Droit international général

Kumlin & Anor v Jonsson & Ors [2022] EWHC 1095 (QB) disciplines forum shopping, in this case libel tourism, in a claim that is considered a SLAPP: a Strategic Lawsuit against public participation.

First Claimant is an entrepreneur, businessman and investor in sustainable and ethical business ventures, resident in Monaco, with business interests in the UK including in the Second Claimant, of which he is the founder, Chairman and Chief Executive Officer. He is a Swedish citizen. Second Claimant is a public limited company registered in England and Wales. Claimants’ case is that between 29 September 2020 and 2 November 2020 the Defendants, or some of them, all of whom are Swedish, published or caused to be published on the Website eight articles concerning the Claimants. There was further publication via Facebook, Twitter, etc, where links to the Articles were posted. 

The Articles are in Swedish. Knowles J [30] advances the reasoning, proposed by defendants, that jurisdiction under any of the gateways as a result of A4 BIa, locus damni or locus delicti commissi (A7(2) BIa per CJEU Bier and Shevill), or centre of interests (A7(2) BIa, per CJEU eDate and Bolagsupplysningen) only exist to the degree the case is actually actionable in those cases which, he submits, requires reference to the domestic laws of those Member States (e.g. a minimum ‘publication’ threshold). I believe this is incorrect: jurisdiction and actionability are not the same. While lex fori on threshold issues will have an immediate impact on the practical reality of a claim, it does not stand in the way of principled jurisdiction under BIa, which exists without reference to national laws.

The judge refers to much CJEU and E&W authority, all of it discussed on this blog, most recently the Court of Appeal in Mincione.

Knowles J’s discussion eg [69] ff of the intensity of publication etc required, under residual double actionability rules, in my view is a threshold question and not, as it is presented, a jurisdictional, gateway question, albeit the analysis in this section is mixed with justifiable discussion of direct v indirect damage under the CJEU Marinari rule. The judgment is much more extensive on this point than it could have been in my opinion.

[224] it is concluded that on the centre of interest issue, which is relevant for the natural person claimant only, his centre of interests is Monaco, where he is habitually resident. That is a factual assessment which is unlikely to be material for an appeal.

Geert.

EU private international law, 3rd ed. 2021, 2.439 ff.

#slapp, CJEU Bolagsupplysningen claxon. I have not yet seen the actual judgment. Should be an interesting jurisdictional read. https://t.co/yibMYgKcgz

— Geert Van Calster (@GAVClaw) May 11, 2022

The following conference report has been provided by Benjamin Saunier, Research Assistant at the Université Paris 2 Panthéon-Assas and Doctoral Candidate at the Université Paris 1 Panthéon-Sorbonne.

The EAPIL Young Research Network held a conference on the topic Jurisdiction over non-EU defendants – Should the Brussels Ia Regulation be extended? on Saturday 14 and Sunday morning 15 May. The conference took place in Dubrovnik, Croatia, at the International University Centre operated by the University of Zagreb, which had co-funded the event together with the EU Commission. It gathered specialists from all over the world, including the non-EU Member States.

The conference was part of an ongoing research project directed by Drs Tobias Lutzi (Cologne/Augsburg), Ennio Piovesani (Torino) and Dora Zgrabljic Rotar (Zagreb). As explained by the organisers at the outset of the conference, the project, launched in June 2021, was inspired by Article 79 of the Brussels Ia Regulation, which provides for the EU Commission to come up with a report on the application of the Regulation, addressing in particular the need to extend its rules to defendants not domiciled in a member state. While the report has yet to be released, the organisers rightly felt it was of great interest to compare the practice of Member States for those cases where the defendant is not subject to rules of direct jurisdiction in the Regulation.

A questionnaire on autonomous, national law on international jurisdiction was sent last year to the 23 participants in the project, who cover 17 Member States of the EU. The questionnaire contained the following questions (here summarised):

– What are the sources of rules on international jurisdiction in your country?
– How is the domicile defined for jurisdictional purposes? Is there a general rule of jurisdiction based on a ground other than domicile of the defendant?
– Is there a forum necessitatis? What are the equivalents of the Regulation Article 7(1) for contractual claims, 7(2) for torts, 8(1) for close connection between defendants, and the equivalents of protective heads of jurisdiction such as the one for consumer law disputes?
– Is your country party to any (bilateral or multilateral) treaty that provides direct rules of jurisdiction in civil and commercial matters?

The national reports were submitted last February and the organisers were able to share some of their (preliminary) conclusions, which will eventually make their way into a book along with the national reports and some of the interventions heard in Dubrovnik. Not all of the findings could be introduced in this report, which only serves as a short teaser for the book.

Tobias Lutzi pointed out that most of the states surveyed, which already make up for the majority of the EU Member States, have adopted specific rules for international jurisdiction. Some of these countries have already extended the rules of the Regulation, or taken substantial inspiration from them. Even courts of the member states that have not adopted specific rules on international jurisdiction did on some occasion take some inspiration from the EU rules when applying the principle of ‘double functionality’, which sees international jurisdiction as entailed by local jurisdiction. This was addressed in details by the members of the first panel of Saturday, which focused on the topic of the influence of EU law on national rules and was composed of Tess Bens, Dr Stefano Dominelli, Dr Dafina Sarbinova and Benjamin Saunier.

Dora Zgrabljic Rotar remarked that in most countries, the same definition of the domicile was applied in international and domestic cases for jurisdictional purposes (which is not to say that the definition itself is the same in all those countries). The majority of the jurisdictions surveyed use the statutory seat as well as the actual seat in order to determine the domicile of a legal person. As for bases of general jurisdiction apart from the defendant’s domicile, most of the countries surveyed seem to have one, be it habitual residence, mere presence, or property of the defendants. Only two of these countries still give relevance to nationality of either party to a litigation in that regard. The existence of a forum necessitatis is also a distinctive feature of the countries implementing it. Speakers of the second panel of Saturday (Vassiliki Marazopoulo, Giedirius Ožiunas, Dr Ioannis Revolidis, Dr Anna Wysocka-Bar), dealing with the peculiarities of autonomous law of the Member States, all had the opportunity of explaining, among other things, whether or not, and why, their home jurisdiction had a forum necessitatis rule.

The third panel of Saturday, composed of Professors Ronald Brand, Burkard Hess and Margerita Salvadori addressed the issue of “extending the Brussels Ia Regulation”, which echoes the project title “should the Regulation be extended?”. The panellists put things in a broad perspective, addressing the discrimination (Ronald Brand) and recognition and enforcement of judgements issues (Burkard Hess) that would be associated with an extension (or non-extension) of the Regulation, as well as the possibility of following a method based on reciprocity in an extended Regulation (Margerita Salvadori).

Participants were also provided with a look at the “bigger picture” thanks to the presentations on Sunday. Dr Johannes Ungerer for the UK and Dr Marko Jovanovic for Serbia both presented third state perspectives. Finally, Dr Ning Zhao gave a thorough presentation of the negotiations held in the Hague Conference since the early 1990s on the issues discussed at the conference, their achievements so far (2005 Choice-of-Court Agreements and 2019 Judgements conventions) and orientations.

The interventions and exchange among participants made for two very pleasant days. The gorgeous setting of Dubrovnik also played its part in making the conference a great success. As Ronald Brand put it, the question asked in the project title raises multiple further questions, so that it can be hoped that no matter what the future holds for the Brussels Ia Regulation, projects such as this one will be happening more and more.

In his PhD thesis Normen als tatsächliche Umstände (Rules as factual circumstances), published in 2021, Alexander Kronenberg analysis how overriding mandatory provisions (OMPs) can be considered at the level of substantive law and how this practice relates to Article 9 of the Rome I Regulation. The thesis examines this question against a comprehensive evaluation of case law and literature. It offers its own explanatory approach as well as a method for the consideration of OMPs within substantive law.

The question how non-forum OMPs should be dealt with has been keeping courts busy for quite some time. The highest judicial ruling on this issue came from the CJEU in Nikiforidis. A more recent case, decided by the Higher Regional Court of Frankfurt (16 U 209/17), concerned an airline’s refusal to carry an Israeli national through a Kuwaiti airport, which it the court’s view was not a breach of contract given the Kuwaiti boycott against Israel. The war in Ukraine and the accompanying sanctions imposed by various states equally raise the question of the extent to which sanctions adopted by other, friendly states can be taken into account under the applicable contract law.

The thesis is thus highly topical. The author describes the content as follows:

Foreign OMPs have been subject to academic debate for a long time. Under the regime of the Rome I Regulation on the law applicable to international contracts, the CJEU’s Nikiforidis judgment of 18 October 2016 (C-135/15) was an important milestone with respect to the interpretation of Article 9 Rome I Regulation, the central provision on OMPs in international contract law. The Court held that Art. 9(3) of the Rome I Regulation is to be interpreted as meaning that OMPs other than those of the forum or those of the lex loci solutionis can neither be applied nor be given effect, as legal rules, by the court of the forum. However, this does not preclude a Member State court from, in the words of the Court, taking such other OMPs “into account as matters of fact in so far as this is provided for by the [applicable] national law”.

This “substantive law level consideration” (“sachrechtliche Berücksichtigung”) is the subject of this dissertation. The CJEU did not deal with the issue in further detail, as it concerns the substantive law of each state and not the European private international law rules. The dissertation develops an overall concept for taking foreign OMPs into consideration as a matter of fact within German substantive contract law.

The book first gives a brief overview of the phenomenon of OMPs and of the provisions and interpretation of Art. 9 of the Rome I Regulation and then moves on to establish that the CJEU was right in considering that Art. 9(3) of the Rome I Regulation bars foreign OMPs not enacted by the state of performance from being taken into account on the conflict-of-law level.

Having stated that a conflict-of-law level consideration of these OMPs is not possible, the book then deals with the possibility of taking them into account as matters of fact on the substantive law level. This type of consideration is in a first step described as being aimed exclusively at the factual circumstances caused by the OMPs in question. These can consist in their enforcement by the enacting state, in third parties essential to the performance of the contract respecting them, or in the influence on the freedom of action of the parties themselves. Because of the factual nature of the consideration, these OMPs cannot influence the legal outcome of a given case in a normative way. It is then demonstrated what this means from a methodological perspective: While applying the substantive law designated by the Rome I Regulation with recourse to the legal syllogism, the OMPs may only form part of the minor premise, which is factual in nature, and must be excluded from the, normative, major premise.

Construed in this factual sense, the taking into consideration of OMPs within the applicable substantive law is not prohibited by the European Rome I Regulation. This is, inter alia, substantiated with the consideration that the opposite approach, i.e., outright ignoring the existence and factual consequences of foreign OMPs while applying the substantive law would violate European fundamental rights.

The work then goes on to show that although the Rome I Regulation neither prohibits nor imposes the substantive law level consideration, this consideration nevertheless is required from the perspective of substantive law. Ignoring factual circumstances exclusively because they are the result of foreign OMPs would lead to an impairment of the functioning of the abstract and general provisions of substantive civil law, and thus, ultimately, to a violation of the principle of equality (Gleichheitssatz). Also, it would violate the fundamental rights of the German Grundgesetz.

Following these considerations, the book develops how the substantive law level consideration is carried out. To achieve this, German case law from the period before the Rome I Regulation came into force is analysed in depth. German courts had already previously resolved cases involving foreign OMPs by taking these OMPs into account within provisions of the applicable contract law. For example, they held that the factual consequences of OMPs could amount to a liberation of the debtor from his obligation due to impossibility, or that a contract which can only be performed by violating a foreign OMP can be void due to immorality.

The dissertation then analyses the so-called datum theory and shows that it is conceived as a way of taking into account unapplicable foreign law provisions as such, i.e., as norms. This theory is therefore discarded as a possible theoretical basis for the substantive law level consideration of OMPs, as this consideration must be exclusively factual.

The analysed case law is then examined for transferability to the Rome I regime. It is shown that the consideration via the immorality provision (§ 138 of the German Civil Code) is in fact a normative consideration of foreign OMPs and can therefore not be applied in cases under the Rome I Regulation. Therefore, alternative ways of resolving these cases under today’s law are developed. The work concludes with the presentation of additional provisions of German contract law that are suited for the substantive law level consideration and, until now, have not been present in German case law.

Many thanks to Olivera Boskovic and Caroline Kleiner for this post.

Monday 30 and Tuesday 31 May 2022
Paris Cité University

The determination of jurisdiction and applicable law in the field of non-contractual obligations largely depends on the localisation of damage. However, this can prove to be very difficult, or even impossible. What is the current method used by courts? Are there divergent approaches between the EU and non-EU countries?

The conference will tackle these questions by addressing first, the localisation in different sectors (competition law, financial law, product liability, personality rights, intellectual property and environment). The idea, here, is to confront the EU approach with the approach of non EU countries. Second, a series of round tables aim at analyzing whether there are particular influences on the method of localisation depending on various elements relating either to the content of the actions, or to the nature of the legal situation, or in relation to subjective factors.

The conference is convened by Olivera Boskovic and Caroline Kleiner.

Speakers include Laurence Idot, Ugljesa Grusic, Aline Tenenbaum, Dmitriy Galushko, Etienne Farnoux, Veronica Ruiz Abou-Nigm, Ludovic Pailler, Symeon C. Symeonides, Tristan Azzi, Zhengxing Huo, Yuko Nishitani, Sandrine Clavel, François Mailhé, Cyril Nourissat, Yves El Hage, Matthias Lehmann, Sarah Laval, Maude Minois, Pascal de Vareilles-Sommières.

The full programme is here.

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

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

 

P. Hay: On the Road to a Third American Restatement of Conflicts Law

American private international law (Conflict of Laws, “Conflicts Law”) addresses procedure (jurisdiction of courts, recognition of judgments) as well as the choice of the applicable law. The last of these has been a mystery to many scholars and practitioners – indeed, even in the United States. Since 2014 the American Law Institute2 now seeks to draft a new “Restatement” – the Third – of the subject, with the aim to clarify and perhaps to bring more uniformity to the resolution of conflict-of-laws problems. The following comments first recall the role of restatements in American law. The second part provides some historical background (and an assessment of the current state of American conflicts law, as it relates to choice of law) in light of the Second Restatement, which was promulgated in 1971. The third part addresses the changes in methodology adopted and some of the rules so far proposed by the drafters of the future new Restatement. Examples drawn from existing drafts of new provisions may serve to venture some evaluation of these proposed changes. In all of this, it is important to bear in mind that much work still lies ahead: it took 19 years (1952–1971) to complete the Second Restatement.

 

L. Hübner: Climate change litigation at the interface of private and public law – the foreign permit

The article deals with the interplay of private international law, substantive law, and public law in the realm of international environmental liability. It focuses on the question, whether the present dogmatic solution for the cognizance of foreign permits in “resident scenarios” can be extended to climate change scenarios. Since there exists significant doubts as to the transferability of this concept, the article considers potential solutions under European and public international law.

 

C. Kohler: Recognition of status and free movement of persons in the EU

In Case C-490/20, V.M.A., the ECJ obliged Bulgaria to recognise the Spanish birth certificate of a child in which two female EU citizens, married to each other, were named as the child’s parents, as far as the implementation of the free movement of persons under EU law was concerned, but left the determination of the family law effects of the certificate to Bulgarian law. However, the judgment extends the effects of the recognition to all rights founded in Union law, including in particular the right of the mobile Union citizen to lead a “normal family life” after returning to his or her country of origin. This gives the ECJ the leverage to place further effects of recognition in public law and private law under the protection of the primary and fundamental rights guarantees of EU law without regard to the law applicable under the conflict rules of the host Member State. The author analyses these statements of the judgment in the light of European and international developments, which show an advance of the recognition method over the traditional method of referral to foreign law in private international law.

 

W. Hau: Interim relief against contracting authorities: classification as a civil and commercial matter, coordination of parallel proceedings and procedural autonomy of the Member States

After a Polish authority awarded the contract for the construction of a road to two Italian companies, a dispute arose between the contracting parties and eventually the contractors applied for provisional measures in both Poland and Bulgaria. Against this background, the ECJ, on a referral from the Bulgarian Supreme Court of Cassation, had to deal with the classification of the proceedings as a civil and commercial matter and the coordination of parallel interim relief proceedings in different Member States. The case also gave the ECJ reason to address some interesting aspects of international jurisdiction under Article 35 of the Brussels Ibis Regulation and the relationship between this provision and the procedural laws of the Member States.

 

M. Thon: Jurisdiction Clauses in General Terms and Conditions and in Case of Assignment

Choice of court agreements are one of the most important instruments of international civil procedure law. They are intended to render legal disputes plannable and predictable. The decision under discussion comes into conflict with these objectives. In DelayFix, the CJEU had to deal with the question of whether (1.) Art. 25 of the Brussels Ibis Regulation is to be interpreted as precluding a review of unfairness of jurisdiction clauses in accordance with Directive 93/13/EEC and whether (2.) an assignee as a third party is bound by a jurisdiction clause agreed by the original contracting parties. The first question is in considerable tension between consumer protection and the unification purpose of the Brussels Ibis Regulation considering that the Member States may adopt stricter rules. For the latter question, the CJEU makes it a prerequisite that the assignee is the successor to all the initial contracting party’s rights and obligations, which regularly occurs in the case of a transfer of contract, but not an assignment. In this respect, too, the CJEU’s decision must be critically appraised.

 

C.F. Nordmeier: International jurisdiction and foreign law in legal aid proceedings – enforcement counterclaims, section 293 German Code of Civil Procedure and the approval requirements of section 114 (1) German Code of Civil Procedure

The granting of legal aid in cases with cross-border implications can raise particular questions. The present article illustrates this with a maintenance law decision by the Civil Higher Regional Court of Saarbrücken. With regard to international jurisdiction, a distinction must be made between an enforcement counterclaim and a title counterclaim. The suspension of legal aid proceedings analogous to section 148 of the German Code of Civil Procedure with pending preliminary ruling proceedings before the European Court of Justice in a parallel case is possible. When investigating foreign law in accordance with section 293 of the German Code of Civil Procedure, the court may not limit itself to “pre-ascertaining” foreign law in legal aid proceedings. In principle, the party seeking legal aid is not obliged to provide information on the content of foreign law. If the desired decision needs to be enforced abroad and if this is not possible prospectively, the prosecution can be malicious. Regardless of their specific provenance, conflict-of-law rules under German law are not to be treated differently from domestic norms in legal aid proceedings.

 

R.A. Schütze: Security for costs under the Treaty of Friendship, Commerce and Navigation between the Federal Republic of Germany and the United States of America

The judgment of the Regional Court of Appeal Munich deals with the application of the German-American Treaty of Friendship, Commerce and Navigation as regards the obligation to provide security of costs in German civil procedure, especially the question whether a branch of plaintiff in Germany reliefs him from his obligation under section 110 German Code of Civil Procedure. The Court has based its judgment exclusively on article VI of the Treaty and section 6 and 7 of the protocol to it and comes to the conclusion that any branch of an American plaintiff in Germany reliefs him from the obligation to put security of costs.

Unfortunately, the interpretation of the term “branch” by the Court is not convincing.

The court has not taken into regard the ratio of section 110 German Code of Civil Procedure. The right approach would have been to distinguish whether the plaintiff demands in the German procedure claims stemming from an activity of the branch or from an activity of the main establishment.

 

P. Mankowski: Whom has the appeal under Art. 49 (2) Brussels Ibis Regulation to be (formally) lodged with in Germany?

Published appeal decisions in proceedings for the refusal of enforcement are a rare breed. Like almost anything in enforcement they have to strike a fine balance between formalism and pragmatism. In some respects, they necessarily reflect a co-operative relationship between the European and the national legislators. In detail there might still be tensions between those two layers. Such a technical issue as lodging the appeal to the correct addressee might put them to the test. It touches upon the delicate subject of the Member States’ procedural autonomy and its limits.

 

K. Beißel/B. Heiderhoff: The closer connection under Article 5 of the Hague Protocol 2007

According to Article 5 of the Hague Protocol 2007 a spouse may object to the application of the law of the creditor’s habitual residence (Article 3 of the Protocol) if the law of another state has a “closer connection” with the marriage. The Local Court of Flensburg had to decide whether there was a “closer connection” to the law of the state, in which the spouses had lived together for five years in the beginning of their marriage. The criteria which constitute a “closer connection” in the sense of Article 5 of the Protocol have received comparatively little discussion to date. However, for maintenance obligations, the circumstances at the end of marriage are decisive in order to ascertain the claim. Therefore, they should also have the greatest weight when determining the closest connection. This has not been taken into account by the Local Court of Flensburg, which applied the law of the former common habitual residence, the law of the United Arab Emirates (UAE).

The authors also take a critical stance towards the Court’s assessment of public policy under Article 13 of the Protocol. As the law of the UAE does not provide for any maintenance obligations of the wife (as opposed to maintenance obligations of the husband), the Court should not have denied a violation.

 

M. Lieberknecht: Transatlantic tug-of-war – The EU Blocking Statute’s prohibition to comply with US economic sanctions and its implications for the termination of contracts

In a recent preliminary ruling, the European Court of Justice has fleshed out the content and the limitations of the EU’s Blocking Statute prohibiting European companies from complying with certain U.S. economic sanctions with extraterritorial reach. The Court holds that this prohibition applies irrespective of whether an EU entity is subject to a specific order by U.S. authorities or merely practices anticipatory compliance. Moreover, the ruling clarifies that a termination of contract – including an ordinary termination without cause – infringes the prohibition if the terminating party’s intention is to comply with listed U.S. sanctions. As a result, such declarations may be void under the applicable substantive law. However, the Court also notes that civil courts must balance the Blocking Statute’s indirect effects on contractual relationships with the affected parties’ rights under the European Charter of Fundamental Rights.

 

E. Piovesani: The Falcone case: Conflict of laws issues on the right to a name and post-mortem personality rights

By the commented decision, the LG Frankfurt dismissed the action of two Italian claimants, namely the sister of the anti-mafia judge Falcone and the Falcone Foundation, for protection of their right to a name and the said judge’s postmortem personality right against the owner of a pizzeria in Frankfurt. The decision can be criticized on the grounds that the LG did not apply Italian law to single legal issues according to the relevant conflict of laws rules. The application of Italian law to such legal issues could possibly have led to a different result than that reached by the court.

 

M. Reimann: Jurisdiction in Product Liability Litigation: The US Supreme Court Finally Turns Against Corporate Defendants, Ford Motor Co. v. Montana Eighth Judicial District Court / Ford Motor Company v. Bandemer (2021)

In March of 2021, the US Supreme Court handed down yet another important decision on personal jurisdiction, once again in a transboundary product liability context. In the companion cases of Ford Motor Co. v. Eighth Montana District Court and Ford Motor Co. v. Bandemer, the Court subjected Ford to jurisdiction in states in which consumers had suffered accidents (allegedly due to a defect in their vehicles) even though their cars had been neither designed nor manufactured nor originally sold in the forum states. Since the cars had been brought there by consumers rather than via the regular channels of distribution, the “stream-of-commerce” theory previously employed in such cases could not help the plaintiffs (see World-Wide Volkswagen v. Woodson, 444 U.S. 286, 1980). Instead, the Court predicated jurisdiction primarily on the defendant’s extensive business activities in the forum states. The problem was that these in-state activities were not the cause of the plaintiffs’ harm: the defendant had done nothing the forum states that had contributed to the plaintiffs’ injuries. The Court nonetheless found the defendant’s business sufficiently “related” to the accidents to satisfy the requirement that the defendant’s contacts with the forum state be connected to the litigation there. The consequences of the decision are far-reaching: product manufacturers are subject to in personam jurisdiction wherever they are engaged in substantial business operations if a local resident suffers an accident involving merely the kind of product marketed in the forum state, regardless how the particular item involved arrived there. This is likely to apply against foreign corporations, especially automobile manufacturers, importing their products into the United States as well. The decision is more generally remarkable for three reasons. First, it represents the first (jurisdictional) victory of a consumer against a corporation in the Supreme Court in more than half-a-century. Second, the Court unanimously based in personam jurisdiction on the defendant’s extensive business activities in the forum state; the Court thus revived a predicate in the specific-in-personam context which it had soundly rejected for general in personam jurisdiction just a few years ago in Daimler v. Baumann (571 U.S. 117, 2014). Last, but not least, several of the Justices openly questioned whether corporations should continue to enjoy as much jurisdictional protection as they had in the past; remarkably these Justices hailed from the Court’s conservative camp. The decision may thus indicate that the days when the Supreme Court consistently protected corporations against assertions of personal jurisdiction by individuals may finally be over.

 

R. Geimer: Service to Foreign States During a Civil War: The Example of an Application for a Declaration of Enforceability of a Foreign Arbitral Award Against the Libyan State Under the New York Convention

With the present judgment, the UK Supreme Court confirms a first-instance decision according to which the application to enforce an ICC arbitral award against the state of Libya, and the later enforcement order (made ex parte), must have been formally served through the Foreign, Commonwealth and Development Office under the State Immunity Act 1978, despite the evacuation of the British Embassy due to the ongoing civil war. The majority decision fails to recognize the importance of the successful claimant’s right of access to justice under Art 6(1) ECHR and Art V of the 1958 New York Convention.

 

K. Bälz: Arbitration, national sovereignty and the public interest – The Egyptian Court of Cassation of 8 July 2021 (“Damietta Port”)

The question of whether disputes with the state may be submitted to arbitration is a recurrent topic of international arbitration law. In the decision Damietta Port Authority vs DIPCO, the subject of which is a dispute relating to a BOT-Agreement, the Egyptian Court of Cassation ruled that an arbitral award that (simultaneously) rules on the validity of an administrative act is null and void. The reason is that a (private) arbitral tribunal may not control the legality of an administrative decision and that the control of the legality of administrative action falls into the exclusive competency of the administrative judiciary. This also applies in case the legality of the administrative decision is a preliminary question in the arbitral proceedings. In that case, the arbitral tribunal is bound to suspend the proceedings and await the decision of the administrative court. The decision of the Egyptian Court of Cassation is in line with a more recent tendency in Egypt that is critical of arbitration and aims at removing disputes with the state from arbitration in order to preserve the “public interest”.

Alfonso-Luis Calvo Caravaca (University Carlos III of Madrid) and Javier Carrascosa González (University of Murcia), together with the other authors Silvia Marino (University of Insubria), María Asunción Cebrián Salvat (University of Murcia) and Isabel Lorente Martínez (University of Murcia), have edited a book titled European Private International Law, published by Comares.

The editors Alfonso-Luis Calvo Caravaca and Javier Carrascosa González provided for the following preface:

This work presents the updated content of current European private international law. It is, in fact, a book of law written by several authors from Spain and Italy: professors Alfonso-Luis Calvo Caravaca, Javier Carrascosa González, Silvia Marino, María Asunción Cebrián Salvat and Isabel Lorente Martínez.

This book is intended for anyone interested in studying and learning about the private international law system of the European Union. In this sense, it attempts to clearly explain the fundamental structures of this fascinating branch of law as well as to convey a series of interesting, intuitive, constructive and brilliant ideas that may set the course for the future.

This book understands EU private international law as a product of the culture of European society. European private international law is not a mere set of rules, a series of European regulations that come out of nowhere: it is a very important part of the (legal) culture of Europe; it is a cultural product that is part of European civilisation. In this sense, the authors believe in Europe and in the values that Europe has represented for more than two hundred years. We believe in Europe as an ideal of a free and diverse society made up of free and diverse people. This book is a tribute to freedom – to freedom of movement of persons, families, goods, capitals, companies and services, and also a homage to business freedom in a market economy. It is a tribute to private international law, which makes all these freedoms possible. Additional materials for the study of these subject matters, such as European case law and legislation, may be found at http://www.accursio.com/documentos1.php. The book includes beautiful artwork by illustrator Alessandro Sánchez Pennaroli, which helps to convey some of the key ideas contained in each chapter.

The authors would like to thank Umberta Pennaroli for the meticulous revision and translation into English of this work during the four years of its production. Special mention is also due to Silvia Marino, Professor of International Law and European Union Law at the Università dell’Insubria (Italy), who enthusiastically accepted to participate in this hazardous project. Many thanks also to Brian Mc Menamin for all his wise teachings on life and on the English language.

Where we are going we don’t need roads, said Doc Brown in the movie “Back to the Future”. Europe is moving towards a freer society. To achieve a freer world and a freer Europe we do not need roads: we need European private international law. This book is, in short, a hymn to freedom for Europe and to freedom for all people.

The preface, the table of contents and the acknowledgements can be accessed here.

The first meeting of the Special Commission on the practical operation of the 2007 Child Support Convention and on the 2007 Maintenance Obligations Protocol is due to be held on 17, 18 and 19 May 2022.

The purpose of the meeting, which is only open to delegates or experts designated by the Members of the Hague Conference on Private International Law, invited non-Member States and International Organisations that have been granted observer status, is to discuss a range of issues surrounding the interpretation of the two instruments mentioned above and their implementation in the domestic legal systems.

The Hague Conference, through its Permanent Bureau, has recently invited the European Association of Private International Law to take part in the meeting as an observer.

A Working Group has been immediately created for this purpose, formed by Alexandre Boiché (lawyer in Paris), Tena Hoško (University of Zagreb), Anna Nylund (University of Bergen), Francesco Pesce (University of Genova, Chair), Ian Sumner (Tilburg University), Lara Walker (Warwick University), and Anna Wysocka-Bar (Jagiellonian University).

In the space of just a few weeks the Working Group has prepared a position paper focusing on a selection of issues that the Special Commission plans to discuss. The provisional version of the paper, pending a review by the Scientific Council of EAPIL, is available here.

The conclusions reached by the Working Group are as follows:

I. The concept of marriage/spouse, being de jure included in the scope of application of the Convention, unlike other family relationships to which the Convention might apply by virtue of declaration under Art. 63 of the Convention, has a pivotal role in determination of the Convention’s scope. The main problem arises with reference to same-sex marriages. However, other relationships that could be equated to marriage in the national law of the State of origin, such as cohabitation, should also be considered. There are two potential options: (i) allow each Contracting State to define the concept based on its national law (so that differences between the law of the State of origin and the requested State can be faced accordingly) or (ii) find an autonomous definition of the concept; 

II. The concept of creditor: based on domestic experiences, it is clear that there are two opposing models concerning the formal ownership of the legal action. On the one hand, those systems where it is the child him/herself who qualifies as ‘creditor’ acting for the protection of his/her own interests, even if procedurally through an adult (parent) acting on his/her behalf. On the other hand, some State laws provide that a dependent child cannot be the creditor, so the action for the maintenance recovery is brought by the parent on his/her own behalf. It seems that a preference should be (uniformly) given to always granting a direct indication of the real creditor, even in case of a child.

III. The concept of residence: a more precise explanation seems to be appropriate on (i) the “minimum threshold” which can be requested (in addition to the negative definition which is fixed by the second sentence of Art. 9); and/or (ii) the fact that it should be possible for the applicant to be considered as resident in more than just one Contracting State, making him/her able to apply before different Central Authorities under Art. 9. 

IV. the (uniform) interpretation of Art. 4 of the Protocol, considering that the CJEU has explained how this provision should be interpreted when a maintenance debtor applies on the basis of a change in his income, for a reduction in the amount of maintenance awarded by a decision that has become final (see Mölk, C-214/17): considering that the CJEU’s interpretation is only binding for those Contracting States which are EU Member States, it would be necessary to discuss it with non-EU Contracting States, in order to understand how do they interpret this provision; 

V. The relationship between the 2007 Child Support Convention and the Lugano II Convention, as all EU Member States and Norway are parties to both instruments: the instruments seem to suggest different solutions, each pointing to the other one. Considering that Article 52 of the 2007 Child Support Convention allows creditors to select an instrument or arrangement that has more effective rules than the Convention, this could also be interpreted as giving the creditor the right to choose between the 2007 Child Support Convention and the Lugano II Convention. The principle of favor executionis should undoubtedly guide the choices of the court, where the convention to be applied is not directly indicated by the creditor/claimant. In the writers’ opinion, it would be appropriate to provide for a specific duty to inform creditors of the possibility to choose between the two instruments, in certain situations. 

The EAPIL blog will report in the coming days about the meeting of the Special Commission.

The Chinese Court Recognizes an English Commercial Judgment for the First Time
Written by Zilin Hao, Anjie Law Firm, Beijing, China

Introduction
On 17 March 2022, Shanghai Maritime Court of PRC issued a ruling of recognizing and enforcing a commercial judgment made by the English High Court, with the approval of Supreme People’s Court (“SPC”). This is the first time that Chinese court recognizes an English commercial judgment based on the principle of reciprocity, which is undoubtfully a milestone where the English court has not recognized the Chinese judgment before.

I. Case Overview
1. The Original English Judgments
18 March 2015, the high court of Queen’s Bench Division (Commercial Court), England & Wales made a judgment on the case of Spar Shipping AS v Grand China Logistics Holding (Group) Company, Ltd (hereinafter “Spar Case”) . In the Spar Case, the Claimant (“Spar”) was the registered owner of three supramax bulk carriers each let on long term time charter to Grand China Shipping (Hong Kong) Co Ltd (hereinafter “GCS”) with guarantees issued by the defendant, GCL, incorporated in Shanghai as the parent of the charterer. The charterer failed to pay hire on time and in September 2011 Spar withdrew the vessels and terminated the charterparties under the cancellation clause, which states: “If the vessel is off-hire for more than 60 days continuously, Charterers have the option to cancel this Charter Party.”. Spar then sued the GCL under the guarantees, claiming the balance of hire unpaid under the charters and damages for loss of bargain in respect of the unexpired term of the charters.

In the first instance, Mr Justice Popplewell J. concluded that payment of hire by the Charterers under the three charters was not a condition to cancel charterparties but the liberty to withdraw the vessel from service. The judge also held that payment of hire was that the charterer had renounced the charter parties and that the shipowner was entitled to about USD 24 million in damages for loss of bargain in respect of the unexpired terms of the charter parties. The decision was appealed, the English Court of Appeal upheld the judgment of first instance and ordered the charterers’ parent company GCL as guarantor to pay the shipowner the amounts due under the three charterparties including damages plus interest and costs.

2. The Chinese Ruling- (2018) Hu72Xie Wai Ren No.1
In March 2018, the applicant of Norwegian shipowner applied to the Shanghai Maritime Court, the competent court where the respondent is located, for recognition of the judgment of the English court. On March 17, 2022, the Shanghai maritime court finally made a civil ruling to recognize the judgment made by the English court involved in the case.

According to the ruling, the key issues in this judicial cooperation case are as follows: (1)Whether there is a reciprocal relationship between China and the UK on the recognition and enforcement of civil judgments, including whether there are precedents for English courts to recognize and enforce Chinese court judgments and whether there are precedents for refusing to recognize and enforce Chinese court judgments; (2) In the absence of reciprocal precedent, whether the Chinese court can recognize the judgment of the English court based on the principle of reciprocity; (3)Whether the injunction system of the English court constitutes a reason for refusing to recognize the judgment of the English court; (4) Whether the fines for interest and expenses claimed by the applicant fall within the admissible scope of foreign judgment.

After hearing, the Shanghai Maritime Court decided to recognize the judgment of the English court. Firstly, the PRC Ruling considered that the PRC and United Kingdom have not concluded or acceded to treaties on mutual recognition and enforcement of court judgments in civil and commercial matters, so the principle of reciprocity should be taken as the basis for the recognition of an English Judgment. The claimant argued that “the judgment of Spliethoff’s Bevrachtingskantoor BV v Bank of China Ltd, [2015] EWHC 999 (Comm) of the English High Court of Justice Queen’s Bench Division Commercial Court (hereinafter “Spliethoff Case”) could be regarded as positive precedent of Chinese judgments recognised and enforced by English Courts. In this Case, the English court confirmed that another Chinese judgment in Rongcheng Xixiakou Shipbuilding Co., Ltd., Wartsila engine (Shanghai) Co., Ltd. v. Wartsila Finland Oy decided by Shandong High Court (hereinafter “Xixiakou Case”) was effective and enforceable, but did not actually enforce it. This opinion was not adopted by the Shanghai Maritime Court.

Despite the above, the Shanghai Maritime Court held that “when stipulating the principle of reciprocity, the Civil Procedure Law of the People’s Republic of China does not limit it to that the relevant foreign court must first recognize the civil and commercial judgment of Chinese court. If there are possibilities that the civil and commercial judgment made by Chinese court can be recognized and enforced by the foreign court, it can be considered that there is reciprocity between the two jurisdictions.” Therefore, even if in the absence of reciprocal precedent, the Chinese court still can recognize the judgment of the English court based on the principle of reciprocity.

Secondly, in terms of the anti-suit injunction in the English judicial system, the Shanghai Maritime Court held that in this specific case, the English courts did not issue anti-suit injunctions to prohibiting the parties from litigating in foreign courts. Both parties have agreed that the English court has the jurisdiction and the English court asserted jurisdiction based on the choice of court agreement. The existence of anti-suit injunction in the foreign legal system is not a reason to make foreign judgments unenforceable in China.

Thirdly, in terms of an error in the application of law in the English judgment, the Shanghai Maritime Court held that this was a substantive matter and was not subject to judicial review in recognition and enforcement of foreign judgments. And even if the error of applying the law is indeed proved, it will constitute the reason for refusing recognition and enforcement only when it violates the basic principles, public order and social public interests under the PRC legislation.

Finally, the Shanghai Maritime Court decided that the interest, expenses and fines in this case were due to the respondent’s failure to perform its payment obligations, which were “monetary debt” and admissible matters for recognition and enforcement of the English judgment.

II. Comments
On 31 December 2021, shortly before this ruling, the SPC issued a memorandum on commercial and maritime matters entitled “Memorandum of the National Courts’ Symposium on Trials for Commercial and Maritime Cases” (hereinafter “Memorandum”). Article 44 of the Memorandum provided that “When hearing a case applying for recognition and enforcement of a judgment of a foreign court, the people’s court may recognize that there is a reciprocal relationship under any of the following circumstances: (1) according to the law of the country where the court is located, the civil and commercial judgments made by the People’s Court can be recognised and enforced by the courts of that country; (2) China has reached a memorandum or consensus of mutually reciprocity with the country where the court is located; (3) the country where the foreign court is located has made reciprocal commitments to China through diplomatic channels or China has made reciprocal commitments to the country where the court is located through diplomatic channels, and there is no evidence that the country where the court is located has refused to recognize and enforce the judgments and rulings made by Chinese courts on the ground that there is no reciprocal relationship. Obviously, the principle of the ruling that Shanghai Maritime Court made to recognize English judgment was consistent with the Memorandum.

Article 288 of the Civil Procedure Law of PRC (hereinafter “CPL”) and article 544 of the Judicial Interpretation of CPL issued by the SPC both make reciprocity one of the bases for recognizing and enforcing foreign judgments. When China has committed more to international connection and cooperation, the application of the principle of reciprocity in judicial practice is gradually getting more flexible. The court abandoned the previous rigid ‘de facto’ reciprocity and adopts the “legal reciprocity” or “de jure reciprocity”. As long as the Chinese judgment can be recognized and enforced according to the law of the country where the foreign court is located, the reciprocal relationship exists. According to the Memorandum, the courts of China shall examine and determine whether there is a reciprocal relationship case by case.

Since the UK not a Belt and Road Initiative (“BRI”) country, this case shows China adopts a liberal and flexible approach to enforce foreign judgments as a general policy. Chinese courts also adopts a minimum-review approach to review foreign judgments, which is clearly favourable to foreign judgment enforcement. It indicates China continues an open attitude to international commerce and judicial cooperation in civil and commercial matters.

1. Spar Shipping as v Grand China Logistics Holding (Group) Company Ltd, [2015] EWHC 718 (Comm).
2. Michael Volikas, Court finds payment of charter hire is not a condition: Astra not followed, 20 March 2015, available at https://www.incegd.com/en/news-insights/.
3. Yang Yang and Patrick Lee, PRC Court recognizes an English judgment for the first time – a Gard perspective, 12 April 2022, available at https://www.gard.no/web/updates/content.
4. Grand China Logistics Holding (Group) Co. Ltd v Spar Shipping AS, [2016] EWCA CIV 982.
5. Spar Shipping AS (2018) Hu 72 Xie Wai Ren No 1.
6. Yang Wengui and Luo Yi, The Chinese court recognized the commercial judgment of the British court for the first time (translated), Chinese version published on 24 March 2022, available at HAI TONG & PARTNERS websitehttps://www.haitonglawyer.com/news/598.html. HAI TONG & PARTNERS is the law firm entrusted by the applicant before Shanghai Maritime Court in this case.
7. Spliethoff’s Bevrachtingskantoor BV v Bank of China Ltd [2015] EWHC 999 (Comm) (17 April 2015).
8. Case No.: (2013) Lu Min Si Zhong Zi No. 87, accordingly the case number of the first-instance judgment is Qingdao Maritime Court (2011) Qinghai Fa Hai Shang Chu Zi No. 271.
9. WANG Limin and DING Qixue, Report on the trial of Xixiakou Shipyard Case of Qingdao Maritime Court, published on 24 Arial 2014, available at http://qdhsfy.sdcourt.gov.cn/qdhsfy/394069/394047/548075/index.html.
10. Wang Beibei, Key points of “Memorandum of the National Courts’ Symposium on Trials for Commercial and Maritime Cases”, published on the official social media account of Shanghai Second Intermediate People’s Court “SJ-Research”, 5 May 2022.

I give background to Collins AG’s Opinion in C-700/20 The London Steam-Ship Owners’ Mutual Insurance Association Limited v Kingdom of  Spain here. The Court of Appeal nota bene in the meantime has held that the High Court should have never referred, as I report here.

Does an English ‘Section 66’ (Arbitration Act) judgment, which confirms an arbitral award is enforceable in the same way as a judgment in ordinary, qualify as a judgment under the recognition and enforcement Title of Brussels Ia? If it does, the Spanish judgment contradicting the award is unlikely to be recognised.

The case at issue in essence enquires how far the arbitration exception of Brussels Ia stretches. Does the arbitration DNA of the case once and for all means any subsequent involvement of the courts is likewise not covered by Brussels Ia (meaning for instance that it must not have an impact on the decision to recognise and enforce an incompatible judgment issued by another Member State in the case); or should the  involvement of the courts in ordinary be judged independently against the Regulation’s definition of ‘judgment’.

The case therefore echoes the High Court’s later intervention in the infamous West Tankers case, and the recent CJEU judgment in C-568/20 J v H Limited (on third country judgments).

(44) the 1958 New York Convention does not come into play in the proceedings for the reason that those proceedings do not involve, as Article I(1) of that convention requires, the recognition and enforcement of an arbitral award in a State other than that in which that award was made: the award was made in the UK.

The AG suggests a broad scope of the exclusion, seeking support in the Jenard and Schlosser Reports. He also confirms the exclusion of arbitration has the effect, in particular, of making it impossible to use that regulation to enforce an arbitral award in another Member State by first turning it into a judgment and then asking the courts of the other Member State to enforce that judgment under Chapter III.

However, in the case at issue he suggests the proceedings are not caught by the arbitration exception, for 3 reasons:

(53) the notion of ‘judgment’ needs to be interpreted broadly;

(54) CJEU Solo Kleinmotoren instructs that for a finding to be a ‘judgment’,  ‘the decision must emanate from a judicial body of a Contracting State deciding on its own authority on the issues between the parties’;  that is the case here for (55) the S66 court does not rubberstamp; it discusses and settles a range of substantive issues between the parties;

(57) there is no requirement that a court must determine all of the substantive elements of a dispute in order to deliver a judgment that satisfies the purposes of that provision; reference here is made to CJEU C-394/07 Gambazzi (see the Handbook 2.576).

In the view of the AG (62) A1(2) is not determinative as to whether a judgment under the recognition and enforcement Title comes within the scope of the Regulation. Those provisions, he suggest, were enacted for different purposes and pursue different objectives: they aim to protect the integrity of a Member State’s internal legal order and to ensure that its rule of law is not disturbed by being required to recognise a foreign judgment that is incompatible with a decision of its own courts. A1(2) on the other hand is firmly part of the free movement of judgments rationale of the Regulation (and limitations thereto).

I think the CJEU judgment could go either way and if I were a betting man (which I am not) I suspect the Court will not follow and instead will take the same holistic approach towards protecting the application of Brussels Ia by the courts in ordinary, as it did in CJEU West Tankers. By the very nature of s66 (and similar actions in other Member States), the ‘issues between the parties’ are different in actions taking place entirely in courts in ordinary, and those in arbitration awards which are subsequently sanctioned (in the sense of ‘approved’) by a court. The latter proceedings do not discuss ‘the issues’ between the parties. They only engage a narrow set of checks and balances to  ensure the soundness of the arbitration process.

Neither do I follow the logic (63) that if the UK were not allowed to take account of the s66 judgment in its decision to recognise, it would mean that Member States would have to ignore all internal judgments with res judicata in an excluded area, including insolvency, social security etc., in favour of other Member States judgments ‘adjudicating upon the same issue’ (63): if they truly adjudicate upon ‘the same issue’, the judgment of the other Member State will be exempt from Brussels Ia. This is unlike the case at hand which clearly did involve a Spanish judgment on a subject matter covered by the Regulation. The arbitration exemption is the only exemption that relates to a modus operandi of conflict resolution: all the others relate to substantive issues in conflict resolution.

Commercial arbitration enjoys a peculiar privilege in the CJEU’s view on ADR (see CJEU Komstroy). I do not think however the Court will give it a forum shopping boost in the context of Brussels Ia.

Geert.

EU Private International Law, 3rd ed. 2021, ia 2.120.

 

Issue 2/2022 of RabelsZ has just been published. It contains the following contributions:

Ralf Michaels: Peter Mankowski *11.10.1966 †10.2.2022, Volume 86 (2022) / Issue 2, pp. 323–326, DOI: 10.1628/rabelsz-2022-0028

 

Katharina Pistor: Rechtsvergleichung zwischen Rechts- und politischer Ökonomie: am Beispiel des Unternehmensrechts, Volume 86 (2022) / Issue 2, pp. 327–363, DOI: 10.1628/rabelsz-2022-0029

Legal and Political Economics in Comparative Perspective: the Case of Corporate Law. – Hardly another area of the law has seen as much interest in comparative analysis as corporate law, in particular the publicly traded corporation. The dialogue among legal academics from different legal systems was facilitated by the use of a non-legal language – that of transaction economics. It offered a unified standard for analyzing the pros and cons of different legal rules and models of corporate governance. Legal details remained largely under the radar. More recently, political scientists have discovered the corporation as an object of analysis and have emphasized the political economy that is represented by the establishment, development and function of the “corporation as a legal person”. This literature pays closer attention to the role of the state in corporate law but has neglected questions of comparative law. This paper argues that comparative law could and should assert itself between these two social sciences as a field that is devoted to describing and explaining the similarities and differences of legal institutions as a part of social systems.

 

Stefan Grundmann: Pluralistische Privatrechtstheorie – Prolegomena zu einer pluralistisch-gesellschaftswissenschaftlichen Rechtstheorie als normativem Desiderat (»normativer Pluralismus«), Volume 86 (2022) / Issue 2, pp. 364–420, DOI:  10.1628/rabelsz-2022-0030

Pluralist Private Law Theory: Prolegomena to a Pluralist and Social Science Oriented Legal Theory as a Normative Desideratum (“Normative Pluralism”). – Just how legal scholarship and legal practice should address the social sciences and other fields of inquiry is a vital question whose answer is informed by concerns of innovation, logic, and an understanding of law and jurisprudence. Law and economics is an efficient vehicle in this regard, an approach that in the USA is perhaps even dominant. The present article distinguishes between a monist interdisciplinary openness – vis-à-vis a neighbouring discipline that may indeed already have a particular goal and benchmark in mind – and a pluralist interdisciplinary openness. It identifies in the latter a disproportionately greater heuristic potential (in terms of all societal views). In a pluralist society, one that moulds pluralism into a constitutional requirement, the author sees a pluralist interdisciplinary openness as, above all, normatively superior and even mandated. It also seems better suited to the logic of jurisprudence: a discipline seeking balance in society. The article also addresses the biggest “drawback” of the approach, the unanswered and difficult question of how to determine hierarchizations. Adopting a value-tracking approach, the author proposes a mechanism embracing constitutionality and democracy as guiding legal principles.

 

Rolf Stürner: The ELI / UNIDROIT Model European Rules of Civil Procedure – An Introduction to Their Basic Conceptions, Volume 86 (2022) / Issue 2, pp. 421–472, DOI:  10.1628/rabelsz-2022-0031

This contribution introduces the basic conceptions of the Model European Rules of Civil Procedure, which were affirmed by the European Law Institute, Vienna, and by UNIDROIT, Rome, in 2020. In its first part it describes the prior history of the project (ALI/UNIDROIT Principles of Transnational Civil Procedure, Storme Commission) and the history of the emergence of the Model Rules between 2013 and 2020. The following parts depict the organization and coordination of the common work in the various groups, an analysis of methodological questions arising in the context of harmonization of procedural law, a detailed presentation of important results of harmonization in fields of far-reaching convergence of national procedural laws, considerations about strong future trends of procedural design and their significance for different areas of civil procedure, and finally some remarks on innovative procedural developments taken into account by the Model Rules, with important examples in fields like collective proceedings and the financing of proceedings, or in the use of modern means of communication or artificial intelligence. The contribution also contains some cautious remarks on internal conditions associated with the emergence of the Model Rules that may have influenced its results.

Igor Adamczyk, Jakob Fortunat Stagl: Der Eigentumserwerb an Fahrnis im polnischen Recht, Volume 86 (2022) / Issue 2, pp. 473–501, DOI: 10.1628/rabelsz-2022-0032

Transfer of Ownership in Movable Property under Polish Law. – This essay deals with the transfer of ownership under Polish law. The main question is whether Poland simply adheres to one of the classical models historically significant for this country – that of Austria, Germany, or France – or whether its system can be considered an original solution. The authors are convinced that one cannot analyse the transfer of ownership without considering the underlying contract. In particular, the passing of risk has to be considered in unison with the rules for the passing of ownership. These rules as a whole may seem syncretistic or “mixed”, yet they have to be understood as a genuine – Polish – system for the transfer of ownership.

 

Guido Westkamp (Queen Mary Intellectual Property Research Institute) has posted In it for the Money? Academic Publishing, Open Access and the Authors’ Claim to Self-Determination in Private International Law on SSRN.

The abstract reads:

Open access research platforms are increasingly becoming the target of academic publishers claiming copyright infringement. Applicable law considerations are pivotal in such circumstances. The law governing the initial publishing agreement decides, ultimately, the extent to which rights have been transferred and the degree to which courts can exercise judicial control. Academic publishing differ significantly from standard copyright contracts. Academic authors remain customarily unremunerated and concurrently are expected to transfer all rights on an exclusive basis. Exclusivity thus eradicates the proliferation of open access platforms altogether. The article discusses the most relevant concerns that arise in private international contract law under the Rome I-Regulation as a matter of material justice. German substantive copyright contract law and the general principles affording protection to authors underpinning it, most importantly as regards the fundamental principle of equitable remuneration and its limits. The article dismisses the conventional approach as regards both contractual choices of law and the closest connection analysis and proposes, based on more subtle considerations of material justice as a relevant factor in modern EU private international, the application of special conflict rules so as to alleviate the problematic effects of uninhibited contractual freedom of contract, as a mechanism to avoid the designation of, particularly, a common law copyright jurisdiction imposed by way of predetermined terms governs the agreement. The article demonstrates, ultimately, that author’s claims to self-determination must outweigh the commercial interests of publishers, inadvertently providing open access platforms with legal certainty and freedom to republish.

Further to my last post, I omitted to include a book review by Professor Gilles Cuniberti in the second issue of ICLQ for 2022 which is focused on essays written in honour of Emeritus Professor Adrian Briggs (QC), and the latest edition of his (Briggs’) book on Civil Jurisdiction and Judgements.

The Ravenna Campus of the Department of Juridical Sciences of the University of Bologna (Italy) has organised in Ravenna (and online), between 18-23 July 2022, a Summer School on Transnational litigation: between substance and procedure.

The program of the School looks at cross-border litigation from a wide perspective, embracing not only civil and commercial matters but also matter as diverse as family law, succession law and climate change litigation. At the core of the program lies the European space of justice, with its private and procedural international law regulations; the comparative and international perspectives are also considered, with several lecturers from Third States. The approach is both theoretical and practical: as a matter of fact, the whole Saturday 23 July session is dedicated to workshops which will involve the participants in the solution of cases and problems.

The Faculty of the Summer School is composed of experts from different jurisdictions with very diverse professional backgrounds. The Director of the School is Prof. Michele Angelo Lupoi, who teaches Civil Procedural Law and European Judicial Cooperation at the University of Bologna. The Vice-Director of the School is Marco Farina, Adjunct Professor of Civil Procedural Law at LUISS University of Rome.

The Summer School is aimed at law students as well as law graduates and law practitioners who want to obtain a specialised knowledge in this complex and fascinating area of international civil procedure. The lectures will be held in a blended way, both in presence and online. In order to download the pre-registration form, please refer to here. An application will be made to the Bar Association of Ravenna to grant formative credits to Italian lawyers who participate in the Summer School.

The Summer School program is available here and includes as speakers Apostolos Anthimos, Caterina Benini, Giovanni Chiapponi, Michael S. Coffee, Elena D’Alessandro, David Estrin, Marco Farina, Francesca Ferrari, Pietro Franzina, Albert Henke, Priyanka Jain, Melissa Kucinski, Claudio Pezzi, Emma Roberts and Anna Wysocka-Bar.

It is possible to register until 2 July 2022. The registration fee is 200,00 €. For further info, please refer here or write and email to micheleangelo.lupoi@unibo.it. 

Paul Beaumont and Jayne Holliday have edited A Guide to Global Private International Law. The book has just been published by Hart / Bloomsbury in its Studies in Private International Law.

The guide provides a substantial overview of the discipline of private international law from a global perspective. It is divided into four sections: (i) Theory; (ii) Institutional and Conceptual Framework Issues; (iii) Civil and Commercial Law (apart from Family Law); (iv) Family Law.

Each chapter addresses specific areas/aspects of private international law and considers the existing global solutions and the possibilities of improving/creating them.

The authors are experts coming from Europe, North America, Latin America, Africa, Asia and Oceania, and include – in addition to the editors – Ardavan Arzandeh, Maria Caterina Baruffi, Giacomo Biagioni, Ron Brand, Janeen M Carruthers, Carmen Otero García-Castrillón, Adeline Chong, Giuditta Cordero-Moss, Mihail Danov, Nadia de Araujo, Albert Font i Segura, Pietro Franzina, Francisco Garcimartín Alférez, Richard Garnett, David Goddard, Chiara Goetzke, Ignacio Goicoechea, Susanne L. Gössl, Uglješa Grušic, Jonathan Harris, Trevor Hartley, Michael Hellner, Paul Herrup, Maria Hook, Costanza Honorati, Mary Keyes, Ruth Lamont, Matthias Lehmann, Jan Lüttringhaus, Brooke Marshall, Lucian Martinez, Laura Martínez-Mora, David McClean, Johan Meeusen, Ralf Michaels, Reid Mortensen, Máire Ní Shúilleabháin, Marta Pertegás, Marta Requejo Isidro, Nieve Rubaja, Verónica Ruiz Abou-Nigm, Sara Sánchez, Rhona Schuz, Symeon C. Symeonides, Koji Takahashi, Zheng Sophia Tang, Paul Torremans, Karen Vandekerckhove, Lara Walker, Brody Warren, Matthias Weller and Abubakri Yekini.

For more details, see here.

The book entitled Lessons on Private International Law published by DIKAIA is the result of a collective effort of some of the speakers who presented at a course organised by the Mexican Consejo de la Judicatura Federal (Council of the Federal Judiciary) and the Mexican Escuela Federal de Formación Judicial (Federal School of Judiciary Training) in 2021.

Basically, this book puts into writing some of the presentations relating to the general topics on Private International Law given at the course. It should be noted that this book has seen the light of day thanks to the devoted work of professors Jorge Alberto Silva Silva and Nuria González Martín, who were the editors / coordinators.

This book explains the basic and general concepts of Private International Law, in particular those concerning the Mexican legal system. In addition, this book deals with innovative and fairly unknown topics to the Mexican doctrine, such as extension rules and the concept of lex loci factum. A full table of contents is provided below. The book ends with an analysis of the case of Antenor Patiño vs. María Cristina de Borbón, which although a bit “ancient” (1955 – a divorce case), it reflects the problems which arise regarding conflicts of jurisdiction and conflicts of laws in a high-profile case.

This book is accessible online and may be purchased here.

AUTHORS

Elí Rodríguez Martínez

Francisco José Contreras Vaca

Jorge Alberto Silva Silva – Coordinator

Jorge Cicero Fernández

Karl August Prinz von Sachsen Gessaphe

Ligia Claudia González Lozano

Mario de la Madrid

Nuria González Martín – Coordinator

Rolando Tamayo y Salmorán

Rosa Elvira Vargas Baca

 

TABLE OF CONTENTS

CAPÍTULO 1

INTRODUCCIÓN AL DERECHO INTERNACIONAL PRIVADO / Jorge Alberto Silva Silva

1. PRELIMINARES
2. Conjunto normativo
3. Un orden jurídico de la comunidad internacional
4. Subordinación de todos los conjuntos jurídicos de la comunidad internacional a uno solo
5. ENTRAMADO DE NORMAS Y ORDENAMIENTOS JURÍDICOS

III. RELACIONES ENTRE LOS CONJUNTOS NORMATIVOS DE LA COMUNIDAD INTERNACIONAL

1. Conjuntos disjuntos
2. Conjuntos subordinados
3. Intersección de conjuntos
4. Vinculación unilateral de conjuntos
5. En resumen
6. LEX LOCI FACTUM
7. FUNCIÓN DEL DERECHO INTERNACIONAL PRIVADO
8. PROBLEMAS DE TRÁFICO JURÍDICO INTERNACIONAL

VII. NATURALEZA Y CONTENIDO DEL DERECHO EXTRANJERO

VIII. MÉTODOS PARA RESOLVER PROBLEMAS DE TRÁFICO JURÍDICO INTERNACIONAL

1. Normas de aplicación inmediata o autolimitadas
2. Normas materiales o sustantivas
3. Normas de extensión
4. Normas de conflicto
5. Pasos o secuenciación en la elección del derecho designado
6. RAZONES PARA RECHAZAR O TOMAR EN CUENTA UN ORDEN JURÍDICO EXTRANJERO
7. Razones en contra
8. Razones a favor
9. Ejemplos de resoluciones mexicanas rechazando derecho extranjero
10. Ejemplos de resoluciones mexicanas aceptando el derecho extranjero
11. Tesis del universalismo multicultural

BIBLIOHEMEROGRAFÍA

CAPÍTULO 2

SISTEMA CONFLICTUAL TRADICIONAL / Jorge Alberto Silva Silva

1. NORMA DE CONFLICTO TRADICIONAL
2. HACIA UN CONCEPTO DE LA NORMA DE CONFLICTO TRADICIONAL

III. ESTRUCTURA SINTÁCTICA DE LA NORMA DE CONFLICTO

1. Supuesto normativo
2. Orden jurídico por identificar
3. Punto de contacto o de conexión
4. LA NORMA CONFLICTUAL EN LA REVOLUCIÓN CONFLICTUAL
5. DIFERENCIA ENTRE UNA NORMA DE CONFLICTO Y UNA NORMA INCORPORANTE
6. PROBLEMAS QUE SURGEN CON EL ORDEN JURÍDICO DESIGNADO
7. Proceso de bilateralización
8. Falso conflicto

VII. NORMATIVIDAD MEXICANA

BIBLIOHEMEROGRAFÍA

CAPÍTULO 3

FUENTES DEL DERECHO INTERNACIONAL PRIVADO / Rosa Elvira Vargas Baca

1. CONSIDERACIONES PREVIAS
2. FUENTES DEL DERECHO INTERNACIONAL PRIVADO
3. Derecho de fuente interna relacionado con el Derecho Internacional Privado

III. FUENTES DE DERECHO EXTRANJERO RELACIONADOS CON EL DERECHO INTERNACIONAL PRIVADO

1. Conferencias Diplomáticas y Congresos
2. Tratados
3. Jurisprudencia internacional
4. Costumbre internacional
5. Doctrina Internacional
6. BIBLIOHEMEROGRAFÍA

CAPÍTULO 4

FOROS INTERNACIONALES / Rosa Elvira Vargas Baca

1. ASPECTOS PRELIMINARES DE LOS FOROS INTERNACIONALES
2. Conferencia de La Haya
3. Comisión de las Naciones Unidas para el Derecho Mercantil Internacional
4. Instituto Internacional para la Unificación del Derecho Internacional Privado
5. Conferencias Interamericanas de Derecho Internacional Privado
6. Mecanismos de trabajo de los foros internacionales
7. FOROS NACIONALES
8. Seminario Nacional de Derecho Internacional Privado y Comparado
9. Talleres de cooperación procesal internacional

III. BIBLIOHEMEROGRAFÍA

CAPÍTULO 5

CALIFICACIÓN DEL SUPUESTO NORMATIVO / Mario de la Madrid Andrade

1. CONSIDERACIONES PRELIMINARES
2. EL CONCEPTO DE CALIFICACIÓN JURÍDICA

III. EL PROCESO DE CALIFICACIÓN Y SU RESULTADO

1. EL CONFLICTO DE CALIFICACIONES
2. LOS MÉTODOS DE CALIFICACIÓN
3. La calificación lex fori
4. La calificación lex causae
5. El método comparativo
6. LA CALIFICACIÓN EN MÉXICO

VII. BIBLIOHEMEROGRAFÍA

CAPÍTULO 6

CUESTIÓN ADYACENTE, PREVIA O INCIDENTAL. PLURALIDAD DE SUPUESTOS NORMATIVOS / Ligia Claudia González Lozano y Nuria González Martín

1. CONCEPTO, CUESTIONAMIENTOS Y ORÍGEN
2. IDENTIFICACIÓN DE LA CUESTIÓN PRINCIPAL U ORIGINAL Y DE LA ADYACENTE

III. SISTEMAS DE RESOLUCIÓN DE LA CUESTIÓN ORIGINAL Y ADYACENTE

1. Independencia o autonomía de la cuestión previa
2. Absorción o dependiente
3. Armonización y mayor proximidad
4. PROBLEMAS Y ARGUMENTOS
5. ¿Subsunción o autonomía?
6. Posibilidades argumentativas a tomarse en cuenta
7. POSIBLES ESCENARIOS SEGÚN MÉTODO QUE SE APLIQUE
8. REGLAMENTACIÓN MEXICANA

VII. CONCLUSIÓN

VIII. BIBLIOHEMEROGRAFÍA

CAPÍTULO 7

EL REENVÍO Y SU REGULACIÓN EN EL DERECHO CIVIL MEXICANO / Francisco José Contreras Vaca

1. INTRODUCCIÓN
2. ORIGEN DEL REENVÍO

III. CONCEPTO DE REENVIO

1. TRATAMIENTODEL REENVÍO EN LA LEGISLACIÓN CIVIL FEDERAL MEXICANA Y LA APLICABLE EN LA CIUDAD DE MÉXICO.
2. CRITICAS A LA REGULACIÓN DEL REENVIO EN MÉXICO.
3. CONCLUSIONES

VII. BIBLIOHEMEROGRAFÍA

CAPÍTULO 8

VULNERACIÓN DEL ORDEN PÚBLICO / Elí Rodríguez Martínez

1. INTRODUCCIÓN
2. UN VISTAZO RÁPIDO A LA HISTORIA

III. CONCEPTO

1. EL ORDEN PÚBLICO EN EL “DERECHO PÚBLICO” Y EN EL “DERECHO PRIVADO”
2. El orden público en el derecho público
3. El orden público en el derecho privado
4. CONCEPTOS SIMILARES
5. Leyes de orden público
6. Normas de orden público
7. Excepción de orden público
8. CARACTERÍSTICAS DEL ORDEN PÚBLICO INTERNACIONAL

VII. EFECTOS DEL ORDEN PÚBLICO INTERNACIONAL

1. Efectos con respecto a la ley aplicable
2. Efectos con relación el grado de incompatibilidad con las normas del foro

VIII. EL ORDEN PÚBLICO Y LAS NORMAS DE POLICÍA

1. EL ORDEN PÚBLICO INTERNACIONAL EN EL DERECHO MEXICANO
2. BIBLIOHEMEROGRAFÍA

CAPÍTULO 9

INSTITUCIONES IDÉNTICAS, ANÁLOGAS Y DESCONOCIDAS / Karl August Prinz von Sachsen Gessaphe

1. INTRODUCCIÓN
2. INTERPRETACIÓN DEL ART. 14 Fracc. III CCFED
3. Aplicabilidad de la norma
4. Carácter de la norma

III. INSTITUCIONES O PROCEDIMIENTOS DESCONOCIDOS

1. Instituciones desconocidas
2. Procedimientos desconocidos
3. INSTITUCIONES O PROCEDIMIENTOS ANÁLOGOS
4. Método funcional
5. Aplicación a ejemplos
6. IMPEDIMENTO AL FALTAR INSTITUCIONES ANÁLOGAS
7. RESUMEN
8. Instituciones y procedimientos desconocidos
9. Instituciones análogas en derecho mexicano
10. Consecuencia al faltar instituciones análogas
11. Delimitación de la contrariedad al orden público

VII. CONCLUSIÓN

VIII. BIBLIOHEMEROGRAFÍA

CAPÍTULO 10

FRAUDE A LA LEY / Nuria González Martín

1. ELEMENTOS PRELIMINARES
2. MANIPULACIÓN DE LOS PUNTOS DE CONTACTO

III. PRECISIÓN DEL CONCEPTO DE FRAUDE A LA LEY

1. Fraude como delito
2. Simulación
3. Vulneración del orden público
4. ELEMENTOS CARACTERÍSTICOS DEL FRAUDE A LA LEY
5. ELEMENTOS ESPECIALES A TOMAR EN CUENTA
6. Evasión artificiosa
7. Evasión de los principios fundamentales del orden jurídico
8. Determinar la intención fraudulenta
9. SANCIÓN PARA QUIEN DEFRAUDE A LA LEY
10. Nulidad del acto extranjero
11. No reconocimiento de efectos

VII. EJEMPLOS ILUSTRATIVOS

1. Caso Bauffremont-Bibescu
2. Divorcios al vapor

VIII. REGLAMENTACIÓN MEXICANA

A MODO DE CONCLUSIÓN

BIBLIOHEMEROGRAFÍA

CAPÍTULO 11

DERECHO INTERNACIONAL PRIVADO Y DERECHOS HUMANOS. CONSIDERACIONES SOBRE SU INTERACCIÓN A FAVOR DE LA PERSONA, LA NIÑEZ Y LA FAMILIA / Jorge Cicero Fernández

1. INTRODUCCIÓN
2. LOS TRATADOS SOBRE DERECHOS HUMANOS

1 Su naturaleza y alcances

2. Derechos protegidos y deberes estatales

III. TRATADOS DE DERECHO INTERNACIONAL PRIVADO “CONCERNIENTES A LA PROTECCIÓN DE LOS DERECHOS HUMANOS”

1. EL CONSEJO DE EUROPA

1 Desarrollos normativos

2. La Jurisprudencia del TEDH
3. LA JURISPRUDENCIA Y LA PRÁCTICA JUDICIAL MEXICANAS

CONCLUSIÓN

BIBLIOHEMEROGRAFÍA […]

CAPÍTULO 12

APLICACIÓN ARMÓNICA Y ADAPTACIÓN DE ORDENAMIENTOS INTERPRETACIÓN ENANTEOTÉLICA E INTERPRETACIÓN EQUITATIVA / Rolando Tamayo y Salmorán

I PRELIMINARIA

1. Prudentia y prudentia iuris

III. LA PROFESIÓN JURÍDICA

1. ¿CÓMO SE CONOCE EL DERECHO?
2. Genesis iurisprudentiæ
3. BIBLIOHEMEROGRAFÍA

CAPÍTULO 13

INTERPRETACIÓN Y REFORMULACIÓN DEL DERECHO INTERNACIONAL PRIVADO / Jorge Alberto Silva Silva

1. INTRODUCCIÓN
2. RESUMIENDO LOS CAPÍTULOS ANTERIORES

III. EXPRESIONES Y CONCEPTOS

1. LA TAREA DEL JUEZ
2. EL DIPR ES UNA DISCIPLINA DIFÍCIL
3. LA LEGISLACIÓN COMO UN CAOS FENOMÉNICO

VII. PROBLEMAS DE APLICACIÓN Y DECISIÓN

VIII. UN ACERCAMIENTO A LA ACTIVIDAD REFORMULATORIA

1. PROCESO INTELECTUAL
2. Reformulación a partir de textos legislados
3. Reformulación a partir de ausencia de textos legislados
4. MANIPULACIÓN CONFLICTUAL
5. CONCLUSIONES

XII. BIBLIOHEMEROGRAFÍA

CAPÍTULO 14

EXÉGESIS DEL DERECHO CONVENCIONAL INTERNACIONAL. CONVENIOS EN VIGOR RELACIONADOS CON LA PARTE GENERAL DEL DIPr / Nuria González Martín

1. NOTA PRELIMINAR
2. CONVENCIÓN INTERAMERICANA SOBRE NORMAS GENERALES DE DERECHO INTERNACIONAL PRIVADO

III. CONVENCIÓN INTERAMERICANA SOBRE DOMICILIO DE LAS PERSONAS FÍSICAS EN EL DERECHO INTERNACIONAL PRIVADO

1. CONVENCIÓN INTERAMERICANA SOBRE CONFLICTOS DE LEYES EN MATERIA DE ADOPCIÓN DE MENORES
2. CONVENCIÓN INTERAMERICANA SOBRE PERSONALIDAD Y CAPACIDAD DE LAS PERSONAS JURÍDICAS EN EL DERECHO INTERNACIONAL PRIVADO
3. CONVENCIÓN INTERAMERICANA SOBRE CONFLICTOS DE LEYES EN MATERIA DE LETRAS DE CAMBIO, PAGARÉS Y FACTURAS

VII. CONVENCIÓN INTERAMERICANA SOBRE CONFLICTO DE LEYES EN MATERIA DE SOCIEDADES MERCANTILES

VIII. CONVENCIÓN INTERAMERICANA SOBRE PRUEBA E INFORMACIÓN ACERCA DEL DERECHO EXTRANJERO

APÉNDICE

ANÁLISIS DEL CASO ANTENOR PATIÑO VS. MARIA CRISTINA DE BORBÓN: UNA RELECTURA / Francisco José Contreras Vaca

1. INTRODUCCIÓN
2. PLANTEAMIENTO DE LA CONTROVERSIA.

III. ESTUDIO DE LA LITIS

1. El problema de reconocimiento de validez y ejecución de sentencias dictadas por tribunales extranjeros.
2. El problema de la litispendencia y conexidad en la esfera internacional.
3. Consideraciones generales.
4. CONCLUSIÓN

 

A conference on the location of damage in private international law will be held at Paris Cité University on 30 and 31 May 2022.

The conference is convened by Olivera Boskovic and Caroline Kleiner. Speakers include Laurence Idot, Ugljesa Grusic, Aline Tenenbaum, Dmitriy Galuschko, Etienne Farnoux, Veronica Ruiz Abou-Nigm, Ludovic Pailler, Symeon C. Symeonides, Tristan Azzi, Zhengxing Huo, Yuko Nishitani, Yves El Hage, Matthias Lehmann, Sandrine Clavel, François Mailhé, Cyril Nourissat, Sarah Laval, Maud Minois and Pascal de Vareilles-Sommières.

The conference is structured in two parts. The first will be dedicated to the location of damage in specific field of the law (competition law, financial law, personality rights, environment, etc.). The second will address general topics such as party autonomy or cyber torts

The full programme of the conference and details about location and registration can be found here.

Under the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations, maintenance obligations are governed by the law of the State of habitual residence of the creditor, save where the Protocol itself provides otherwise [Article 3(1)]. Echoing the issues pertaining to the so-called conflit mobile, the Protocol provides also that in the case of a change in the habitual residence of the creditor, the law of the State of the new habitual residence is to apply as from the moment when the change occurs [Article 3(2)].

If the creditor is a child, does a wrongful removal – followed by an order commanding to return the child to the State in which he/she habitually resided immediately prior to the wrongful removal – constitute an obstacle to the acquisition of a new place of habitual residence by the creditor? This is the legal issue that the Court addresses in its judgment handed down this Thursday in the case W.J., C-644/20.

The Court decided to answer the preliminary question without first requesting its Advocate General to present an Opinion. It did so in a negative: the fact that a court of a Member State has ordered, in separate proceedings, the return of that child to the State in which he/she was habitually resident immediately before his/her wrongful removal is not sufficient to prevent that child from acquiring new habitual residence in the Member State to which the child was removed.

In brief, its reasoning may be summarized as follows:

• also for the purposes of the Hague Protocol, the notion of ‘habitual residence’ calls for it autonomous interpretation (paragraph 62);

  interestingly, while the Court has jurisdiction to interpret the Protocol and does so with a binding effect with regards to the Member States, the Protocol is also binding for non-Member States; that being said, the plead for autonomous interpretation seems justified also from the perspective of extra-EU parties to the Protocol, although it is yet to be seen whether they will align with the interpretation provided for by the Court, its methods of said interpretation and references to Charter).

• the habitual residence of the maintenance creditor is that of the place where on the facts his or her habitual centre of life is located, taking into account his or her family and social environment (paragraph 66),
• as a connecting factor for determination of law applicable to maintenance obligations, the notion of ‘habitual residence’ is heavily factual – it is the presence with a territory of a particular State that matters the most; as a consequence, it is only in the context of an assessment of all the circumstances of the case before it that, while taking into due consideration the best interests of that child, the national court hearing the case may find it necessary to take into account the potentially wrongful nature of the removal or retention of that child and conclude that the degree of stability of presence within the territory of a Member State does not allow to conclude that the child habitual resides in that State (paragraph 73).

The judgment is available here, in French. A press release in English can be found here.

Elon Musk’s purchase of Twitter has been a divisive event. Commenting on the response on Twitter and elsewhere, Musk tweeted:

The extreme antibody reaction from those who fear free speech says it all

>

By “free speech”, I simply mean that which matches the law.

I am against censorship that goes far beyond the law.

If people want less free speech, they will ask government to pass laws to that effect.

Therefore, going beyond the law is contrary to the will of the people.

Ralf Michaels quote-tweeted perceptively: ‘But which law?’

Twitter and the conflict of laws

By their very nature, digital platforms like Twitter present a variety of conflict of laws issues.

‘Twitter’ is not a monolithic entity. The functionality of the social media platform with which readers would be familiar is underpinned by a transnational corporate group. Twitter, Inc is incorporated in Delaware, and has various subsidiaries around the world; Twitter International Company, for example, is incorporated in Ireland and responsible as data controller for users that live outside of the United States. The business is headquartered in San Francisco but has offices, assets, and thousands of staff around the world.

The platform is populated by 400 million users from all over the world. After the US, the top 5 countries with the most Twitter users are comprised of Japan, India, the UK and Brazil. The tweets and retweets of those users may be seen all over the world. Users have wielded that functionality for all sorts of ends: to report on Russia’s war in real-time; to coordinate an Arab Spring; to rally for an American coup d’état; to share pictures of food, memes, and endless screams; and to share conflict of laws scholarship.

Disputes involving material on Twitter thus naturally include foreign elements. Where disputes crystallise into litigation, a court may be asked to consider what system of law should determine a particular issue. When the issue concerns whether speech is permissible, the answer may be far from simple.

Free speech in the conflict of laws

The treatment of freedom of speech in the conflict of laws depends on the system of private international law one is considering, among other things. (The author is one of those heathens that eschews the globalist understanding of our discipline.)

Alex Mills has written that the balance between free speech and other important interests ‘is at the heart of any democratic political order’.[1] Issues involving free speech may thus engage issues of public policy, or ordre public,[2] as well as constitutional considerations.

From the US perspective, the ‘limits of free speech’ on Twitter is likely to be addressed within the framework of the First Amendment, even where foreign elements are involved. As regards private international law, the Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act 28 USC 4101- 4105 (‘SPEECH Act’) is demonstrative. It operates in aid of the constitutional right to freedom of expression and provides that a US ‘domestic court shall not recognize or enforce a foreign judgment for defamation unless the domestic court determines that’ the relevant foreign law would provide the same protections for freedom of speech as would be afforded by the US Constitution.[3]

Other common law jurisdictions have approached transnational defamation issues differently, and not with explicit reference to any capital-c constitutional rights. In Australia, the High Court has held that the lex loci delicti choice-of-law rule combined with a multiple publication rule means that defamation is determined by the law of the jurisdiction in which a tweet is ‘available in comprehensible form’: the place or places it is downloaded.[4] In contrast, where a claim concerns a breach of confidence on Twitter, an Australian court is likely to apply the equitable principles of the lex fori even if the information was shared into a foreign jurisdiction without authorisation.[5] In either case, constitutional considerations are sidelined.

The balance to be struck between free speech on the one hand, and so-called ‘personality rights’ on the other, is a controversial issue within a legal system, let alone between legal systems. So for example, the choice-of-law rule for non-contractual obligations provided by the Rome II Regulation does not apply to personality rights, as a consensus could not be reached on point.[6] Similarly, defamation and privacy are excluded from the scope of the HCCH Judgments Convention by Art 2(1)(k)–(l).

There is a diversity of approaches to choice of law for cross-border infringements of personality rights between legal systems.[7] But the ‘law applicable to free speech on Twitter’ is an issue that goes far broader than personality rights. It touches on as many areas of law as there are aspects of human affairs that are affected by the Twitter platform. For example, among other things, the platform may be used to:

• spread misrepresentation about an election, engaging electoral law;
• influence the price of assets, engaging banking and finance law; or
• promote products, engaging consumer law.

Issues falling into different areas of law may be subject to different choice-of-law rules, and different systems of applicable law. What one system characterises as an issue for the proper law of the contract could be treated as an issue for a forum statute in another.

All of this is to say: determining what ‘the law says’ about certain content on Twitter is a far more complex issue than Elon Musk has suggested.

The law applicable to online dignity

Key to the divisiveness of Musk’s acquisition is his position on content moderation. Critics worry that a laissez-faire approach to removing objectionable content on the platform will lead to a resurgence of hate speech.

Musk’s vision for a freer Twitter will be subject to a variety of national laws that seek to protect dignity at the cost of free speech in various ways. For example, in April, the European Parliament agreed on a ‘Digital Services Act’, while in the UK, at the time of writing, an ‘Online Safety Bill’ is in the House of Commons. In Australia, an Online Safety Act was passed in 2021, which provided an ‘existing Online Content Scheme [with] new powers to regulate illegal and restricted content no matter where it’s hosted’. That scheme complements various other national laws, like our Racial Discrimination Act 1975, which outlaws speech that is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people, and was done because of the race, colour or national or ethnic origin of the person or group.

When a person in the United States posts content about an Australian that is permissible under US law, but violates Australian statute, the difficulty of Musk’s position on the limits of censorship becomes clear. Diverse legal systems come to diverse positions on the appropriate balance between allowing online freedom and protecting human dignity, which are often struck with mandatory law. When your platform is frequented by millions of users all over the world, there is no single ‘will of the people’ by which to judge. Perhaps Musk will embrace technological solutions to give effect to national standards on what sort of content must be censored.

A host of other conflicts issues

Musk-era Twitter is likely to pose a smorgasbord of other issues for interrogation by conflict of laws enthusiasts.

For example: legal systems take diverse approaches to the issue of whether a foreign parent company behind a platform like Twitter can be imposed with liability, or even criminal responsibility, for content that is on the platform. While conservatives in America consider the fate of s 230 of the Communications Decency Act—a provision that means that Twitter is not publisher of content they host—other countries take a very different view of the issue. Litigation involving the companies behind Twitter is likely to engage courts’ long-arm jurisdiction.

Perhaps the thorniest conflicts problem that may emerge on Musk’s Twitter is the scope of national laws that concern disinformation. In an announcement on 25 April, Musk stated:

‘Free speech is the bedrock of a functioning democracy, and Twitter is the digital town square where matters vital to the future of humanity are debated’.

Recent years have shown that the future of humanity is not necessarily benefited by free speech on social media. How many lives were lost as a result of vaccine-scepticism exacerbated by the spread of junk science on social media? How many democracies have been undermined by Russian disinformation campaigns on Twitter? The extraterritorial application of forum statutes to deal with these kinds of issues may pose a recurring challenge for Musk’s vision.[8] I look forward to tweeting about it.

Michael Douglas is Senior Lecturer at UWA Law School and a consultant in litigation at Bennett + Co, Perth.

 

[1] Alex Mills, ‘The Law Applicable to Cross-border Defamation on Social Media: Whose Law Governs Free Speech in “Facebookistan”?’ (2015) 7 Journal of Media Law 1, 21.

[2] See, eg, International Covenant on Civil and Political Rights, art 19(3).

[3] SPEECH Act s 3; United States Code, title 28, Part VI, § 4102. See generally Lili Levi, ‘The Problem of Trans-National Libel’ (2012) 60 American Journal of Comparative Law 507.

[4] Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575.

[5] But see Michael Douglas, ‘Characterisation of Breach of Confidence as a Privacy Tort in Private International Law’ (2018) 41 UNSW Law Journal 490.

[6] Art 4(1); see Andrew Dickinson, The Rome II Regulation (Oxford University Press, 2008).

[7] See generally Symeon C Symeonides, Cross-Border Infringement of Personality Rights via the Internet (Brill, 2021) ch VI; Tobias Lutzi, Private International Law Online: Internet and Civil Liability in the EU (Oxford University Press, 2020) ch 4.

[8] See generally Matthias Lehmann, ‘New Challenges of Extraterritoriality: Superposing Laws’ in Franco Ferrari and Diego P Fernández Arroyo (eds), Private International Law: Contemporary Challenges and Continuing Relevance (Edward Elgar, 2019) ch 10.

Through a comfort letter, one party promises to indemnify a creditor if the latter’s debtor does not pay. This is a means for improving the credit of another party. Particularly widespread are comfort letters issued by a parent company for its subsidiary or vice versa.

But where can the creditor sue if the comfort letter is not honoured? And which law applies to these instruments?

These questions were addressed in a decision by the Court of Appeal of Brandenburg dated 25 November 2020 (reprinted in IPRax 2022, pp. 175 et seq., with a comment by Maximilian Pika, id. pp. 159 et seq.).

Facts

A company incorporated under Danish law and headquartered in Copenhagen had provided a comfort letter for one of its subsidiaries in Germany who operated an airport there. Subsequently, insolvency proceedings over the subsidiary were opened in Germany. The insolvency administrator sued the Danish parent company in a German court on the basis of the comfort letter.

In deciding whether it has jurisdiction to hear the case, the Court of Appeal of Brandenburg first discards the insolvency exception in Art 1(2)(d) Brussels I bis Regulation. It argues – quite correctly – that this exception only covers claims that are grounded in insolvency law, but not those under general civil and commercial law. The present claim was one under general civil and commercial law, independently of the fact that it was brought by the insolvency administrator, and thus fell inside the scope of the Brussels Ibis Regulation.

How to Characterise a Comfort Letter?

The Court toys with the idea to characterise the comfort letter as a contract for the “provision of services”, which could potentially lead to the Court’s jurisdiction under Art 7(1)(b) Brussels I bis. However, the Court underlines that in this case, the place of performance would not be in its district, but in that of the debtor’s domicile, as the obligation arising from the comfort letter would have to be paid there.

The same would be true, according to the Court, if the comfort letter were to be considered as a simple contract for payment, which would fall under Art 7(1)(a) Brussels Ibis. This provision requires to determine the place of performance under the applicable law (see on its forerunner, Article 5(1) Brussels Convention, CJEU, Tessili, para. 15).

In this context, the Court takes the view that the comfort letter, regardless of whether it is seen as a unilateral declaration of the creditor or a contract, falls under the Rome I Regulation.

In the opinion of the court, the comfort letter had been submitted to German law, as clearly demonstrated by the circumstances of the case, in particular the choice of the German language, the fact that it was issued for the benefit of a German debtor, and that it was submitted to German air traffic authorities to maintain the license of the debtor. Under German substantive law (sec. 269 German Civil Code), payment obligations have to be performed at the creditor’s domicile. Hence, Danish and not German courts would have jurisdiction under Art 7(1)(a) Brussels I bis as well.

Assessment

Under an autonomous European interpretation, the notion “contracts of services” has to be defined broadly. The Court could have been courageous and just applied Art 7(1)(b) Brussels Ibis. This would have made things much simpler.

However, there is little to quarrel with the result the court has reached. Comfort letters are performed at the domicile of the issuer, or one of the three places mentioned in Art 63(1) Brussels Ibis in case of a company as an issuer, and actions based on them have to be brought there.

This result will be little comfort for those who have received a comfort letter. They should make sure that the letter states a suitable place of performance. Even better is to insist on the insertion of a choice-of-forum clause.

This is the first in a series of posts on the French draft code of private international law of March 2022.

The draft code of private international law contains one single provision on renvoi.

The Proposed Rule

Article 8 of the draft code reads:

Unless provided otherwise in this code, the designation of foreign law includes its rules of private international law. However, French courts and authorities have the obligation to apply those rules only if one party requests it.

The explanatory report explains that the working group debated whether to “maintain” renvoi. The doubts of the working group were based on “comparative law” and the facts that the Hague conventions typically exclude renvoi. Nevertheless, the report explains, it was decided to maintain renvoi, because the Cour de cassation has recently applied it, and because the doctrine has benefits when it leads to the application of a law which is easier to apply for French courts (the explanatory report then gives the example of art 34 of the Succession Regulation).

Assessment

According to the explanatory report, the working group considered that the purpose of its work was to improve accessibility and intelligibility of the law. Article 8 is not fully satisfactory in this respect.

Article 8 suggests that French courts should always apply foreign choice of law rules. It does not explain whether this should only be the case where the foreign choice of law rule refers to the law of the forum, and, when it does not, whether the law of the third state designated by the foreign choice of law rule should accept renvoi.  In other words, Article 8 does not distinguish between first degree renvoi and second degree renvoi, and does not clarify whether whether second degree is allowed even if it is third or fourth degree renvoi. In fact, a literary interpretation of Article 8 could lead to the conclusion that the provision introduces the English foreign court theory where foreign choice of law rules are applicable without any further requirement.

The explanatory report suggests that the working group conducted a comparative study which revealed that renvoi is typically excluded. It is true that some modern PIL legislations have excluded it, such as Article 15 of the Belgian Code of Private International Law. Yet, many other legislations in the civil law world allow renvoi broadly. If the working group was going to maintain renvoi, maybe it would have been useful to take a look at these other legislations and see with which precision they regulate the issue.

To only take one example, the working group could have looked at the Italian 1995 Private International Law Act, which allows renvoi, and defines its regime much more precisely.

Article 13 Renvoi

1 Whenever reference is made to a foreign law in the following articles, account shall be taken of the renvoi made by foreign private international law to the law in force in another State if:

a) renvoi is accepted under the law of that State.

b) renvoi is made to Italian law.

2 Paragraph 1 shall not apply: a) to those cases in which the provisions of this law make the foreign law applicable according to the choice of law made by the parties concerned; b) with respect to the statutory form of acts; c) as related to the provisions of Chapter XI of this Title.

3 In the cases referred to in Articles 33, 34 and 35, account shall be taken of the renvoi only if the latter refers to a law allowing filiation to be established.

4 Where this law makes an international convention applicable in any event, the solution adopted in the convention in matters of renvoi shall always apply.

Article 34 of the Succession Regulation is also much more detailed than the draft provision of the French code. Whether it was the perfect example to justify the adoption of first degree renvoi is unclear, however, since Article 34 does not require that the law of a third state refers back to the law of the forum, but to the law of another Member State, and that it will not always be easier for a French court to apply the law of another Member State (say Finland) than the law of a third state (say Switzerland).