amparo directo en revisión 3908/2021”.

   

Preguntas y Respuestas

(20 mins).

   

receso

12:30 – 12:45 hrs.

  12:45 – 13:40 HRS

  MESA IV

“NACIONALIDAD/PROTECCIÓN DEL PATRIMONIO CULTURAL EN EL DERECHO INTERNACIONAL PRIVADO”

 

Moderadora: Yaritza Pérez Pacheco

Coordinadora Editorial

  Ponente

  Tema 1. Pedro Carrillo Toral

(México)

  “La doble Nacionalidad en México: Privilegio o Restricción”

  2. Lerdys Saray Heredia Sánchez

(España)

  “La inadecuada regulación de los supuestos de plurinacionalidad en Derecho Internacional Privado Español”

  3. Ana Elizabeth Villalta Vizcarra

(El Salvador)

  “La protección de los Bienes Culturales en el Derecho Internacional Privado” 4. Rosa Elvira Vargas Baca

(México)

  “La protección de bienes culturales de conformidad con el Convenio de UNIDROIT de 1995”.

   

Preguntas y Respuestas

(20 mins).

   

receso

14:00 – 16:00 hrs.

 

 

16:00 a 17:00 HRS. MESA V

“Responsabilidad Civil Extracontractual/ Temas Selectos de Derecho Internacional Privado-I”

 

Moderadora: Anahí Rodríguez Marcial.

Coordinadora de Seminario

  Ponente

  Tema 1. Francisco de Jesús Goytortúa Chambón.

(México)

  “Criterios del Derecho Aplicable en la Responsabilidad Extracontractual” 2. Mario de la Madrid Andrade.

(México) “La responsabilidad de la empresa en los Principios de Derecho Europeo sobre la Responsabilidad Civil Extracontractual”

  3. Carlos Gabuardi.

(México) “Nuevos desarrollos evolutivos del Derecho Internacional Privado”.  

4. Adriana Patricia Guzmán Calderón/

Sara Ximena Pinzón Restrepo.

    (Colombia)  

“¿Cuáles son los desafíos de la normatividad de la propiedad intelectual frente al surgimiento de los NFTs? Análisis de los NFTs en el Marco de la Propiedad Intelectual en Colombia”.

 

 

 

Preguntas y Respuestas

(20 mins).

   

receso

17:20 – 17:30 hrs.

   

17:30 a 18:00 HRS.  

Entrega de Constancias a Miembros Supernumerarios

 

Moderador: Elí Rodríguez Martínez.

Presidente de la Junta de Gobierno

 

 

VIERNES 25 DE NOVIEMBRE DE 2022.

 

10:00 a 10:30 HRS.  

CONFERENCIA MAGISTRAL

Roberto Ruíz Díaz Labrano

“Las fuentes del Derecho Internacional Privado en la Actualidad”.

(Paraguay)

 

Moderadora: Wendolyne Nava gonzález

Coordinadora Editorial

 

Preguntas y Respuestas

(20 mins).

   

receso

10:50 – 11:00 hrs.

   

11:00 – 12:00HRS.  

Mesa VI

“TECNOLOGÍA Y DERECHO INTERNACIONAL PRIVADO/TEMAS SELECTOS DE DERECHO INTERNACIONAL PRIVADO-II”

Moderadora: Martha Karina Tejada Vásquez.

Prosecretaria de la Junta de Gobierno

  Ponente Tema 1. Roberto Antonio Falcón Espinosa.

(México) “Los datos personales biométricos y el Derecho Internacional Privado”

  2.  Nayiber Febles Pozo

(España) “Desafío del Derecho Internacional Privado ante las relaciones en el ciberespacio: Relación de continuidad o cambio de paradigma”.

  3. Francisco José Contreras Vaca.

(México) “Conflicto de Leyes en materia del Trabajo”.

 

  4. Wendolyne Nava González.

(México) “Justicia Descentralizada: Obstáculos y Consideraciones Jurídicas”

 

   

Preguntas y Respuestas

(20 mins).

   

receso

12:20 – 12:40

   

12:40 – 13:25 HRS.  

Mesa VII

 

“TEMAS SELECTOS DE DERECHO INTERNACIONAL PRIVADO-III”

 

Moderadora: Mónica María Antonieta Velarde Méndez.

Consejera de la Junta de Gobierno

  1. Juan Manuel Saldaña Pérez.

(México) “Cooperación Procesal Internacional en Materia Aduanera”.

  2. Máximo Romero Jiménez

(México) “Implementación del Anexo 31-A del T-MEC”.

  3. Vladia Ruxandra Mucenic.

(Rumania) “Participación de Accionistas Extranjeros en Asambleas Virtuales de Sociedades Mexicanas”.  

Preguntas y Respuestas

(10 mins).

   

receso

13:35 – 13:45

 

 

 

13:45 a 14:00 HRS.  

Entrega de Constancias a Miembros Asociados

 

Moderador: Elí Rodríguez Martínez.

Presidente de la Junta de Gobierno

 

14:00 HRS. CLAUSURA.

 

*Por definir

Escuela Libre de Derecho (ELD)

 

 

 

Elí Rodríguez Martínez.

Presidente de la Academia Mexicana de Derecho Internacional Privado y Comparado (AMEDIP).

 

 

 

As announced in the first post in this series, I will continue my empirical analysis of the ECJ’s case law in the field of EUPIL. I refer back to that blog post as concerns the definition of “EUPIL” and the general methodological framework upon which this research is based.

The focus of this second post is on the participation of States, parties and, more generally, institutions in (EUPIL) preliminary reference procedures. I will first summarize the legal framework governing the observations filed with the ECJ (A) and give some additional information on the collection of data on this topic, which is essential to the correct interpretation of the Charts presented hereunder (B). After some brief considerations on the practical importance of observations in EUPIL cases (C), I will present the collected data from a double perspective: a general one, which looks at the overall level of engagement of States with preliminary references procedures on EUPIL instruments (D); and a subject-specific one, that accounts for the peculiar sectorial interests of some States (E).

A. General Legal Framework for Filing Observations with the ECJ

The participation of States, parties and institutions in the preliminary reference procedure can take the form of either written observations, lodged with the Registrar, or oral submissions at the hearing before the Court.

The legal framework applicable to the filing of written observations is set out by Articles 23 and 23a of the ECJ’s Statute and complemented by its Rules of Procedure (Rop), notably by Article 96. In short, upon reception of a request for a preliminary ruling, the ECJ’s Registrar notifies the order issued by the referring court to the Member States and to the Commission, as well as to the institution, body, office or agency of the Union which adopted the act the validity or interpretation of which is in dispute. All of these, in addition to the parties to the main proceedings pending before the referring court, are entitled to file written observations (Article 96 RoP). Moreover, said notification is sent to the States, other than the Member States, which are parties to the EEA Agreement, to the EFTA Surveillance Authority and to non-Member States which are parties to an agreement relating to a specific subject-matter, where a question concerning one of the fields of application of those Agreements is referred for a preliminary ruling. These (non-Member) States are also entitled to submit written observations.

In any case, non-participation in the written part of the procedure does not preclude participation in the hearing during the oral part of the procedure.

Not all preliminary reference proceedings encompass an oral procedure: according to Article 76 RoP, the ECJ may decide not to hold a hearing if it considers, on reading the written pleadings or observations lodged during the written part of the procedure, that it has sufficient information to give a ruling. Nonetheless, a hearing shall be held if it is requested by a party or an interested person referred to in Article 23 of the Statute, who did not participate in the written part of the procedure.

Special rules, relating to both written and oral participation, apply to the expedited (PPA) and urgent (PPU) preliminary reference procedures.

The former provides for derogatory rules in relation both to the time limits for filing observations and the scope of the subject-matter addressed thereby, that could be limited to “the essential points of law” raised by the request for a preliminary ruling (Article 105 RoP).

The latter follows a special regime that limits participation into the written part of the procedure: the order of the referring court is notified solely to the Member State from which the reference is made (and not to all Member States), to the European Commission and to the institution which adopted the act the validity or interpretation of which is in dispute (Article 109 (2) RoP). In cases of “extreme urgency”, the written part of the procedure can even be completely omitted (Article 111 RoP).  The other interested persons referred to in Article 23 of the Statute will just receive a communication of the request for a preliminary ruling and of the date of the hearing, with a view to enable their eventual participation into the oral procedure.

B. Methodological Issues Relating to the Collection of Data on Observations Filed in EUPIL Cases

This blog post builds on data collected based on the information systematically included in all ECJ’s judgments. In this respect, it is important to note that the drafting style adopted by the ECJ provides a consistent framework for all decisions issued by the Court. Against this backdrop, the first part of judgments and orders currently lists the submissions made with the Court, without nonetheless distinguishing between oral and written observations. If it is true that certain AGs are systematically introducing this distinction in their Opinions, the fact remains that, nowadays, a) not all the AGs consistently follow this practice and b) not all cases are decided with the support of an Opinion (while a hearing could be held even in cases with no Opinion: see, as an example C-436/13). As a result, the distinction between oral and written submissions could not be correctly apprehended based on the available public data. The limitations to the participation in the written part of the procedure, which are inherent to PPU cases, have therefore no impact on the statistical results presented in this blog post.

The Charts presented below will refer to States’ participation to the preliminary ruling proceedings in general, without distinguishing between oral and written part of the procedure.

C. The Practical Usefulness of Observations in EUPIL Cases

Concerning the objectives pursued through the filing of observations, EUPIL cases are no different from other preliminary references procedures. Nonetheless, this section will be the opportunity to present some preliminary statistical data which are specific to EUPIL cases.

According to point 11 of the ECJ’s Practice directions to parties concerning cases brought before the Court, written observations are a way for the interested persons referred to in Article 23 of the Statute to “set out their point of view on the request made by the referring court or tribunal” and to “help clarify for … the scope of that request, and above all the answers to be provided to the questions referred” by the domestic court. Therefore, States’ observations are, first and foremost, a tool for enlarging the circle of participants in the legal debate before the ECJ. Far from being a face-to-face conversation between the Luxembourg and the referring court, the preliminary reference procedure seeks to involve a larger number of institutional subjects. This approach is consistent with the wide-ranging effects of the judgment rendered by the ECJ at the end of such procedure, stemming from the precedential value of preliminary rulings.

In addition to this more general function, the observations filed by the subjects identified by Article 23 of the Statute and Article 96 RoP have a remarkable practical importance for the correct assessment and understanding of the preliminary questions referred in the specific case. Again, according to the aforementioned Practice directions, observations play “an essential role” in the ECJ’s understanding of the legal problem at stake, as it can thus acquire a detailed and accurate idea of the issues raised by the referred case. In my view, it is useful to distinguish, in this respect, between:

1. the observations filed by the parties to the domestic proceedings;
2. the observations filed by the government of the State to which belongs the referring court;
3. the observations of the Commission;
4. the observations filed by States other than the forum State.

The observations of the parties to the main proceedings could be extremely helpful in clarifying the factual context in which the dispute arose. While, in EUPIL cases, the ECJ does not adjudicate on facts, these remain extremely important for the correct understanding of the legal questions submitted to the Court. Facts may also help the ECJ in fulfilling its institutional mission, that is making sure that the answer provided to the referring court is as useful as possible for the solution of the problems raised by the dispute pending before it, without nonetheless venturing in factual determinations and legal assessments that rest solely with domestic courts. From this standpoint, the parties to the main proceedings could either complement, specify or even contest the description of the facts made by the referring court. It is  interesting to note that in 79 % of the inventoried EUPIL cases, at least one of the parties to the main proceedings has presented written and/or oral observations before the ECJ. This percentage drops to 67 % in family law cases and 42 % in succession cases.

The observations of the government of the State to which belong the referring court can be equally useful to clarify the factual background of the disputes, especially where one of its public bodies is involved. The point of view of the forum state is also particularly important for clarifying the content and interpretation of the domestic legal framework (procedural or substantive) applicable the specific case. Overall, the forum State has filed observations in 64% of the inventoried EUPIL cases. More detailed data on this aspect will be presented in section D.

The observations of the Commission may provide for an “institutional” point of view on the interpretation of a provision of EU Law. They may also offer interesting insights on the legislative history of the provision or instrument subject to interpretation. Albeit arguably institutional, this point of view is never binding for the Court. The Commission has systematically filed written and oral observations in all EUPIL preliminary references for which there has been a written procedure (this excludes, in practice, most of the cases decided with a reasoned order ex Article 99 RoP and some of the cases that have been deemed inadmissible ex Article 53 (2)). The observations filed by the institution, body, office or agency of the Union which adopted the act the validity or interpretation of which is in dispute pursue a similar purpose. Admittedly, these are not very common in the field of EUPIL. I could only find 4 of such cases: C-501/20 and C-522/20, with observations by the Council of the EU, as well as joined Cases C-453/18 and C-494/18 with observations of both the EU Parliament and the Council of the EU.

As concerns the observations of States other than the forum State, they mostly serve to introduce multiple points of view into the debate before the ECJ. It is very difficult, if not impossible, to gauge all the possible reasons that may prompt one of these States to participate in the preliminary reference procedure. Intuitively, the objective or subjective connections with one of the “foreign elements” of the dispute at stake might play a role. For example, Cyprus only ever participated twice in a EUPIL preliminary reference procedure: once as the forum State (C-519/13) and once in the Apostolides case, referred by a British court with respect to facts which largely occurred in Cyprus and upon which the courts of this country had adjudicated. C-157/12 is the only EUPIL case where Romania has intervened in a preliminary reference procedure not triggered by its own domestic courts. The case originated from Germany and concerned a dispute between two companies, one of which established in Romania, the courts of this country having also rendered the judgment whose recognition was a stake. The nationality of the parties, or other relatable interests, may also play a role (for example, Greece also submitted observations in Apostolides, the applicant being a member of the Greek Cypriot community). Any further discussion on the reasons behind States’ interventions would be entirely speculative in nature: any of the States identified by Article 23 of the Statute is free to participate in the procedure before the ECJ to submit its own point of view on the interpretative solution to be given to the preliminary questions, without having to substantiate a specific interest to these purposes.

D. Data from Existing Case Law

Coming to the concrete results of my analysis, the review of 46 years of ECJ case law on EUPIL instruments evidences a remarkable engagement of States with such preliminary reference procedures. Only 8 % of the total cases have elicited no observations from the side of at least one State.

In Chart 1 below, States on the y axis are ordered based on the total number of observations filed in EUPIL cases (orange column).

Chart 1

The blue column on the left indicates the total number of EUPIL preliminary references raised by the domestic courts of the concerned country. This datum should be read in conjunction with that portrayed by the gray column, showing the number of observations submitted by the government of each State in cases referred by its own domestic courts. The yellow column on the right show the number of observations filed by each government in EUPIL cases referred by courts of other Member States.

With the sole exceptions of the Netherlands, Belgium, Cyprus and Bulgaria, the orange column (which corresponds to the sum of the gray and yellow columns) is systematically taller than the blue one, showing that national governments tend to be more engaged in the dialogue with the ECJ than their domestic courts are. Particularly remarkable are the results pertaining to the Czech Republic, Spain and Portugal: despite the low number of EUPIL referrals raised by their respective national courts, the governments of these countries have consistently intervened in cases filed by other Member States’ courts in a variety of legal fields (cf. Charts 5, 6, 7 and 8 below).

Chart 2 is a specification of the relationship between the blue and the gray columns of Chart 1. It expresses, in percentage value, the rate of participation of each national government in the cases referred by its own domestic courts.

Chart 2

Incidentally, the States with the highest intervention rate (100%) are those whose domestic courts have been only moderately active in referring EUPIL cases to the ECJ, as evidenced by the blue columns of Chart 1 above. This may suggest that States with a higher number of domestic referrals might have to optimize the use of their resources, by choosing a participation strategy that contemplates no systematic engagement with “domestic” cases, this being forsaken where the legal question raised therein is not deemed sufficiently important or significant. This could explain, for example, the relatively low engagement of the Austrian and German governments with domestic cases.

Concerning the continuity of  States’ engagement over time, the analysis of a sample of States (the three States having filed the highest number of observations) evidence that it tends to be relatively constant, with a slight drop towards the end of the last decade. The line in orange, which is constant in the three countries, indicates the temporal progression of the totality of EUPIL preliminary rulings requested from the ECJ.

Chart 3

 

As mentioned in my previous post, the UK began to participate in preliminary reference procedures relating to the 1968 Convention even before it formally became a Party to that international treaty. This was justified in the light of the obligation to ratify that Convention upon accession to the EU, set out by its Article 63, and the prospective precedential value that the ECJ’s judgments would have acquired in the domestic legal system. To the contrary, the Swiss government submitted its first observations in case C-133/11, lodged on 18 March 2011. The Lugano II Convention entered into force for Switzerland on 1 January 2011. From that moment onward, the Swiss government has been quite active before the ECJ (all of its observations concern the Brussels-Lugano regime, except for one case on the Service Regulation), its overall engagement with EUPIL cases having nonetheless dropped in recent years.

Chart 4

 

E. States’ Sectorial Interests

It is noteworthy that the States’ engagement with EUPIL cases tends to be sector-specific. Charts 5, 6 and 7 8 are breakdowns of Chart 1, accounting for the number of observations filed by each national government in four macro-areas: the Brussels-Lugano regime (Chart 5), which comprises the 1968 Brussels Convention, the Lugano II Convention and Regulations 44/2001 and 1215/2012; family law (Chart 6), composed by Regulations 1347/2000, 2201/2003,  4/2009 and 1259/2010 ; successions (Chart 7), ie Regulation 650/2012 and the “smaller”/procedural regulations (EAPO, EPO, EEO, ESC Regulations; Chart 8).

Chart 5

Chart 6

Chart 7

Chart 8

See here for additional charts and data relating to the observations filed in cases on the Rome regime (the 1980 Rome Convention and Regulations 593/2008, 864/2007) and the Service and Evidence Regulations.

Again, the Member States on the y axis are ordered based on the overall number of the observations filed in each domain, and the logic behind the columns’ colours is the same as that described in relation to Chart 1. It is very apparent that the balances of forces among States vary considerably from one domain to the other, following a logic that is not always perceivable by the external observer. Quite remarkable, in this respect, are the attitudes of Spain and Hungary under the Succession Regulation. These Member States have systematically filed observations in this domain, despite the absolute lack of domestic referrals. In fact, Oberle is the only (admissible) succession case where the Spanish government did not file observations. Lacking any other self-evident explanation, it must assumed that this sectorial engagement is tied with domestic policies in the concerned area of law.

The Grand Chamber of the Court of Justice delivered today its judgment in case C‑646/20 (Senatsverwaltung für Inneres und Sport, Standesamtsaufsicht v TB, intervening parties: Standesamt Mitte von Berlin, RD), which is about Article 2(4) and Article 21 Brussels II bis and the concept of ‘judgment’: “Article 2(4) of Council Regulation (EC) No 2201/2003 […] must be interpreted, in particular for the purpose of the application of Article 21(1) of that regulation, as meaning that a divorce decree drawn up by a civil registrar of the Member State of origin, containing a divorce agreement concluded by the spouses and confirmed by them before that registrar in accordance with the conditions laid down by the legislation of that Member State, constitutes a ‘judgment’ within the meaning of Article 2(4)”.

Source: https://curia.europa.eu/juris/document/document.jsf?mode=DOC&pageIndex=0&docid=268381&part=1&doclang=EN&text=&dir=&occ=first&cid=367004

Yesterday (14 November 2022), Botswana acceded to the Hague Child Abduction, Adoption and Child Support Conventions, i.e. respectively: the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, the Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, and the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance. The Child Abduction Convention will enter into force for Botswana on 1 February 2023, the Adoption Convention on 1 March 2023 and the Child Support Convention on 16 November 2023.

Last month, on 4 October 2022, Cabo Verde acceded to the Hague Child Abduction and Child Protection Conventions, i.e. respectively the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction and the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children. The Child Abduction Convention will enter into force for Cabo Verde on 1 January 2023 and the Child Protection Convention on 1 August 2023.

Source: https://www.hcch.net/en/news-archive/details/?varevent=883 et https://www.hcch.net/en/news-archive/details/?varevent=877

The 9th Journal of Private International Law conference will be hosted by the Yong Pung School of Law, Singapore Management University on 3rd to 5th August 2023. A reminder that the deadline to submit abstracts is Friday 16 December 2022. The Call for Papers can be found here and the conference website is available here. The conference organisers look forward to welcoming you to Singapore next year.

It does not happen often that the Grand Chamber of the Court of Justice delivers a judgment on interpretation of EU private international law instruments. In fact, as the highly interesting study of Martina Mantovani on EAPIL blog shows, this field of EU law is characterized by a relatively low number of Grand Chamber cases – less than one per year.

The case Senatsverwaltung für Inneres und Sport, C-646/20 is one of the rare occurrences where the Court decided to have recourse to that option. It did so in order to clarify whether an extrajudicial act on divorce can constitute a ‘judgment’ under the Brussels II bis Regulation and enjoy automatic recognition.

 

Context of the request for a preliminary ruling and the legal issue at hand

The situation that led to the case being brought before the Court can be summarized as follows:

A German authority is faced with a request to enter an Italian extrajudicial act on divorce in the register of marriages. The authority considers that the act should be subject to the recognition procedure and rejects the request. The case is brought before the national courts.

Ultimately, the German Federal Court brings its request for a preliminary ruling before the Court asking, in essence, whether that ‘act’ has to be considered as a ‘judgment’ within the meaning of Article 2(4) of the Brussels II bis Regulation and, thus, be automatically recognized in Germany.

In the preliminary questions themselves, the referring court does not describe the modalities of such an ‘extrajudicial’ act. In the wording of those questions, the referring court confines itself to mentioning the provisions of Italian law providing for a divorce by mutual consent and explains those modalities in its request for a preliminary ruling.

Back in May, AG Collins presented his Opinion in that case, proposing to the Court to answer the preliminary questions in a following manner:

‘The dissolution of a marriage by a legally ordained procedure whereby spouses each make a personal declaration that they wish to divorce before a civil registrar, who confirms that agreement in their presence not less than 30 days later after having verified that the conditions required by law for the dissolution of the marriage have been met, namely that the spouses do not have minor children or adult children who are incapacitated or severely disabled or economically dependent and the agreement between them does not contain terms concerning the transfer of assets, is a divorce judgment for the purposes of [the Regulation].’

 

Court’s findings

At the outset, the Courts affirms that the notion of ‘judgment’ within the meaning of Article 2(4) of the Brussels II Regulation has to be given an autonomous meaning (para. 41).

It turns next to the primary law (Articles 67 and 81 TFEU) to observe that, in order to establish the area of freedom, security and justice, the EU develops the judicial cooperation in civil matters having cross-border implications and, doing so, it ensures the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases (para. 42).

Interestingly, from the methodological standpoint, the Court has already relied on primary law to interpret the Brussels II bis Regulation and decide on its scope in its judgment in in UD, C-393/18 PPU, para. 38. While the judgment at hand echoes that approach, it also takes it further. The Treaty provides that the EU ‘shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases’, yet the Court states that the EU the ensures, when necessary (and, as we learn from subsequent paragraphs of the judgment – it does so through the Brussels II bis Regulation) the recognition and enforcement of extrajudicial decisions.

It is only then that the Court mentions other provisions of the Regulation in order to find, in essence, that the notion of ‘judgment’ shall receive a broad understating, including the decisions adopted extra-judicially. Doing so, the Court invokes, in particular, Article 2(1) of the Brussels II bis Regulation according to which the notion of ‘court’ shall cover all the authorities in the Member States with jurisdiction in the matters falling within the scope of this Regulation (paras. 44 et seq.).

The Court attempts next to benchmark that finding against its previous judgment in Sahyouni, C 372/16. In this regard, it notes that in order to deliver a ‘judgment’, the authority must retain control of the pronouncement of the divorce. In the context of decisions on divorce by mutual consent, such control has to involve the examination as to whether the conditions for divorce provided for in the national law has been met and the consent of the spouses has been real and valid (para. 54).

Those findings lead to Court to the conclusion that an a divorce decree drawn up by the civil registrar of a Member State, containing a divorce agreement concluded by the spouses and confirmed by them before that registrar in accordance with the conditions laid down by the legislation of that Member State, constitutes a ‘judgment’ within the meaning of the Brussels IIa Regulation (para. 67).

 

The judgment can be found here (in French, no English version at the time of posting), accompanied by a press release (in English).

In GW Pharma Ltd & Anor v Otsuka Pharmaceutical Co. Ltd [2022] EWCA Civ 1462, the Court of Appeal confirmed jurisdiction for the courts of England and Wales, confirming the first instance judgment which I reviewed here.

The first instance judgment dismissing GW Pharma’s application decided three issues: jurisdiction under the Moçambique principle, foreign act of state and a distinct application for a stay on forum non conveniens grounds.

Arguments on appeal are listed [20] ff:

GW Pharma’s grounds 1 and 2 address the Moçambique principle and its application. GW Pharma contend that the judge erred in applying an overly restrictive test for the purposes of the Moçambique principle and further erred in his application of that test to the facts.

Ground 3 addresses the foreign act of state doctrine, and the common law public policy exception. The submission is that the judge erred in law in holding that the act of state doctrine (or common law public policy) did not require the court to decline jurisdiction.

Ground 4 relates to forum non conveniens, contending that the judge erred in declining a stay on those grounds.

Otsuka’s case is that the judge was right for the reasons he gave but Otsuka also advances two additional points in support of the judge’s overall conclusion. The first point is that as well as the exception to the Moçambique rule based on whether a validity challenge is direct or not which the judge applied, there is a second exception – for claims which relate to a contract. This case would also fall within that exception. The second point is a submission that GW Pharma’s case would necessarily involve a country-by-country approach, contrary to the approach adopted by the English courts in related contexts (citing the Supreme Court in Unwired Planet v Huawei [2020] UKSC 37). The relevant principles ought not to be applied so as to prevent Otsuka from bringing its contractual royalty claim against GW Pharma in a single set of proceedings in GW Pharma’s home jurisdiction.

Birss LJ [26] notes, with common sense, that Brussels Ia authority still has relevance, despite the Regulation no longer applying

the fact the Regulation does not apply is a different thing from the question whether aspects of the thinking behind the Brussels Regulation may illuminate questions which do arise.

[29] the main point of UKSC Lucasfilm is summarised as the

modern trend [being] in favour of the enforcement of foreign intellectual property rights, particularly where there is no issue as to validity.

That modern trend of course provokes discussion as to when a claim engages validity as opposed to mere infringement, with Chugai a classic illustration. The judge here sometimes necessarily skates on thin ice for creative counsel may direct the end-result by claim formulation. Here Birss LJ offers a relevant distinction between direct challenges to the validity of a patent, as opposed to proceedings being ‘principally concerned with’ such challenges:

In Chugai there is reference to both the idea of whether a validity challenge is a direct one and also to whether proceedings are “principally concerned with” validity. These two expressions are performing different tasks and it is worth keeping them distinct. A claim consisting of nothing other than a claim for infringement, in which the defendant does not claim that the patent is invalid, but merely requires the court to ask itself, as a guide to construction, what would be the hypothetical consequences for validity if there was infringement, does not involve a direct challenge to validity. Such a claim is also not principally concerned with validity. On the other hand a claim consisting of nothing other than a request for revocation on the ground of invalidity or a declaration of invalidity would be a direct challenge to validity, and would be principally concerned with validity. However a claim raising multiple issues might well properly be said not to be principally concerned with validity, even if one of the subsidiary issues was a direct challenge to validity; but in such a case the court’s response would depend on the circumstances. The court might not decline jurisdiction over the dispute as a whole but might address individual issues separately. If the direct challenge only arises on a contingent basis then the right response might involve case management. Unlike the judge below, I would not describe this latter situation as one in which what was really a direct validity challenge was rendered not a direct challenge owing to its subsidiary nature in the action as a whole. The nature of the challenge is a direct one, but its status in the proceedings as a whole means that they are not principally concerned with it.

This is a discussion which to my mind is also useful for the A24(4) discussion in Brussels Ia, sub judice in BSH Hausgeräte v Electrolux.

[38] ff discusses the long standing exception to the Moçambique rule concerning contracts and equitable obligations. [40] There are said to be two questions in the present case about the contract exception. One is whether it depends on the existence of an exclusive jurisdiction clause in the contract  (answered [42] in the negative] and the other is about the extent of the exception itself. Would it, for example, allow the court to entertain a direct challenge to the validity of a foreign patent which the court would not have had jurisdiction to determine in the absence of the relevant contract (or equitable obligation)? : [43]:

In a way the question is whether the exception really is an exception to a rule that the court has no jurisdiction to determine a claim principally concerned with title (etc.) to foreign land or whether it is really just a manifestation of the proper application of the test for what it does or does not mean to say that a claim is principally concerned with title (etc.). Or putting it another way, can the court, when considering a contract claim, decide on title to foreign land, and by extension the validity of a foreign patent?

[46] that question is answered with reference to the classic in rem v in personam discussion that is part of the original Moçambique rule (and A24(1)BIa)

The contract exception does not allow the court to make a decision about the validity of a foreign patent in rem but it would allow the court to address the validity of a foreign patent in the course of making a decision concerning contractual rights in personam, assuming (such as if the Lear point does work in the way I have described) such a question was relevant to the contract decision.

[48] ff Lord Justice Birss summarises:

Bearing all this in mind, I would state the Moçambique rule as explained and formulated in Lucasfilm, and as it applies to patents in the following way:

First, in a case in which the courts of England and Wales have in personam jurisdiction over a defendant, then the courts have jurisdiction in proceedings for infringement of a foreign patent save where those proceedings are principally concerned with a question of the validity of that patent. The proceedings will not be principally concerned with validity only because the defendant, who does not claim that the patent is invalid, requires the court to ask itself as a guide to construction, what would be the hypothetical consequences for validity if there was infringement. However what the rule does not permit is a direct challenge to the validity of a foreign patent, and (subject to the exception below) the court has no jurisdiction to determine a claim that the foreign patent is invalid.

Second, this Moçambique principle is also subject to a contractual exception. If the case is one in which the court is asked to enforce a contract between the parties then in addition to questions of patent scope/infringement, if and only to the extent that questions of the validity of foreign patents need to be addressed in order to decide on the true nature and scope of the parties’ contractual obligations to one another, then the court can do so.

Applying this summary to the first instance judgment, that judgment is confirmed [60].

The third ground of appeal then invokes the foreign act of State doctrine, in that is is said that (certain) intellectual property rights may be said to depend on the grant or registration by the state. Birss LJ dismisses the argument [73] essentially by suggesting it harks back to bygone notions of intellectual property rights:

even absent the authorities I would hold that as a matter of principle the modern grant of a patent for an invention does not fit within the act of state doctrine as it stands today for two reasons. The first reason relates to the exercise of grant itself. The very word “grant” harks back to a past time, before the Statute of Monopolies 1623, when letters patent were granted on the whim of the Stuart monarchs (and similarly I suspect the Danish monarchy in Blad v Bamfield). Today there is no such condescension by the sovereign power in the grant of a patent by the Comptroller of the Patent Office. Once a properly constituted patent application has been examined and found to comply with the requirements of the law, the Comptroller is required by statute to grant the patent. The relevant words are in s18(4) of the Patents Act 1977 which provide essentially that if the applicant’s application is all in order then ‘the comptroller shall … grant him a patent.’ The second reason follows on from this and was given by Henry Carr J in Chugai at paragraph 68. He observed that once the patent had been granted, any party can challenge the validity of the patent and then can do so in a manner and on grounds which are quite different from an attempt to challenge legislation or government acts such as requisition.

Conclusion on this ground [75]

on grounds of authority and principle, I agree with the judge below that the act of state doctrine is not relevant to the analysis of the court’s jurisdiction in this case.

The first instance judge’s finding on forum non is also confirmed and the appeal therefore dismissed.

I do not know whether, if sought, permission to appeal to the Supreme Court will be granted, but it seems unlikely. The appeal judgment in my view includes important instruction in particular on the ‘principally concerned with’ issue however it largely applies existing UKSC authority.

Geert.

EU Private International Law, 3rd ed. 2021, 2.196 ff.

Court of Appeal rejects appeal against finding of jurisdiction in foreign #patent case
Rule in Moçambique confirmed as not engaged
See here https://t.co/hHZdeXVpCb for first instance judgment

GW Pharma v Otsuka Pharmaceutical Co. Ltd [2022] EWCA Civ 1462 https://t.co/GLsmtCRNtZ

— Geert Van Calster (@GAVClaw) November 8, 2022

The fourth issue of the Journal du droit international for 2022 has just been released. While it contains a number of case notes relating to private international law issues, it is mainly conceived as a tribute to the late Emmanuel Gaillard and publishes a number of contributions to the conference Emmanuel Gaillard Theory in Action which held last spring in Paris (see also the announcement on this blog).

Most of the articles discuss the contributions of Gaillard to international arbitration.

One of them, however, discusses more specifically the contribution of Gaillard to private international law (by Jean-Michel Jacquet, IHEID Geneva). The English summary reads:

The contribution of Emmanuel Gaillard’s thought to the law of international arbitration has been considerable. Throughout his career, Emmanuel Gaillard has sought to establish the philosophical foundations of international arbitration. He has also contributed to search of the most appropriate rules and solutions to the many questions raised by international arbitration. In this perspective, the question of the role played by private international law arises. In Emmanuel Gaillard’s thinking this role differs according to the angle from which international arbitration law is considered. When it comes to understanding the arbitral phenomenon, the proposals of private international law do not seem to provide the best insight into the question. When it comes to understanding the arbitral process, private international law is back in the picture. But the arbitrator’s point of view cannot be that of a judge. Thus, to a certain extent, a private international law of the arbitrator is developing. But the latter must also take into account the « private international law of others ».

Also of interest for the readers of this blog might the contribution of Eric Loquin (University of Dijon) on the arbitral legal order. The English summary reads:

This article aims to analyse the concept of an arbitral legal order as conceived by Emmanuel Gaillard in his famous special course given at The Hague Academy of International Law in 2007, entitled « Legal Theory of International Arbitration ». This concept is based on the observation that the binding nature of international arbitration is not anchored in a single state legal order, but in a third one, characterised as the arbitral legal order. This legal order was intended and created by the international community of states who were favourable to the resolution of international commercial disputes through arbitral, and whose laws have recognised the autonomy of arbitration towards state legal orders.

The article explores the objections and discussions that have been initiated by this concept regarding both its nature and its existence. One view would be that the arbitral legal order results from the private nature of arbitration rather than the actions of the states, thus making arbitration a non-state phenomenon but a legal order subject to natural law and freed from positive law. Another view of international arbitration would deny that it exists as an autonomous legal system and would consider it as a tool created by the states to be used by private transnational legal orders as their adjudicating body (such as the international community of merchants’ legal order, or the transnational sports legal order). International arbitration would thus be used as an instrument for the coordination of these legal orders and that of the international community of states.

Finally, the issue offers one article unrelated to the conference in which Dr. Estelle Fohrer-Dedeurwaerder (University of Toulouse) explores the effects of Brexit on the recognition and enforcement of English judgments on both sides of the channel (L’effet du Brexit sur la reconnaissance et l’exécution des jugements des deux côtés de la Manche). The English summary reads:

The Brexit has put an end to any judicial cooperation in civil and commercial matters between the UK and the EU as the Trade and Cooperation Agreement contains no provision on this point. Despite the desire of some to re-implement the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, and the steps taken by the UK to accede to the 2007 Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, neither of these two conventions will find application in Anglo-European relations. However, judicial cooperation between the United Kingdom and the Member States is not excluded if bilateral conventions concluded before the 1957 Treaty of Rome (or before accession to the EEC or EC), such as the 1934 Franco-British Convention, become fully effective as a result of Brexit. Their conciliation with the Treaties having the same object, in particular with the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil and Commercial Matters, will then arise, unless States refuse to revive them, in which case their common law will be implemented. However, the latter scenario is not desirable if the density of socio-economic exchanges between France and the United Kingdom is to be maintained.

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