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Tulane University School of Law and The American College of Trust and Estate Counsel’s Legal Education Committee are organizing the 9th academic symposium financially supported by The ACTEC Foundation. The symposium, Conflict of Laws in Trusts and Estates will be held at the Tulane University School of Law on Friday, October 21, 2022. The keynote address will be given by Professor Jeffrey Schoenblum of Vanderbilt University Law School.

Among the objectives of this symposium are the following:

• To bring together prominent and up-and-coming scholars for the discussion of important issues in conflict of laws;
• To spur leading-edge research on conflict of laws in trusts and estates;
• To encourage professors of trusts and estates to incorporate and consider issues of conflict of laws in their scholarship and teaching;
• To promote collaborations and exchanges between conflict-of-laws scholars and scholars of trusts and estates.

Papers presented at the symposium will consist of papers selected from this Call for Papers and papers from invited speakers. The papers will be published in the Tulane Law Review.

If you would like to be considered to present a paper, please submit an abstract of your paper to Ron Scalise by email (rscalise@tulane.edu) by November 1, 2021. Those chosen to participate  in the symposium will be notified no later than December 1, 2021. Symposium speakers will be required to submit a draft of their papers by August 15, 2022, so that the panel commentators will have sufficient time to prepare their commentary.

Symposium speakers will be reimbursed for their travel expenses (economy airfare, the cost of ground transportation, and up to two nights’ hotel stay). Speakers will be invited to dinner on the evenings of Thursday, October 20, 2022, and (for speakers staying Friday evening) Friday, October 21, 2022.

Breakfast and lunch will be provided to speakers and attendees on Friday, October 21, 2022, courtesy of The ACTEC Foundation.

Questions about the symposium or this call for papers should be directed to Ron Scalise at the email address above.

This symposium was made possible through the financial support of The ACTEC Foundation, https://actecfoundation.org.

Under the auspices of the project “Time to Become Digital in Law” (DIGInLaw), funded by the Erasmus+ Partnerships for Digital Education Readiness, the University of Aberdeen organizes in collaboration with the Universities of Osijek, Zagreb, and Milan, a PhD Book Club – European Private International Law in a Digital World.

The PhD Book Club will be held online on 8 December 2021. The goal of the book club is to raise awareness and expand knowledge through a discussion on contemporary private international law issues that stem from digitalization.

Participants can choose to join one or both of the following discussion panels:

10.00 – 11.30 UK time – Topic 1 – Jurisdiction in Digital World: Focus on the Extraterritorial Effects of the General Data Protection Regulation and the EU Commission’s Proposal AI Act 

12.30 – 14.00 UK time – Topic 2 – Cross-Border Family Law in Digital World: Judicial & Administrative Co-operation and the Use of High-Risk AI Tools in Cross-Border Family Litigation

The reading list will be distributed in advance to allow participants to prepare for discussion, which will be moderated by law professors and lecturers from the above-mentioned universities. All PhD researchers are eligible to apply. Please follow the registration link available on the event webpage here: https://www.abdn.ac.uk/law/events/16837/

This is an update on my previous blog post here

Capacity to sue and be sued is an important aspect of conflict of laws. It connects very well with the issue of access to justice. For example if a foreign company that does business with a Nigerian company cannot sue in Nigeria it can result in injustice, and lead to loss of confidence in doing transactions with parties located in the Nigerian legal system.

Why is the above topic important? Having undertaken further research, it can be said that Nigerian court decisions are not consistent on the issue of capacity of a foreign company to sue and be sued in Nigeria. The latest reported authoritative source from the Nigerian Supreme Court is that by virtue of Section 54 and 55 of the Companies and Allied Matters Act 2004 Cap C20 (now Section 78 and 79 of the Companies and Allied Matters Act 2020), a foreign company that carries on business in Nigeria without being registered as a Nigerian company carries out an illegal and void transaction, and thus such a contract cannot be enforced in Nigerian courts.[1] In effect, the provision of Section 60(b) of the Companies and Allied Matters Act 2004 Cap C20 (now Section 84(b) of the Companies and Allied Matters Act 2020) cannot avail the foreign company in granting it the capacity to sue in Nigeria to enforce a contract where it carries on business in Nigeria without registering as a foreign company.[2] It is only where the foreign company that is not registered in Nigeria enters into a contract with a Nigerian company, while not doing business in Nigeria, will such a contract be enforceable in Nigeria.[3] The key word is thus doing business in Nigeria in determining whether a foreign company that is not registered in Nigeria can sue or be sued in Nigeria. This decision has now been confirmed by a very recent Court of Appeal decision, though in the instant case it was held that the foreign company had a Nigerian subsidiary and it was not carrying out business in Nigeria (it was a single transaction), so the contract was enforceable in Nigeria.[4]

Yet this current position of Nigerian law is strange and appears to contrast with the law in other common law countries including common law African countries. The recent position of the Nigerian Supreme Court also appears to contrast with previous decisions of Nigerian appellate courts that held that foreign companies could sue and be sued in Nigeria irrespective of whether they are carrying on business in Nigeria.[5]

This aspect of law requires further reflection as it is now an important and controversial aspect of Nigerian law. Dr Abubakri Yekini and I plan to write a full blown article on this interesting subject. Please stay tuned!

[1] Citec Intl Estates Ltd. v. E. Intl Inc. and Associates (2018) 3 NWLR (Pt. 1606) 332, 357 – 364 (Eko JSC)

[2] Ibid.

[3] Ibid.

[4] Mocoh SA & Anor v. Shield Energy Ltd & Anor (2021) LPELR-54559(CA).

[5]INFAZ v COBEC (Nig) Ltd (2018) 12 NWLR Pt. 1632) 127; Bank of Baroda v Iyalabani Company Ltd (2002) 13 NWLR 551. See also Watanmal (Singapore) Pte Ltd v. Liz Olofin and Company Plc (1997) LPELR-6224(CA) 13 (Musdapher JCA as he then was); NU Metro Retail (Nig) Ltd v. Tradex S.R.L & Another (2017) LPELR-42329(CA) 41-2 (Garba JCA as he then was).

This post is by Emilia Beuger (LL.M. Utrecht), JD Candidate at the University of Pittsburgh School of Law.

As noted in an earlier post on this site, the United States Supreme Court granted a petition for a writ of certiorari to the Ninth Circuit’s decision in Cassirer v. Thyssen-Bornemisza Collection Foundation on September 30, 2021. Below is a more detailed discussion of the issues at play in this case.

This case originated in the state of California and was then appealed to the Ninth Circuit before filing a writ of certiorari to the Supreme Court of the United States. The central legal issue concerns the Foreign Sovereign Immunities Act (FSIA), whose application and interpretation has been split across Circuit Courts.

The issue before the Supreme Court is whether a federal court hearing state law claims brought under the FSIA must apply the forum state’s choice-of-law rules to determine what substantive law governs the claims at issue, or whether it may apply federal common law. The state law is California’s choice-of-law test and the federal common law’s choice-of-law test is set forth in the Restatement (Second) Conflict of Laws. The FSIA does not have an express choice of law provision.

Background

The Cassirer family has sought to recover a painting that was stolen from Lilly Cassirer by the Nazis in 1939, and it was subsequently smuggled into the United States and traded privately. This was unbeknownst to Lilly, who brought proceedings in the United States Court of Restitution Appeals under the assumption that the painting had been lost or destroyed. The Thyssen-Bornemisza Collection Foundation (TBC) purchased the painting in 1993. TBC is a public foundation, and it is considered an agency or instrumentality of the Kingdom of Spain. In 2000, Lilly’s grandson Claude Cassirer learned that TBC had possession of the painting and requested both Spain and TBC for the painting’s return. Spain refused. Claude filed suit against Spain and TBC in 2005. Spain was voluntarily dismissed as a party in 2011.

Claude passed away in 2010, and his children David and Ava, as well as the United Jewish Federation of San Diego County, were substituted as plaintiffs. Ava’s estate was substituted as a plaintiff after she passed away in 2018.

Issues and Arguments

A series of different proceedings have occurred since the original filing in 2005. The Ninth Circuit found that the Foreign Sovereign Immunities Act applies to the dispute because the painting was stolen by Germany in violation of international law.

The most recent case in the district court in 2015 was a result of the parties’ cross-motions for summary judgment on the choice-of-law and its application. The district court found for TBC. Even though the buyer prior to TBC had not purchased the painting in good faith and did not pass good title to TBC, TBC lacked actual knowledge under Spanish law. Because TBC lacked actual knowledge under Spanish law, TBC was allowed to keep the stolen painting.

Cassirer’s theory on appeal was that the district court should have applied California law, not Spanish law. Under California law, a thief cannot pass title to anyone, even if there was a good faith purchaser (i.e. who TBC claims to be in this case). Therefore, if California law had been applied in this case, the outcome would have been different.

Key to both sides arguments is that the FSIA provides: “foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 1606.

On appeal, the Ninth Circuit agreed with the district court, affirming the application of federal common law to the choice-of-law analysis under the FSIA, but remanded because the Ninth Circuit felt that the district court did not properly apply the Spanish law. Cassirer argues that this contrasts with other Circuit Courts, such as the Second, Fifth, Sixth and D.C. Circuits, who have applied the law of the forum state to the choice-of-law analysis for claims under the FSIA.

In Cassirer’s petition, he cites cases across the Second, Fifth, Sixth, and D.C. Circuits that say the law of the forum state should be applied, not federal common law. The decision to apply federal common law by the Ninth Circuit turned on the wording of past precedents that show that the court may “prefer” to apply it. In contrast, the Second Circuit has interpreted that the FSIA is a “pass-through” for the application of state law to be controlling when there is an issue of choice-of-law. If the goal of the FSIA is to apply the same laws to foreign states and private individuals, then the application must be done with the law that the court would use if the court was dealing with two private parties. Cassirer argues that the application of California’s choice-of-law test would have led to the application of California law because the state law interest of California would be more impaired than if the Spanish law was chosen to be applied in this case.

The Ninth Circuit’s approach, Cassirer argues, would lead to an inconsistency within the liability standards for foreign states and private individuals because the law applied in the state court would be different than the law applied if the suit was brought in federal court. Additionally, Cassirer puts forth public policy arguments. Because there is a split in the Circuit Courts, Cassirer argues that the Supreme Court should hear this case.

While Cassier argues that both tests would have warranted application of California law, TBC argues that both tests would have warranted application of Spanish law.

TBC filed a response to Cassirer’s Petition, arguing that while there may be a split amongst the Circuits, the split is a shallow one. TBC also argues that the outcome(s) will almost always be the same, no matter what choice-of-law test is applied. Public policy arguments are also advanced by TBC that the FSIA’s goal of holding foreign sovereigns accountable and that foreign sovereigns are to be dealt with differently than individuals, specifically at the federal level. Additionally, the jurisdiction of the Ninth Circuit rests on a federal question, not a diversity matter, so the Ninth Circuit should apply the federal common law test.

Briefs will be filed later this year and early next year.

The Supreme Court is slated to hear arguments during its 2021 Term.

This book celebrates the work and scholarship of Professor Giorgio Bernini, Honorary President of ICCA, who held the chair of European Union Law, Arbitration and International Commercial Law at the University of Bologna for almost 30 years. A very successful international lawyer, he was the Italian Minister of Foreign Trade and a Member of the Italian Antitrust Authority. Bernini has built a long career in the study and practice of arbitration with a record of 450 cases. The book is divided into an introduction and two parts, to highlight many of Bernini’s contributions to the Law.

In a special introductory section of the book, entitled ‘portraits of a pioneer’, some authors offer specific references to some of his many activities in the field: from the ICC Institute of World Business Law to the International Council for Commercial Arbitration, from the Italian Arbitration Association to his professional life as an international lawyer. Then, in the first part of the book, essays on Contract Law and International Trade Law have been collected. The second part is dedicated to arbitration in its many dimensions: domestic, international, commercial and investment Law.

The contributors are amongst the most highly qualified publicists of the various Nations, with the highest academic credentials and proven experience in the field: Yves Derains, Lise Bosman, Maria Beatrice Deli, Antonio Fraticelli, Guido Alpa, Alfonso-Luis Calvo Caravaca, Javier Carrascosa González, Roberto Ceccon, Gabriele Crespi Reghizzi, Abdel Hamid El Ahdab, H. Ercüment Erdem, Marcel Fontaine, Roy Goode, Kaj Hober, Ernst-Ulrich Petersmann, Fausto Pocar, Stefano Azzali, Ronald A. Brand, Sergio M. Carbone, Dominique Carreau, Claudio Consolo, Giorgio De Nova, Donald Francis Donovan, Romain Zamour, Ugo Draetta, José Carlos Fernandez Rozas, Emmanuel Gaillard, Maria Chiara Malaguti, Eleonora Finazzi Agrò, Fabrizio Marrella, Margaret L. Moses, William W. Park, Hassan Rahdi, Christoph Schreuer, Nicola Soldati, Shengchang Wang.

For further information please visit here:

The latest issue of RabelsZ has just been published online. It contains the following contributions:

Jaakko Husa: Merging International Law and Comparative Law – Balancing Between Normative and Non-Normative, Volume 85 (2021) / Issue 4, pp. 745-774 (30), https://doi.org/10.1628/rabelsz-2021-0045

The relationship between comparative law and public international law is paradoxical. These fields are in principle close to each other but remote in practice. The emergence of comparative international law has changed the situation as it invites comparative law scholars to enter into discussion on international law. This article provides a critical analysis on the possibilities for comparative law in the field of international law. It discusses and explains why a non-normative understanding of comparative international law works well together with the pluralist conception of comparative law, and why a normative understanding of comparative international law is incompatible with it. This article explains why comparative law scholars do not welcome the use of comparative law for international law purposes with open arms.

Malte Kramme: Mehr als ein Qualifikationsproblem: Zum Verhältnis von Verbrauchervertrags- und Geschäftsfähigkeitsstatut, Volume 85 (2021) / Issue 4, pp. 775-810 (36), https://doi.org/10.1628/rabelsz-2021-0046

More than a Problem of Characterization: The Relationship Between Consumer Contract Law and the Law of Capacity. – The EU regulations in the area of private international law largely exclude legal capacity. The law applicable to questions of capacity is determined by the applicable national conflict-of-law rules. This raises the question of the scope of the law of capacity and how it is to be distinguished from neighbouring fields of law. In particular, drawing this distinction vis-à-vis contract law presents difficulties in cases involving consumers. Both consumer law and the law of capacity place the protection of the weaker party in the foreground. Distinguishing the law of capacity from neighbouring fields of law is therefore more than a mere problem of characterization: it is a matter of not undermining the level of protection sought by the different fields of law in cross-border cases. In this paper, a proposal is made as to how the boundaries of the law of capacity can be determined in relation to contract law, taking into account this intended protection of the weaker party.

Jürgen Samtleben, Gonzalo A. Lorenzo Idiarte: Das Allgemeine Gesetz des Internationalen Privatrechts von Uruguay, Volume 85 (2021) / Issue 4, pp. 811-851 (41), https://doi.org/10.1628/rabelsz-2021-0047

The Uruguayan General Law of Private International Law. – Uruguay has always been a center for private international law. The Montevideo Congress, held in 1888 and 1889 at Uruguay’s invitation – before the Hague Conference on Private  International Law – was of instrumental significance for the development of private international law in Latin America. Uruguay has consistently played an active role in preparing the inter-American specialized conferences on private international law and in propagating bilateral PIL treaties. The new private international law legislation underway since the end of the last century does not break with tradition completely, but seeks to develop it further adapting it to present-day demands. Some major features of the reform bear emphasis: a comprehensive regulation of the general rules of private international law, refinements to the contours of international family law, a recasting of international contracts law based on party autonomy,  and detailed rules on the exercise of jurisdiction by national courts in international disputes.

For a German translation of the Uruguayan General Law of Private International Law of 27 November 2020 by Samtleben, see: Volume 85 (2021) / Issue 4, pp. 907-925 (19), https://doi.org/10.1628/rabelsz-2021-0052

Issue 4/2021 also includes the following contributions originating in the Symposium “The Code of Capital”, held at the Max Planck Institute for Comparative and International Private Law in Hamburg on 11 May 2021:

• Ralf Michaels: Vorwort zum Symposium, Volume 85 (2021) / Issue 4, pp. 852-853 (2), https://doi.org/10.1628/rabelsz-2021-0048

• Hans-Bernd Schäfer: Nationalreichtum und private Armut durch Zivilrecht? – Eine Besprechung des Buchs »The Code of Capital« von Katharina Pistor, Volume 85 (2021) / Issue 4, pp. 854-875 (22), https://doi.org/10.1628/rabelsz-2021-0049

• Katharina Pistor: Recht und Ökonomie im Spannungsfeld verschiedener Schulen – Eine Replik auf Hans-Bernd Schäfers Buchbesprechung, Rabels Zeitschrift für ausländisches und internationales Privatrecht (RabelsZ), Volume 85 (2021) / Issue 4, pp. 876-889 (14), https://doi.org/10.1628/rabelsz-2021-0050

• Ralf Michaels: Der Code des Kapitals und seiner Portabilität – Anmerkungen zu Katharina Pistor, Rabels Zeitschrift für ausländisches und internationales Privatrecht (RabelsZ), Volume 85 (2021) / Issue 4, pp. 890-906 (17), https://doi.org/10.1628/rabelsz-2021-0051

Pilar Jimenez Blanco (University of Oviedo) has published a monograph on cross border matrimonial property regimes (Regímenes Económicos Matrimoniales Transfronterizos).

The book is an in-depth study of Regulation 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes.

The author has kindly provided the following abstract in English:

Regulation (EU) No 2016/1103 is the reference Regulation in matters of cross-border matrimonial property regimes. This book carries out an exhaustive analysis of the Regulation, overcoming its complexity and technical difficulties.

The book is divided in two parts. The first is related to the applicable law, including the legal matrimonial regime and the matrimonial property agreement and the scope of the applicable law. The second part is related to litigation, including the rules of jurisdiction and the system for the recognition of decisions. The study of the jurisdiction rules is ordered according to the type of litigation and the moment in which it arises, depending on whether the marriage is in force or has been dissolved by divorce or death. The conclusions include an overview of the guiding principles of the Regulation and specific solutions for different problems related to matrimonial property regimes (such as the treatment of prenuptial agreements, effects in respect of third parties, the relationship between the matrimonial property regimes or the civil liability of the spouses).

The study merges the rigorous interpretation of UE rules with practical reality and includes case examples for each problem area. The book is completed with a lot of references on comparative law, which show the different systems for dealing with matters of the matrimonial property regime applied in the Member States. It is, therefore, an essential reference book for judges, notaries, lawyers or any other professional who performs legal advice in matrimonial affairs.

The table of contents can be accessed here.

This post is by Alberto Pomari, LLM Student at the University of Pittsburgh School of Law and JD Student at the University of Verona School of Law.

Although the United States has historically led the way in the field of antitrust law, it is currently taking a backseat to the European Union, which has become the global role model in competition law. The Illumina/Grail merger illustrates this tendency.

In March 2021, the FTC challenged the merger and filed an administrative complaint for a temporary restraining order to keep Illumina and Grail from closing the transaction. Specifically, the FTC avers that Illumina’s acquisition of Grail will “lessen competition in the U.S. MCED test market by raising costs and hindering development efforts of Grail’s rivals.” Effectively, the FTC is leaning on the theory of harm, known as “increased leverage theory,” that aims at protecting competitors in the downstream market from the merged firm’s stronger “bargaining position in affiliate negotiations.” However, this theory was soundly rejected only a few years ago in United States v. AT&T, Inc. where the Court stuck with the traditional lodestar of American antitrust law, i.e. the consumer welfare theory. In a fanciful attempt to overrule the AT&T decision, the increased leverage theory was incorporated in Section 4 of the (already withdrawn) 2020 Vertical Merger Guidelines. Notwithstanding, after only two months, the FTC dropped its temporary restraining order petition as Illumina and Grail had, in the meantime, been prevented from merging under European competition law. Indeed, in view of its cooperation with the FTC, the European Commission announced in April 2021 an investigation into the transaction at stake pursuant to a new interpretation of Article 22 of the E.U. Merger Regulation.

Unlike its American counterpart, European competition law has traditionally served an array of policy goals that, going beyond the mere consumer welfare, include the protection of small- and medium-sized enterprises as well as the preservation of a competitive market structure. Accordingly, mergers like Illumina/Grail usually have a harder time passing the scrutiny of the European institutions. However, what is unprecedented in this case is the European Commission’s willingness to go the extra mile to crack down on an acquisition that involves two American companies, one of which—Grail—does not even have any business activity in the European Union.

In March 2021, the EC issued a new interpretation of the referral mechanism set out by Article 22 of the Merger Regulation. Particularly, National Competition Authorities may now require the European Commission to assess any proposed merger that “may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States,” irrespective of the merging parties’ actual presence in the European market. By adopting this new interpretation, the European Union was able to come to the rescue of the ill-equipped FTC by halting the Illumina/Grail transaction thanks to the (administrative) standstill obligation imposed by Article 7 of the E.U. Merger Regulation.

In conclusion, Illumina and Grail have been the hapless victims of a joint EC-FTC scheme that should send chills down the spine of any American company interested in a vertical merger, mainly for two reasons. First, according to the new interpretation of Article 22 of the E.U. Merger Regulation, many cutting-edge U.S. mergers are likely to be scrutinized by the European Commission under the E.U. stringent theory of harm, even if the companies involved have no current business in the European Market. Second, to challenge these mergers, the FTC will likely engage in unprecedented transatlantic forum shopping to obtain from the European Commission a (administrative) temporary restraining order that should otherwise be sought before an American court. This may be just the beginning of a far-reaching “Europeanization of the U.S. antitrust.”

Today, the Court of Justice has published its judgement in C 393/20, a request for a preliminary ruling from the Sąd Rejonowy dla Krakowa-Śródmieścia w Krakowie (Poland).

The subject matter of the proceedings in the joined cases concerns the claims of two commercial operators, T.B. and D. sp. z o.o., with seat in Poland, against the defendant G.I. A/S, which has its seat in Denmark. In each of the two joined cases, the applicant seeks compensation for the damage resulting from a road accident caused by persons who are insured by the defendant. In both cases the accident occurred in Poland, the vehicles involved in the collision were registered in the territory of Poland, and the drivers of the vehicles are Polish citizens.

T.B. is a businessman; he engages professionally in risk assessment and loss assessment activities. D. sp. z o.o. presents itself as a repair workshop offering vehicle repair services without payment and accepting claim assignment as settlement of repair costs. G.I. A/S contests the jurisdiction of the Polish courts seized in both cases.

The questions referred to the Court were:

(1)         Must Article 13(2), in conjunction with Article 11(1)(b), of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters be interpreted as meaning that it may be relied on by a person who, in return for services provided to a party directly injured in a road accident in connection with the damage caused, has acquired a claim for compensation, but does not carry out the professional activity of recovering insurance indemnity claims against insurance companies and who brought an action, in the court for the place where he is established, against the third-party liability insurer of the party responsible for that accident, which insurer has its seat in another Member State?

(2)         Must Article 7(2) or Article 12 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters be interpreted as meaning that it may be relied on by a person who acquired, under an assignment agreement, a claim from a party injured in a road accident in order to bring a civil-liability action before a court of the Member State in which the accident occurred against the insurer of the party responsible for that accident, which insurer has its seat in a Member State other than the Member State in which the accident occurred?

In a decision taken by the 8th Chamber (N. Wahl, F. Biltgen, L.S. Rossi as juge rapporteur), without prior opinion of the advocate general in charge, the Court has replied as expected. Regarding the first question, it states that (my translation) Article 13 (2) of Regulation 1215/2012, read in conjunction with Article 11 (1) (b) of that regulation,

“must be interpreted as meaning that it cannot be invoked by a company which, in return for the services it provides to the victim direct from a road traffic accident related to the damage resulting from this accident, has acquired from it the claim for insurance compensation, for the purpose of claiming payment from the insurer of the author of the said accident, without however exercising a professional activity in the field of recovery of such debts.”

On the second query, the answer reads:

“Article 7 (2) of Regulation No 1215/2012 must be interpreted as meaning that it may be invoked by a trader who has acquired, by virtue of an assignment contract, the debt of the victim of a road traffic accident, with the aim of bringing before the courts of the Member State of the place where the harmful event occurred, a tort or quasi-tort action against the insurer of the author of this accident, which has its registered office in the territory of a Member State other than that of the place where the harmful event occurred, provided that the conditions for the application of this provision are met, which is for the referring court to verify.”

On 5 October 2021, Indonesia acceded to the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents. It will enter into force for Indonesia on 4 June 2022.

Source : https://www.hcch.net/en/news-archive/details/?varevent=825

The Hague Special Commission on the practical operation of the Apostille Convention met from 5 to 8 October 2021. Its Conclusions & Recommendations are available at https://assets.hcch.net/docs/b7b20030-6229-459f-b26b-e9185bf6fffc.pdf

Extract (example) : « the PB is not appropriately placed to establish a digital certificate authority and reiterating the importance of technology neutrality and maintaining flexibility for all Contracting Parties, the SC recognised the good practice of using digital certificates with high standards, that are well-recognised and frequently used, and invited Contracting Parties to inform the PB about the certificate technology used to issue e-Apostilles. […] The SC recalled the fundamental principle that, irrespective of format, an Apostille validly issued by one Contracting Party in accordance with the Convention must be accepted by all other Contracting Parties for which the Convention is in force. In this spirit, it encouraged Contracting Parties to take active steps to ensure the acceptance of incoming e-Apostilles ».

« From 28 to 30 September 2021, the Working Group on Preventing and Addressing Illicit Practices in Intercountry Adoption met [to discuss] a Toolkit aimed at preventing and addressing illicit practices in intercountry adoptions made under the 1993 Adoption Convention ».

The Aide-mémoire of the Group is available https://assets.hcch.net/docs/43cf175b-1c27-4a90-8be7-7a87b8412665.pdf (Annex I)

Source : https://www.hcch.net/en/news-archive/details/?varevent=823

On 20 October 2021, the Supreme Court of the United Kingdom delivered its judgment in FS Cairo (Nile Plaza) LLC (Appellant) v Brownlie (as Dependant and Executrix of Professor Sir Ian Brownlie CBE QC) (Respondent).

The most important issue before the court was whether English court should be able to retain jurisdiction in tort cases on the ground that an indirect damage was suffered in the United Kingdom. The applicable provision (CPR Practice Direction 6B) refers to “damage” suffered in England, and the court held that as it does not distinguish between direct and indirect damage, it should be considered as including both.

Interestingly, the argument was made that the English rule was drafted on the model of EU law, which limits jurisdiction to the court of the place of direct damage. It is rejected as an overgeneralisation.

So much for those who thought that EU law would continue to influence the development of English private international law.

Bye bye Brussels, bye bye Marinari.

On 3 January 2010, Lady Brownlie’s husband was killed in a car accident in Egypt during an excursion booked through the Four Seasons Hotel Cairo, a hotel operated by FS Cairo. Lady Brownlie was injured in the same accident. The driver was convicted of involuntary manslaughter. In December 2012, Lady Brownlie brought claims in tort and contract in the High Court against Four Seasons Holdings Incorporated, a Canadian company, for damages for injury and losses suffered as a result of the accident.

In 2018 the Supreme Court held that the evidence showed that Four Seasons Holdings Incorporated was a non-trading holding company which neither owned nor operated the Hotel and that therefore the courts of England and Wales had no jurisdiction to try the claims against it. The Supreme Court remitted ancillary matters to the High Court and ordered that the Claimant had permission to apply to correct the name of the Defendant, to substitute or to add a party to the proceedings.

Lady Brownlie applied to the High Court to amend her claim so that it could be brought against FS Cairo instead. Permission to amend her claim was granted but, because FS Cairo is an Egyptian company, Lady Brownlie also requires permission to serve her claim out of the jurisdiction.

In order to serve her claim outside the jurisdiction, English law requires Lady Brownlie to show, in respect of each claim in contract and tort, that: (1) it falls within a ‘jurisdictional gateway’ under CPR Practice Direction 6B; (2) it is a claim that has a reasonable prospect of success; and (3) England and Wales is the proper place in which to bring the claim. The High Court and a majority of the Court of Appeal (Arnold LJ dissenting) decided that Lady Brownlie had met all three elements of this test in respect of her claims in tort and contract. Lady Brownlie was therefore granted permission to serve her claims on FS Cairo. FS Cairo appeals to the Supreme Court only against the decisions concerning the first two elements of the test.

Before permission may be given for service of a claim form outside the jurisdiction, the claimant must establish that: (1) the claim falls within one of the gateways set out in paragraph 3.1 of Practice Direction (“PD“) 6B to the CPR; (2) the claim has a reasonable prospect of success; and (3) England and Wales is the appropriate forum in which to bring the claim [25]. Those conditions are the domestic rules regarding service out of the jurisdiction; they may be contrasted with the EU system [28-29].

Lady Brownlie submits that her tortious claims meet the criterion for the gateway in paragraph 3.1(9)(a) of PD 6B, namely that “damage was sustained… within the jurisdiction” [30]. The appellant submits that paragraph 3.1(9)(a) only founds jurisdiction where the initial or direct damage was sustained in England and Wales. Lady Brownlie instead maintains that the requirements of the gateway are satisfied if significant damage is sustained in the jurisdiction [33-34].

The Supreme Court considers that the word “damage” in paragraph 3.1(9)(a) refers to actionable harm, direct or indirect, caused by the wrongful act alleged [81]. Its meaning should not be limited to the damage necessary to complete a cause of action in tort because such an approach is unduly restrictive [49-51]. The notion that paragraph 3.1(9)(a) should be interpreted in light of the distinction between direct and indirect damage which has developed in EU law is also misplaced [81]. It is an over generalisation to state that the gateway was drafted in order to assimilate the domestic rules with the EU system. In any event, there are fundamental differences between the two systems [52-56]. The additional requirement that England is the appropriate forum in which to bring a claim prevents the acceptance of jurisdiction in situations where there is no substantial connection between the wrongdoing and England [77-79]. Lady Brownlie’s tortious claims relate to actionable harm which was sustained in England; they therefore pass through the relevant gateway [83].

Lord Leggatt dissents on this issue. He favours a narrower interpretation of paragraph 3.1(9)(a) [208]. He considers that Lady Brownlie’s tortious claims do not pass through the relevant gateway because Egypt is the place where all of the damage in this claim was sustained [209].

It is common ground that Lady Brownlie’s claims are governed by Egyptian law [98]. One of the requirements for obtaining permission for service out of the jurisdiction is that the claim as pleaded has a reasonable prospect of success [99-100]. The appellant argues that Lady Brownlie has failed to show that certain of her claims have a reasonable prospect of success because she has not adduced sufficient evidence of Egyptian law. Lady Brownlie submits that it is sufficient to rely on the rule that in the absence of satisfactory evidence of foreign law the court will apply English law [102-103, 105-106].

The Supreme Court distinguishes between two conceptually distinct rules: the ‘default rule’ on the one hand and the ‘presumption of similarity’ on the other. The default rule is not concerned with establishing the content of foreign law but treats English law as applicable in its own right when foreign law is not pleaded [112]. The justification underlying the default rule is that, if a party decides not to rely on a particular rule of law, it is not for the court to apply it of its own motion [113-116]. However, if a party pleads that foreign law is applicable they must then show that they have a good claim or defence under that law [116-117]. The presumption of similarity is a rule of evidence concerned with what the content of foreign law should be taken to be [112]. It is engaged only where it is reasonable to expect that the applicable foreign law is likely to be materially similar to English law on the matter in issue [126]. The presumption of similarity is thus only ever a basis for drawing inferences about the probable content of foreign law in the absence of better evidence [149]. Because the application of the presumption of similarity is fact-specific, it is impossible to state any hard and fast rules as to when it may properly be employed (although some general observations may nonetheless be made) [122-125, 143-148].

Lady Brownlie’s claims are pleaded under Egyptian law. There is thus no scope for applying English law by default [118]. However, the judge was entitled to rely on the presumption that Egyptian law is materially similar to English law in concluding that Lady Brownlie’s claims are reasonably arguable for the purposes of establishing jurisdiction [157-160].

The UNCITRAL LAC Day 2021 will take place online on Thursday 21 October 2021 at 10:00 Argentinian time and 15:00 CEST time (in Spanish). This event has been organised by UNCITRAL, the Organization of American States (OAS – OEA), Secretaría de Integración Económica Centroamericana / Secretariat for Central American Economic Integration (SIECA) and ASADIP.

The focus of the conference will be international commercial mediation and expedited arbitration. In particular, it will be discussed the work carried out by UNCITRAL’s Working Group II: Dispute Settlement.

This post was contributed by Hans van Loon, a member of GEDIP and of the Institut de Droit International and a former Secretary General of the Hague Conference on Private International Law. 

The European Group for Private International Law at its annual – virtual – meeting in September 2021 adopted a Recommendation to the EU Commission concerning the PIL aspects of corporate due diligence and corporate accountability.

The GEDIP adopted this Recommendation although the Commission has not yet published its legislative initiative on mandatory human rights and environmental due diligence obligations for companies, to which EU Commissioner for Justice, Didier Reynders, committed on 19 April 2019. Meanwhile, however, on 10 March 2021 the European Parliament adopted a Resolution “with recommendations to the Commission on corporate due diligence and corporate accountability”.  As the Commission will likely draw inspiration from this document, the GEDIP considered the EP Resolution when drafting its Recommendation. The GEDIP also took into account various legislative initiatives taken by Member States such as the 2017 French Loi sur le devoir de vigilance and the 2021 German legislative proposal for a Sorgfaltsplichtengesetz (see II Background to the Proposal, 3), as well as recent case law in the UK and the Netherlands (See II Background to the Proposal 2).

The Recommendation starts from the premise that the future EU Instrument (whether a Regulation or a Directive) will have a broad, cross-sectoral scope, and will apply both to companies established in the EU and those in a third State when operating in the internal market. In order to accomplish its aim, the Instrument, in addition to a public law monitoring and enforcement system, should create civil law duties for the relevant companies. Since such duties may extend beyond Member States’ territories, they will give rise to issues of private international law. To be effective, the Instrument should not leave their regulation to the differing PIL systems of the Member States. Ultimately, the proposed rules may find their place in revised texts of EU regulations, including Brussels I recast, Rome I and Rome II. But since revisions of those regulations are unlikely to take place before the adoption of the Instrument, and as these rules are indispensable for its proper operation, the proposal is to include them in the Instrument itself.

The Recommendation therefore proposes that the Instrument extends the current provision on connected claims (Art. 8 (1) Brussels I) to cases where the defendant is not domiciled in a Member State, creates a forum necessitatis where no jurisdiction is available within the EU, determines that the Instrument’s provisions have overriding mandatory effect whatever law may apply to contractual and non-contractual obligations and companies, and extends the rule of Art. 7 of Rome II to claims resulting from non-compliance in respect of all matters covered by the Instrument, while excluding the possibility of invoking Art. 17 of Rome II by way of exoneration (The Annex to the Proposal contains suggestions concerning the form and the substantive scope of the future EU instrument).

By Jack Wass (Stout Street Chambers, New Zealand)

The enforcement of judgments from Chinese courts continues to generate controversy in common law countries. In Hebei Huaneng Industrial Development Co Ltd v Shi, the New Zealand courts have been faced with the argument that because Chinese courts are not independent of the political arms of government, they do not qualify as “courts” and their judgments are not entitled to recognition.

In 2020, the High Court rejected this argument in a jurisdictional context: see our report here and the issue has also arisen in the United States. The issue arose again, in the same case, on an application for summary judgment by the plaintiff judgment creditor. Here the argument received more traction from a different judge of the same court.

The judges at both stages recognised that there were two ways to look at allegations that courts lacked impartiality and independence: the first is to assess whether the courts, as a general matter, possess the characteristics of judicial bodies whose decisions are entitled to recognition; the second is to assess whether the absence of independence resulted in a breach of natural justice in the circumstances of the actual case.

Both approaches present the court with a potentially invidious inquiry, but the clear message from the judges in both decisions is that a defendant has a better chance of showing that justice was not done in an individual case than convincing the court to condemn an entire judicial system. With the application for summary judgment rejected, the case will now go to trial; this will not be the last word on the enforcement of Chinese judgments in New Zealand.

On 15 October 2021, the two Rapporteurs of the European Parliament, Emil Radev and Nuno Melo (following a Joint committee procedure, i.e. Committee on Legal Affairs and Committee on Civil Liberties, Justice and Home Affairs) released a Report on the Proposal for a Regulation of the European Parliament and of the Council on a computerised system for communication in cross-border civil and criminal proceedings (e-CODEX system, already mentioned on the blog here and here), amending Regulation (EU) 2018/1726 eu-LISA (see the Regulation Proposal here).

The Explanatory Statement presenting the main reasons for the proposed amendments on the Regulation Proposal reads as follows:

Introduction

E-Justice is one of the cornerstones of the efficient functioning of judicial systems in the Member States and at the European level. It is an essential instrument to facilitate the access to justice and provide legal protection to European citizens and companies in the digital era. It is thus important that appropriate channels are developed to ensure that justice systems can efficiently cooperate in a digital way.

The Commission’s Communication on the digitalisation of justice, A toolbox of opportunities, of 2 December 2020, sets out a new approach to the digitalization of justice based on a comprehensive set of financial and IT legal instruments to be used by various actors in the judicial systems. The Commission also presented the “Proposal for a Regulation on a computerised system for communication in cross-border civil and criminal proceedings (e-CODEX system)”, the e-CODEX Regulation.

On 29 April 2021 it was announced that the file shall be dealt with jointly by two committees – the Civil Liberties, Justice and Home Affairs Committee (LIBE), and the Legal Affairs Committee (JURI). MEP Emil Radev (JURI) and MEP Nuno Melo (LIBE) were appointed rapporteurs for the referred Regulation. E-CODEX is a golden standard/key technological enabler for modernising, through digitalisation, the communication in the context of cross-border judicial proceedings. Since the start of the project in December 2010, e-CODEX has transformed from an ambitious project to an operational Digital Service Infrastructure (DSI) in the judicial domain. Currently, the focus lies on the transition of the e-CODEX project towards a long-term sustainable and secure solution for the maintenance of e-CODEX.

The Rapporteurs believe that this Regulation, as an instrument which is directly applicable in all Member States and binding in its entirety, will guarantee a uniform application of the rules on e-CODEX across the EU and their entry into force at the same time. They welcome the aim to offer legal certainty by avoiding divergent interpretations in the Member States, thus preventing legal fragmentation. By establishing the e-CODEX system, the adoption of the Regulation will contribute to the uptake of e-CODEX by more Member States for procedures in which the system is already used as well as for future ones. The E-CODEX project aims to improve the cross-border access of citizens and businesses to justice in European Union as well as to improve the interoperability between judicial authorities within the European Union. It is designed as a decentralized system based on a distributed architecture that enables connectivity between national systems.

The rapporteurs believe that the e-CODEX system should be seen as a preferred solution for the establishment of interoperable and secure decentralised communication networks between national IT systems in cross-border judicial cooperation in civil and criminal  matters. The Proposal aims to entrust the further development and maintenance of e-CODEX to the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA) as of July 2023.

1. Scope

The scope of this Regulation is the electronic exchange of data in the context of cross-border judicial cooperation in civil and criminal matters (Article 2). The e-CODEX system should be viewed as the preferred solution for an interoperable, secure and decentralised communication network between national IT systems in this field.  The rapporteurs are of the opinion that Annex I, containing a list of instruments providing for judicial procedures subject to eCodex, should be deleted. The scope of the Regulation should instead be established by reference to the judicial cooperation in civil and criminal matters (Article 2). This allows for avoiding any risk of leaving out of the scope judicial procedures for which it is appropriate to foresee the possibility to use e-Codex. Moreover, a simple reference to Article 81 and 82 TFEU would have not been sufficient as instruments predating the Lisbon Treaty would not have been covered. Finally, the Regulation should only deal with the use of e-Codex for procedures in civil and criminal matters. Other uses of e-Codex that may be established by future legislative acts should not be addressed by this Regulation as they would require adaptations that cannot be foreseen at present (Recital 11; Article 2).

2. Definitions

The Commission proposal does not contain clear and concrete provisions regarding the operating conditions of access points. The rapporteurs further developed the terminology of e-Codex to give more clarity to the following expressions: “authorised e-Codex Access point”, “e-Codex correspondents” and “digital procedural standards” (Article 3).

3. Allocation of responsibilities

It is necessary to ensure the long-term sustainability of the e-CODEX system and the efficiency of its governance while ensuring the independence of the national judiciaries; therefore, an appropriate entity for the operational management of the system is to be designated. The proposal provides for the creation of an e-CODEX Advisory Group and a Programme Management Board for e-CODEX (Article 12). Safeguards have been introduced for the independence of the judiciary that shall never be negatively impacted on by the e-CODEX system (recitals 7 and 9; Article 12a new). For a sound and clear operation of the eCodex system, further amendments have been tabled to precisely delineate the roles of the Commission, the Member States and eu-Lisa (Recitals 5, 12, 15, 21; Articles 3(1)b, 3(1)ba new, 6(4)a new, 7, and 16a new).

4. Optimisation of the e-CODEX system

The rapporteurs introduced, for the sake of efficiency of e-Codex, some specifications on the authorized access points and on the designation of correspondents by Member States (Article 3(1)b, Article 3(1)ba new and Article 7).

5. Delegation of powers to COM

Since the scope of the eCodex Regulation should be limited to the judicial cooperation in civil and criminal matters, but given that in the future it could be appropriate to make other procedures subject to the eCodex system, the two Rapporteurs are of the view that a certain flexibility is needed when it comes to the scoping of the Regulation itself. This is why provisions on delegated acts have been introduced. These provisions allow for further expanding the operation of eCodex while fully preserving the prerogatives of the Parliament on the scoping of the Regulation (Article 5(3a) new and 16a new). 

In the Commission Financial Statement, reference is made to the expansion of the eCodex system to other procedures via implementing acts (point 2.2.3). This would be neither desirable nor legally appropriate. However, since the Financial Statement cannot be amended by the co-legislators, the insertion of the provisions empowering the Commission to adopt delegated acts is sufficient to keep parliamentary scrutiny intact.

6. Private entities operating the access points and data protection

Judicial authorities and public prosecutors in many Member States usually have recourse to the services of contractors. Therefore, providing for the involvement of private entities and limiting it to the functioning of the e-Codex system does not set a dangerous precedent. However, safeguards should be in place given the sensitivity of the administration of justice and of the data and information dealt with by judicial authorities. This is the reason why the two Rapporteurs have foreseen that private entities can operate the access points only if authorised by Member Stated and provided that they fully comply, like public authorities possibly charged with that same task, with existing legislation on data protection (Recital 15, 15a new, 17; Article 12a new).

7. e-Justice Core Vocabulary

With a view to strongly and thoroughly encourage judicial cooperation and mutual trust, interoperability should be ensured not only as regards Information and Communication Technology, but also in relation to terminology. Otherwise, even the most efficient system of interconnection would not be sufficient to make judicial authorities, legal practitioners, citizens, businesses and stakeholders properly understand each other. It is in the light of this that the two rapporteurs have chosen to insert the reference to the e-Justice Core Vocabulary in the definition of the “digital procedural standard” (Article 3, paragraph 1, point ga, new).

Conclusion

The two rapporteurs find that the proposal put forward by the Commission goes in the right direction by putting the question of interoperability at the heart of the EU efforts to stimulate and enhance the judicial cooperation across the continent.The proposal itself can be considerably improved to find a delicate and vital balance between interoperability and judicial independence, efficiency and data protection, speed and fundamental rights, technology and the rule of law.

More information here.

I reviewed the AG’s Opinion in C-269/20 Commerzbank here. The CJEU held a few weeks back, rejecting the AG’s main proposal and instead following him on the subsidiary argument. For the consumer section, it suffices the international element surfaces only after the contract has been concluded, provided of course the contract at issue meets with the Pammer Alpenhof criteria: the business concerned need not necessarily actively pursue a commercial activity in the State in which the consumer is now domiciled, yet its organisation of operations and marketing is such as to meet the ‘directed at’ criteria of the consumer section.

It is to be assumed that the Court’s flexible interpretation (with reliance to a large degree on mBank) of the international element to this far-reaching extent, only applies given the protective intent of Lugano’s (and Brussels Ia’s) consumer, potentially employees’ and insurance title.

Geert.

EU Private International Law, 3rd ed. 2021, 2.222 ff.

On 12 October 2021, the European Court of Human Rights (ECtHR) delivered its judgment in J.C. and Others v. Belgium (only available in French, so far).

The case has been widely reported in the general media, as it is concerned with the immunity of the Holy See in a sexual abuse case brought in Belgian courts.

The ECtHR reiterates that it does not consider that the current state of public international law supports the proposition that sovereign immunities would not apply to severe violations of human rights. The Court confirms that it does not see itself as a progressive force in the field of sovereign immunities, but rather as an authority which will follow the development of public international law.

In this context, the claim against the Holy See was unlikely to succeed. There was no allegation that officials of the Vatican had perpetrated acts of sexual abuse themselves. Rather, it was argued that they should be responsible for failing to supervise adequately the Belgian Catholic Church. If the immunity would stand for the direct perpetrator, why would it not for an indirect one?

The applicants were 24 Belgian, French and Dutch nationals. They allege that they were victims of sexual abuse by Catholic priests when they were children.

In July 2011 the applicants filed a class action in a Belgian first instance court, complaining of the structurally deficient way in which the Church had dealt with the known problem of sexual abuse within it. The action was brought against the Holy See as well as an archbishop of the Catholic Church in Belgium and his two predecessors, several bishops and two associations of religious
orders.

Basing their action on general tort law provisons (Articles 1382 and 1384 of the Civil Code), the applicants requested primarily that the defendants be held jointly and severally liable for the damage they claimed to have sustained as a result of the alleged sexual abuse by Catholic priests or members of religious orders. They also claimed that the defendants should be jointly and severally liable to pay compensation of EUR 10,000 to each of them because of the Catholic Church’s policy of silence on the issue of sexual abuse.

In October 2013 the Belgian court declined jurisdiction in respect of the Holy See. In February 2016 a Belgian Court of Appeal upheld the judgment. It found, in particular, that it did not have a sufficient jurisdictional basis to rule on the claimants’ action because of the Holy See’s immunity from legal proceedings. It also stated that Belgium’s recognition of the Holy See as a foreign sovereign with the same rights and obligations as a State was conclusively established. This recognition resulted from a series of commonly agreed elements of customary international law, foremost among which were the conclusion of treaties and diplomatic representation. The Holy See therefore enjoyed diplomatic immunity and all State privileges under international law, including jurisdictional immunity. The Court of Appeal also noted that the dispute did not fall within any of the exceptions to the principle of State immunity from jurisdiction.

In August 2016 a lawyer at the Court of Cassation gave a negative opinion on the chances of success of a possible appeal to the Court of Cassation.

Subsequently, all but four claimants who did not apply were able to obtain compensation through the arbitration centre for sexual abuse claims set up within the Catholic Church. Relying on Article 6 § 1 (right of access to a court), the applicants complained that the application to the Holy See of the principle of State immunity from jurisdiction had prevented them from asserting their civil claims against it.

The Court noted that the Court of Appeal had found that the Holy See was recognised internationally as having the common attributes of a foreign sovereign, with the same rights and obligations as a State. The Court of Appeal had noted in particular that the Holy See was a party to some major international treaties, that it had signed agreements with other sovereign entities and that it enjoyed diplomatic relations with some 185 States worldwide. As regards Belgium, more specifically, diplomatic relations with the Holy See dated back to 1832 and it was recognised as a State.

The Court did not find anything unreasonable or arbitrary in the detailed reasoning which led the Court of Appeal to reach that conclusion. It pointed out that it had itself previously characterised agreements between the Holy See and other States as international treaties. Therefore the Holy See could be recognised as having characteristics comparable to those of a State. The Court of Appeal had thus been justified in inferring from those characteristics that it was a sovereign power with the same rights and obligations as a State.

The Court pointed out that it had also accepted that the granting of State immunity in civil proceedings pursued the legitimate aim of observing international law for the sake of comity and good relations between States, by ensuring respect for the sovereignty of another State.

As to the proportionality of the limitation sustained by the applicants in their right of access to a court, the Court found that the Court of Appeal’s approach corresponded to international practice in such matters. It had not noted anything arbitrary or unreasonable in the Court of Appeal’s interpretation of the applicable legal principles, or in the way it had applied them to the facts of the case, taking account of the basis of the applicants’ action.

The Court also noted that the question whether the case could fall within one of the exceptions to the application of the jurisdictional immunity of States had also been discussed before the Court of Appeal. The exception invoked by the applicants applied to proceedings relating to “an action for pecuniary compensation in the event of the death or physical injury of a person, or in the event of damage to or loss of tangible property”. The Court of Appeal had rejected this exception on the grounds, among others, that the misconduct of which the Belgian bishops were accused could not be attributed to the Holy See, as the Pope was not the principal in relation to the bishops; that the misconduct attributed directly to the Holy See had not been committed on Belgian territory but in Rome; and that neither the Pope nor the Holy See had been present on Belgian territory when the misconduct attributed to the leaders of the Church in Belgium had been committed. It was not for the Court to substitute its own assessment for that of the national courts, since their assessment on this point had not been arbitrary or manifestly unreasonable.

The Court also noted that the proceedings brought by the applicants in the Ghent Court of First  Instance had not been directed solely against the Holy See, but also against officials of the Catholic Church in Belgium whom the applicants had identified. However, the applicants’ claim on this ground was unsuccessful owing to the applicants’ failure to comply with procedural rules laid down in the Judicial Code and substantive rules concerning civil liability in summoning the other defendants. The reason why the applicants’ action had been totally unsuccessful had thus been the result of procedural choices that they failed to cure in the course of the proceedings in order to specify and individualise the facts submitted in support of their claims.

Consequently, the Court found that the dismissal of the proceedings by the Belgian courts in declining jurisdiction to hear the tort case brought by the applicants against the Holy See had not departed from the generally recognised principles of international law in matters of State immunity and the restriction on the right of access to a court could not therefore be regarded as disproportionate to the legitimate aims pursued. There had therefore been no violation of Article 6 § 1 of the Convention.

Written by Marco Farina, Italian lawyer, PhD in Civil Procedural Law at the University La Sapienza of Rome – Adjunct Professor of Civil Procedural Law at the University LUISS of Rome

In a judgment rendered on 16 September 2021, the Italian Supreme Court (Corte di Cassazione) reversed a decision from the Court of Appeal of Rome, which had denied recognition and enforcement of a monetary judgment issued by the Royal Court of Guernsey, due to a breach of the fundamental rights of defence allegedly occurred in the proceedings.

The Court of Appeal of Rome reasoned under Article 64 (b), of the Italian Act on Private International Law (Law 31 May 1995 no. 218), which provides, inter alia, that a foreign judgment may be not recognized and enforced if fundamental rights of defence have been breached in the foreign proceedings.

The Court of Appeal found that a relevant breach of the fundamental rights of defence had occurred because, at the outset of the proceedings, a worldwide freezing injunction (associated with a disclosure order) had been issued against the defendant. In the Court of Appeal’s opinion, the injunction and its effects altered the procedural equality of the parties before the foreign court, since it was a “highly coercive measure against the defendant who is not only severely affected in the free disposal of his assets, but is also exposed to the risk of even being deprived of his personal freedom, if he does not cooperate with his counterpart in the identification of his assets to be seized” (English translation).

This relevant alteration of the procedural equality of the parties existed, according to the Court of Appeal, because, whilst the defendant was impacted by this order, the plaintiff was not.

In the end, the Court of Appeal held that the injunction issued against the defendant had “the concrete ability – in the absence of any conduct of the defendant indicating that he intended to harm the claimant’s rights – to limit, restrict, diminish the defendant’s ability to defend itself, both in imposing significant limitations on the free disposal of his assets and in constraining him to collaborate with the claimant before of preparing its own defence. All this, while nothing of the same kind affected the assets or the defensive opportunities of the claimant. The defendant, therefore, found himself in a much weaker defensive position than his counterpart” (English translation).

The Supreme Court found several flaws in this reasoning.

Firstly, the Supreme Court held that if, in principle, it could not be denied that a relevant alteration of the procedural equality might amount to a breach of the fundamental rights of defence, the mere fact that the judgment to be recognized and enforced in Italy had been preceded by a provisional order – in the form of an injunction (associated with a disclosure order) – could not, in any case, lead to such a breach.

Regarding the functioning of a freezing injunction issued by a common law court, the Supreme Court asserted that (i) the injunction is sought to preserve the defendant’s assets until judgment can be obtained or satisfied, (ii) the injunction may be rendered when the claimant has shown a good arguable case and a risk of dissipation exists, (iii) it operates in personam; therefore, its effectiveness depends on the threat of punishment for contempt of court, and (iv) it is usually associated with other orders, which are aimed at rendering the freezing injunction more effective, thus constraining the affected party to identify its assets and their location (disclosure order) under the threat of being excluded (debarred) from the proceedings (unless order).

Having said that, the Supreme Court went on to state that, in the case at hand, the injunction was associated with a disclosure order but not with an unless order. So, even if the defendant were not to comply with the injunction and the disclosure order, he remained fully entitled to participate in the proceedings defending himself as no exclusion and/or debarring was pronounced against him.

In the light of the above, the Supreme Court had good reason to observe that the Court of Appeal should not have found any breach in the fundamental rights of defence (in terms of the alteration of the procedural equality of the parties) since – as the same Italian Supreme Court held in its previous judgment (judgment no. 11021 rendered on 9 May 2013 in the well-known Gambazzi case, following the decision from CJEU in Case C-394/07, 2 April 2009, Gambazzi) – the right to a fair trial should be considered breached in the event of “manifest and disproportionate infringement of the defendant’s right to be heard” (English translation).

Thus, the Supreme Court noted that, if a judgment rendered against a defendant who – due to his failure to comply with a disclosure order associated with a freezing injunction – had been excluded and/or debarred from the proceedings, must be recognized and enforced in Italy (see again judgment no. 11021 of 9 May 2013 in the Gambazzi case), a fortiori a monetary judgment rendered against the defendant whose participation in the proceedings had not been prevented notwithstanding its failure to comply with the disclosure order associated with the freezing injunction, ought to be recognized and enforced in Italy.

The validity of this line of reasoning must be inferred, according to the Supreme Court, from the injunction (and the disclosure order which was associated with it) being a provisional and protective measure aimed at preserving the claimant’s right to enforce the judgment which might be rendered in its favour at the end of the proceedings on the merits. Therefore, such measures are as much an essential part of the common law procedural system as the attachment and/or preservation orders are in Italy (sequestro conservativo, Article 671 of Italian Code of Civil Procedure).

Hence, asserting that – as the Court of Appeal did – the mere fact that a freezing injunction has been issued and enforced against a defendant (and not against the claimant) amounts to a breach of the right to a fair trial (in terms of the alteration of the procedural equality of the parties), would insinuate that a breach of the fundamental right of defence occurs in Italy every time a claimant succeeds in obtaining a protective measure against the defendant, when the former is not addressed with the same measure.

This is not an alteration of the procedural equality of the parties. On the contrary, this is the essence of litigation between two parties in an adversarial system.

It is natural in contentious civil proceedings that the party against whom a claim is brought may be affected by measures which result in finding itself in a different situation from that of the claimant. This cannot, by definition, give rise to any relevant breach of the fundamental rights of defence in terms of violation of the principle of the so-called ‘equality of arms’. For example, in the ordinary proceedings instituted by the debtor for opposing an enforceable order of payment obtained by the creditor, the debtor finds himself in different position from that of the creditor; a defendant, in ordinary civil proceedings, finds himself in a different situation from that of the claimant who has obtained – before or during the proceedings – an attachment order for the defendant’s assets.

Accordingly, provided that both parties are granted equal chances to obtain and enforce a protective and/or provisional measure, is part of the ordinary functioning of a civil proceeding that a party will succeed in obtaining it and the other will not.

In the case at hand – the Supreme Court noted – both parties were granted equal and fair chances of defence as, (i) the freezing injunction and the disclosure order were given ex parte but the defendant was given the right to apply to the court to vary or reverse the order, and (ii) the claimant had assumed the obligation of complying, under the same threat of the “contempt of court”, with any subsequent order of the Court condemning the claimant for any loss suffered by the defendant.

Moreover, the Supreme Court asserted that nothing to the contrary may be inferred from the fact that the injunction and the disclosure order operate in personam and that the infringement thereof triggered the consequences of a “contempt of court”. The Cassazione did not see any violation of the fundamental rights of defence, all the more because the Italian legal system features cases in which a failure to comply with a judicial order could amount to a criminal offence.

The judgment of the Italian Supreme Court can be read here (in Italian).