Droit international général

I reported earlier on the jurisdictional issues in a case where PIFSS brings claims for sums totalling in the region of US$874 million, arising from the alleged corruption between 1994 and 2014 of its former Director General. In The Public Institution for Social Security v Al Wazzan & Ors [2023] EWHC 1065 (Comm), Henshaw J held early May that documents held in Switzerland must be disclosed, in application of disclosure rules under English civil procedure.

The disclosure concerns a large file of documents held by the Swiss Federal Prosecutor’s Office (SFPO)  arising from its investigations of Mr Al Rajaan and Ms Al Wazzan (Mr Al Rajaan’s widow) since 2012, and other documents held by Swiss-based entities or individuals, or located in Switzerland, or originating from and obtained under compulsion in Switzerland.

Disclosure was ordered, with a small caveat [161] which will see future specific measures (eg restriction of disclosure to counsel) be taken to ensure disclosure of the SFPO file documents to PIFSS does not create a risk of transmission to the State of Kuwait, which in turn might be viewed as sidestepping the State of Kuwait’s pending Mutual Legal Assistance (MLA) request to Switserland for the purpose of the continuing criminal proceedings in Kuwait.

Justice Henshaw’s lengthy considerations do justice to two restraints on disclosure, under English CPR for use in English proceedings. The principal approach is [43 ff; and [47] in particular with reference to Bank Mellat v HM Treasury [2019] EWCA Civ 449] that questions of disclosure and inspection are part of the law of procedure and are therefore matters of English law as the lex fori ; duties of confidentiality (which, if breached, may result in sanction) arising under foreign law do not provide an automatic basis to withhold disclosure and inspection. They are a matter for the judge’s discretion, and disclosure is only not ordered where the party shows that the foreign law is regularly enforced, so that the risk of prosecution is real.

[51] the judge holds that comity considerations are an independent element to consider, and in the process refers to its neat definition in Dicey’s 16th ed § 7-002:

“The United [States] Supreme Court famously said in Hilton v Guyot, a case on the recognition of foreign judgments: “‘Comity,’ in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.”

An interesting judgment raising several relevant issues (including one side-issue on the tardiness of the Hague Taking of Evidence rules).

Geert.

Following part successful jurisdiction challenge ( https://t.co/wncyM6RxZ1) now issues of disclosure under English CPR of Swiss-held documents

Lex fori rules for procedure, but with assessment of prosecution risk under lex rei sitae (SW), and of comityhttps://t.co/UR87IVj4AE

— Geert Van Calster (@GAVClaw) May 9, 2023

Carlos Santaló Goris, Lecturer at the European Institute of Public Administration in Luxembourg, offers an analysis of an upcoming legislative reform in Montenegro concerning the European Account Preservation Order

In 2010, Montenegro formally became a candidate country to join the European Union. To reach that objective, Montenegro has been adopting several reforms to incorporate within its national legal system the acquis communautaire. These legislative reforms have also addressed civil judicial cooperation on civil matters within the EU. The Montenegrin Code of Civil Procedure (Zakon o parni?nom postupku) now includes specific provisions on the 2007 Service Regulation, the 2001 Evidence Regulation, the European Payment Order (‘EPO’), and the European Small Claims Procedure (‘ESCP’). Furthermore, the Act on Enforcement and Securing of Claims (Zakon o izvršenju I obezbe?enju) also contains provisions on the EPO, the ESCP, and the European Enforcement Order (‘EEO’). While none of the referred EU instruments require formal transposition into national law, the fact that it is now embedded within national legislation can facilitate its application and understanding in the context of the national civil procedural system.

Currently, the Montenegrin legislator is about to approve another amendment of the Act on Enforcement and Securing of Claims, this time concerning the European Account Preservation Order Regulation (‘EAPO Regulation’). This instrument, which entered into force in 2017, allows the provisional attachment of debtors’ bank accounts in cross-border civil and commercial claims. It also allows creditors  with a title at the time of application to apply for an EAPO. According to the Montenegrin legislator, the purpose of this reform is to harmonize the national legislation with the EAPO, as well as creating ‘the necessary conditions for its smooth application’.

In terms of substance, the specific provisions on the EAPO focus primarily on identifying the different authorities involved in the EAPO procedure from the moment it is granted to its enforcement. In broad terms, the content of the provisions corresponds to the information that Member States were required to provide to the Commission by 18 July 2016, and that can be found in Article 50. One provision establishes which are the competent courts to issue the EAPO and to decide on the appeal against a rejected EAPO application. Regarding the appeal procedure, it establishes that creditors have to submit their appeal within the five following days of the date the decision dismissing the EAPO application is rendered. Such a deadline contradicts the text of the EAPO Regulation, which sets a 30-day deadline to submit the appeal, which cannot be shortened by national legislation. This is an aspect that has been uniformly established by the EU legislator, thus it does not depend on national law (Article 46(1)).

Regarding the debtors’ remedies to revoke, modify or terminate the enforcement of an EAPO contained Articles 33, 34 and 35, the reform contains a specific provision to determine which are the competent courts. Interestingly, it also establishes  a 5-day deadline to appeal the decision resulting from the request for a remedy. In this case, the EAPO Regulation does not establish any deadline, giving Member States discretion to establish such deadline. The short deadline chosen contrasts with the 15 days established in Luxembourg (Article 685-5(6) Nouveau Code de Procedure Civile), the one-month deadline chosen by the German legislator (Section 956 Zivilprozessordnung).

Concerning the enforcement phase of the EAPO, it determines which are the authorities responsible for the enforcement. It also acknowledges that there are certain amounts exempted from attachment of an EAPO under Montenegrin law.

Last but not least, the reform also tackles the information mechanism to trace the debtors’ bank accounts. The information authority will be Montenegro’s Central Bank (Centralna Banka). The method that will be employed to trace the debtors’ bank accounts consists of asking banks to disclose whether they hold the bank accounts. This method corresponds to the first of the methods listed in Article 14(5) that information authorities can use to trace the debtors’ bank accounts.

The entry into force of these new EAPO provisions is postponed until Montenegro joins the EU.  While these provisions might seem rather generic, they clearly reveal Montenegro’s commitment to facilitate the application of the EAPO within its legal system and make it more familiar for national judges and practitioners that will have to deal with it.

This is a special moment for us after a long way, and forgive us for highlighting it in a special edition of our Repository: Our book on the HCCH 2019 Judgments Convention that we have worked on over the last years has come out! Big thanks to all involved, including Hart Publishing who made this possible.

As kindly highlighted in the Series Editor’s Preface, the book is enriched by the diverse perspectives not only of distinguished legal scholars from around the world, but also experienced practitioners from the HCCH, UNCITRAL and the EU who are familiar with the intricacies of negotiating within the HCCH framework. Furthermore, the volume does not limit itself to examining the legal cornerstones of the convention (Part I) but also strives to illuminate its prospects in leading regions of the world (Part II) and, finally, ventures – based on the insights gained from the judgments project’s genesis – an outlook on future developments (Part III). Hence, the book provides a truly global appraisal of the HCCH 2019 Judgments Convention and is therefore likely to become a major point of reference for legislators, judges, legal scholars and lawyers in the field of Private International Law.

We are happy to announce that the volume will be available at special rates to the conference participants in Bonn on 9 and 10 June 2023. If you are interested in discussing the latest advancements in global judicial cooperation with our learned authors, please be invited to register with sekretariat.weller(at)jura.uni-bonn.de. We will be able to handle last minute registrations …

Today the Hague Academy of International Law begins its celebrations to mark its centenary.

As indicated on its website: “Tirelessly since 1923, the Academy works, in The Hague, rightly named the International City of Peace and Justice, on “the teaching, study, dissemination and wider appreciation of international law”, to take the words of the United Nations General Assembly. After 100 years, it is time to make a short pause, at the occasion of a Solemn Sitting on 24 May, and look at what has been, what is, and also what, beyond the Centenary, must be accomplished by the Academy.”

There are two main events organised:

On Wednesday 24 May a solemn sitting will take place, the agenda is available here.

On Thursday 25 May  and Friday 26 May a colloquium will be held, the agenda is available here. Some of the interesting sessions in our area are “public interest in international law”, “public interest in litigation”, “humanization of private international law” and “the law applicable to international arbitration”.

Both events will be streamed online but only accessible to registered participants.

We (and I am sure all of its alumni) rejoice with the Hague Academy in celebrating this important milestone.

The author of this post is Lydia Lundstedt, Senior Lecturer at the Stockholm University.

Under Swedish copyright law, broadcasting organizations are granted certain exclusive rights over their broadcasts (“signal right”). A signal right is one of the “related” or “neighboring” rights to copyright along with the rights of performers and producers of phonograms. Pursuant to Section 48 of the Swedish Act (1960:729) on Copyright in Literary and Artistic Works (Swedish Copyright Act) broadcasting organizations have an exclusive right to inter alia authorize the rebroadcast or a communication to the public in places accessible to the public against the payment of an entrance fee. This section incorporates Sweden’s obligations under Article 8(3) of the EU Rental and Lending Directive 2006/115/EC.

As a general rule, the Swedish Copyright Act applies in relation to other countries only on condition of reciprocity, or if it follows from an international treaty. Article 6(1) of the 1961 International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention) requires that Sweden grant national treatment to foreign broadcasting organizations if (1) they are established in another contracting State; or (2) if the broadcast was transmitted from a transmitter situated in another contracting State. This treaty obligation is incorporated into Section 12 of the Swedish International Copyright Regulation (1994:193) (International Copyright Regulation). The second point of attachment is formulated slightly differently in the International Copyright Regulation. It refers to “broadcasts which have been made” but does not include the words “from a transmitter situated”.

In a case before the Swedish courts, the question arose of the interpretation of this point of attachment when a satellite broadcasting chain of transmission spans several States. On 12 May 2023, the Swedish Supreme Court held that a satellite broadcast should normally be considered to take place in the state where the transmission of the programme-carrying signals was initiated.

Two persons, acting in their capacity as representatives for a company established in Sweden, were prosecuted for intentionally or through gross negligence, retransmitting television broadcasts produced by another company established in Qatar. The Swedish company had retransmitted via IPTV the Qatari company’s broadcasts to its own customers all over the world without obtaining the Qatari company’s consent. The Qatari company brought a civil claim for damages in connection with the prosecution. A prerequisite for finding the two persons guilty of the offense of unlawful retransmission and liable for damages was that the Qatari company’s broadcasts were eligible for protection under Swedish law.

It is important to distinguish the question whether the Qatari company was eligible for protection under Swedish law, which deals with the rights of foreigners, from the traditional private international law question concerning the applicable law. In this case, the applicable law question did not arise. First, nationals courts only apply their own criminal law so it is clear that Swedish law applies in a Swedish criminal proceeding. Second, with respect to the Qatari company’s claim for damages, which it a private law question, the Qatari company claimed protection for Sweden so Swedish law was applicable under Article 8(1) Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II). As said, however, the application of Swedish law was never questioned. Instead, the question was whether the Qatari company was eligible for protection under Swedish law.

Qatar was not a contracting state to the Rome Convention at the time that the broadcasts took place. Although the Qatari company produced its television programmes in Qatar, it sent the programme signals via fibre cable to a related company in France and then to the United Kingdom and Spain. Via uplink stations in the United Kingdom and Spain, the signals were sent to satellites to be received by the public in the Middle East and Northern Africa.

The Swedish Patent and Market Court (PMD) found that the Qatari company’s broadcasts were made “at least” in the United Kingdom and Spain, which are both contracting states to the Rome Convention. On appeal, however, the Patent and Market Court of Appeal (PMÖD) reversed and held that the broadcast took place only in Qatar. The Supreme Court affirmed the decision of the PMÖD.

Article 3(f) of the Rome Convention defines broadcasting as “the transmission by wireless means for public reception of sounds or of images and sounds”. Although the Rome Convention was drafted before the time of satellite broadcasts, the Court stated that such broadcasts could nonetheless be considered to fall under its scope.

The Court then observed that section 61 a of the Copyright Act deals specifically with satellite broadcasting and localizes the “copyright relevant act” “in the country where the broadcasting organization, under its control and its responsibility, introduces the subject matter into an uninterrupted chain of communication to the satellite and from there down towards the earth.” Section 61 a implements Article 1(2)(b) of the EU Directive 93/83/EEC on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (SatCab Directive). The Court noted that the aim of this rule is to enable a broadcasting company that uses other people’s protected subject matters, to easily identify for which Member State it needs to obtain a license. The Court pointed out that the application of this rule presupposes that the subject matter (e.g. a broadcast) is protected under the Copyright Act. The Court therefore observed that this rule “had no immediate significance for the assessment of whether the broadcast as such is protected by that Act”.

The Court observed that neither Article 6 of the Rome Convention nor section 12 of the International Copyright Regulation contain specific provisions on where a broadcast is deemed to take place when the chain of transmission spans several different states. The Court noted however that “in a related context”, the Court of Justice of the European Union (CJEU) held that customary technical activities to prepare signals for their introduction into a satellite communication uplink cannot be regarded as interruptions in the transmission in the meaning of Article 1(2) of the SatCab Directive (see Airfield and Canal Digitaal (C-431/09 and C-432/09).

The Court found that this approach was consistent with the text of the Rome Convention and the International Copyright Regulation. The Court stated therefore that in the case of a broadcast involving several intermediate technical steps, the broadcast “was transmitted” (within the meaning of the Rome Convention) and “was made” (within the meaning of the International Copyright Regulation) in the state where the transmission of the signals was initiated. The Court added that the fact that the chain of transmission includes elements which, individually, are not covered by the rules of the Rome Convention, e.g. because the signals at one stage are not transmitted by wireless means, does not preclude such a reading of the provisions.

The Court also found that this interpretation was in line with the aim of protecting broadcasting organizations against the unauthorized exploitation of their broadcasts. The Court reasoned that broadcasting companies make their primary investments in the state from which the broadcast is initially generated and using the state of uplink or where other intermediate technical steps are taken would not satisfy this aim to the same extent.

Thus, the Court held that the entire chain of transmission starting with the transmission of the signals via fibre cable from Qatar and ending with their reception on the ground to subscribers was one single broadcast which must be regarded as having been made in Qatar. This meant that the Qatari company was not eligible for protection under Swedish law and the prosecution against the two individuals for a violation of the Copyright Act and the Qatari company’s damage claim were rejected.

It is a bit surprising that the Court first states that section 61 a of the Swedish Copyright Act and the SatCab Directive “had no immediate significance” for the question of whether a broadcast is eligible for protection but then applies the approach set out in the SatCab Directive to determine whether a broadcast is eligible for protection. It can be questioned whether the situation regulated in the SatCab Directive really can be said to be “a related context” as the SatCab Directive regulates a different situation than the Rome Convention and the International Copyright Regulation.

As noted above, the SatCab Directive deals with cross-border licensing of protected subject matter and Article 1(2)(b) localizes where a user is said to exploit another person’s protected subject matter when the subject matter is transmitted to a satellite from one Member State but received by the public on the ground in several other Member States. In contrast, Article 6 of the Rome Convention and the corresponding provision in the International Copyright Regulation deal with the protection of foreign broadcasters and lay down the conditions for affording national treatment to their signals.

Moreover, the SatCab Directive has a different aim than the Rome Convention and the International Copyright Regulation. The SatCab Diective aims to promote pan-European broadcasting by localizing the copyright relevant act in a single Member State while at the same time requiring a minimum level of harmonization to ensure that the protection level is sufficiently high in all Member States. This facilitates cross-border licensing because users of protected subject matters only need to clear the rights in one Member State as opposed to all Member States where the subject matters can be received. In line with this aim of avoiding the cumulative application of several national laws to one single act of broadcasting, normal technical procedures relating to the programme-carrying signals are not to be considered as interruptions to the chain of broadcasting (see recital 14 SatCab Directive).

In contrast, as the Court itself notes, the aim of the Rome Convention is to protect broadcasting organizations against the unauthorized exploitation of their broadcasts. To fulfil this aim, the Rome Convention contains alternative points of attachment (i.e. the broadcaster’s state of establishment or the state where a transmitter that transmits the broadcast is situated). It would be consistent with the aim of the Rome Convention to localize a broadcast in all states with which the broadcast has a significant connection such as a transmitter, or in a cascade-like fashion stopping at the first contracting state that has a significant connection to the broadcast.

It can be noted that the Court did not seem to place any emphasis on the wording “from a transmitter situated in another Contracting State” that appears in the Rome Convention, although not in the International Copyright Regulation. Normally, this point of attachment allows a broadcasting organization that is established outside a Rome contracting state to enjoy protection if its transmitter is situated in a contracting state. While a contracting state may declare that they will apply both points of attachment cumulatively, Sweden has not done so. Still, the practical effect of the ruling seems to require this as it is likely that signals will usually be initiated from the state where the broadcaster is established.

One can make an analogy with the Berne Convention that allows authors who are not nationals of a contracting state to the Berne Union to be eligible for protection under the Convention by publishing their works first in a contracting state to the Berne Union, or simultaneously in a state outside the Berne Union and in a state of the Berne Union. That said, one might view the right of foreign broadcasters in their signals as less deserving of protection than the right of authors in their works. Moreover, non-contracting states would not have any incentive to join the Rome Convention if their broadcasters could secure protection by sending their signal through contracting states.

A question could be raised whether the Court should have referred a question to the CJEU on the interpretation of the Rental and Lending Directive. As noted above, section 48 of the Swedish Copyright Act fulfills Sweden’s obligation under the Rental and Lending Directive to afford broadcasting organizations the exclusive right to authorize or prohibit the communication to the public of their broadcasts against payment of an entrance fee. While the Directive itself does not define who is considered to be a broadcasting organization eligible for protection under the Directive, the concept should be interpreted consistently with the EU’s international treaty obligations. See Recorded Artists Actors Performers (C-265/19). In this case, however, the relevant obligation was under the Rome Convention and the EU is not itself a contracting party.

Article 3 of the TRIPS Agreement, which is an international convention concluded by the EU, obligates the EU to accord national treatment to the nationals of other Members in respect of the rights provided under the Agreement. Article 14.3 TRIPS provides broadcasting organizations a signal right, albeit to a more limited extent than the Rome Convention. Importantly, Article 1.3 of TRIPS incorporates the criteria for eligibility for protection in the Rome Convention to determine who is eligible for protection under TRIPS. Thus, the question concerning the interpretation of Article 6 of the Rome Convention arguably falls indirectly within the CJEU’s adjudicative competence, notwithstanding that the EU is not itself a contracting party, when the right claimed is one that implements Article 14.3 TRIPS. This is because the CJEU may need to interpret the rules in Article 6 of the Rome Convention to establish the EU and its Member States’ obligations under TRIPS. Thus, it is possible that the CJEU will have the opportunity in the future to have its say about where a satellite broadcasting chain of transmission that spans several different states takes place for the purpose of determining its eligibility for protection under TRIPS.

As noted earlier on this blog, on 24 May 2023, from 6 pm to 8 pm CEST, the forth and last webinar of the series that has been organised under the title The Future of Cross-Border Parenthood in the EU – Analyzing the EU Parenthood Proposal will take place. The webinar, chaired by Steve Heylen, will deal with the following relations:  Authentic documents and
parenthood: between recognition and acceptance (Patrick Wautelet), and The European certificate of Parenthood: A passport for parents and children? (Ilaria Pretelli).

Those wishing to attend have time until 23 May 2023 at noon to register. The registration form is available here.

Registered participants will receive the details to join the webinar by e-mail (please note the e-mails with these details occasionally end up in the spam folder).

The updated and final version of the program is available here.

On 30 June 2023, the second edition of the Austrian Private International Law Workshop will take place in Innsbruck. The organisers cordially invite all interested researchers and practitioners to participate and register via evip@uibk.ac.at. Participation is free of charge. The workshop will be conducted in German and will consist of two sessions, chaired by Florian Heindler and Andreas Schwartze, respectively.

Presentations will discuss, inter alia: Current trends in the case law of the CJEU on conflict of laws (Marlene Brosch, ECJ); The EU Succession Regulation and the Austrian Supreme Court – where it should have applied for a preliminary ruling (Gottfried Musger, Austrian Supreme Court); Parent in one country, parent in every country: The proposal for an EU Parenthood Regulation (Martina Melcher, University of Graz); International enforcement of legal rules on social networks (Brigitta Lurger, University of Graz); The corporation seat theory between connecting factor and domestic nexus (Chris Thomale, University of Vienna); Crypto assets in private international law (Matthias Lehmann, University of Vienna/Radboud University Nijmegen).

A forum chaired by Bernhard A. Koch (University of Innsbruck) and Simon Laimer (University of Innsbruck) on the the most pressing challenges for private international law in the coming years and decades will conclude the event.

The updated and final version of the program is available here.

This post was written bij Helga Luku, PhD researcher at the University of Antwerp.

On 1 March 2023, the Supreme Administrative Court of the Republic of Bulgaria issued its final decision no. 2185, 01.03.2023 (see here an English translation by Nadia Rusinova) in the Pancharevo case. After an appeal from the mayor of the Pancharevo district, the Supreme Administrative Court of Bulgaria ruled that the decision of the court of first instance, following the judgment of the Court of Justice of the European Union (CJEU) in this case, is “valid and admissible, but incorrect”. It stated that the child is not Bulgarian due to the lack of maternal ties between the child and the Bulgarian mother, and thus there is no obligation for the Bulgarian authorities to issue a birth certificate. Hereafter, I will examine the legal reasoning behind its ruling.

Background

On 2 October 2020, the Administrative Court of the City of Sofia in Bulgaria requested a preliminary ruling from the CJEU in the case C-490/20 V.M.A. v. Stolichna Obshtina, Rayon ‘Pancharevo’. It sought clarification on the interpretation of several legal provisions. Specifically, the court asked whether a Member State is obliged, under Article 4(2) of the Treaty on European Union (TEU), Articles 20 and 21 of the Treaty on the Functioning of the European Union (TFEU), and Articles 7, 24, and 45 of the Charter of Fundamental Rights of the European Union (the Charter), to issue a birth certificate to a child, who is a national of that Member State, in order to obtain the identity document. This inquiry arose with respect to a child, S.D.K.A., born in Spain, whose birth certificate was issued by Spanish authorities, in accordance with their national law. The birth certificate identifies a Bulgarian national, V.M.A., and her wife, a British national, as the child’s mothers, without specifying which of the two women gave birth to the child.

The CJEU decided that Article 4(2) TEU, Articles 20 and 21 TFEU and Articles 7, 24 and 45 of the Charter, read in conjunction with Article 4(3) of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, must be interpreted as meaning that, in the case of a child, being a minor, who is a Union citizen and whose birth certificate, issued by the competent authorities of the host Member State, designates as that child’s parents two persons of the same sex, the Member State of which that child is a national is obliged

• to issue to that child an identity card or a passport without requiring a birth certificate to be drawn up beforehand by its national authorities, and
• to recognise, as is any other Member State, the document from the host Member State that permits that child to exercise, with each of those two persons, the child’s right to move and reside freely within the territory of the Member States.

The trajectory of the case within the Bulgarian courts

On the basis of the decision of the CJEU in the Pancharevo case, the referring court, i.e. the Administrative Court of the City of Sofia obliged the authorities of the Pancharevo district to draw up the birth certificate of S.D.K.A., indicating two women as her parents.

The mayor of the Pancharevo district then filed an appeal to the Supreme Administrative Court of Bulgaria, contending that the decision is inadmissible and incorrect.

Based on its considerations, the Supreme Court held that the decision of the court of first instance is “valid and admissible but incorrect”. Its rationale is premised on several arguments. Firstly, it referred to Article 8 of the Bulgarian Citizenship Law, which provides that a Bulgarian citizen by origin is everybody of whom at least one of the parents is a Bulgarian citizen. In the present case, the Supreme Court deemed it crucial to ascertain the presence of the biological link of the child, S.D.K.A. with the Bulgarian mother, V.M.A. Thus, it referred to Article 60 of the Bulgarian Family Code, according to which the maternal origin shall be established by birth; this means that the child’s mother is the woman who gave birth to the child, including in cases of assisted reproduction. Therefore, the Supreme Court proclaimed in its ruling that the Bulgarian authorities could not determine whether the child was a Bulgarian citizen since the applicant refused to provide information about the child’s biological mother. Consequently, the authorities could not issue a birth certificate and register the child’s civil status. Furthermore, in a written defence presented to the court of first instance by the legal representative of V.M.A., it was provided that S.D.K.A. was born to K.D.K., the British mother, and the British authorities had also refused to issue a passport to the child, as she was not a British citizen.

The Supreme Administrative Court of Bulgaria ruled that the child is not a Bulgarian citizen, and the conclusion of the CJEU that the child is a Bulgarian citizen and thus falls within the scope of EU law (Articles 20 and 21 TFEU and Article 4 of Directive 2004/38/EC) is inaccurate. According to the Supreme Court’s legal reasoning, these provisions do not establish a right to claim the granting of Bulgarian citizenship, and Union citizenship is a prerequisite for enjoying free movement rights.

In these circumstances, the Supreme Administrative Court of Bulgaria held that the refusal to issue a birth certificate does not result in the deprivation of citizenship or the violation of the child’s best interests. It referred to the law of the host country, Spain. Article 17 of the Spanish Civil Code of July 24, 1889, provides that Spanish citizens by origin are persons born in Spain to parents:

• who are foreigners if at least one of the parents was born in Spain (except for the children of diplomatic or consular officials accredited to Spain),
• who are both stateless, or
• neither of whose national laws confer nationality on the child.

According to this Article, the Supreme Court reasoned that since the national laws of the parents named in the child’s birth certificate (i.e. Bulgarian and UK legislation), issued in Spain, do not grant citizenship to the child, baby S.D.K.A. must be considered a Spanish citizen by virtue of this provision.

The applicability of Spanish law was expressly confirmed by the Spanish Government during the hearing at the CJEU, provided in paragraph 53 of Advocate General Kokott’s Opinion, stating that if the child could claim neither Bulgarian nor UK nationality, she would be entitled to claim Spanish nationality. Thus, the Supreme Court ruled that the child is Spanish and averted the risk of leaving the child stateless.

Is the decision of the Supreme Administrative Court of Bulgaria in conformity with EU law interpretation?

In light of the ruling of the CJEU on the Pancharevo case, certain aspects might have required further scrutiny and more attention from the Supreme Court. Paragraph 68 of the Pancharevo judgment provides:

“A child, being a minor, whose status as a Union citizen is not established and whose birth certificate, issued by the competent authorities of a Member State, designates as her parents two persons of the same-sex, one of whom is a Union citizen, must be considered, by all Member States, a direct descendant of that Union citizen within the meaning of Directive 2004/38 for the purposes of the exercise of the rights conferred in Article 21(1) TFEU and the secondary legislation relating thereto.”

According to this paragraph, it can be inferred that Bulgaria and other Member States must recognize a child with at least one Union citizen parent as a direct descendant of that Union citizen. This paragraph has important implications as regards the establishment of the parent-child relationship. The CJEU, in its case law (C-129/18 SM v Entry Clearance Officer), has firmly established that the term “direct descendant” should be construed broadly, encompassing both biological and legal parent-child relationships. Hence, as a family member of the Bulgarian mother, according to Article 2 (2)(c) of Directive 2004/38, baby S.D.K.A., should enjoy free movement and residence rights as a family member of a Union citizen. In its decision, however, the Supreme Administrative Court of Bulgaria did not conform to the CJEU’s expansive understanding of the parent-child relationship. Therefore, its persistence in relying on its national law to establish parenthood exclusively on the basis of biological ties appears to contradict the interpretation of EU law by the CJEU.

The Supreme Administrative Court of Bulgaria seems relieved to discover that the child probably has Spanish nationality. It can be doubted, however, at what conclusion the court would have arrived if the child were not recognized as Spanish under Spanish nationality laws, especially considering that the child was not granted nationality under UK legislation either. In such a scenario, the Supreme Court might have explored alternative outcomes to prevent the child from becoming stateless and to ensure that the child’s best interests are always protected.

This post was written by Carlos Santaló Goris (Lecturer at the European Institute of Public Administration in Luxembourg).

On 20 April 2023, the Court of Justice of the European Union (CJEU) rendered its second judgment on Regulation 655/2014, establishing a European Account Preservation Order (‘EAPO Regulation’). In C-291/21, Starkinvest, the Court assessed whether an EAPO could be used to secure a claim resulting from a penalty payment, and if so, under what conditions.  

C-291/21, Starkinvest, has its roots in a 2016 judgment rendered by the Court of Appeals of Liège (Cour d’appel de Liège) rendered in favor of Starkinvest SRL ordering Soft Paris and Soft Paris Parties, ‘to cease all sales of their goods and services under the word mark SOFT PARIS in the Benelux countries’ (para. 18). The judgment established a periodic penalty payment in the event the order to cease sales was not respected.

In 2021, Starkinvest SRL applied for an EAPO to attach Soft Paris’ French bank accounts for € 86 694.22. Of that amount, € 85.000 corresponded to the penalty payments resulting from Soft Paris’ infringement of the order to cease the sale of goods. Starkinvest used the referred judgment rendered by the Court of Appeals of Liège (Cour d’appel de Liège) as the title to obtain the EAPO.

At this point, it should be noted that the regime to obtain an EAPO varies depending on whether the creditor has an enforceable judgment or not. All creditors have to prove that ‘there is a real risk that, without such a measure, the subsequent enforcement of the creditor’s claim against the debtor will be impeded or made substantially more difficult’ (Article 7(1) EAPO Regulation. This first prerequisite corresponds to the periculum in mora. Creditors without an enforceable judgment ‘shall also submit sufficient evidence to satisfy the court that he is likely to succeed on the substance of his claim against the debtor’ (Article 7(2) EAPO Regulation). This second condition corresponds to another common prerequisite for obtaining a national interim measure, the fumus boni iuris.

For the Court of Appeals of Liège (Cour d’appel de Liège), it was not clear whether the judgment establishing the penalty payment but not specifying the amount the claim arising from that penalty payment was valid a judgment that would exempt creditors from satisfying the fumus boni iuris. In this regard, Belgian legislation does not require the prior quantification of the claim arising from a penalty payment to request a preservation order ‘provided that the decision ordering penalty payments is enforceable and has been serving’ (para. 23). Conversely, the Belgian court also acknowledges that Article 55 of the Brussels I bis Regulation establishes that ‘a judgment that ”orders a payment by way of a penalty” can only benefit from the simplified scheme of enforcement the amount of the payment has been finally determined by the court of origin.’ Having no answer to such inquiry, the Court of Appeal of Liège (Cour d’appel de Liège) decided to submit the following questions to the CJEU:

(1) Does a judgment which has been served, ordering a party to make a penalty payment in the event of breach of a prohibitory order, constitute a [judgment] requiring the debtor to pay the creditor’s claim within the meaning of Article 7(2) of [Regulation No 655/2014]?

(2) Does a judgment ordering a party to make a penalty payment, although enforceable in the country of origin, fall within the meaning of “judgment” in Article 4 of [Regulation No 655/2014] where there has been no final determination of the amount in accordance with Article 55 of [Regulation No 1215/2012]?

In essence, the CJEU was asked whether the judgment that established the penalty payment was a valid judgment that would exempt the creditor from proving the fumus boni iuris. More concretely, whether or not the claim amount had to be specified in the judgment as a condition to consider the judgment a valid title. In this regard, neither Article 4(5), which contains the definition of judgment, nor Article 7(2), the provision on the fumus boni iuris, does not state anything about the quantification of the claim in the judgment (paras 42 – 43). Nonetheless, other provisions do so. Article 6 refers to the ‘amount specified in the judgment’, while Article 8(2)(g) states that creditors can apply for an EAPO in ‘the amount of the principal claim as specified in the judgment’ (paras 46 – 47). Therefore, a systematic interpretation suggests that the judgment would have to contain the precise amount of claim.

The CJEU found that the specification of the amount of the claim is also a guarantee to maintain an adequate balance between the creditor’s and debtor’s interests in the EAPO procedure (para. 50). If a judgment establishing the penalty payment without having specified the amount of the claim is considered a valid title to circumvent the fumus boni iuris, that would undermine the debtor’s position. The court’s examination of fumus boni iuris is both a condition for creditor to access the EAPO and a guarantee for the debtor against abusive applications when there is no title acknowledging the claim. When the amount of penalty payment is not quantified, courts should have the discretion to assess whether there is a basis for the amount the creditor requested the EAPO for. Interestingly, AG Szpunar added, in his opinion, that while the judgment establishing penalty payment would not constitute a valid title, it is not ‘is meaningless for the creditor’. Creditors could use it, along ‘with documents provided by a court official in which the court official declares the breaches of the prohibitory order’, to prove the fumus boni iuris (paras. 82 – 83). Creditors willing to secure a penalty payment through an EAPO can find a practical tip here.

Lastly, the CJEU addressed the enforcement regime of judgments ordering penalty payments under the Brussels I bis Regulation. In this regard, the Court clarified that even if the EAPO does not have an equivalent provision, that does not imply that the ‘intention of the EU legislature was to exclude penalty payments from the scope of that regulation’ (para. 55). Therefore, the EAPO could be used to secure penalty payments. However, the judgment ordering the penalty payment without quantifying the claim is insufficient to overcome the fumus boni iuris.

The main contribution of the C-291/21 judgment is that it shows that the EAPO can be used to secure penalty payments. In this regard, it aligned the EAPO Regulation with the Brussels I bis Regulation, which expressly acknowledges the possibility of recognizing and enforcing penalty payment judgments. Creditors can combine both instruments. While using the Brussels I bis Regulation to enforce the penalty payment, they can rely on the EAPO to secure its enforcement. Whether the EAPO can be used to secure a penalty payment might seem for many pretty obvious, the Cologne Higher Regional Court (Oberlandesgericht Köln) once rejected an EAPO request on the basis of a penalty payment under German law (Zwangsgeld), because it considered that such kind of claim fell outside the scope of the EAPO Regulation. The creditor requested a preliminary reference be submitted to CJEU, but the German court rejected such a possibility. This case came to the author’s knowledge through an interview with a German lawyer in the empirical conducted in the context of his Ph.D. dissertation.

This decision also sheds light on the autonomous notion of judgment under the EAPO Regulation (in this regard, see also Tobias Lutzi’s post on this judgment), more precisely, concerning the prerequisite that the claim has to be quantified.

As in C-555/18, the first CJEU judgment on the EAPO, the Court’s reasoning of this second judgment again pivots on the need to ‘strike an appropriate balance between the interest of the creditor in obtaining an Order and the interest of the debtor in preventing abuse of the Order’ (Recital 14). This is a recurring hermeneutic tool used by the CJEU when it comes to interpreting the EAPO and the EPO. It seems that the CJEU’s approach is to counterweight the pro-creditore spirit that underpinned the creation of the EAPO and EPO, reinforcing the debtor’s position.

Posted at the request of Shiva Patil, Technical Editor at Trade, Law and Development.

Trade, Law and Development

Call for Submissions

Special Issue

“Sustainability and Inclusivity: Evolving Paradigms of the Global Economy”

Founded in 2009, the philosophy of Trade, Law and Development (TL&D) has been to generate and sustain a constructive and democratic debate on emergent issues in international economic law and to serve as a forum for the discussion and distribution of ideas. Towards these ends, the Journal has published works by noted scholars such as the WTO DDG Yonov F. Agah, Dr. (Prof.) Ernst Ulrich Petersmann, Prof. Steve Charnovitz, Prof. Petros Mavroidis, Prof. Mitsuo Matsuhita, Prof. Raj Bhala, Prof. Joel Trachtman, Dr. (Prof.) Gabrielle Marceau, Prof. Simon Lester, Prof. Bryan Mercurio, and Prof. M. Sornarajah among others. TL&D also has the distinction of being ranked the best journal in India across all fields of law for several years by Washington and Lee University, School of Law.

Pursuant to this philosophy, the Board of Editors of TL&D is pleased to announce “Sustainability and Inclusivity: Evolving Paradigms of the Global Economy” as the theme for its next Special Issue.

It is indisputably true that sustainability which comprises the three interdependent pillars of “economic growth, social equity, and environmental protection”, is increasingly gaining traction among governments, businesses, research organisations, scholars and the general populace. Discussions in international economic law, including those surrounding world trade, cross-border investment, and development, have abundantly focused on this. Economic benefits of trade ultimately decline while the social and environmental costs rise to unbearable levels, if sustainable trade rules are not in place. Whereas, a more sustainable trade strategy would recognise the need for a more varied export mix, invest in technology, and have minimal trade barriers while balancing long-term resilience with short-term ambitions. Since TL&D’s objective is to provide a forum of exchange of ideas and constructive debate on legal and policy issues, the above-mentioned factors arguably constitute some of the biggest issues for international economic law discourse this year.

While the theme is broad enough to cover a wide range of issues, an indicative list of specific areas is as follows:

• Trade Rules and Environmental Interactions
• Environmental Protection Clauses in International Investment Agreements
• Trade and Human Rights
• Promoting Entrepreneurship/ Trade Facilitation
• Trade and Gender Justice
• Transparency and Good Governance Obligations
• Sustainable Agriculture
• Sustainable Fisheries
• Indigenous Peoples Interaction with International Trade and Investment
• Sustainable Development Goals

These sub-issues are not exhaustive, and the Journal is open to receiving submissions on all aspects related to sustainability and inclusivity in the global economy.

Accordingly, the Board of Editors of TL&D is pleased to invite original, unpublished manuscripts for publication in the Special Issue of the Journal in the form of ‘Articles’, ‘Notes’, ‘Comments’ and ‘Book Reviews’, focusing on the theme of “Sustainability and Inclusivity: Evolving Paradigms of the Global Economy”.

In case of any queries, please feel free to contact us at: editors[at]tradelawdevelopment[dot]com.

PATRON: P.P. Saxena | ADVISORS: Raj Bhala | Jagdish Bhagwati | B.S. Chimni | Glenn Wiser | Daniel B. Magraw, Jr. | Vaughan Lowe | Ricardo Ramirez Hernandez | W. Michael Reisman | M. Sornarajah | FACULTY-IN-CHARGE: Dr. Rosmy Joan | BOARD OF EDITORS: Swikruti Nayak | Aastha Asthana | Rashmi John | Ria Chaudhary | Ananya Awasthi | Jahnavi Srivastava | Yashvi Hora | Sunchit Sethi | Shiva Patil| Rishi Pareek | Anoushka | Himanshu Sharma| Priyanshu Shrivastava | Simran Bherwani | Yana Gupta | Alka Mahapatra | Anandita Srivastava | Ishaan Pant | Krishna Ravishankar | Neel Rao | Samiksha Lohia | Shambhavi Uniyal | Sonali P. Raju

In 2014, Adrian Briggs published his own comprehensive account of English Private International Law, taking stock of centuries of English case law and decades of growing European influence. Other than the author’s unique ability to present even the most complex concepts with both clarity and style, the book’s strongest selling point arguably was his conscious decision to put the European instruments at the front and centre of the book, presenting English private international law as the hybrid system that it had long become. As Adrian Briggs later admitted, though, the timing of this project could be described as sub-optimal.

Indeed, in light of the UK’s subsequent departure from the EU and the resulting ‘realignment of the planets’, the second edition required changes that went far beyond a mere update. While some parts of the first edition that engaged with European sources and materials could be preserved as historical background (see, eg, pp. 18-21; 123) or even as descriptions of what has now become ‘retained EU law’ (mainly the Rome I and II Regulations, and with important caveats), other parts had to be rewritten almost entirely. This is most notable in the chapter on Jurisdiction (ch. 3), which according to the author, is now subject to ‘a corpus iuris which is a shambles’, ‘a mess in urgent need of reform’ (p. 129).

It is all the more commendable that Adrian Briggs has undertaken this difficult and presumably depressing task to paint, for the second time, a full picture of English private international law as it stands, again drawing heavily from his decades of experience as an author, teacher, and practitioner. It seems fair to say that most of the apparent coherence of this picture is testimony not to the ease with which European instruments, rules and thoughts could be removed from English law but to the author’s ability to patch up what was left.

(As a footnote, it is a pity for the reader that not only much European law but also the paragraph numbers have been lost between the first and second edition.)

The Belgian Court of Cassation found in a judgment of 10 March 2023 (in Dutch) that the Brussels Court of Appeal was wrong to refuse the granting of a cautio iudicatum solvi against a US company, with principal seat in Colorado.

As previously reported, the cautio iudicatum solvi as stated in the Belgian Code of Civil Procedure (or Judicial Code), Article 851 was declared unconstitutional by the Belgian Constitutional Court in 2018. The Constitutional Court found that the criterion of nationality as basis for the granting of the cautio was not relevant to reach the goal pursued by the legislator, namely to ensure payment of procedural costs and possible damages if the plaintiff loses the suit. The Court called on the legislator to amend the article, but this never happened.

The Brussels Court of Appeal refused to issue the cautio requested by a Belgian defendant as against the US plaintiff, on the basis of the unconstitutionality of the provision. The Court of Cassation, however, stated that Article 851 does not in general infringe Article 6 of the European Convention on Human Rights; the Constitutional Court’s finding of unconstitutionality was based on the principle of non-discrimination, in so far as a Belgian defendant could not use the cautio against any plaintiff without property in Belgium, but only against a non-Belgian plaintiff. As long as the legislator has not rectified the provision, it must according to the Court of Cassation be interpreted in line with the Constitution. This means that the cautio may be granted against any plaintiff with insufficient property in Belgium, irrespective of the plaintiff’s nationality. The Court reiterated that the cautio is outlawed by several international conventions, but none of these conventions applied in the present case.

Just yesterday, Hart Studies in Private International Law officially published an edited book titled: T Lutzi et al, Jurisdiction over Non-EU Defendants: Should Brussels Ia Regulation be Extended?  The blurb reads as follows:

This book looks at the question of extending the reach of the Brussels Ia Regulation to defendants not domiciled in an EU Member State. The Regulation, the centrepiece of the EU framework on civil procedure, is widely recognised as one of the most successful legal instruments on judicial cooperation. To provide a basis for the discussion of its possible extension, this volume takes a closer look at the national rules that currently govern the question of jurisdiction over non-EU defendants in each Member State through 17 national reports. The insights gained from them are summarised in a comparative report and critically discussed in further contributions, which look at the question both from a European and from a wider global perspective. Private international lawyers will be keen to read the findings and conclusions, which will also be of interest to practitioners and policy makers.

The latest Volume (Vol. 65, 2022) of the Japanese Yearbook of International Law – published by the International Law Association of Japan – has been recently released. It features the following articles, case notes as well as English translation of some relevant court decisions relating to private international law.

GLOBALIZATION OF SOCIETY AND INTERNATIONAL FAMILY LAW IN JAPAN

Takami Hayashi, Introductory Note (p. 167)

Ryoko Yamaguchi, Interests of the Child in Child Abduction and Visitation Cases — Differences Between Japan’s Domestic and International Criteria— (p. 169)

Takami Hayashi, Transboundary Child Protection in Japan (p. 191)

HAYAKAWA Shinichiro, Japanese Perspective on Legal Issues of International Surrogacy (p. 213)

Moonsook Kim, International Adoption in Korea (p. 231)

Manabu Iwamoto, International Recovery of Maintenance in Japan (247)

CASES AND ISSUES IN JAPANESE PRIVATE INTERNATIONAL LAW

Chisato Nakamura, Failure of Service of Judgment Documents and Public Policy Control at The Stage of Recognition and Enforcement of Foreign Judgments (p. 336)

Miho Shin, Habitual Residence in Japanese Private International Law (p. 348)

JUDICIAL DECISIONS IN JAPAN (Private International Law)

Supreme Court (3rd Petty Bench), Judgment, May 25, 2021 (p.423)

Enforcement of Foreign Judgment — Punitive Damages — Contrary to Public Policy

Intellectual Property High Court, Judgment, September 29, 2021 (p. 426)

Applicable Law — Copyright — Employee Work — Copyright Transfer

Tokyo District Court, Judgment, February 12, 2020 (p. 430)

Lawsuit for State Redress — Conduct of a Public Employee Outside of Japan

Tokyo District Court, Judgment, November 20, 2020 (p. 433)

Applicable Law — Characterization — Succession to Immovables Abroad — Unjust Enrichment

Tokyo District Court, Judgment, January 21, 2021 (p. 438)

Nationality Law — Case Requesting Confirmation of Japanese Nationality — Loss of Japanese Nationality due to the Acquisition of Foreign Nationality

Tokyo District Court, Judgment, March 9, 2021 (p. 443)

Enforcement of Foreign Judgment — Service of Documents During the Litigation Proceedings — Contrary to Procedural Public Policy

More information on the Yearbook (former Annual) and the content of its past volumes are available at http://www.ilajapan.org/jyil/.

The Full text of Vols. 1~62 (1957-2019) is accessible on HeinOnline.

At the request of the Committee on Petitions of the European Parliament, the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs commissioned  a study titled Cross-Border Legal Recognition of Parenthood in the EU. It is available here.

Authored by Alina Tryfonidou (Neapolis University of Pafos), the study examines the problem of non-recognition of parenthood between Member States and its causes, the current legal framework and the (partial) solutions it offers to this problem, the background of the Commission proposal for a regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood, and the text of the proposal. It also provides a critical assessment of the proposal and issues policy recommendations for its improvement.

Following successful collaborations in 2021 and 2022, the Asian Business Law Institute (ABLI) and the Permanent Bureau of the Hague Conference on Private International Law (HCCH) are teaming up again for their third joint webinar this year on Tuesday 27 June between 4 to 5:10pm (Singapore time) or 10 to 11:10am (CEST).

Titled Cross-border Commercial Dispute Resolution – HCCH 1965 Service Convention, the webinar is expected to discuss, among others, the operation of the Service Convention in practice, how the Service Convention works with the other HCCH Conventions for cross-border dispute resolution, and Singapore’s accession to and upcoming implementation of the Service Convention.

Invited speakers include Sara Chisholm-Batten (Partner, Michelmores LLP), Melissa Ford (Secretary, HCCH), Delphia Lim (2Director, International Legal Division, Ministry of Law, Singapore), Professor Yeo Tiong Min (Singapore Management University), and Professor Yun Zhao (University of Hong Kong and Representative of Regional Office for Asia and the Pacific, HCCH).

For more information or to register, click here. Early bird discount is available till 28 May.

More about the webinar and its speakers can be found in the flyer.

Queries about the webinar can be directed to ABLI at info@abli.asia.

From 22 to 27 May 2023, the 2023 edition of the Milan Arbitration Week will take place, online and in presence. It encompasses a series of events dedicated to domestic, international commercial and investment arbitration, with the participation of renowned Italian and foreign experts from academia and legal profession.

The Milan Arbitration Week is jointly organized by Università degli Studi di Milano and the European Court of Arbitration, in collaboration with DLA Piper-Milan, Comitato Italiano dell’Arbitrato, the Centre of Research DEuTraDiS and the Erasmus + Programme of the European Union.

In particular, this edition will focus on the recent Italian reform of arbitration law; the mechanism of the mandatory mediation; the status quo and future perspectives of surfing on pledges in international arbitration; the umbrella clauses; the recent developments of the relationships between EU Law and investment arbitration. In addition, the MiAW, always attentive to the relationship between university education and arbitration, will host a chat with the winners of the 30th edition of the Willem C. Vis International Commercial Arbitration Moot, as well as the Frankfurt Investment Pre-Moot (Conference and hearings), organized by DLA Piper, Milan.

All information (including how to register) can be found at this link.

The UK Supreme Court ruled that the cause of action in the aftermath of the 2011 Bonga offshore oil spill accrued at the moment when the oil reached the shore. This was a one-off event and not a continuing nuisance. The Nigerian landowners’ claim against Shell was thus barred by the limitation periods under applicable Nigerian law (Jalla and another v Shell International Trading and Shipping Company and another [2023] UKSC 16, on appeal from [2021] EWCA Civ 63).

On 10 May 2023, the UK Supreme Court has ruled in one of the cases in the series of legal battles started against Shell in the English courts in the aftermath of the Bonga spill. The relevant facts are summarized by the UK Supreme Court as follows at [6] and [7]:

6. (…) The Bonga oil field is located approximately 120 km off the coast of Nigeria. The infrastructure and facilities at the Bonga oil field include a Floating Production Storage and Offloading unit (“FPSO”), which is linked to a Single Point Mooring buoy (“SPM”) by three submersible flexible flowlines. The oil is extracted from the seabed via the FPSO, through the flowlines to the SPM, and then on to tankers. The Bonga Spill resulted from a rupture in one of the flexible flowlines connecting the FPSO and the SPM. The leak occurred overnight during a cargo operation when crude oil was being transferred from the Bonga FPSO through the SPM and onwards onto a waiting oil tanker on (…) 20 December 2011. The cargo operation and the leaking were stopped after about six hours.
7. As a result of the Bonga Spill, it is estimated that the equivalent of at least 40,000 barrels of crude oil leaked into the ocean. The claimants allege that, following its initial escape, the oil migrated from the offshore Bonga oil field to reach the Nigerian Atlantic shoreline’.

Some 27,830 Nigerian individuals and 457 communities stated that the spill had a devastating effect of the oil on the fishing and farming industries and caused damage to their land. They sued Shell in English courts. The claim was instituted against International Trading and Shipping Co Ltd (an English company, anchor defendant) and Shell Nigeria Exploration and Production Co Ltd (a Nigerian company, co-defendant).

The English courts have accepted jurisdiction, as it had happened in several cases based on a comparable set of facts relevant for establishing jurisdiction, as reported earlier on this blog here, here, here, here, and here. The jurisdiction and applicable law in the specific case of Bonga spill litigation have been closely followed inter alia by Geert van Calster here.

The case at hand is an appeal on a part of an earlier rulings. However, unlike some earlier claims, this is not a representative action, as the UK Supreme Court explicitly states at [8]. The crux of the ruling is the type of tort that the Bonga spill represents under Nigerian law, applicable to that case (on applicable law, see Jalla & Anor v Shell International Trading and Shipping Company Ltd & Anor [2023] EWHC 424 (TCC), at [348] ff.).

According to the Nigerian party, the spill gave rise to ‘a continuing cause of action because there is a continuing nuisance so that the limitation period runs afresh from day to day,’ as some oil has not been cleaned up and remained on the coast. Shell submitted, on the contrary, that the spill was a one-off event, that the cause of action accrued with the coast was flooded, and that the claim was time barred under the relevant limitation statutes. The lower courts and the UK Supreme court agreed with Shell. They rule that the cause of action had accrued at the moment when the spilled oil had reached the shore. This occurred some weeks after the spill. As a result, at the moment of instituting the proceedings, the claim was time barred.

Noteworthy is the detail in which the UK Supreme Court discusses the authorities on the tort of nuisance under the heading ‘4. Four cases in the House of Lords or Supreme Court’ at [17] ff. This degree of detail is certainly not surprising, due to the relevance of English law for the Nigerian legal system. In the meantime, it contrasts with the approach that would be adopted by a civil law tradition’s court, if the case was brought under their jurisdiction. Firstly, in the civil law traditions, a claim governed by foreign law reaches the highest judicial authority only in exceptional cases. Secondly, if – as in this case – there were ‘no prior case in English law that has decisively rejected or accepted the argument on continuing nuisance put forward by the claimants in this case,’ a continental court might have come to the same conclusion, but finding the law would perhaps be much less business as usual for a continental court than for the UK Supreme Court.

The footage of the hearings that the UK Supreme Court makes available on its website is most enlightening on the Court’s approach and reasoning.

Regular readers will be aware that disciplining the use of the anchor defendant mechanism is not an easy task for a court to undertake (I have linked to one post yet the search tag ‘anchor’ will take you to plenty). The CJEU takes a restrictive view. Although in the case at issue Article 8(1) Brussels Ia does not formally apply (the mechanism does not apply to defendants domiciled outside the EU), instruction in Dutch residual rules is that they be applied as A8(1) would.

In Stichting Claim Gran Petro v Shell Netherlands, Shell Brasil and Raizen ECLI:NL:RBDHA:2023:7099, the Hague court of first instance did though refuse jurisdiction against the one Brazilian defendant (Raisen), anchored unto two Dutch Shell entities (Shell now having moved domicile exclusively to England was held [5.2] not to have relevance on account of the perpetuatio fori principle), citing abuse of the anchor defendant mechanism.

Shell have a majority share in Raisen. The claimants in essence called upon the corporate structure of Shell and, pro inspiratio, hoped to convince the court that the presumption of involvement of mother corporations in their daughter’s anti-competitive shenanigans might be enough to justify the relatedness of the claims. Such assumption exists in EU competition law (see eg CJEU ENI) however the court finds that claimants have not been able to prove a Brazilian equivalent.

The court refers ia to CJEU CDC v Azo Nobel et al to emphasize the condition that the anchor mechanism must not be intended merely to remove the defendant at issue from its natural domicile forum. [6.7] the court reports that the claimants acknowledge that Dutch jurisdiction is sought for reasons of  general tardiness of Brazilian proceedings. There is no suggestion that Raizen will not be willing to meet any future damages. Seeing as no presumption under Brazilian law of mother corporation involvement exists, and seeing as no proof of factual involvement of the Shell mother entities was furnished, [6.16] the court concludes that the anchor mechanism at issue is an abusive application and must not lead to jurisdiction.

Geert.

1/2 Follow-on competition law damages claim, after Brazilian competition commission finding of abuse
Held no jurisdiction against BRA corp controlled by Shell
Abuse of Dutch equivalent of anchor defendant mechanism, citing CJEU authority pro inspiratio

— Geert Van Calster (@GAVClaw) May 17, 2023

Hart Studies in Private International Law officially released a book today titled: The HCCH 2019 Judgments Convention: Cornerstones, Prospects, Outlook. The book is edited by M Weller et al. The blurb reads as follows:

This book analyses, comments and further develops on the most important instrument of the Hague Conference on Private International Law (HCCH): the HCCH 2019 Judgments Convention. The HCCH Convention, the product of decades of work, will have a transformative effect on global judicial cooperation in civil matters. This book explores its ‘mechanics’, i.e. the legal cornerstones of the new Convention (Part I), its prospects in leading regions of the world (Part II), and offers an overview and comment on its outlook (Part III). Drawing on contributions from world-leading experts, this magisterial and ambitious work will become the reference work for law-makers, judges, lawyers and scholars in the field of private international law.