Droit international général

Tomorrow (3 July 2022) is your last chance to register for the online summer course 2022 of the Hague Academy of International Law (both public and private international law). Click here.

More information is available here. The poster is available here.

The summer course 2022 will be offered this year both on-site in The Hague and online, which is great news given the disruptions caused by the covid-19 pandemic the previous years.

When prof Bookman asked my input on Celsius’ choice of court and governing law’s clause in its GTCs, I was otherwise engaged. Subsequently I waited with an answer for I used the issue for an exam question. – so here is my primer.

Celsius are one of the leading crypto currencies exchanges (future readers may not be familiar: crypto currencies were an early 21st century Ponzi scheme).

The question I put to the students, was:  A fellow academic and practitioner from the US asks you how clause 33 of the standard Celsius contract, copied below, would be received in the EU. Celsius are one of the world’s leading crypto currencies exchanges.

How do you respond to this question? Argue with reference inter alia to relevant CJEU case-law.

Students had two pages to answer. I did not specify Celsius’ domicile. This is what I expect to be included in the reply. Both for jurisdiction and for there is a clear distinction between the B2B and B2C scenario.

Re: B2C: For the contract to be a true ‘consumer’ contract within the meaning of Brussels Ia, Celsius would have had to target their activities at the consumer’s Member State etc.: CJEU Peil and Reliantco are good pointers, as are Ramona Ang and Khalifeh v Blom Bank. Whether Celsius are domiciled in the EU is of no consequence for the consumer section to be engaged. At the jurisdictional level, the choice of court clause would have no consequence (A19 BIa), and the consumer would be able to sue Celsius either in the consumer’s EU domicile, or in Celsius’ EU domicile if it has one. Celsius would only be able to sue in the consumer’s domicile. Articles 33-34 BIa lis pendens rules would not be engaged.

At the applicable law level, the choice for New York law would stand, however mandatory law of the consumer’s habitual residence (which would include transposition of EU consumer law) would trump any conflicting provisions (A6(1) and (2) Rome I).

Re: B2B or indeed a B2C contract which does not trigger the consumer section, the picture would be quite different. Here, whether Celsius as contracting partner has a domicile in the EU, does matter.

If there is such domicile, then at the level of jurisdiction, the EU based party is likely to seize the A4 domicile court, potentially also seeking out a forum contractus if the currency services were to be provided elsewhere than in the place of Celsius’ domicile. That is where Celsius, had it seized an ex-EU court first, then might seek application of A33-34. For this it may come to regret having included hybrid choice of court: recital 24(2)’s reference to the ex-EU court having exclusive jurisdiction arguably does not apply to hybrid choice of court.

Were Celsius to sue the other party in an EU court first (taking ‘any applicable jurisdiction’ at its face value and understanding it as including EU courts), the other party is likely to raise the invalidity of the hybrid choice of court. This is where BIa knickers will get into their proverbial twist: for recital 20’s lex fori prorogati’s instruction as lex casae for the validity of the clause, only refers to ‘a court or courts of a Member State’. Celsius could of course chose to ignore choice of court (implicitly accepting its invalidity) and seize the A4 court of the EU counterparty.

At the level of applicable law, choice for New York law will in any case stand in this scenario, with however A3(4) Rome I’s rule for ‘purely EU’ contracts kicking in, and potentially Article 9 Rome I’s lois de police.

If there is no EU Celsius domicile, Celsius is unlikely to sue in the EU (for it risks having an EU court apply EU banking, finance etc law as mandatory law) however if it does, it would either do so on the basis of A4 domicile jurisdiction, or invoking, as above, the ‘any applicable jurisdiction’ instruction in the hybrid choice of court. Only A9 Rome I could then marginally upset choice of NY law.

Finally, assuming Celsius were to sue the consumer outside the EU, and were to seek enforcement of the judgment in an EU Member State, this would engage the Member States’ residual rules on recognition and enforcement.

Quite a set of variables in the end, and I would be much happy to hear others’ thoughts.

Marking me will look out for core B2B /B2C and domicile considerations.

Geert.

I was going to ask why the dispute has to be in the US, and point out that the class action and class arb ban might not be enforceable elsewhere, but then I saw the NY choice of law and choice of forum clauses, which presumably are enforceable, rt?@Tarheel_Lawprof @GAVClaw pic.twitter.com/vq6Rx3L6Np

— Pamela Bookman (@PamelaBookman) June 15, 2022

Elena D’Alessandro and Fernando Gascón Inchausti are the editors of The European Account Preservation Order – A Commentary on Regulation (EU) No 655/2014. The book has just been published by Edward Elgar in its Commentaries in Private International Law series.

This comprehensive Commentary provides article-by-article exploration of EU Regulation 655/2014, analysing and outlining in a straightforward manner the steps that lawyers, businesses and banks can take when involved in debt recovery. It offers a detailed discussion of national practice and legislation in order to provide context and a deeper understanding of the complex difficulties surrounding the procedural system created by the European Account Preservation Order (EAPO) Regulation.

The list of authors include Caterina Benini, Silvana Dalla Bontà, Katharina Lugani, Martina Mantovani, Elena Alina Ontanu, Guillaume Payan, Pilar Peiteado Mariscal, Carlos Santaló Goris, Guillermo Schumann Barragán, Elisabetta Silvestri, Enrique Vallines García, María Luisa Villamarín López and Marcin Walasik.

See here for further information.

Following the release of a draft code of private international law (announced here), the French Ministry of Justice has launched on 8 June 2022 a public consultation to gather feedback from all stakeholders, including academics, “in order to determine the possible next steps”.

The blog has started to contribute to the discussion (see here on renvoi and here on foreign law) and other comments will follow.

The consultation template is divided into three main parts. The first part concerns the very principle of adopting written codified rules in the field of private international law, as well as the scope of the code (i.e. purely national or including EU and international rules applicable within the French jurisdiction). The second part allows for general comments on the draft Code (eg. its structure, its material scope). Finally, the third part proposes article-by-article comments (among 207 articles).

The French Ministry of Justice invites interested parties to send comments on the draft code of private international law to consultation-codedip.dacs@justice.gouv.fr using the Word document provided for. Comments that do not respect this format will not be taken into account.

The consultation is open until 30 September 2022.

Written by Dr Meng Yu and Dr Guodong Du, co-founders of China Justice Observer

Key takeaways:

• Despite the fact that the elaboration of a judicial interpretation appears to have been put on hold, China’s Supreme People’s Court has now resorted to conference summaries, which are not legally binding but have a practical impact, to express its views in recognition and enforcement of foreign judgments.
• As a landmark judicial policy issued by China’s Supreme People’s Court, the 2021 Conference Summary provides a detailed guideline for Chinese courts to review foreign judgment-related applications, including examination criteria, refusal grounds, and an ex ante internal approval mechanism.
• The 2021 Conference Summary enables an ever greater number of foreign judgments to be enforced in China, by making substantial improvements on both the issues of “threshold” and “criteria”. The threshold addresses whether foreign judgments from certain jurisdictions are enforceable, whereas the criteria deal with whether the specific judgment in an application before Chinese courts can be enforced.
• The 2021 Conference Summary significantly lowers the threshold by liberalizing the reciprocity test, while providing a much clearer standard for Chinese judges to examine applications for recognition and enforcement of foreign judgments.
• The existence of a “treaty or reciprocity” remains to be the threshold (precondition) for Chinese courts to review applications.
• In terms of reciprocity, new reciprocity tests are introduced to replace the previous de facto reciprocity test and presumptive reciprocity. The new reciprocity criteria include three tests, namely, de jure reciprocity, reciprocal understanding or consensus, and reciprocal commitment without exception, which also coincide with possible outreaches of legislative, judicial, and administrative branches. Chinese courts need to examine, on a case-by-case basis, the existence of reciprocity, on which the Supreme People’s Court has the final say.

China has published a landmark judicial policy on the enforcement of foreign judgments in 2022, embarking on a new era for judgment collection in China.

The judicial policy is the “Conference Summary of the Symposium on Foreign-related Commercial and Maritime Trials of Courts Nationwide” (hereinafter the “2021 Conference Summary”) issued by the China’s Supreme People’s Court (SPC) on 31 Dec. 2021. The 2021 Conference Summary makes it clear for the first time that applications for enforcing foreign judgments will be examined subject to a much more lenient standard.

Since 2015, the SPC has consistently disclosed in its policy that it wishes to be more open to applications for the recognition and enforcement of foreign judgments, and encourages local courts to take a more amicable approach to foreign judgments within the scope of established judicial practice.

Admittedly, the threshold for enforcing foreign judgments was set too high in judicial practice, and Chinese courts have never elaborated on how to enforce foreign judgments in a systematic manner. As a result, despite the SPC’s enthusiasm, it is still not appealing enough for more judgment creditors to apply for recognition and enforcement of foreign judgments with Chinese courts. However, this situation is now changed.

In January 2022, the SPC published the 2021 Conference Summary with regard to cross-border civil and commercial litigation, which addresses a number of core issues concerning the recognition and enforcement of foreign judgments in China. Just to be clear, in the Chinese legal system, the conference summary is not a legally binding normative document as the judicial interpretation, but only represents the consensus reached by Chinese judges nationwide, similar to the “prevailing opinion” (herrschende Meinung) in Germany, which will be followed by all judges in future trials. In other words, conference summaries serve as guidance for adjudication. On one hand, as a conference summary is not legally binding, the courts cannot invoke it as the legal basis in judgments, but on the other hand, the courts can make the reasoning on the application of law according to the conference summary in the “Court Opinion” part.

The 2021 Conference Summary makes substantial improvements in two aspects, i.e. the “threshold” and “criteria”.

The threshold aspect refers to the first obstacle applicants will face when applying for recognition and enforcement of a foreign judgment in China, that is, whether foreign judgments from certain countries are enforceable. Countries reaching the threshold now include most of China’s major trading partners, which is huge progress compared with the prior 40 countries or so. If the country where the judgment is rendered reaches the threshold, criteria will then be used by the Chinese courts in reviewing whether the specific judgment in the application can be enforced in China. Now a clearer threshold and criteria enable applicants to have more reasonable expectations about the likelihood of a foreign judgment being enforced in China.

1. Threshold: the threshold for enforcing judgments of most foreign countries in China has been significantly lowered.

The 2021 Conference Summary significantly lowers the threshold for the recognition and enforcement of foreign judgments in China, making a breakthrough in existing practice. According to the 2021 Conference Summary, the judgments of most of China’s major trading partners, including almost all common law countries as well as most civil law countries, can be enforceable in China.

Specifically, the 2021 Conference Summary states that the judgment can be enforced in China if the country where the judgment is rendered satisfies the one of the following circumstances:

(a) The country has concluded an international or bilateral treaty with China in respect of recognition and enforcement of foreign judgments.

Currently, 35 countries meet this requirement, including France, Italy, Spain, Belgium, Brazil, and Russia.

The List of China’s Bilateral Treaties on Judicial Assistance in Civil and Commercial Matters (Enforcement of Foreign Judgments Included) is available here.  Authoritative texts in Chinese and other languages are now available.

(b) The foreign country has a de jure reciprocal relationship with China.

This means that where a civil or commercial judgment rendered by a Chinese court can be recognized and enforced by the court of the foreign country according to the law of the said country, a judgment of the said country may, under the same circumstances, be recognized and enforced by the Chinese court.

In accordance with the criteria of de jure reciprocity, the judgments of many countries can be included in the scope of enforceable foreign judgments in China.  For common law countries, such as the United States, the United Kingdom, Canada, Australia, and New Zealand, their attitude towards applications for recognition and enforcement of foreign judgments is open, and in general, such applications meet this criterion. For civil law countries, such as Germany, Japan, and South Korea, many of them also adopt a similar attitude to the above-mentioned de jure reciprocity, so such applications also meet this criterion to a great extent.

It is noteworthy that in March 2022, Shanghai Maritime Court ruled to recognize and enforce an English judgment in Spar Shipping v Grand China Logistics (2018) Hu 72 Xie Wai Ren No.1, marking the first time that an English monetary judgment has been enforced in China based on reciprocity. This decision has previously been highlighted here. One key to ensuring the enforcement of English judgments is the reciprocal relationship between China and England (or the UK, if in a wider context), which, under the de jure reciprocity test (one of the new three tests), was confirmed in this case.

(c) The foreign country and China have promised each other reciprocity in diplomatic efforts or reached a consensus at the judicial level.

The SPC has been exploring  cooperation in mutual recognition and enforcement of judgments with other countries in a lower-cost way in addition to signing treaties, such as a diplomatic commitment or a consensus reached by the judiciaries. This can achieve functions similar to that of treaties without being involved in the lengthy process of treaty negotiation, signing, and ratification.

China has started similar cooperation with Singapore. A good example of judicial outreach is the Memorandum of Guidance Between the Supreme People’s Court of the People’s Republic of China and the Supreme Court of Singapore on Recognition and Enforcement of Money Judgments In Commercial Cases (available here). It is thus fair to say that the 2021 Conference Summary has substantially lowered the threshold by liberalizing the reciprocity test.

2. Criteria: Clearer standard for Chinese judges to examine each application for recognition and enforcement of foreign judgments

The 2021 Conference Summary makes it clear under what circumstances Chinese courts may refuse to recognize and enforce a foreign judgment and how the applicants may submit the applications, which undoubtedly enhances  feasibility and predictability.

Pursuant to the 2021 Conference Summary, a foreign judgment can be recognized and enforced in China if there are no following circumstances where:

(a) the foreign judgment violates China’s public policy;

(b) the court rendering the judgment has no jurisdiction under Chinese law;

(c) the procedural rights of the Respondent are not fully guaranteed;

(d) the judgment is obtained by fraud;

(e) parallel proceedings exist, and

(f) punitive damages are involved (specifically, where the amount of damages award significantly exceeds the actual loss, a Chinese court may refuse to recognize and enforce the excess).

Compared with most countries with liberal rules in recognition and enforcement of foreign judgments, the above requirements of Chinese courts are not unusual. For example:

• The above items (1) (2) (3) and (5), are also requirements under the German Code of Civil Procedure (Zivilprozessordnung).
• Item (4) is consistent with the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters.
• Item (6) reflects the legal cultural tradition on the issue of compensation in China.

In addition, the 2021 Conference Summary also specifies what kind of application documents should be submitted to the court, what the application should contain, and how parties can apply to the Chinese court for interim measures when applying for enforcing foreign judgments.

In short, a gradual relaxation of Chinese courts’ attitude can be seen towards applications for recognition and enforcement of foreign judgments since 2018. Recently the 2021 Conference Summary has finally made a substantial leap forward.

We hope to see such breakthroughs in rules be witnessed and developed by one case after another in the near future.

For a more detailed interpretation, together with the original Chinese version of the 2021 Conference Summary and its English translation, please read ‘Breakthrough for Collecting Judgments in China Series’ (available here).

For the PDF version of ‘Breakthrough for Collecting Judgments in China Series’, please click here. 

The Court of Justice delivered today its judgment in case C‑652/20 (Allianz Elementar Versicherungs AG), which is about Brussels I bis. The judgment is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

« L’article 11, paragraphe 1, sous b), du règlement (UE) no 1215/2012 du Parlement européen et du Conseil, du 12 décembre 2012, concernant la compétence judiciaire, la reconnaissance et l’exécution des décisions en matière civile et commerciale, doit être interprété en ce sens que, lorsque cette disposition est applicable, elle détermine tant la compétence internationale que la compétence territoriale de la juridiction d’un État membre dans le ressort de laquelle se situe le domicile du demandeur ».

Reminder : Article 11: « 1. An insurer domiciled in a Member State may be sued:

a) in the courts of the Member State in which he is domiciled;

b) in another Member State, in the case of actions brought by the policyholder, the insured or a beneficiary, in the courts for the place where the claimant is domiciled; or

c) if he is a co-insurer, in the courts of a Member State in which proceedings are brought against the leading insurer”.

Source : https://curia.europa.eu/juris/document/document.jsf?docid=261922&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=FR&cid=8348163

This report was kindly prepared by Federica Simonelli, a research fellow funded by the P.O.N. UNI4Justice project at the University of Trento, Italy, and a member of the editorial staff of Giustizia consensuale (Consensual Justice).

On 10 June 2022, the University of Trento, Faculty of Law celebrated the first anniversary of the launch of Giustizia consensuale, founded and edited by Professor Silvana Dalla Bontà and Professor Paola Lucarelli.

In recent years, the debate surrounding consensual justice and party autonomy has received increasing attention in the national and international arenas and has raised a broad array of questions. What is the very meaning of consensual justice? Is the idea of consensual justice feasible? What is its role in a globalized world increasingly characterized by cross-border disputes? The rationale behind Giustizia consensuale lies in the pressing need to observe this phenomenon from different perspectives.

For those who did not have the opportunity to attend this informative event, this report offers a succinct overview of the topics and ideas exchanged during this well-attended, hybrid conference.

First session

Opening the symposium with an incisive preamble, Professor Silvana Dalla Bontà (University of Trento, Italy), editor-in-chief of Giustizia consensuale and chair of the first session, provided a context for the reasoning behind this new editorial project and some of the research areas it intends to focus on. Notably, with the aim of meeting the needs of an increasingly complicated and multi-faceted society, Giustizia consensuale endeavours to investigate the meaning of consensual justice, its relationship with judicial justice, and the potential for integrating, rather than contrasting, these two forms of justice.

Professor Dalla Bontà’s introductory remarks were followed by Professor Paola Lucarelli (University of Florence, Italy), co-editor of the Giustizia consensuale, on the topic of Mediating conflict: a generous push towards change, strongly reaffirming the importance of promoting and strengthening consensual justice instruments, not only to reduce the judicial backlog but also to empower the parties to self-tailor the solution of their conflict, by fostering responsibility, self-determination, awareness, and trust.

Professor Francesco Paolo Luiso (University of Pisa, Italy – Academician of the Order of Lincei) then proceeded to effectively illustrate the essential role played by lawyers in changing the traditional paradigm of dispute resolution which sees court adjudication as the main (if not, the sole) way of settling disputes. Conversely, the judicial function is a precious resource, and its use must be limited to instances where the exercise of the judge’s adjudicatory powers is strictly necessary, thus directing all other disputes toward amicable, out-of-court dispute resolution mechanisms. Hence, lawyers are in the privileged position of presenting clients with a broad array of avenues to resolve disputes and guiding them to the choice of the most appropriate dispute resolution instrument.

Professor Antonio Briguglio (University of Rome Tor Vergata, Italy) then continued with an interesting focus on the relationship between conciliation and arbitration within the overall ADR system. After examining when and how conciliation is attempted during the course of the arbitral proceedings, he shed light on the interesting, and often unknown to the public, ‘conciliatory’ dynamics which often occur amongst members of arbitral tribunals in issuing the arbitration award. In an attempt to find common ground between different viewpoints, conciliatory and communicative skills of arbitrators play a decisive role, in particular in international commercial arbitrations on transnational litigation.

Procedure, Party agreement, and Contract was the focus of a very thorough presentation by Professor Neil Andrews (University of Cambridge, UK) who underlined that consensual justice is a highly stimulating and significant meeting point between substance and procedure, as well as being an important perspective within technical procedural law. He stated that there are three points of interaction between agreement and procedure. Firstly, the parties are free to agree to self-impose preliminary ‘negotiation agreements’ and/or mediation agreements. Secondly, the parties can take a further step to specify or modify the elements of the relevant formal process, albeit court proceedings or arbitration. Thirdly, parties can dispose of or narrow the dispute through a settlement.

The first session concluded with an insightful presentation from Professor Domenico Dalfino (University of Bari Aldo Moro, Italy) who explored the long-debated issue of which party bears the burden of initiating the mandatory mediation in proceedings opposing a payment order. While expressing his criticism towards mandatory mediation, he maintained that voluntariness is the very essence of mediation and the promise of its success.

Second session

The event continued with a second session chaired by Professor Paola Lucarelli. From the perspective of the Brazilian legal system, Professor Teresa Arruda Alvim (Pontifical Catholic University of São Paulo, Brazil) began the session by illustrating that in the last few decades, ADR has afforded parties the possibility to self-tailor a solution to their conflict while significantly diminishing the case overload of the judiciary. Nevertheless, the obstacles to the growth of ADR are multiple, ranging from the lack of preparation of mediators to the traditional adversarial approach of attorneys. She concluded by stating that legal systems must invest, on the one hand, in training highly qualified mediators while on the other, providing new educational paths for attorneys to acquire new negotiation and mediation skills.

The session proceeded to address Online Dispute Resolution (ODR), examining the strengths and weaknesses of using new technologies to solve disputes. Professor Silvia Barona Vilar (University of Valencia, Spain) highlighted the positive and negative aspects of the increasing use of ODR in our digital and algorithmic society. While ODR devices are considered as ensuring access to justice and favouring social peace and citizens’ satisfaction, there are also complex issues around the use of Artificial Intelligence and algorithms such as their accountability, accurate assessment, and transparency.

The relationship between the use of technology and access to justice was explored in depth by Professor Amy J. Schmitz (The Ohio State University, USA), who based her presentation on a thorough empirical study of ODR as a means to advance access to justice for  poor or vulnerable individuals who would otherwise be unable to have their ‘day in court.’

Potential applications of new technologies used in resolving disputes were then examined by Professor Colin Rule (Stanford Law School, USA), who highlighted that ODR, originally created to help e-commerce companies build trust with their users, is now being integrated into the courts to expand access to justice and reduce costs. While admitting there are many questions that still need to be answered, Rule predicted that ODR will play a major role in the justice systems of the future through the expansion of Artificial Intelligence and machine learning.

Showing a more critical approach Professor Maria Rosaria Ferrarese (National School of Administration, Italy) shed light on the threat posed by the use of digital technologies in resolving disputes, after having edited the Italian version of a book by Antoine Garapon and Jean Lassègue – Justice digital. Révolution graphique et rupture anthropologique (Digital Justice. Graphic Revolution and Anthropologic Disruption). While acknowledging that Artificial Intelligence and algorithms can deliver a fast and cheap justice, she underlines that justice is not only about settling a case in a rapid and inexpensive way but also about reinforcing values of a given society and ensuring a creative application of the law.

Council Decision (EU) 2022/1022 of 9 June 2022 on the signing, on behalf of the European Union, of the Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to Mining, Agricultural and Construction Equipment (MAC Protocol), has been published in the Official Journal L 172, of June 29.

Pursuant to the Decision, the signing on behalf of the Union of the Protocol adopted in Pretoria on 22 November 2019 is authorised, subject to its conclusion.

A Declaration is attached to the Decision in compliance with Article XXIV(2) of the MAC Protocol, providing that, at the time of signature, acceptance, approval or accession, a regional economic integration organisation is to make a declaration specifying the matters governed by that Protocol in respect of which competence has been transferred to that organisation by its Member States. It specifies that, in respect of matters governed by the MAC Protocol, the European Union has exercised its competence by adopting Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Article IX of the MAC Protocol – ‘Modification of provisions regarding relief pending final determination’), Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (Article X of the MAC Protocol – ‘Remedies on Insolvency’ – and Article XI of the MAC Protocol – ‘Insolvency assistance’) and Regulation (EC) No 593/2008 of 17 June 2008 on the law applicable to contractual obligations (Rome I) (Article VI of the MAC Protocol – ‘Choice of law’).

The Declaration lists the States members to the European Union and excludes from its scope Denmark and certain territories belonging to Member States. It shall be approved on behalf of the Union, subject to the adoption of a decision on the conclusion of the MAC Protocol at a later stage.

A puzzling title perhaps I agree but let me explain. Thank you Matthias Storme for alerting me to the May 2021 preliminary reference by the Belgian Supreme Court, a reference now known at the CJEU as Case C-358/21 Tilman SA (of Belgium) v Unilever Supply Chain Company AG (of Switserland). Elucidation is asked of Article 23 of the Lugano 2007 Convention, the choice of court provision in the Convention.

The question referred, reads

Are the requirements under Article 23(1)(a) and (2) of [Lugano 2007], satisfied where a clause conferring jurisdiction is contained in general terms and conditions to which a contract concluded in writing refers by providing the hypertext link to a website, access to which allows those general terms and conditions to be viewed, downloaded and printed, without the party against whom that clause is enforced having been asked to accept those general terms and conditions by ticking a box on that website?

Article 23 Lugano 2007 is identical (mutatis mutandis: the only difference being that A23 Lugano refers to ‘States to the Convention’ instead of ‘Member States’) to the former Article 23 of the Brussels I Regulation, Regulation 44/2001.  A23 Lugano 2007 reads in relevant part

1. 1. If the parties, one or more of whom is domiciled in a State bound by this Convention, have agreed that a court or the courts of a State bound by this Convention are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing; or (b) in a form which accords with practices which the parties have established between themselves; or (c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.
   2. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to ‘writing’.

The case at issue therefore does not question so-called ‘click-wrap’ consent to general terms and conditions – GTCs. These require the contracting partner to tick the relevant box which then ‘wraps up’ the agreement, including choice of court (and law). They were the subject of CJEU El Majdoub v CarsOnTheWeb. In that judgment, the CJEU held that in a B2B context, where the GTCs that have to be ticked can be saved and printed, they can be a ‘durable’ record of consent. (Not: consent itself: that is subject to a separate analysis, under the relevant lex causae, see below).

Rather, the title of this post calls the issue one of ‘flag-wrap’: one of the parties’ (Unilever’s) GTCs  are contained on a website, and their existence is ‘flagged’ in the written main contract. Does that suffice to bind the parties as to the GTC’s choice of court (in favour of the English courts; note the courts were seized pre-Brexit; the UK’s Lugano troubles are not engaged)?

The provisions on forum clauses are drafted in a way ‘not to impede commercial practice, yet at the same time to cancel out the effects of clauses in contracts which might go unread’ (Jenard Report), or otherwise ‘unnoticed’ (CJEU Colzani). The Brussels Convention and now the Regulation show great support for choice of court agreements and aim not to be as overly formalistic as the conditions imposed upon them.

Importantly, valid choice of court does require both a clearly and precisely demonstrated consent to be bound by choice of court and one or another Article 25-sanctioned form of expression of that consent. In Colzani the CJEU held [7]:

the requirements set out in Article [25] governing the validity of clauses conferring jurisdiction must be strictly construed. By making such validity subject to the existence of an ‘agreement’ between the parties, Article [25] imposed upon the court before which the matter is brought the duty of examining, first, whether the clause conferring jurisdiction upon it was in fact the subject of a consensus between the parties, which must be clearly and precisely demonstrated. The purpose of the formal requirements imposed by Article [25] is to ensure that the consensus between the parties is in fact established.

CJEU authority of Colzani and Coreck Maritime impose on the court the duty of examining ‘whether the clause conferring jurisdiction upon it was in fact the subject of a consensus between the parties’ and this had to be ‘clearly and precisely demonstrated’.

In practice, many courts conflate the check for consent with the check for expression of that consent and even the CJEU is not always clear in distinguishing it. In particular, absence of proof of any of the three possible avenues for expression of consent, included in Article 25(1) a, b or c, or then taken as an absence of consent, full stop. In Colzani, the CJEU held

[T]he mere fact that a clause conferring jurisdiction is printed among the general conditions of one of the parties on the reverse of a contract drawn up on the commercial paper of that party does not of itself satisfy the requirements of Article 17, since no guarantee is thereby given that the other party has really consented to the clause waiving the normal rules of jurisdiction. Where a clause conferring jurisdiction is included among the general conditions of sale of one of the parties, printed on the back of a contract, the requirement of a writing under the first paragraph of Article 17 of the Convention is fulfilled only if the contract signed by both parties contains an express reference to those general conditions.

The CJEU here, wrongly, seems to suggest lack of compliance with the expression of consent indicates a lack of that consent full stop.

Importantly, the CJEU in its rulings on what was then Article 23 and its Brussels Convention predecessor keeps utterly silent on national conditions relating to the actual formation or existence of consent. This, as regular readers of the blog will know, is at least for cases covered by Brussels Ia, subject to the lex fori prorogati, with renvoi, an issue which both national courts and the CJEU struggle with.

How then should the CJEU respond to the question (I asked my conflict of laws students at Leuven this question in a first exam on 18 June)?

Firstly, the Court should (and will) remind us of the Jenard /Colzani core instruction: the need to ensure consent is established, without being overly formalistic. Different from the context of the protected categories, there is no ‘weaker category’ to protect here.

Secondly,  there needs to be durability of the record of consent. That seems to be guaranteed here via the technicalities of the Unilever platform (downloadable GTCs) and in line with aforementioned CJEU Al Majdoub (the June students were not given technical details but should still flag durability).

Thirdly, despite the formal A23  requirement most probably being met, the consent requirement to me seems far from certain. In a click and wrap context ― lest there be issues of agency, duress, consumer protection laws etc. (in a context where the consumer title’s conditions are not met) which need to be held under the law applicable to consent ― the box ticking solidifies establishment of consent. In a mere flag and wrap context, that to me seems far less certain. If the reference were to a url where GTCs are properly and collectively displayed (if need be, updated with clear reference to chronology; see housekeeping), consent by an ordinary careful business (the proverbial (business)man on the Clapham omnibus). Yet if such as here, the link communicated in the formal contract refers to a platform where the  GTCs are not the first thing the contracting party sees, rather, where it is expected that that contracting party registers and /or downclicks, search and retrieve etc., that consent to me seems far less certainly established. [Again my students were not given the details on the platform which the reference includes, they did however have to signal the issue of consent).

Finally, under BIa, the lex fori prorogati, incl renvoi, would determine the above considerations of consent. Here, therefore, English law including its conflict of laws rules on choice of court. However seeing as the case is not subject to Brussels Ia, but rather to Lugano, the lex causae for consent will be an issue for the courts seized (here, the Belgian courts) to determine. Under the Belgian rules, this means application of Rome I (Rome I excludes choice of court agreements however Belgium’s private international law Act makes Rome I applicable even to carved-out contractual arrangements).

An interesting reference.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.10.

This is the third contribution to an online symposium on the ruling of the European Court of Justice, of 20 June 2022, in London Steam-Ship Owners’ Mutual Assistance Association Ltd v Spain. The first post was contributed by Adrian Briggs, the second one by Gilles Cuniberti. The post below was written by Antonio Leandro, who is Professor of Private International Law at the University of Bari.

In London Steam-Ship Owners’ Mutual Assistance Association Ltd v Spain the Court attempted to strike a balance between the ‘integrity of a Member State’s internal legal order’ and the ‘provisions and fundamental objectives’ of the Brussels I Regulation. This is as much apparent as the fact that the Court ruled closely on the circumstances of the case.

‘Internal integrity’ means that the recognition cannot trigger irreconcilability between judgments in the requested State, even when it comes to ‘judgment entered in terms of an award’. The relevant ‘provisions and fundamental objectives’ of the Brussels I Regulation prevent the same judgment from being recognized where: (a) jurisdiction (arbitration) clauses in insurance contracts have worked against (third) injured parties in such a way as to restrict their right to bring direct actions against the insurer, and (b) lis pendens rules have been breached.

What about ‘judgments entered in terms of an award’ that instead comply with ‘provisions and fundamental objectives’ of the Regulation? The expression may refer to ‘judgments entered in terms of an award’ not breaching the relative effect of jurisdiction (arbitration) clauses or the lis pendens rules, or, more generally, not encroaching on the provisions of the Regulation that protect weak parties.

Nothing seems to prevent such judgments from falling under Article 34(3) of the Brussels I Regulation and, even more, under Article 45(3) of the Brussels I Regulation (Recast), because the definition of ‘judgment’ in Article 2(a) does not appear to be limited to the material scope of the Regulation.

The Court put res judicata outside the realm of public policy. In this respect, the Court went beyond the circumstances of the case, as it reiterated that ‘the use of the “public-policy” concept is precluded when the issue is whether a foreign judgment is compatible with a national judgment’ (para 78, which refers to Hoffmann).

The message is clear: the ‘issue of the force of res judicata’ has been regulated exhaustively in Article 34(3) and (4) of the Brussels I Regulation (Article 45 (1) (c) and (d) of the Brussels I Regulation (Recast)). The issue has been regulated exhaustively when it comes to ‘judgments’, even those ‘entered in terms of an award’.

Instead, the ‘issue’ — i.e., the use of the public policy exception under the Brussels I Regulation (Recast) to protect the force of res judicata against the recognition of irreconcilable foreign judgments – remains open when it comes to arbitral awards.

Assuming that the protection of res judicata of arbitral awards amounts to a public policy concern in the requested State, Article 45(1)(a) may be relied upon as a ground for refusing the recognition of an irreconcilable foreign ‘judgment’. This conclusion does not find obstacles in the Court’s reasoning.

As I argued elsewhere, the public policy defence neither overlaps nor expands in such cases the grounds for refusing the recognition related to the ‘irreconcilability’ that the Brussels I Regulation (Recast) confines to ‘judgments’. Put it differently, protecting res judicata of arbitral awards through the public policy exception would not entail an issue of ‘irreconcilability’ in terms of Article 45(1)(c) and (d), and would be consistent with the arbitration exclusion.

From a wider perspective, the binomial ‘res judicata – public policy’ helps the Brussels I Regulation (Recast) and arbitration coexist, including by securing the right interplay between the Regulation and the 1958 New York Convention.

Just as it may work under the Brussels I Regulation (Recast) to protect res judicata of arbitral awards, the binomial ‘res judicata – public policy’ may work, in fact, under Article V(2)(b) of the 1958 New York Convention in the reverse direction of protecting res judicata of judgments. Article V(2)(b) allows the competent authority in the requested State to refuse recognition or enforcement of an award found to be contrary to the public policy of that State. This may occur where the award is ‘irreconcilable’ with judgments having res judicata in the requested Member State, including foreign judgments that have been recognized therein under the Brussels I Regulation (Recast).

The new issue of the Revue Critique de Droit International Privé (2/2022) is out.

The editorial by Horatia Muir Watt (Sciences Po Law School), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on Dalloz website (La guerre et le statut des personnes: que peut le droit ?)

The new issue contains four articles in private international law matters and numerous case notes, including a chronique on international migration law focused on foreigners’ detention (authored by Thibaut Fleury Graff, with the participation of Inès Giauffret, University of Paris-Saclay).

In the first article, Didier Boden (University Paris 1 Panthéon-Sorbonne) explores the nature of legal norms enacted outside a State but analysed as a component of that State’s law (Les règles d’incrustation).

Some rules provide that legal norms enacted outside a State shall be considered as a component of that State’s law. These are not so-called incorporation rules that the constitutional law of some States requires to be adopted so that a treaty to which these States become parties must be applied by their authorities. They are not norms traditionally called rules on the conflict of laws in private international law, designating the law applicable to certain situations; nor are they rules requiring that a first norm be taken into consideration when a second norm is applied. They are provisions to which this article gives the name of inlaying rules and of which it describes the nature.

In the second article, Charlotte Guillard (University of Paris 2 Panthéon-Assas) examines international environmental litigation in the light of classic goals of private international law (Protection de l’environnement et justice conflictuelle : une nouvelle équation pour le droit international privé ?)

International environmental litigation is booming. The current study analyzes the main issues around the fundamental questions underlying such evolution through the prism of the traditional distinction between conflictual and substantive justice. Whether in the field of conflict of laws or in that of international jurisdiction, the global movement of materialization that is gaining ground in private international law is very visible in environmental matters. And this is not an insignificant phenomenon: the substantial results brought by the rules of private international law regarding the protection of the environment, struggle to materialize, while the coordination of legal orders on these crucial issues is rarely achieved. In spite of a strong political will, one can only note the limitation of these litigations to the preliminary questions of private international law, to the detriment of the realization of the common goal to fight against the attacks made to the environment, set by the community of the States. The resources of conflictual justice – justice of conciliation – can, in this perspective, be usefully used to promote this objective, the achievement of which is urgent, in view of the challenges it underlies.

In the third article, Uta Kohl (University of Southampton) analyses the interplay between some provisions of the GDPR regarding its (cross-border) geographical scope of application (Les Lignes directrices 05/2021 du CEPD sur l’interaction entre l’article 3 et le chapitre V du RGPD. Le RGPD entre protection accrue et faiblesse inhérente).

The European Data Protection Board’s Guidelines 05/2021 on the Interplay between the application of Article 3 and the provisions on international transfers as per Chapter V of the GDPR continue the maximalist territorial approach the EU has taken at least since Google Spain (2014) but speak particularly to the recognition in Schrems II (2020) that the simple extension of a protective law to another country does not necessarily translate into equivalent protection if the wider legal landscape in that country distorts the law in its actual operation. This recognition necessarily entails that being subject to the GDPR (Art 3) should not displace the transfers rules in Chapter V if the processing occurs in a third country, given that only the transfer rules are directed towards the actual reception of GDPR normativity in the third country. Whilst implicitly the cumulative approach acknowledges that giving the GDPR a wide territorial scope hardly delivers a panacea of effectiveness on far away shores in fundamentally different legal and political orders, whether it will redress that weakness is equally doubtful.

In the last article, Horatia Muir Watt (Sciences Po Law School) explores emerging trends in the field of collective redress under a private international law perspective (Les actions de groupe et le droit international privé : une lame de fond ?).

New legal subjectivities are emerging in our legal landscape. They are composite, metaphorical, mixing the public and the private, protective of collective interests, and of course always fictional. The site on which to monitor the depth of the shift is the courtroom, where unfamiliar, foreign entities, transplanted from alien contexts, are claiming legal standing.

More information is available here.

Call for Papers

XV Conference ASADIP and General Congress of the International Academy of Comparative Law

ASADIP and IACL invite proposals for presentations for a panel on “Private International Law and Sustainable Development: Latin American Perspectives”. The panel will be part of the XV Conference of ASADIP “A Private International Law to Transform the World” on 27 October 2022 in Asunción, Paraguay during the General Congress of the International Academy of Comparative Law (IACL, 23-28 October 2022). More information here.

Convocatoria para realizar propuestas de presentación

XV Jornadas ASADIP y Congreso General de la Academia Internacional de Derecho Comparado

ASADIP e IACL invitan a realizar propuestas de presentaciones para un panel sobre “Derecho internacional privado y desarrollo sostenible: perspectivas latinoamericanas”. El panel será parte de la XV Conferencia de ASADIP “Un Derecho internacional privado para transformar el mundo” el 27 de octubre de 2022 en Asunción, Paraguay, durante el Congreso General de la Academia Internacional de Derecho Comparado (IACL, 23-28 de octubre de 2022). Más informaciones aquí.

Appel à contributions

XV Conférence ASADIP et Congrès Général de l’Académie Internationale de Droit Comparé

L’ASADIP et l’AIDC invitent à proposer des présentations pour un panel sur « Le droit international privé et le développement durable : perspectives latino-américaines ». Le panel fera partie de la XV Conférence ASADIP « Un droit international privé pour transformer le monde » le 27 octobre 2022 à Asunción, Paraguay, lors du Congrès Général de l’Académie Internationale de Droit Comparé (AIDC, 23-28 octobre 2022). Plus d’informations ici.

The readers of this blog are already aware that the University of Bonn plans to host a two-day conference on the Hague Convention of 2 July 2019 on the recognition and enforcement of judgments in civil and commercial matters, in cooperation with the Permanent Bureau of the Hague Conference on Private International Law. The event, which was expected to take place on 9 and 10 September 2022, has now been rescheduled and will eventually take place on 9 and 10 June 2023.

As explained by the organisers, the new date will likely be closer to the likely date of accession of the European Union to the Convention. Actually, on 23 June 2022, the European Parliament, based on a report by the JURI Committee, gave its consent to the accession.

The list of speakers of the Bonn conference includes scholars and practitioners, as well as representatives of UNCITRAL and the European Commission.

More information available here.

by Ilija Rumenov Assistant Professor at Ss. Cyril and Methodius University, Skopje, Macedonia

The Regional Forum “HCCH 2019 Judgments Convention: Prospects for the Western Balkans” will take place on 30th of June and 1st of July in Skopje, North Macedonia. This event is co-organized by the “Balkans Enforcement Strengthening Project (BESP)” funded by the Dutch Ministry of Foreign Affairs and implemented by the Center for International Legal Cooperation (CILC) and the project “Legal Reform for Economic Development in the Western Balkans” financed by the German Federal Ministry for Economic Development and Cooperation (BMZ) and implemented by Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ). The event is organized in cooperation with the Hague Conference on Private International Law (HCCH) and the International Union of Judicial Officers (UIHJ).

The aim of the Regional Forum is to exchange and debate on the prospects and benefits of the HCCH 2019 Judgments Convention for the Western Balkans in the presence of representatives from the Ministries of Justice, Ministries of Foreign Affairs, Judicial Training Institutions, Chambers of Enforcement Agents, and legal experts. The forum is structured in six thematic sessions with contributions from different stakeholders.

The Regional Forum will be officially opened by Dr. Nikola Tupancheski, Minister of Justice of the Republic of North Macedonia, Dr. Christophe Bernasconi, Secretary General at The Hague Conference of Private International Law (HCCH) and Mr. Jos Uitdehaag, Vice-President of the International Union of Judicial Officers (UIHJ).

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

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

R. Wolfram: Achmea – neglecting of international public law – some afterthoughts

This contribution is not meant to assess the Achmea judgment of the European Court of Justice. It intends instead to throw some light on the rules of public international law on the termination of international treaties, which have not fully been taken into account by those who attempted to implement the Achmea judgment. At the core of is the question whether the incompatibility of a treaty under international law with another international law treaty leads to the automatic non-applicability of the former. The contribution concludes this is not generally the case under the Vienna Convention on the Law of Treaties.

P. Schlosser: Jurisdiction Agreements and other Agreements integrally Covered by European Law

1. Certain contracts are particularly close to the law of the European Union. They include international jurisdiction agreements, contracts creating an exception in European law, to generally prohibited contracts, and contracts providing the use of European Trademarks and other European rights valid even against third persons.
2. The fundamental proposal of the author is, that the legal effects of the violation of rights, provided by such contracts, must be found in European, rather than in national law. That law is particularly concerned about its effectiveness, if needed by a creative approach.
3. In German law the legal consequences of such a violation must include, inspired by French law, an indemnification of a lost chance and a more liberal approach to moral (immaterial) damage.

S. Schwemmer: A conflict of laws doctrine for the transfer of bitcoin, crypto securities and other crypto assets

Cryptoassets like Bitcoin are entries in a distributed ledger. As such, they do not fall within any of the traditional categories of property. However, most jurisdictions are slowly working their way to recognize them as property. Even German law now allows for tokenized bearer bonds and defines special transfer requirements. On the level of conflict of laws, this results in a growing need to define the applicable law relating to the assignment of cryptoassets. These questions are not regulated by the written general conflict of laws rules under German law. While § 32 eWpG now provides a special conflict of laws rule for electronic securities, there is still a regulatory gap for other types of tokens. The article discusses possible solutions for the different types of cryptoassets.

B. Heiderhoff/E. Yalcin: International jurisdiction in cases, where services are provided in several Member States

The determination of international jurisdiction under Article 7(1)(b), second indent, of the Brussels Ia Regulation is highly difficult in cases where services are provided in different Member States. The decision of the OLG München (Higher Regional Court of Munich) regarding a brokerage contract shows that it is not always possible to determine the place of main performance. This article discusses if, in such cases, the place where the service provider is domiciled should be considered as the place of performance. The authors conclude that this approach only fits if at least a part of the service was provided at the service provider’s domicile.

W. Hau: International jurisdiction based on nationality in European family law

For almost a quarter of a century, there has been an intensive debate on whether the European legislator is allowed to open international jurisdiction in matrimonial matters for nationals of the forum state earlier than for nationals of other Member States. Now the CJEU has taken the view that such a rule is in line with the prohibition of discrimination provided for in Article 18 TFEU. The reasoning given for this is not particularly profound and leaves some questions unanswered, but it may at least contribute to a welcome reassurance in the area of European family law, in which very deep differences between the legal policy positions of the Member States have become apparent in recent years.

C. González Beilfuss: Forum non conveniens in a European way: a failed dialogue

In the decision commented on here, the CJEU decided for the first time on the interaction of Article 6(a) and Article 7(a) of the Succession Regulation and emphasized the binding effect of the decision to decline jurisdiction for the court later seized. The second court is not permitted to review the decision to decline jurisdiction by the first court. This article analyzes the decision in particular with regard to the lack of communication between the courts, which would have facilitated the smooth interplay between both jurisdiction rules.

B. Hess: Exequatur sur exequatur vaut? The CJEU enlarges the free movement of decisions coming from third states under the Brussels Ibis Regulation

In the judgment C-568/20, the CJEU held that a decision of a court of an EU Member State which merges a judgment of a third state is enforceable under Articles 39 ss of the Brussels Ibis Regulation. The Third Chamber argued that the concept of “judgment” in Articles 2(a) and 39 of the Brussels Ibis Regulation refers to the different procedural laws of EU Member States. Burkhard Hess criticizes this deviation from the uniform and autonomous interpretation of the Brussels Ibis Regulation. The solution of the Third Chamber is not compatible with the principle “exequatur sur exequatur ne vaut”.

C. Thole: The law applicable to voidable payments by third parties under Article 16 EIR

In its judgment of 22 April 2021 the ECJ decided that Article 16 EIR must be interpreted as meaning that the law applicable to the contract also governs the payment made by a third party in performance of a contracting party’s contractual payment obligation, where, in insolvency proceedings, that payment is challenged as an act detrimental to all the creditors. The following article explains the decision and its consequences for cross-border avoidance claims.

D. Wiedemann: Lex successionis or lex fori: on the classification of judicial measures in the event of uncertain inheritance relationships

The decision concerns a classical question of classification: the delimitation of succession law from procedural law. The classification of judicial measures in the event of uncertain inheritance relationships, e.g. the appointment of a curator, decides whether such measures are to be assessed according to the procedural law of the lex fori or according to the lex successionis. That a classification is not predetermined can be inferred from different locations: While Germany regulates judicial measures regarding uncertain inheritance relationships in its substantive law (Sections 1960–1962 German Civil Code), other EU Member States and Brazil mainly address this problem in their procedural laws. In the EU, the Succession Regulation No. 650/2012 defines the boundary between succession law and procedure. It will be argued that measures only securing the estate are to be classified as procedural aspects. Measures that also involve the administration of the estate are governed by the Regulation’s choice of law rules.

R. de Barros Fritz: The characterization of gifts causa mortis under the ESR

One of the most debated questions since the enactment of the ESR has been the question of the proper characterization of gifts causa mortis. The UM case presented the first opportunity for the CJEU to address this issue. The following case note will discuss the court’s decision and show that, even after the court’s ruling, many open questions remain as to the characterization of gifts causa mortis.

C. Thomale: Circumventing Member State co-determination rules with the Societas Europaea

Since its introduction, the supranational legal form of the SE, provided by EU law, has been widely used to circumvent national co-determination law. The case note dicusses two German decisions, which highlight the specific arbitrage potential lying in the national component of the company law and co-determination law of the SE as well as in its autonomous co-determination rules.

D. Looschelders: Characterization of German joint wills under the EU Succession Regulation – the Austrian perspective

Whether the binding effects of a joint will underlie German or Austrian law is of great practical importance when successions are connected to both jurisdictions. While under German law the revocation right of an interrelated disposition lapses upon death of the other spouse, Austrian law enables the surviving spouse to revoke his interrelated disposition even after death of the other spouse. Against this background, the subsequently discussed ruling by the Austrian Supreme Court (OGH) deals with the crucial question regarding the connecting factor for binding effects, namely whether joint wills under German law have to be characterized as “dispositions of property upon death other than agreements as to succession” (Article 24 EU Succession Reg.) or as “agreements as to succession” (Article 25 EU Succession Reg.). The OGH declared itself in favour of applying Article 25 EU Succession Regulation.

F. Eichel: International enforcement of judgments subject to a condition – exequatur proceedings and international jurisdiction

The article deals with the international enforcement of judgments which are subject to a condition. Against the background of the exequatur proceedings, it sheds light on the question in which proceedings and in which state it is examined whether the condition has occurred. German, Austrian and Swiss procedural law is taken into account. Furthermore, the article examines the scope of the enforcement jurisdiction (Article 24(5) Brussels Ibis Regulation/Article 22(5) Lugano Convention) for these kinds of proceedings and agrees with the decision of the Austrian Supreme Court (OGH, 7.6.2017 – 3 Ob 89/17k). The OGH held that the Austrian claim to examine the occurence of the condition falls within the scope of the enforcement jurisdiction. However, the article criticises that the OGH did not take into account the limited res iudicata-effect of the Austrian claim which should be decisive in determining whether the enforcement jurisdiction is applicable or not.

A. Kirchhefer-Lauber: On the interreligious division of law and the significance of the culture-bound nature of law – illustrated by the Lebanese distinction between constitutive religious marriages and civil registration acts

Private law systems with an interpersonal division of law always pose special challenges for conflict of laws. The article deals with the interplay between autonomous German IPR and the internal conflict of laws of a multi-jurisdictional state using the example of Lebanon, which is home to a total of 18 partial religious legal systems in addition to a “civil legal system”. The author analyses, among other things, court decisions in which the distinction between constitutive religious marriage and civil documentation of marriage in Lebanon plays a central role. She also addresses the fact that the possibility of an ordre public violation in legal systems with a division of laws exists on two levels. Firstly, regarding the internal conflict of laws of the multi-jurisdictional state itself and secondly, with regard to the results through the application of a partial legal system. Finally, she highlights that the interpretative method of comparative law between civil and religious partial legal orders requires a special awareness of the importance of the culture-bound nature of law.

Material:

Recommendation of the European Group for Private International Law (GEDIP/EGPIL) to the European Commission concerning the Private international law aspects of the future Instrument of the European Union on [Corporate Due Diligence and Corporate Accountability]

The law applicable to rights in rem in tangible assets – GEDIP – document adopted at the virtual meeting 2021

Notifications:

H. Kronke: Ulrich Drobnig (1928–2022)

M. Petersen Weiner/M.L. Tran: The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law – Conference, September 9-11th, 2021 in Hamburg

C. Kohler: Private international law aspects of Corporate Social Responsibility – Conference of the European Group for Private International Law (GEDIP/EGPIL) 2021

On Tuesday, July 5, 2022, the Hamburg Max Planck Institute will host its 24th monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CEST). Univ.-Prof. Mag. Dr. Brigitta Lurger (University of Graz) will speak, in German, about the topic

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

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

The new website of the Rivista di diritto internazionale privato e processuale (RDIPP) has just been launched and is available at rdipp.unimi.it.

Giving access to the complete collection of the journal’s Indexes (available both in Italian and in English), a set of useful databases to browse the journal’s content, and the Table of Content of the volumes published in the Book Series Studi e pubblicazioni della Rivista di diritto internazionale privato e processuale, this new online resource is designed to disseminate the wealth of knowledge accrued with more than fifty years of Italian and European scholarship and case-law in the field of private international and procedural law.

A weekly newsletter is expected to be launched in the upcoming months to keep our community updated on the latest developments in this area of the law. You can already subscribe to it in the RDIPP network section of the website.

From the Directors and the Editorial Board of RDIPP, a very warm welcome to our pages!

The RDIPP team

With thanks to Professor Francesca C. Villata for the tip-off.

A new member has joined the editorial team of the EAPIL blog: Erik Sinander.

Erik is a senior lecturer in private international law at the Stockholm University. Being specialized also in labour law, he hopes to contribute to the blog with posts about e.g. private international labour law as well as general developments in the field of private international law from the Nordic countries.

His first post has just been published.

Welcome, Erik!

The Swedish Supreme Court held in a decision of 8 April 2022 (case Ö 4651-21) that a defendant domiciled in Denmark can be ordered to produce documents to a Swedish court without assistance or allowance from Danish authorities.

The issue arose in the framework of proceedings for maintenance brought by a daughter in Sweden against her father, based in Denmark. The former asked the court to order that the latter produce such Danish annual tax assessment notices he could access through the Danish tax authority’s web page. When the father refused to produce the notices in question, the district court declined the subpoena on producing documents and ruled on the matter. The court of appeal changed the district court’s decision and held that the father should produce the documents. Against this background, the Swedish Supreme Court granted a review permit for the issue regarding the production of digital documents when the defendant is domiciled abroad.

The Supreme Court explained that, on the basis of sovereignty, the starting point is that a court can only take evidence abroad if the foreign state has approved for it. Hence, a Swedish court is limited to the taking of evidence that can be made in Sweden. In international situations, a Swedish court can ask foreign authorities for assistance in the taking of evidence abroad. Sweden is bound both by the 1970 Hague Evidence Convention and by the 1974 Nordic Evidence Convention. In addition to these conventions, there is also Regulation 1206/2001 on cooperation between the courts of the Member States (except Denmark) in the taking of evidence in civil or commercial matter, which will be replaced by Regulation 2020/1783. According to the Swedish Supreme Court, it is not necessary to apply the international conventions or the EU regulation when the production of documents concern documents available online.

Pursuant to Swedish procedural law, a party possessing a document that supposedly may have importance as evidence must produce the document to the court. The obligation to produce a document is, according to the preparatory works, intended to be of the same extent as the obligation to testify orally before the court. In assessing whether the Danish father could be considered to have possession of the tax assessment notices, the Supreme Court stated that possession for the taking of evidence should be interpreted broadly. In addition to referring to Swedish literature on the procedural code, the Swedish Supreme Court also referred to the requirement for possession as stated in Article 3 of the International Bar Association’s Rules on the Taking of Evidence in International Arbitration (2020) for a broad interpretation of the possession requirement for taking of evidence. The Swedish Supreme Court held that the possession requirement is met for digital documents stored on the internet when a person has an unconditional access to the document.

Even if the order to produce documents available online in fact is extraterritorial, the extraterritorial effect is not judicial, the Supreme Court continued. Therefore, it is irrelevant where the digital information is stored. If the person ordered to produce documents is domiciled abroad and the document is stored abroad, the legal possibility for the Swedish court is limited. Still, in such situations a Swedish court may order someone to produce documents under penalty of a fine just like in domestic situations unless the order forces the obliged person to act contrary to the laws of another country.

With Case C?265/21, the CJEU is bound to add another chapter to the never-ending story of accurately describing the scope of the head of special jurisdiction for contracts in what is today Art. 7(1) Brussels Ia. The Opinion by AG Szpunar, which was published last week, might give readers an indication of what to expect.

The case arises out of an action for a declaration that the claimants are the owners of 20 works of art, which are currently in their possession. While the claimants argue that they have bought the pieces from their (step)mother, who had bought them from their two creators (the parents of the defendant), the defendant, a German domiciliary, claims that her parents had only temporarily stored the works in the gallery of the claimants’ (step)mother in Liège, Belgium. The case was dismissed in the first instance for lack of international jurisdiction as the Belgian court found itself unable to establish a contractual connection linking the claimants to the defendant.

On the claimants’ appeal, who argue that the claim should nonetheless be qualified as contractual in light of the two sales contracts (between the defendant’s parents and the claimants’ (step)mother and between their (step)mother and themselves), with both relevant places of performance being located in Belgium, the Cour d’appel de Bruxelles referred the following questions to the CJEU:

1. Must the concept of ‘matters relating to a contract’, within the meaning of Article 5(1) of Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘the Brussels I Regulation’):

a. be interpreted as requiring the establishment of a legal obligation freely assumed by one person towards another, which forms the basis of the applicant’s action, and is that the position even if the obligation was not freely assumed by the defendant and/or towards the applicant?

b. If the answer is in the affirmative, what must the degree of connection between the legal obligation freely assumed and the applicant and/or the defendant be?

2. Does the concept of ‘action’ on which the applicant ‘relies’, like the criterion used to distinguish whether an action comes under the concept of matters relating to a contract, within the meaning of Article 5(1) of the Brussels I Regulation, or under ‘matters relating to tort, delict or quasi-delict’, within the meaning of Article 5(3) of that regulation (C-59/19, paragraph 32), entail verification of whether the interpretation of the legal obligation freely assumed seems to be indispensable for the purpose of assessing the basis of the action?

3. Does the legal action whereby an applicant seeks a declaration that he or she is the owner of an asset in his or her possession in reliance on a double contract of sale, the first entered into by the original joint owner of that asset (the spouse of the defendant, who is also an original joint owner) with the person who sold the asset to the applicant, and the second between the latter two parties, come within the concept of matters relating to a contract within the meaning of Article 5(1) of the Brussels I Regulation?

a. Is the answer different if the defendant relies on the fact that the first contract was not a contract of sale but a contract of deposit?

b. If one of those situations comes within the concept of matters relating to a contract, which contract must be taken into consideration for the purpose of determining the place of the obligation which serves as the basis of the claim?

4. Must Article 4 of Regulation (EC) No 593/2008 of 17 June 2008 on the law applicable to contractual obligations (Rome I) be interpreted as applying to the situation referred to by the third question referred for a preliminary ruling and, if so, which contract must be taken into consideration?

After quickly dismissing the fourth question (which the Cour d’appel might indeed have referred somewhat prematurely at this stage), the Opinion (which is not available in English), starts with a comprehensive review of the Court’s case law on the interpretation of what is now Art. 7(1) Brussels Ia. It culminates in the following summary (references ommitted; own emphasis):

65. Eu égard aux considérations qui précédent, il y a lieu de constater, en premier lieu, que la jurisprudence de la Cour relative à l’interprétation de la notion de « matière contractuelle », au sens de l’article 5, point 1, du règlement nº 44/2001, ne saurait être considérée comme uniforme, ce qui
explique les difficultés rencontrées par les juridictions nationales pour déterminer, encore aujourd’hui, si les litiges relèvent ou non de cette matière.

66. En effet, initialement, la Cour s’est orientée vers une interprétation restrictive de la notion de « matière contractuelle », en considérant que seuls les litiges trouvant leur origine dans un contrat entre les parties au litige relevaient de cette matière. Dans le cadre de cette interprétation, la Cour s’est référée, essentiellement, à l’objectif de prévisibilité et de sécurité juridique de la convention de Bruxelles ou du règlement nº 44/2001.

67. La Cour s’est ensuite orientée vers une interprétation plus large de la notion de « matière contractuelle », en considérant qu’un litige relève de cette notion lorsque le demandeur fonde l’action qu’il dirige contre le défendeur sur une obligation juridique librement consentie par une personne envers une autre. C’est dans l’arrêt Engler que la Cour a, pour la première fois, indiqué clairement qu’elle n’interprète « pas [l’article 5, point 1, du règlement nº 44/2001] de manière étroite ». C’est ensuite dans les arrêts Kareda et flightright, confirmés dans la jurisprudence ultérieure, qu’elle a abandonné définitivement l’interprétation restrictive de cette disposition fondée sur l’approche « personnaliste » de la matière contractuelle, issue de l’arrêt Handte, pour adopter une interprétation plus large.

68. En second lieu, il ressort de cette interprétation plus large que l’action d’un demandeur, même introduite contre un tiers, doit être qualifiée de « contractuelle », au sens de l’article 5, point 1, du règlement no 44/2001, dès lors qu’elle se fonde sur une obligation juridique consentie par une personne à l’égard d’une autre. Par conséquent, la circonstance que, en l’espèce, les deux parties au litige ne sont pas directement liées par un contrat ne saurait remettre en cause la qualification de cette action comme relevant de la « matière contractuelle ». En effet, seul importe le fait que l’obligation juridique dont se prévalent les requérants au principal soit née d’un contrat, entendu comme un accord entre deux personnes, ou d’une relation juridique qui peut être assimilée à un contrat dans la mesure où elle crée des « liens étroits de même type que ceux qui s’établissent entre les parties à un contrat ».

69. Dans le cadre de cette interprétation plus large, il ressort des arrêts Kareda et flightright que la Cour s’est référée non seulement à l’objectif de prévisibilité et de sécurité juridique mais également à celui de proximité et de bonne administration de la justice.

70. Ainsi, lorsque l’obligation contractuelle sur laquelle est fondée l’action du demandeur a été identifiée, il y a lieu de déterminer s’il existe un lien de rattachement particulièrement étroit entre la demande et la juridiction qui peut être appelée à en connaître, ou si l’application de l’article 5, point 1, du règlement nº 44/2001 permet de faciliter la bonne administration de la justice. À mon sens, il y a donc lieu de veiller au respect de l’équilibre entre l’objectif de prévisibilité et de sécurité juridique et celui de proximité et de bonne administration de la justice de ce règlement.

…

75. Eu égard aux considérations qui précèdent, je propose de répondre à la première question préjudicielle que l’article 5, point 1, du règlement nº 44/2001 doit être interprété en ce sens que son application présuppose la détermination d’une obligation juridique librement consentie par une personne à l’égard d’une autre et sur laquelle se fonde l’action du demandeur, même lorsque cette obligation ne lie pas directement les parties au litige. Dans l’interprétation de cette disposition, la juridiction nationale doit veiller au respect de l’équilibre entre l’objectif de prévisibilité et de sécurité juridique et celui de proximité et de bonne administration de la justice.

On this basis, AG Szpunar proceeds to point out, in response to the second question (which he reformulates for that purpose), that nothing in the Court’s decision in Wikingerhof requires the national court to examine the contractual obligation in question or the content of the contract (paras. 76–80).

As to the third question, AG Szpunar reiterates that he understands the claim to be contractual in nature as it is ultimately based on an obligation freely entered into, even though the particular contract does not bind the two parties to the dispute (para. 83). Out of the two contracts, the AG deems the first one (the contract between the defendant’s parents and the claimants’ (step)mother) to be decisive for jurisdictional purposes “la source originale des droits et obligations litigieux.” (para. 84).