Flux des sites DIP

Written by Ekaterina Pannebakker

On 1 July 2021, Switzerland, which is the depository of the Lugano Convention 2007, notified the Parties to the Convention of the EU’s refusal to give its consent to the UK’s accession to the Convention. The notification is available on the website of the Swiss Department of Foreign Affairs in several languages. It states the EU is not ‘in a position to give its consent to invite the United Kingdom to accede to the Lugano Convention’, quoting the note verbale received by the depository from the EU on 28 June 2021.

This is the final chord in the consideration of the UK’s after-Brexit application to accede to the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Lugano, 2007. As previously reported on conflictoflaws (inter alia), the accession to the Convention is subject to the consent of all the current Parties. The EU’s refusal was expected, since the European Commission gave a negative advice to the European Parliament. Noteworthy is perhaps that the Convention does not limit the number of attempts a State can make to accede to the Convention. This means (theoretically) the UK can apply again in the future.

 

This Thursday AG Campos Sánchez-Bordona delivered his Opinion in the case IB, C-289/20. It is another request for a preliminary ruling addressing the issue of multiple places of residence. The recent take on this issue concerned the framework established by the Succession Regulation. In its judgment in the case E.E., C-80/19, the Court of Justice held the last habitual residence of the deceased, within the meaning of that regulation, must be established by the authority dealing with the succession in only one of the Member States.

In the case IB, C-289/20, the Court is invited to interpret the Brussels II bis Regulation in the context of a request for a preliminary ruling originating from the proceedings for a divorce.

The preliminary question reads as follows:

Where, as in the present case, it is apparent from the factual circumstances that one of the spouses divides his time between two Member States, is it permissible to conclude, in accordance with and for the purposes of the application of Article 3 of [the Brussels II bis Regulation] that he or she is habitually resident in two Member States, such that, if the conditions listed in that article are met in two Member States, the courts of those two States have equal jurisdiction to rule on the divorce?

In his Opinion, AG proposes to the Court to consider that under the Brussels II bis Regulation a spouse may have only one place of habitual residence (points 83 et 90). If, in fact, as the preliminary question presupposes, a spouse divides his life between two Member States, it has to be considered that he or she does not have a place of habitual residence within the meaning of Article 3 of the Regulation (point 98). If that leads ultimately to the situation where no forum within the EU can hear the case for a divorce, in order to remedy situations of denial of justice, the jurisdiction might be exceptionally attributed to the courts of one of the Member State where the spouse resides (points 100 and 101).

Instead of providing a summary of the elaborate analysis offered by the Opinion, it seems more meaningful to highlight some of its points.

At the outset, AG observes that the entry into force of the Regulation 2019/1111 will not affect the rules on jurisdiction of relevance for a divorce already provided for in the Brussels II bis Regulation (point 27).

He also seems to reject the idea that notion of ‘habitual residence’ should necessarily receive the same meaning among the EU private international law instruments that elevate the place of habitual residence to the role of a connecting factor (point 39). Scepticism regarding this idea is expressed on several occasions (see, for instance, point 50).

The subjective factor that corresponds to the intention of a spouse might come into play when identifying the place of habitual residence. According to AG, the criteria that normally characterize “habitual residence” may be supplemented – or even replaced – by the intentions of a spouse (point 66).

Under the Brussels II bis Regulation a spouse may have only one place of habitual residence and multiple places of “non-habitual” residence which are, however, irrelevant for the purposes of Article 3 (points 83 et 90).

Ultimately, where no court has jurisdiction pursuant to the Brussels II bis Regulation, including the national rules of jurisdiction that may be of relevance under Article 7 of the Regulation (residual jurisdiction), the courts of one of the Member States where the spouse (non-habitually) resides may exercise jurisdiction in order to remedy situations of denial of justice (points 100 and 101). This consideration seems to draw inspiration from the doctrine of the forum of necessity, even though this notion itself does not appear in the Opinion. Besides, at least to a certain extent the terms employed here seem to echo the wording of Recital 16 of the Maintenance Regulation and Recital 31 of the Succession Regulation, which contrary to the Brussels II bis Regulation explicitly provide for a forum of necessity. In a similar vein, the reference to the “deprivation of the judicial protection within the Union” at point 99 (“ne priverait pas nécessairement les parties de la protection juridictionnelle au sein de l’Union”) may make one think of Article 47 of the Charter.

The Opinion can be consulted here (no English version yet).

The author of this post is Burcu Yüksel Ripley, who is a Lecturer in law and the Director of the Centre for Commercial Law at the University of Aberdeen.

In the legal proceedings that European Union (EU) brought before the Belgian courts against AstraZeneca in April 2021 and May 2021, one of the key questions is the law applicable to the Advance Purchase Agreement (“APA”) for the production, purchase and supply of a Covid-19 Vaccine in the European Union signed between the European Commission (with a business address in Belgium) and AstraZeneca (incorporated in Sweden with a business address therein) on 27 August 2020.

Since the publication of the APA, which is governed by the laws of Belgium as per its Section 18.4, there have been discussions around whether the United Nations Convention on Contracts for the International Sale of Goods (known as the CISG or the Vienna Sales Convention 1980) applies to this agreement (see eg Global sales law in a global pandemic: The CISG as the applicable law to the EU-AstraZeneca Advance Purchase Agreement? written by Dr Ben Köhler and EU-AstraZeneca contract – applicability of the CISG? written by Till Maier-Lohmann and cited in Dr Köhler’s blog).

But the fact that this question relates to the law applicable to the APA, and accordingly the application of the Rome I Regulation on the law applicable to contractual obligations, seems to have been overlooked so far apart from a couple of publications (see eg Sixto A. Sánchez Lorenzo, “El advance purchase agreement (APA) entre AstraZeneca y la comisión europea visto desde el Derecho privado”, La Ley: Unión Europea, No 90 March 2021, for which a useful summary in English was provided in Professor Matthias Lehmann’s post in this blog entitled Suing AstraZeneca: Who, Where, and under Which Law?).

Upon the first decision of the Belgian court on 18 June 2021 which states at paragraph 29 at p.39 that “Les conventions doivent être interpretées au regard de l’intention commune des parties, conformément à l’article 1156 de l’ancien Code Civil” (“The agreements must be interpreted with regard to the common intention of the parties, in accordance with Article 1156 of the former Civil Code”), further questions have been raised in relation to the applicable law: “Has the court held that Article 3(1) of Rome I Regulation excludes the application of the CISG?; Did the Court apply its domestic conflict rules?; Does the choice of Belgian law by the parties preclude the application of the CISG?”(see Some questions about the first decision of the Belgian court in the dispute between AstraZeneca and the European Commission – CISG-Portugal.org by César Pires).

The relationship between the Rome I Regulation and the CISG is at the heart of this discussion. Which instrument should be the starting point of the applicable law analysis for the EU-AstraZeneca APA and does this matter in practice?

Relationship between Rome I and the CISG for EU Member States Party to the CISG

The Rome I Regulation is an EU private international law instrument concerning the law applicable to contractual obligations. Under Article 1(1), it applies in the EU, in situations involving a conflict of laws, to contractual obligations in civil and commercial matters that fall into its scope. Being in the form of a regulation, Rome I has general application, is binding in its entirety and directly applicable in all EU Member States (with the exception of Denmark) pursuant to Article 288 of the Treaty on the Functioning of the EU.

On the other hand, the CISG is an international convention which provides primarily uniform substantive law rules relating to international sale of goods contracts that fall into its scope. Under Article 1(1), it applies to contracts between parties whose places of business are in different States if either (a) both of those States are Contracting States or (b) the rules of private international law lead to the law of a Contracting State (unless a state reservation exists regarding the 1(1)(b) situation as per Article 95 or parties have excluded the application of the CISG as per Article 6). The CISG has been adopted by the majority of EU Member States, including Belgium and Sweden, and is in force as part of their national law.

It has been argued on different grounds that if the forum is located in an EU Member State party to the CISG, the CISG takes precedence over Rome I or is capable of applying directly (or autonomously) without recourse to Rome I. This seems to be the prevailing view, notably in Germany, and has been recently endorsed in the UNCITRAL, HCCH and Unidroit Legal Guide to Uniform Instruments in the Area of International Commercial Contracts, with a Focus on Sales. However, it is questionable to what extent this approach is consistent with EU law:

1.  It has been argued that for courts in the CISG Contracting States, the CISG (as uniform substantive law) eliminates under its Article 1(1)(a) the need to recourse to conflict of laws analysis to determine whether it applies (see eg Peter Winship, ‘Private International Law and the U.N. Sales Convention’, (1988) 21 Cornell International Law Journal 487, p.520). According to this view, courts in the EU Member States which are also the CISG Contracting States do not first have to resort to their private international law because, where the CISG is applicable, there is no ‘situation involving a conflict of laws’ within the meaning of Article 1(1) of Rome I (see eg Thomas Kadner Graziano, ‘The CISG Before the Courts of Non-Contracting States? Take Foreign Sales Law as You Find it’ (2012) 13 Yearbook of Private International Law 165, p.166). However, from a different perspective, the fact that there is uniform substantive law to apply to a case does not mean that there is no situation involving a conflict of laws in the given case. It rather means that the conflict of laws is resolved in the given case partially or fully by the application of that uniform substantive law. The question of ‘as part of which law that uniform substantive law applies to the given case’ would still first require a conflict of laws process (for a similar alternative interpretation of Article 1(1)(a) of the CISG, see Arthur Taylor von Mehren, Explanatory Report on the Convention on the Law Applicable to Contracts for the International Sale of Goods, Proceedings of the Extraordinary Session of October 1985, para. 192). This is to be the approach to follow unless the forum’s private international law provides otherwise and gives precedence to uniform substantive law rules over conflict of laws rules (for such a provision, see eg the Turkish Private International Law and International Civil Procedure Act (numbered 5718 and dated 2007) which gives, in its Article 1(2), precedence to the provisions of international agreements to which Turkey is a party over the Act).

2. It has been argued that the CISG’s provisions on its sphere of application take precedence over the conflict of law rules in Rome I according to Article 25(1) regulating the Rome I’s relationship with existing international conventions. However, an existing international convention to which one or more EU Member States are parties at the time when Rome I is adopted can only take precedence over the rules of Rome I under Article 25 if the convention in question lays down conflict of law rules relating to contractual obligations. The CISG does not lay down conflict of law rules relating to contractual obligations and accordingly it is not listed as per Article 26 of Rome I among conventions that are referred to under Article 25(1). To assist with comparison, one example of such an international convention in the context of sale of goods which could prevail over the rules of Rome I under Article 25 of Rome I is the 1955 Hague Convention on the Law Applicable to International Sale of Goods as this convention does lay down conflict of law rules relating to contractual obligations.

3. It has been argued that uniform substantive law is more specific than private international law and therefore the former should prevail over the latter pursuant to the principle of lex specialis derogat legi generali. However, this principle should come into play where there is more than one law/provision dealing with the same matter (eg the CISG and national substantive sales laws in relation to matters of sale of goods contracts). This is not the case regarding the CISG and Rome I as these instruments deal with different matters.

Furthermore, from the perspective of EU law, it is questionable whether the argument that the CISG takes precedence over Rome I is consistent with the supremacy of EU law and the direct effect of EU regulations given that the CISG is not a convention to which the EU is a party and therefore not internalised in the EU system. EU law, in principle, cannot be overridden by an extraneous source unless that extraneous source is internalised.

In terms of the relationship between Rome I and the CISG for EU Member States party to the CISG, an alternative view here to the prevailing view suggests a two-step approach. The first step is that, if the forum is located in an EU Member State, a state law is determined as the applicable law in a given case under the rules of Rome I. The second step is that if that law includes the CISG, then the applicability of the CISG (as part of that law) to the given case is determined under the rules of the CISG. The CISG may become applicable as part of that law through its Article 1(1)(a) if the places of business of both parties are in Contracting States or through its Article 1(1)(b) even if only one or none of these places is in Contracting States (on how the CISG interacts with state law, see also Benjamin Hayward, Bruno Zeller and Camilla Baasch Andersen, ‘The CISG and the United Kingdom- Exploring Coherency and Private International Law’ (2018) 67 International and Comparative Law Quarterly 607).

One question that arises in this context is whether it matters in practice if a court starts the analysis with Rome I or the CISG. In cases where the applicable law is to be determined according to objective choice of law rules under Article 4 of Rome I, the outcome might differ depending on the approach that the court takes if the applicable law is a law of a non-Contracting State (see generally Peter Winship, cited above, p.519 and see, specifically on Rome I and the CISG, Sir Richard Plender, QC & Michael Wilderspin, The European Private International Law of Obligations, 5th edn, Sweet & Maxwell, 2019, paras 1-047 and 1-048).

For example, if the sales contact is between parties with places of business in the CISG Contracting States (eg Belgium and Sweden), and if the court in the EU starts the analysis with the CISG, the court will find that the CISG applies to the contract as per Article 1(1)(a) of the CISG. In the same example, if the court starts the analysis with Rome I and determines that the objectively applicable law is a law of a non-Contracting State, eg law of England and Wales, which would be something rare but possible via the operation of the escape clause in Article 4(3) of Rome I, the court will find that the UK’s Sale of Goods Act 1979 will apply to the contract (not the CISG). If the outcome might differ depending on a court’s approach, this would potentially also give scope for forum shopping.

The First Step: Application of Rome I to the EU-AstraZeneca APA

In the light of the above analysis, as the first step, the law applicable to the APA is to be determined under the Rome I Regulation.

The APA is not one of the types of contracts for which Rome I provides special choice of law rules between Articles 5 and 8, and therefore the applicable law of the APA will be determined according to the general choice of law rules under Article 3 (on freedom of choice) and Article 4 (on the applicable law in the absence of choice) of Rome I.

Under Article 3 of Rome I, a contract is governed by the law chosen by the parties and this choice can be express or clearly demonstrated by the terms of the contract or the circumstances of the case. The APA includes an express choice of law agreement in Section 18.4 according to which it is governed by the laws of Belgium. Provided that this choice of law agreement is valid in its form and substance under Articles 10 and 11 of Rome I and raises no issues of legal capacity (to which Rome I does not apply as per Article 1(2)(f)), Belgian law is the law applicable to the APA and governs the matters that fall into the scope of the applicable law set out under Article 12. Since renvoi is excluded under Article 20 of Rome I, this means that substantive law rules of Belgian law will be applied to the APA.

Belgium is a party to the CISG, and therefore the application of the laws of Belgium (as agreed by the parties in the choice of law agreement in Section 18.4 of the APA) includes the rules of the CISG.

The Second Step: Applicability of the CISG to the EU-AstraZeneca APA

It follows that the CISG is applicable to the extent that a given dispute, which may arise under or in connection with the APA or the legal relationships established by the APA, falls into the scope of the CISG. In such cases, the CISG itself will not be strictly speaking the applicable (or governing) law of the APA, but it will apply as part of the applicable (or governing) law of the APA which is Belgian law.

The extent of the CISG’s applicability in this context would further require a substantive law analysis as to (i) whether the APA is a type of sales contract that falls into the scope of the CISG (see eg Application of the CISG to International Government Procurement of Goods by Cesar Pereira), (ii) whether a given dispute will fall into the scope of the CISG (as the CISG does not deal with all types of disputes that a sales contract may give rise to), (iii) whether any relevant state reservations exist, and (iv) whether the APA provides otherwise (which would mean under Article 6 of the CISG that the parties have derogated from or varied the effect of CISG’s provisions).

As a concluding remark, it is also worth noting that the CISG in essence is a safety net for sales for which contractual parties have not utilised freedom of contract and party autonomy. For other sales, the CISG’s utility and also scope of application is much more limited in practice and, in some cases, even excluded by the parties as allowed under Article 6 of the CISG.

In a note verbale of 22 June 2021, recently transmitted to the Swiss Federal Council as Depository of the Lugano II Convention, the European Commission has notified that “the European Union is not in a position to give its consent to invite the United Kingdom to accede to the Lugano Convention”.

The note verbale may be found on the website of the Swiss Federal Department of Foreign Affairs (EDA in German), https://www.eda.admin.ch/dam/eda/fr/documents/aussenpolitik/voelkerrecht/autres-conventions/Lugano2/20210701-LUG-ann-EU.pdf

On July 20, 2021 (14.00 – 19.00), Università degli Studi, Milan will host (in streaming) the Annual Conference of the EU-funded project Jean Monnet Module on “Multilevel, Multiparty and Multisector Cross-Border Litigation in Europe”.

The topic of this year – “Incentives and Challenges to Transnational Access to Justice” – will be addressed by distinguished panelists in two Round-Tables on, respectively, Third-party Funding in International Dispute Resolution and E-Justice in International Dispute Resolution.

The event is organized with the support of the Eramus+Programme of the European Union, the Centre of Research on European and Transnational Dispute Settlement (EUTraDiS), the European Court of Arbitration (CEA) and the Jean Monnet Chair on EU Health Legal Framework and Competition Law (EHCL).

Please find here the complete programme.

Registration is due by 15 July 2021, by completing and submitting this registration form (also referred to in the flyer).

For any information, please contact Prof. Albert Henke (albert.henke@unimi.it)

This is the fourth post of an online symposium on the recent judgment of the CJEU in Vereniging van Effectenbezitters v. BP after the posts of Matthias Lehmann, Laura van Bochove and Matthias Haentjens and Geert van Calster.

The author of this post is Enrique Vallines, who is Professor of Procedural Law at the Complutense University of Madrid and a Senior Research Fellow at the Max Planck Institute Luxembourg.

Just a few days after Vereniging van Effectenbezitters v BP (C-709/19) was made public, I had the opportunity to express my views on the decision on an EU Law Live Op-Ed. After the three stimulating EAPIL blogposts referred above, Prof. Gilles Cuniberti has kindly invited me to expand a bit on my critique to the reasoning of the judgment, probably because I seem to be a bit of an outlier here. My sincere gratitude to him and to all the board of Editors of the EAPIL Blog.

On the Judgment Itself

Effectenbezitters is about establishing jurisdiction under Article 7(2) of the Brussels I bis Regulation on the basis of the determination of the place where the harm occurred (the so-called, in German, Erfolgsort) in a case of purely financial damage, i.e. any loss of money with no connection with a tangible object (VKI v Volkswagen, C‑343/19, paras 32-35).

In previous judgments, the CJEU had used the fiction that financial damage occurs where the (bank or investment) account reflecting the damage is held. However, the Court added that the said fiction is not enough to establish jurisdiction under Article 7(2); in addition, looking at Recitals 15 and 16, the Court requires that ‘other specific circumstances’ confirm that the case is sufficiently connected to the place in question (principle of proximity) and that the forum in question was foreseeable for the defendant (principle of predictability).

In my opinion, Effectenbezitters is no exception to this jurisprudence. Firstly, in para 32, the CJEU clearly suggests that the courts in the Netherlands might have jurisdiction under Article 7(2), ‘on the basis of the place where the damage occurred’, because jurisdiction may be allocated to the courts where the bank (or investment institution) holding that account is established. This is reflected in the operative part of the judgment, where the Court acknowledges that the case concerned the ‘direct occurrence in an investment account of purely financial loss resulting from investment decisions’.

Secondly, in paragraphs 33-35 of Effectenbezitters, the Court moves on to consider the other specific circumstances, beginning with those relating to the predictability of the forum. At this point – the assessment of the predictability of the forum -, I believe that – contrary to what Prof. Lehman, Prof. van Bochove and Prof. Haentjens seem to indicate in their EAPIL blogposts – the Court does not put the direct focus on the place where BP shares were listed or admitted to trading; nor did the Court even consider the place where the shares had been acquired or sold (an approach that, by the way, would have been similar to the approach in VKI v Volkswagen, where jurisdiction under Article 7(2) was attributed to the courts where the diesel vehicles had been purchased). Instead, the direct focus of the Court when assessing the predictability of the forum was the place where BP had reporting obligations, ie, the place where BP was subject to the obligation to disclose the information whose lack or inaccuracy was at the basis of the cause of action of the plaintiff. This conclusion is also confirmed by the operative part of the judgment, where only the ‘statutory reporting obligations’ are mentioned, without any reference to the place of listing, trading, acquisition or sale.

Against this background, to my mind, the reasoning of the Court may be summarized as follows: (i) since the claim is based on the lack or the inaccuracy of specific information that BP was obliged to provide in the UK and in Germany, BP could have reasonably foreseen lawsuits related to the said information in the UK or in Germany, but not in the Netherlands nor in any other EU forum; and (ii), for this reason, despite accepting the fiction that the purely financial damage inflicted to the Dutch investors occurred in the Netherlands, finally, the Dutch courts were not predictable for the defendant and, hence, they do not qualify as a competent court under Article 7(2) and Recitals 15 and 16.

On the Precedents Used

To support this reasoning, the CJEU turns to Kolassa (C-375/13, paras 54-57, to be interpreted as indicated in Universal, C-12/15, para 37, and the Opinion of AG Szpunar in this latter case, para 45) and Löber (C‑304/17, paras 26-36).

In both cases, similarly to the case of Effectenbezitters, an investor had also claimed compensation for purely financial damages based on the inaccuracy of financial information – the information contained in a prospectus required for securities to be admitted to trading in a specific State. In these two cases, the Court argued (i) that the place where the investors held their accounts might indeed qualify as the place where the harm occurred for the purposes of establishing jurisdiction under Article 7(2); and (ii) that the forum for that place was predictable because the information whose inaccuracy was at the basis of the cause of action had been specifically distributed at that place as a result of the legal obligation to submit a prospectus. Thus, in Kolassa and Löber, the Court took the fact that reporting obligations were due in a specific Member State as an indication of the predictability of the jurisdiction of the courts of that Member State. Shortly put, the equation of the Court was: reporting obligations = predictability.

In Effectenbezitters, the Court tried to apply the same logic, but the other way around. It certainly looked at the place of reporting obligations and, since it found none in the Netherlands, it concluded that the Dutch courts were not a predictable forum. Thus, it took the fact that BP had no reporting obligations in the Netherlands as an indication that the Netherlandish courts were not a predictable forum. In short, the equation of the Court was, now, the following: no reporting obligations = no predictability.

On my Critique

My main criticism of Effectenbezitters is that this second equation (no reporting obligations = no predictability) is not at all convincing in the current EU regulatory context. In my opinion, the logic applied in Kolassa and Löber does not work the other way around within the EU. I find it acceptable to conclude that the fact that there exist reporting obligations in a Member State may be taken as an indication that this Member State is a predictable forum for any litigation relating to such obligations. Yet, I challenge the argument whereby the lack of reporting obligations in a Member State necessarily entails that that Member State is not a predictable forum. The way I see things, a person may have to report information in a specific Member State and, nevertheless, it may still predict litigation related to that information in another Member State so long as the citizens and companies of the other Member State were also legal addressees of the information in question.

This is exactly what, in my view, happened in Effectenbezitters. BP was subject to reporting obligations in the UK and Germany only, but the legal addressees of the information were all the investors in all the EU Member States. Within the regulatory context under the Transparency Directive 2004/109 and the Market Abuse Directive 2003/6 (today, replaced by the Market Abuse Regulation 596/2014), BP had to make available periodical information (eg, annual financial reports), as well as any particular piece of information that was likely to have a significant effect on the prices of its shares. Even though the information had to be published via a ‘mechanism’ which had been ‘officially appointed’ by the British and the German authorities, the truth is that this mechanism had to ensure that the information was made available in a manner that guaranteed the ‘effective dissemination to the public throughout the Community’. See, in this regard, Article 21(1) Directive 2004/109, in relation to Article 2(1)(k) of the said Directive and Articles 1(1) and 6 of the Market Abuse Directive 2003/6 (today, Articles 7 and 17 of the Market Abuse Regulation 596/2014); also, in the same vein, the current wording of Article 22 of Directive 2004/109 emphasizes that the information must be accessible ‘at Union level’.

Thus, when BP provided – or failed to provide – information in the UK and in Germany under the EU rules on transparency and market abuse, the company knew that the information due had to reach all EU investors – ‘all the public throughout the Community’, as Article 21(1) of Directive 2004/109 puts it. Consequently, BP could have perfectly foreseen that any of the legal addressees of the information could have made investment decisions from their home Member States on the basis of that information. And this, in my view, entails that BP could have also perfectly predicted that information-related litigation could have taken place in any of the EU Member States from where those investment decisions were made.

To sum up, contrary to Court’s reasoning in Effectenbezitters, I find that, within the EU, it is inaccurate to say that an issuer of securities cannot predict the forum where it does not have reporting obligations in that forum. Such an issuer is aware – or, at least, must be aware –  of the fact that EU law requires that the reported information reaches all the citizens and companies across all Member States, irrespective of where and how the information is provided. As a result, the issuer must count on the possibility that the information is used in any Member State, as well as on the possibility of damages – and subsequent lawsuits – arising out of such a use in any Member State.

Looking Ahead

That said, I should add that I understand the concerns about the need to limit jurisdiction under Article 7(2) and to avoid an EU-wide jurisdiction to hear cases relating to purely financial damage at the place where the plaintiff holds her bank account. But I believe that a flawed argument – such as the one used in Effectenbezitters – should not be the means to achieve such a goal. Instead, other avenues could be explored, preferably by the EU law-maker, with a view to an amendment of Brussels I-bis that may provide more certainty on the rule of special jurisdiction applying to matters relating to tort, delict or quasi-delict.

Andrea Bonomi and Patrick Wautelet, with the cooperation of Ilaria Pretelli, Eva Lein, Guillaume Kessler, Sara Migliorini and Konstaninos Rokas published Le droit européen des relations patrimoniales de couple (Bruylant). This is an extensive commentary (1368 pages) on the EU Regulations on Matrimonial Property (2016/1103) and on the Property Consequences of Registered Partnerships (2016/1104). These regulations came about through the process of enhanced cooperation and are in force in eighteen of the twenty-seven EU Member States.

The book is similar to the Commentary on the EU’s Succession Regulation (650/2015), Le droit européen des successions by the same main authors.

The book starts with an elaborate introduction which sets the context and gathers information on the preparatory steps towards the regulations (the kind of thing we miss since we don’t have an official report on the Regulations). It refers the reader to various studies and opinions that were produced in the preparatory phase. The introduction further sets out the main characteristics of the Regulations, which the authors have identified as the following:

• one single attachment;
• unchangeability of the applicable law;
• preference for party autonomy;
• coordination with other EU regulations on related matters;
• dissociation between jurisdiction and applicable law.

The authors also point out the drawbacks of some of the choices that the legislator made, such as that courts often have to apply foreign law, and that different legal systems might apply to divorce, maintenance, succession and matrimonial property if couples move across borders.

After an explanation of the scope of application (material, temporal and spatial), the commentary follows an article-by-article approach. Every article is discussed in detail, in the context of  legislation and case law (on the EU and Member State levels) and a wealth of legal literature. The reader is offered sound theory combined with practical examples in the form of (fictitious) cases. The makes the book a useful tool for practitioners, judges, notaries and academics alike.

Josiya & Ors v British American Tobacco Plc & Ors [2021] EWHC 1743 (QB) is the first shot in an important business and human rights case, accusing the defendants of being responsible for working conditions said to include the widespread use of unlawful child labour, unlawful forced labour and the systematic exposure of vulnerable and impoverished adults and children to extremely hazardous working conditions with minimal protection against industrial accidents, injuries and diseases.

I briefly want to flag the 25 June order by Spencer J for it highlights a point I often make when teaching, or sharing my practice experience on, strategic and public interest litigation: that most of these cases are won not by an eloquent speech on grand principles, delivered in Hollywood fashion. Rather, by the dogged determination of invested lawyers, with a keen eye for detail across civil procedure (including standing, statutes of limitation, service, timely filing of procedural , third party and other ways of financing, tort and other applicable law).

The order at issue dismisses an application for strike-out which was essentially based on an alleged lack of documentary proof of claimants’ link to the defendants, leading to claim said to be an abuse of process.

Brussels IA applies to the claim (claim form was filed on 18 December 2020, the particulars of claim – POC on 12 January 2021): claimants aim to avoid forum non conveniens although of course Articles 33-34 might still be raised. Locus causae is said to be Malawi law [19]. Claimants concede [23] they do not at this stage have documentary evidence that categorially links each individual Claimant to one or more of the Defendants or companies within the Defendants’ corporate groups. They tried to obtain this unsuccessfully in pre-trial disclosure.

Claimant’s counsel, Richard Hermer QC, successfully argued a distinction [41]  between what is required for a party to plead the case; and what is required for a party to prove the case at trial.

Held: the claim form without specific identification of the link between individual claimants and specific defendants is not an abuse of process under the circumstances. An application for disclosure may and must be prepared.

Geert.

European Private International Law, 3rd ed. 2021, Chapter 7.

#bizhumanrights
Unsuccessful strike-out application viz particulars of claim – POC, alleged lack of documented claimants' involvement in Malawi tobacco
Held discussion of intensity of proof suited to discovery application, not strike-out of POC
Josiya ea v BAT ea [2021] EWHC 1743 pic.twitter.com/Dn1u0PSoH3

— Geert van Calster (@GAVClaw) June 25, 2021

July is a short month at the Court of Justice, but a busy one.

Already on 1 July 2021 the judgment on C-301/20, Succession de VJ, was published. The questions, on the European certificate  of succession and copies of it, had been referred by the Austrian Supreme Court:

(1) Is Article 70(3) of Regulation No 650/2012 to be interpreted as meaning that a copy of the certificate issued, in disregard of that provision, without indicating an expiry date, for an unlimited period,
–        is valid and effective indefinitely, or
–        is valid only for a period of six months from the date of issue of the certified copy, or
–        is valid only for a period of six months from another date, or
–        is invalid and unsuitable for use within the meaning of Article 63 of Regulation No 650/2012?

(2) Is Article 65(1) read in conjunction with Article 69(3) of that regulation to be interpreted as meaning that the certificate produces effects in favour of all persons who are mentioned on the certificate by name as heirs, legatees, executors of wills or administrators of the estate, with the result that even those who have not applied for the issue of the certificate themselves can use that certificate pursuant to Article 63 of regulation No 650/2012?

(3) Must Article 69 read in conjunction with Article 70(3) of that regulation be interpreted as meaning that the legitimising effect of the certified copy of a certificate of succession must be recognised if it was still valid when it was first submitted but expired before the requested decision of the authority, or does that provision not preclude national law if the latter requires the certificate to be valid even at the time of the decision?’

AG Campos Sánchez-Bordona’s opinion, focused on the third question, had been released on 29 April 2021. The Court (6th Chamber: L Bay Larsen, N. Jääskinen and C. Toader as reporting judge) has ruled as follows:

(1) Article 70(3) of Regulation (EU) No 650/2012 [on] matters of succession … must be interpreted as meaning that a certified copy of the European Certificate of Succession, bearing the words ‘unlimited duration’, is valid for a period of six months from the date of issue and produces its effects, within the meaning of Article 69 of that regulation, if it was valid when it was presented to the competent authority;

(2) Article 65(1) of Regulation No 650/2012, read in conjunction with Article 69(3) of that regulation, must be interpreted as meaning that the effects of the European Certificate of Succession are produced with respect to all persons who are named therein, even if they have not themselves requested that it be issued.

AG Richard de la Tour’s opinion on C-277/20, UM (contrat translatif de propriété mortis causa), a request from the same court (i.e., the Austrian Supreme Court), was published as well on 1 July 2021. The main  question concerns a donation mortis causa and whether it falls under the scope of the Regulation:

(1) Is Article 3(1)(b) of Regulation (EU) No 650/2012 [on] matters of succession … to be interpreted as meaning that a contract of donation mortis causa entered into between two German nationals habitually resident in Germany in respect of real estate located in Austria, granting the donee a right having the character of an obligation against the estate to registration of his title after the donor’s death pursuant to that contract and the donor’s death certificate, that is without the intervention of the probate court, is an agreement as to succession within the meaning of that provision?

(2) If the answer to the above question is in the affirmative: Is Article 83(2) of Regulation No 650/2012 to be interpreted as meaning that it also regulates the effect of a choice of applicable law made before 17 August 2015 for a contract of donation mortis causa that is to be qualified as an agreement as to succession within the meaning of Article 3(1)(b) of Regulation No 650/2012?

According to Richard de la Tour, it does (the translation is mine):

Article 3(1)(b) of Regulation (EU) No 650/2012 … must be interpreted as meaning that the concept of “pact of succession” includes deeds of inter vivos gift in by virtue of which the transfer, in favor of the donee, of the ownership of a good or of goods which even partially constitute the inheritance of the donor takes place only on his death.

Two opinions of direct PIL interest are scheduled for 8 July 2021, starting with AG Campos Sánchez-Bordonas’ in case C-289/20, IB. The question was referred from the Cour d’appel de Paris. It reads as follows:

Where, as in the present case, it is apparent from the factual circumstances that one of the spouses divides his time between two Member States, is it permissible to conclude, in accordance with and for the purposes of the application of Article 3 of Regulation (EC) No 2201/2003, that he or she is habitually resident in two Member States, such that, if the conditions listed in that article are met in two Member States, the courts of those two States have equal jurisdiction to rule on the divorce?

The decision will be taken by a chamber of five judges: S. Prechal, N. Wahl, F. Biltgen, J. Passer, and L.S. Rossi as reporting judge.

The same day AG M. Szpunar will present his opinion on C-422/20, RK, on the successions regulation. The requests comes from the Oberlandesgericht Köln (Germany) :

Is it necessary, for a declaration of lack of jurisdiction by the court previously seised, as provided for in Article 7(a) of Regulation No 650/2012, that that court should expressly decline jurisdiction, or may even a non-express declaration suffice if it supports the inference, through interpretation, that that court has declined jurisdiction?

Is the court of the Member State whose jurisdiction is intended to follow from a declaration of lack of jurisdiction by the court previously seised in the other Member State competent to examine whether the conditions governing a decision by the court previously seised, as provided for in Articles 6(a) and 7(a) of Regulation No 650/2012, were met? To what extent is the decision of the court previously seised binding? In particular: (a) Is the court of the Member State whose jurisdiction is intended to follow from a declaration of lack of jurisdiction by the court previously seised in the other Member State competent to examine whether the deceased validly chose the law of the Member State in accordance with Article 22 of Regulation No 650/2012? (b) Is the court of the Member State whose jurisdiction is intended to follow from a declaration of lack of jurisdiction by the court first seised in the other Member State competent to examine whether a request for a declaration of lack of jurisdiction, as provided for in Article 6(a) of Regulation No 650/2012, has been brought by one of the parties to the proceedings before the court previously seised? (c) Is the court of the Member State whose jurisdiction is intended to follow from a declaration of lack of jurisdiction by the court first seised in the other Member State competent to examine whether the court previously seised rightly assumed that the courts of the Member State of the chosen law are better placed to rule on the succession?

Are Articles 6(a) and 7(a) of Regulation No 650/2012, which presuppose a choice of law ‘pursuant to Article 22’, applicable even where the deceased has made no express or implied choice of law in a testamentary disposition made before 17 August 2015, but the law applicable to the succession is capable of being inferred only from Article 83(4) of Regulation No 650/2012?

Judges Bay Larsen, Toader and Jääskinen will be in charge, with C. Toader acting as reporting judge.

A hearing will take place the same day on C-421/20, Acacia, from the Oberlandesgericht Düsseldorf (Germany). The case has been allocated to judges E. Regan, K. Lenaerts, M. Ilešič, I. Jarukaitis and C. Lycourgos (reporting judge):

In proceedings for an infringement of Community designs, can the national court dealing with the infringement proceedings having international jurisdiction pursuant to Article 82(5) of the Community Designs Regulation apply the national law of the Member State in which the court dealing with the infringement proceedings is situated (lex fori) to subsequent claims in relation to the territory of its Member State?

If Question 1 is answered in the negative: Can the ‘initial place of infringement’ for the purposes of the CJEU judgments in Cases C-24/16, C-25/16, Nintendo, regarding the determination of the law applicable to subsequent claims under Article 8(2) of Regulation (EC) No 864/2007 … on the law applicable to non-contractual obligations (‘Rome II’) also lie in the Member State where the consumers to whom internet advertising is addressed are located and where goods infringing designs are put on the market within the meaning of Article 19 of the Community Designs Regulation, in so far as only the offering and the putting on the market in that Member State are challenged, even if the internet offers on which the offering and the putting on the market are based were launched in another Member State?

AG P. Pikamäe’s opinion on C-262/21 PPU, A, is expected on 14 July 2021. The case, from the Korkein oikeus (Finland), requires the interpretation of Regulation 2201/2003 in relation to the Dublin III Regulation. The 1980 Hague Convention is also at stake:

Must Article 2(11) of Regulation (EC) No 2201/2003 [on] matrimonial matters and the matters of parental responsibility … (‘the Brussels II bis Regulation’), relating to the wrongful removal of a child, be interpreted as meaning that a situation in which one of the parents, without the other parent’s consent, removes the child from his or her place of residence to another Member State, which is the Member State responsible under a transfer decision taken by an authority in application of Regulation (EU) No 604/2013 of the European Parliament and of the Council (‘the Dublin III Regulation’), must be classified as wrongful removal?

If the answer to the first question is in the negative, must Article 2(11) of the Brussels II bis Regulation, relating to wrongful retention, be interpreted as meaning that a situation in which a court of the child’s State of residence has annulled the decision taken by an authority to transfer examination of the file, but in which the child whose return is ordered no longer has a currently valid residence document in his or her State of residence, or the right to enter or to remain in the State in question, must be classified as wrongful retention?

If, in the light of the answer to the first or the second question, the Brussels II bis Regulation must be interpreted as meaning that there is a wrongful removal or retention of the child, and that he or she should therefore be returned to his or her State of residence, must Article 13(b) of the 1980 Hague Convention be interpreted as precluding the child’s return, either (i) on the ground that there is grave risk, within the meaning of that provision, that the return of an unaccompanied infant whose mother has personally taken care of him or her would expose that child to physical or psychological harm or otherwise place the child in an intolerable situation; or (ii) on the ground that the child, in his or her State of residence, would be taken into care and placed in a hostel either alone or with his or her mother, which would indicate that there is a grave risk, within the meaning of that provision, that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation: or (iii) on the ground that, without a currently valid residence document, the child would be placed in an intolerable situation within the meaning of that provision?

If, in the light of the answer to the third question, it is possible to interpret the grounds of refusal in Article 13(b) of the 1980 Hague Convention as meaning that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, must Article 11(4) of the Brussels II bis Regulation, in conjunction with the concept of the child’s best interests, referred to in Article 24 of the Charter of Fundamental Rights of the European Union and in that regulation, be interpreted as meaning that, in a situation in which neither the child nor the mother has a currently valid residence document in the child’s State of residence, and in which therefore have neither the right to enter nor the right to remain in that State, the child’s State of residence must make adequate arrangements to secure that the child and his or her mother can lawfully remain in the Member State in question? If the child’s State of residence has such an obligation, must the principle of mutual trust between Member States be interpreted as meaning that the State which returns the child may, in accordance with that principle, presume that the child’s State of residence will fulfil those obligations, or do the child’s interests make it necessary to obtain from the authorities of the State of residence details of the specific measures that have been or will be taken for the child’s protection, so that the Member State which surrenders the child may assess, in particular, the adequacy of those measures in the light of the child’s interests?

If the child’s State of residence does not have the obligation, referred to above in the fourth question, to take adequate measures, is it necessary, in the light of Article 24 of the Charter of Fundamental Rights, to interpret Article 20 of the 1980 Hague Convention, in the situations referred to in the third question, points (i) to (iii), as meaning that that provision precludes the return of the child because the return of the child might be considered to be contrary, within the meaning of that provision, to the fundamental principles relating to the protection of human rights and fundamental freedoms?

Judges J.C. Bonichot (as reporting judge), L. Bay Larsen, C. Toader, M. Safjan and N. Jääskinen have been appointed to this preliminary ruling.

The judgement on C-30/20, Volvo, a request from the Juzgado de lo Mercantil nº 2 de Madrid (Spain) will be published the following day:

Should Article 7(2) of Regulation (EU) No 1215/2012 … on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, which establishes that a person domiciled in a Member State may be sued in another Member State: ‘… in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur’, be interpreted as establishing only the international jurisdiction of the courts of the Member State for the aforesaid place, meaning that the national court with territorial jurisdiction within that State is to be determined by reference to domestic rules of procedure, or should it be interpreted as a combined rule which, therefore, directly determines both international jurisdiction and national territorial jurisdiction, without any need to refer to domestic regulation?

AG Richard de la Tour’s opinion  was delivered on 22 April 2021. The chamber is composed by judges J.C. Bonichot, L. Bay Larsen, C. Toader, M. Safjan (as reporting judge) and N. Jääskinen.

The decision of the same chamber on joined cases C-152/20 SC Gruber Logistics – C-218/20 Sindicatul Lucrătorilor din Transporturi, both from the Tribunalul Mureș (Romania), will be published on the same day. The questions referred are quite similar.

The questions in C-152/20 were phrased as follows:

Is Article 8 of Regulation (EC) No 593/2008 [on the law applicable to contractual obligations, ‘Rome I’] to be interpreted as meaning that the choice of law applicable to an individual employment contract excludes the application of the law of the country in which the employee has habitually carried out his or her work or as meaning that the fact that a choice of law has been made excludes the application of the second sentence of Article 8(1) of that regulation?

Is Article 8 of [the Rome I Regulation] to be interpreted as meaning that the minimum wage applicable in the country in which the employee has habitually carried out his or her work is a right that falls within the scope of ‘provisions that cannot be derogated from by agreement under the law that, in the absence of choice, would have been applicable’, within the meaning of the second sentence of Article 8(1) of the regulation?

Is Article 3 of [the Rome I Regulation] to be interpreted as meaning that the specification, in an individual employment contract, of the provisions of the Romanian Labour Code does not equate to a choice of Romanian law, in so far as, in Romania, it is well-known that there is a legal obligation to include such a choice-of-law clause in individual employment contracts? In other words, is Article 3 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 to be interpreted as precluding national rules and practices pursuant to which a clause specifying the choice of Romanian law must necessarily be included in individual employment contracts?

And here are the questions raised in C-218/20:

Interpretation of Article 8 of [the Rome I Regulation]: does the choice of law applicable to an individual employment contract exclude the application of the law of the country in which the employee has habitually carried out his or her work or does the fact that a choice of law has been made exclude the application of the second sentence of Article 8(1) of that regulation?

Interpretation of Article 8 of [the Rome I Regulation]: is the minimum wage applicable in the country in which the employee has habitually carried out his or her work a right that falls within the scope of ‘provisions that cannot be derogated from by agreement under the law that, in the absence of choice, would have been applicable’, within the meaning of the second sentence of Article 8(1) of the regulation?

Interpretation of Article 3 of [the Rome I Regulation]: does the specification, in an individual employment contract, of the provisions of the Romanian Labour Code equate to a choice of Romanian law, in so far as, in Romania, it is well-known that the employer predetermines the content of the individual employment contract?

AG Campos Sánchez-Bordona’s opinion, of 22 April 2021, is not available in English yet.

The same day, a hearing is foreseen on case C-581/20, TOTO, on provisional measures under Regulation 1215/2012, among other:

Is Article 1 of Regulation (EU) No 1215/12 … to be interpreted as meaning that a case such as that described in this order for reference must be regarded in whole or in part as a civil or commercial matter within the meaning of Article 1(1) of that regulation?

After the right to make an application for provisional/protective measures has been exercised and the court having jurisdiction as to the substance of the matter has already ruled on that application, is the court seised of an application for interim relief on the same basis and under Article 35 of Regulation (EU) No 1215/12 … to be regarded as not having jurisdiction from the point at which evidence is produced that the court having jurisdiction as to the substance of the matter has given a ruling on that application?

If it follows from the answers to the first two questions referred that the court seised of an application under Article 35 of Regulation (EU) No 1215/12 … has jurisdiction, must the conditions for the ordering of protective measures under Article 35 of Regulation (EU) No 1215/12 of the European Parliament and of the Council be interpreted independently? Should a provision which does not allow a protective measure to be ordered against a public body in a case such as the present one be disapplied?

Once again, judges J.C. Bonichot, L. Bay Larsen, M. Safjan, N. Jääskinen and C. Toader have been appointed, this time with C. Toader acting as reporting judged.

Summer holiday starts on 16 July 2021.

(NoA: worth reading as well is AG M. Szpunar’s opinion on the cassation appeal C-638/19 P, regarding investment arbitration and state aid, published on 1 July 2021; a press release in French is available here).

As I seem to be in a comparative mood today, consider Hydrodec Group Plc [2021] NSWSC 755, in which a suggestion of COMI in the UK, of a company incorporated there, was dismissed in favour of COMI in the US. Cooper Grace Ward have the relevant background here. The result of the order is that the company will be wound up under Australian law.

Hydrodec Group Plc is the parent company for a corporate group comprised of: subsidiaries located in the UK, Australia and Japan that were not trading; and a sole trading subsidiary located in the United States of America, which owns valuable assets. As CGW report, Hydrodec contended that its COMI was in the UK because, among other things: it has an address in the UK; its affairs are administered in the UK by directors that reside in the UK; its main asset was its shareholding in a subsidiary, in the UK; and the majority of its creditors are in the UK. 

The judge however reportedly (see the CGW overview; I have not been able to locate judgment at this stage) disagreed on the following grounds. COMI must be identified by reference to criteria that are objective and ascertainable by third parties (ditto in the EU under the EIR). The A16(3) UNCITRAL Model Law presumption of COMI in the place of registered office does not apply seeing as the corporation has two of these. The only trading entity within the corporate group controlled by Hydrodec was in the USA.  Hydrodec described the USA as its ‘key market’ and the focus of Hydrodec’s plans for growth. The principal creditor of the corporate group controlled by Hydrodec was in the USA. The administration of the affairs of Hydrodec involved, in substance, the administration of the operations of the USA subsidiary. Finally, Hydrodec’s primary focus was the re-financing of its operations in the USA.

The judgment shows the specificity of determining COMI in the case of a corporation which itself does not have a market focus.

European Private International law, 3rd ed. 2021, 5.65 ff.

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

O. Remien: The European Succession Regulation and the many questions of the European court practice – five years after entry into force

After five years of application of the European Succession Regulation it is time to have a look at European court practice: The general connecting factor of habitual residence has somehow been addressed by the European Court of Justice (ECJ) in E.E., but especially national court practice shows many interesting cases of the necessary overall assessment. Choice of law by the testator is particularly important and a notary should point not only at the present situation, but also at possible developments in the future. Estate planning has become more interesting. The legacy per vindicationem (Vindikationslegat, i.e. with in rem effect) recognized in Kubicka poses specific problems. The position of the surviving spouse under § 1371 BGB in German law has become a highly debated subject and here the aspect of free movement of persons is highlighted. The European Succession Certificate also raises many questions, among them the applicability of the competence rules in case of national notarial succession certificates or court certificates, cases Oberle, WB and E.E.. The article pleads for an equilibrated multilateral approach. Donation mortis causa will have to be dealt with by the ECJ soon. Five years of application of the Succession Regulation – and many questions are open.

 

P. Hay: Product Liability: Specific Jurisdiction over Out-of-State Defendants in the United States

“Stream of commerce” jurisdiction in American law describes the exercise of jurisdiction in product liability cases over an out-of-state enterprise when a product produced and first sold by it in another American state or a foreign country reached the forum state and caused injury there. The enterprise cannot be reached under modern American rules applicable to “general” (claim unrelated) jurisdiction. Can it be reached by exercise of “specific” (claim related) jurisdiction even though it did not itself introduce the product into the forum state? This is an important question for interstate American as well as for foreign companies engaged in international commerce. The applicable federal constitutional limits on the exercise of such “stream of commerce” jurisdiction have long been nuanced and uncertain. It was often assumed that the claim must have “arisen out of” the defendant’s forum contacts: what did that mean? The long-awaited U.S. Supreme Court decision in March 2021 in Ford vs. Montana now permits the exercise of specific jurisdiction when the claim arises out of or is (sufficiently) “related” to the defendant’s in-state contacts and activities. This comment raises the question whether the decision reduces or in effect continues the previous uncertainty.

 

W. Wurmnest: International Jurisdiction in Abuse of Dominance Cases

The CJEU (Grand Chamber) has issued a landmark ruling on the borderline between contract and tort disputes under Article 7(1) and (2) of the Brussels I-bis Regulation. Wikingerhof concerned a claim against a dominant firm for violation of Art. 102 TFEU and/or national competition law rules. This article analyses the scope of the ruling and its impact on actions brought against dominant firms for violation of European and/or national competition law and also touches upon the salient question as to what extent such disputes are covered by choice of court agreements.

 

C.F. Nordmeier: The waiver of succession according to Art. 13 Regulation (EU) 650/2012 and § 31 IntErbRVG in cases with reference to third countries

According to Art. 13 Regulation (EU) 650/2012, a waiver of succession can be declared before the courts of the state in which the declarant has his habitual residence. The present article discusses a decision of the Cologne Higher Regional Court on the acceptance of such a declaration. The decision also deals with questions of German procedural law. The article shows that – mainly due to the wording and history of origin – Art. 13 Regulation (EU) 650/2012 presupposes the jurisdiction of a member state bound to the Regulation (EU) 650/2012 to rule on the succession as a whole. Details for establishing such a jurisdiction are examined. According to German procedural law, the reception of a waiver of succession is an estate matter. If Section 31 of the IntErbRVG is applicable, a rejection of the acceptance demands a judicial decree which is subject to appeal.

 

P. Mankowski: The location of global certificates – New world greets old world

New kinds of assets and modern developments in contracting and technology pose new challenges concerning the methods how to locate assets. In many instances, the rules challenged are old or rooted in traditional thinking. Section 23 of the German Code of Civil Procedure (ZPO) is a good example for such confrontation. For instance, locating global certificates requires quite some reconsideration. Could arguments derived from modern legislation like the Hague Intermediated Securities Convention, Art. 2 pt. (9) EIR 2015 or § 17a DepotG offer a helping hand in interpreting such older rules?

 

S. Zwirlein-Forschner: All in One Star Limited – Registration of a UK Company in Germany after the End of the Brexit Transition Period

Since 1 January 2021, Brexit has been fully effective as the transition period for the UK has ended. In a recent decision, the Federal Court of Justice (BGH) has taken this into account in a referral procedure to the Court of Justice of the European Union (CJEU). The decision raises interesting questions on the demarcation between register law and company law, on conflict of laws and on the interpretation of norms implementing EU law. This article comments on these questions.

 

K. Sendlmeier: Informal Binding of Third Parties – Relativising the Voluntary Nature of International Commercial Arbitration?

The two decisions from the US and Switzerland deal with the formless binding of third parties to arbitration agreements that have been formally concluded between other parties. They thus address one of the most controversial issues in international commercial arbitration. Both courts interpret what is arguably the most important international agreement on commercial arbitration, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. The Supreme Court has ruled that the Convention does not preclude non-signatories from being bound by arbitration based on equitable estoppel in US arbitration law. In the Swiss decision, the binding nature of a non-signatory is based on its interference in the performance of the main contract of other parties. According to the established case law of the Swiss Federal Tribunal, this binding approach does not conflict with the New York Convention either.

 

K. Bälz: Can a State Company be held liable for State Debt? Piercing of the Corporate Veil vs. attribution pursuant to Public International Law – Cour d’appel de Paris of 5 September 2019, No. 18/17592

The question of whether the creditor of a foreign state can enforce against the assets of public authorities and state enterprises of that state is of significant practical importance, particularly in view of the increasing number of investment arbitrations. In a decision of 5 September 2019, the Paris Court of Appeal has confirmed that a creditor of the Libyan State can enforce an arbitral award against the assets of the Libyan Investment Authority (LIA), arguing that – although the LIA enjoys separate legal personality under Libyan law – it was in fact an organ (émanation) of the Libyan State, that was functionally integrated into the state apparatus without clearly separated assets of its own. This approach is based on public international law concepts of state liability and diverges from corporate law principles, according to which a shareholder cannot generally be held liable for the corporation’s debts.

 

O.L. Knöfel: Liability of Officials for Sovereign Acts (acta iure imperii) as a Challenge for EU and Austrian Private International Law

The article reviews a decision of the Supreme Court of the Republic of Austria (Case 1 Ob 33/19p). The Court held that a civil action for compensation brought in Austria, by the victim of a downhill skiing accident, against a German school teacher on account of alleged negligence during a reconnaissance ride down an Austrian ski slope, does not constitute a “civil and commercial matter” under the Rome II Regulation, as it involves an actum iure imperii (Art. 1 cl. 1 Rome II Regulation). As a consequence, the Court applied German Law, relying on an alleged customary conflicts rule (lex officii principle), according to which indemnity claims against officials who act on behalf of the State are inevitably and invariably governed by the law of the liable State. Finally, the Court held that an action brought directly against a foreign official in Austria is not barred by sec. 9 cl. 5 of the Austrian Act of State Liability (Amtshaftungsgesetz). The Court’s decision is clearly wrong as being at variance with many well-established principles of the conflict of laws in general and of cross-border State liability in particular.

 

E. Piovesani: Italian Ex Lege Qualified Overriding Mandatory Provisions as a Response to the “COVID-19 Epidemiological Emergency”

Art. 88-bis Decree-Law 18/2020 (converted, with modifications, by Law 27/2020) is headed “Reimbursement of Travel and Accommodation Contracts and Package Travel”. This provision is only one of the several provisions adopted by the Italian legislator as a response to the so-called “COVID- 19 epidemiological emergency”. What makes Art. 88-bis Decree-Law 18/2020 “special” is that its para. 13 qualifies the provisions contained in the same article as overriding mandatory provisions.

 

The General Secretariat of the International Social Service (ISS) in Geneva has published an important bilingual study in English and French entitled:  “KAFALAH – Preliminary analysis of national and cross-border practices” – “La KAFALAH: analyse préliminaire de pratiques nationales et transfrontières” (2020).

For a general overview of the ISS and its relationship with PIL, see our previous post “The Role of the International Social Service in the History of Private International Law,” written by Roxana Banu.

Below is a summary of the publication “KAFALAH – Preliminary analysis of national and cross-border practices” based on the foreword drawn up by Hans van Loon, Member of the Institut de Droit International and Former Secretary General of the Hague Conference on Private International Law, and Hynd Ayoubi Idrissi, Professor of Law at the Université Mohammed V and Member of the United Nations Committee on the Rights of the Child. 

By way of background, please note the difference between adoption and kafalah. As stated in this publication: “the very essence of adoption is the creation of a stable legal and social filiation bond between the adoptee and his/her adoptive  parent(s)  and  (in  full  adoption)  the  cessation  of  the biological bond with the family of origin. From a Western perspective,  this  is  the  main  criterion  for  differentiating  between  adoption  and  kafalah.  From the perspective of countries whose legal systems are based on or influenced by Sharia, despite the specificities of each country, reference is often made to a common approach to adoption – that is, its prohibition.”  (p.15). As to its meaning, “Kafalah is a child protection measure in countries whose legal systems are based on or influenced by Islamic law (Sharia […]). Its effects vary greatly from one country to the next” (p. 4).

***

Despite its modest title, this publication covering 222 pages is a unique and undoubtedly one of the most extensive studies carried out on the institution of the kafalah (also spelled kafala). The kafalah is widely applied in countries whose legal system is based on or influenced by Sharia law. For those countries (except for a minority that also recognise adoption) kafalah is the preeminent child care measure for children without a family environment or with one that is at risk of breakdown. Although the kafalah increasingly interacts with the legal systems of Western countries, it is not well-known or understood in Europe, the Americas, Australia and New Zealand. The impetus of this study came from the practical experience of ISS’s International Reference Centre for the Rights of Children Deprived of the Family at the International Social Service (ISS/IRC), which showed that this lack of understanding can seriously affect children deprived of parental care in cross-border situations.

Following the introduction, Part I sets the international scene of kafalah. An important step to greater international recognition of this institution as an alternative care measure for children deprived of their families was the specific reference to kafalah in the Convention on the Rights of the Child (1989), followed by its inclusion as a child protection measure in the Hague Child Protection Convention (1996) and the UN Guidelines on the Alternative Care of Children (2009). Part I then continues analyzing the various forms, structures and functions of kafalah, comparing it to other protection measures such as adoption, and noting the Western perspective on kafalah.

Part II provides an extensive and detailed overview of the implementation of kafalah and analogous institutions in countries whose legal system is based on or inspired by Sharia law, with in-depth studies on Egypt, Iran, Iraq, Jordan, Morocco, Pakistan, Sudan, Djibouti, Lebanon, Malaysia, and Tunisia, and practical comments and suggestions by ISS/IRC for each State.  It analyses the many social problems surrounding kafalah in these States, several of which have very large populations (e.g., Indonesia, Pakistan, Egypt, Iran) or must deal with large numbers of displaced or refugee families and children (e.g., Iraq, Lebanon). Many of these countries are facing poverty, lack of adequate infrastructures for the protection of children and families, stigmatization of single mothers, child abandonment, and child labour, among others. A Technical Note provided by ISS/IRC mentions many ongoing efforts to regulate kafalah in order to better protect children’s rights, and suggests a number of issues to consider, offering practical tools to national stakeholders, including a compelling case study on “Preventing unjustified family separation”.

Part III addresses the recognition of kafalah and analogous institutions in “receiving States”. It starts with a Case Study on “The crucial questions to ask oneself as a professional in a receiving State”, when confronted with a kafalah issue, with alternative suggestions for possible approaches. Then follow: a discussion of the principle of subsidiarity in cross-border kafalah placements; “Considerations about the (non)-applicability of the 1993 Hague Convention to cross-border kafalah placements” by Laura Martínez-Mora (Secretary at the Hague Conference); and a discussion of the 1996 Hague Convention on Child Protection as an international framework for cross-border kafalah. See in particular the interview with Hans van Loon “4. The 1996 Hague Convention on Child Protection: An international framework for cross-border kafalah?,” which provides an insight into the interaction between Kafalah and the modern Hague Children Conventions (pp. 135-137).

Part III concludes with a comprehensive analysis of the treatment of kafalah in several receiving States: Australia, Belgium, Denmark, France, Germany, Italy, New Zealand, Norway, Spain, Switzerland, and the United States of America. Like Part II, Part III concludes with a Technical Note with a summary of positive trends as well as common challenges regarding the kafalah in receiving States, during the four different stages of (1) the pre-placement process; (2) the decision to establish a Kafalah; (3) the transfer of the child and immigration considerations; and (4) the treatment of the kafalah in the receiving State and post-placement considerations.

The study concludes with four Annexes and an extensive bibliography (see in particular Annex IV).

Annex I: Historical and contemporary considerations on Sharia Law, by M. Keshavje Mohammed, a renowned international specialist on cross cultural mediation, offers helpful background insights on the legal systems where kafalah is practiced.

Annex II: International case law relating to kafalah provides an overview and analysis of cases dealt with by the European Court of Human Rights and the UN Committee on the Rights of the Child.

Annex III: EU l instruments applicable to kafalah, deals with the European Union Directives on Family Reunification Directive and the Citizens’ Rights Directive and presents case law of the Court of Justice of the European Union.

Annex IV: Tools to foster strengthened cross-border cooperation. This Annex suggests and develops the possibility of strengthening cooperation between kafalah and non-kafalah States through a bilateral agreement. To that end it presents (1) a Checklist for the establishment of such a bilateral agreement: how to ensure better protection of children placed abroad under a kafalah in (and beyond) the context of the 1996 Hague Convention, and (2) a Model for the establishment of such an agreement regarding the cross-border placement of children in a foster family or institution, or their provision of care by kafalah or an analogous institution. It offers one Model for States that are both bound by the 1996 Hague Convention, and another, more extensive, one for States that are not both bound by the 1996 Hague Convention.

Annex IV concludes with a brief overview, written by Justice V. Bennett and M. MacRitchie, on the benefits of direct judicial communication and sharing the Australian experience on how direct judicial communication could be applied to cross-border kafalah placements

A short post for comparative conflicts purposes. Readers might be aware of the minimum contacts rule in US jurisdictional analysis.  Rice J excellently summarises the issues in his order denying a strike-out application (‘motion to dismiss’) on the basis of lack of jurisdiction.

‘Under the Due Process Clause, a court may exercise personal jurisdiction over a defendant only where “the defendant ha[s] certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” [Picot v. Weston, 9th Cir. 2015) (quoting Int’l Shoe Co. v. Wash., [1945])….

Personal jurisdiction over a non-resident defendant may take two forms:
general jurisdiction or specific jurisdiction. General jurisdiction requires connections with the forum “so continuous and systematic as to render the foreign corporation essentially at home in the forum State (Ranza). Specific jurisdiction, by contrast, may only be exercised “when a case aris[es] out of or relate[s] to the defendant’s contacts with the forum.”

Shandong essentially argue that they are kept at arm’s length from US jurisdiction because they are not the one importing the tires into the US: a separate corporation imported, a third distributed. The judge however (in the process dismissing Shandong’s assertion that the goods were shipped FOB – Free on Board), found that Shandong delivered tires into the stream of commerce, was involved, in consequence of its contractual duties, in shipping the tires to Washington ports, and has taken steps for creating tires compliant with state and federal law to arrive in Washington pursuant to the supply agreement.  This echoes the EU jargon of ‘directing activities at’ the state of Washington.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.460, para 4.48 ff.

Comparative law claxon, special jurisdiction, product liability
Court finds Shandong delivered tires into US commerce, was involved in shipping them to WASH ports, has undertaken to comply with US state, federal law per supply agreement with Bridgestonehttps://t.co/AcGzp4hw9D https://t.co/WkGT25CnGM pic.twitter.com/VDcxBGYTEm

— Geert van Calster (@GAVClaw) June 14, 2021

The new issue of the Revue Critique de Droit International Privé (2/2021) is out.

It contains eight articles and numerous case notes.

The editorial by Horatia Muir Watt (Sciences Po), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on the Dalloz website (Devoir de réserve ?), as well as the first four articles which all deal with the reserved share in successions (réserve héréditaire) from an international perspective*.

*This subject is highly topical at this moment in France since a draft bill on the compliance with the Republican principles (projet de loi confortant le respect des principes de la République) is being debating by members of the National Assembly as well as senators. It contains a provision (see article 13) aiming at protecting French heirs regarding assets located in France, against any foreign law applicable to the succession which would not provide for a reserved shared for children (see article 912 of the French Civil Code). During its first reading in April the Senate deleted the provision (see here and here). A new reading has started in July before the National Assembly. To be continued!

The articles in the special issue are as follows:

• Une ultime (?) bataille de la réserve héréditaire, by Paul Lagarde
• Quelques observations relatives à la réserve héréditaire dans le projet de loi confortant le respect des principes de la République, by Cécile Pérès
• Contre le retour du droit de prélèvement en droit français : une vue de la pratique du droit international, by Diane Le Grand de Belleroche
• Le prélèvement compensatoire du projet d’article 913 du code civil à l’épreuve des exigences européennes et constitutionnelles, by Suzel Ramaciotti
• Droit de prélèvement, réserve héréditaire, protection des héritiers contre les discriminations, quelle méthode ?, by Natalie Joubert

The last three articles are dealing with various PIL issues.

In the first article, Christelle Chalas and Horatia Muir Watt discusse the corporate environmental responsibility from the perspective of international jurisdiction (Vers un régime de compétence adapté à la responsabilité environnementale des entreprises multinationales ? Point d’étape post-Brexit – Affaires Municipio de Mariana v. BHP plc & BHP group Ltd ; Okpabi and others v Royal Dutch Shell Plc and another).

The second article written by Vincent Richard presents the Recast Service Regulation (La refonte du règlement sur la notification des actes judiciaires et extrajudiciaires).

Regulation (EU) no 2020/1784, adopted on 25 november 2020, recasts Regulation (EC) no 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters. Under the recast, transmitting agencies shall transfer documents to receiving agencies through a decentralised IT system such as e-CODEX. The recast also encourages electronic service to the addressee where the latter agrees. The reform creates new responsibilities for receiving agencies without correcting some of the Regulation’s shortcomings.

Finally, in the third article, Christine Budzikiewicz introduces the reform of international adoption law in Germany (La réforme du droit de l’adoption internationale en Allemagne).

The full table of contents is available here.

On Tuesday, July 6, 2021, the Hamburg Max Planck Institute will host its twelfth monthly virtual workshop in private international law at, exceptionally, 15:00-16:30. Since January of this year, we have been alternating between English and German language. Hannah Buxbaum (Indiana University) will speak, in English, about the topic

Equivalence Regimes in Transnational Regulation: From Comparability to Convergence

The presentation will be followed by open discussion. All are welcome. More information and sign-uphere This is the twelfth such lecture in the series, after those by Mathias Lehmann in June, Eva-Maria Kieninger in July, Giesela Rühl in September, Anatol Dutta in October, Susanne Gössl in November, Marc-Philippe Weller in December, Macjiej Szpunar in January, Dagmar Coester-Waltjen in February, Horatia Muir Watt in March, Burkhard Hess in April, Marta Pertegas in May, and Tania Domej in June. The series will take a summer break in August and return in September. Stay tuned! If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de

 

 

 

 

In Perform Content Services Ltd v Ness Global Services Ltd [2021] EWCA Civ 981 the Court of Appeal yesterday dismissed the appeal against the High Court judgment which I discussed here.

Two grounds of appeal were at play [34]:

(1) The Court was wrong as a matter of law to interpret Article 33 to mean that jurisdiction was not “based on” domicile by reason of a non-exclusive English court jurisdiction clause that conferred prorogated jurisdiction on the English Court pursuant to Article 25;

(2) The Court was wrong to conclude that a stay was not necessary for the proper administration of justice within the meaning of Article 33(1)(b). The court wrongly failed to place any or any sufficient weight on the fact that the NJ and English proceedings were mirror image proceedings giving rise to the risk of irreconcilable judgments, the core purpose of Article 33 and a core feature of the concept of the administration of justice under the Article. The court wrongly took account of the non-exclusive English court jurisdiction clause and/or an English governing law clause and/or wrongly took account of its assessment that the centre of gravity was Slovakia and/or failed to place any or any sufficient weight on the material connections between the parties and the United States and/or wrongly placed significant reliance on connections between the parties, the dispute and the UK.

On the first issue Flaux C refers ia to UCP and to Citicorp (the latter had not been referred to by the first instance judge, I suggested it could have been), to hold that choice of court under A25 BIa being exclusive or not has no relevance. Like the first instance judge, he rules that A33-34 cannot apply if choice of court has been made in favour of an EU court, exclusive or not.

He then deals obiter, like the judge had done, with the issue whether an A33-34 stay would have been in the interest of the sound administration of justice. He emphasises [66] the wide catchment area of ‘all the circumstances of the case’ per recital 24, and suggests this must potentially also include the connections which the case has with the EU Member State and indeed the specific court (per the choice of court clause) concerned.

On that he is right. But he is wrong in my view to support Turner J’s analysis at [67] in Municipio, without any nuance.

Turner J and Flaux C are both right that, the fact itself that the factors which a judge considers in holding that the proper administration of justice does not require a stay, might theoretically have also been relevant in a common law forum non conveniens exercise, does not invalidate the judge’s approach under A33-34. However the problem with the judge’s A33-34 analysis in Municipio is,

Firstly, that it is a case of the tail wagging the dog. The proper administration of justice analysis, exclusively populated by forum non criteria indeed with full reference to that forum non analysis, was put to the front without proper engagement with the substantive conditions for A33-34 to apply at all.

Further, the DNA of A33-34 as I have reported before ( I am preparing an overview for publication), is much, much different from the forum non DNA. By cutting and pasting of the criteria indeed by cross-reference to the forum non criteria without further ado, the A33-34 analysis is irreparably broken. It becomes a case of mixing the blank rounds with the live bullets.

It is worth emphasising that the limited A33-34  analysis are obiter findings only.

Geert.

European Private International Law, 3rd ed. 2021, 2.539 ff.

Perform Content Services v Ness Global Services [2021] EWCA Civ 981
Appeal dismissed in an A33-34 BIa, forum non conveniens (light) case
For the High Court judgment see https://t.co/z75qFQafqg
More soonhttps://t.co/CJhGxsamFQ

— Geert van Calster (@GAVClaw) July 1, 2021

The Nigeria Group on Private International Law held its inaugural lecture on June 21, 2021. The video recording of the event is now available on the Group’s website: here  

This post was drafted by Paul Lorenz Eichmüller, Vienna.

This year’s third issue of the German journal “Praxis des Internationalen Privat- und Verfahrensrechts” (IPRax) contains two articles and several other case discussions of interest for European private international law. 

In the first article, Andrew Dickinson (University of Oxford) discusses the applicable national and international rules of private international law that have been in force in the UK since the end of the transition period on 1 January 2021. He focuses primarily on jurisdiction matters and the recognition of foreign judgements, as well as choice of law for contract and tort claims. 

The abstract reads: 

At 11pm (GMT) on 31 December 2020, the United Kingdom moved out of its orbit of the European Union’s legal system, with the end of the transition period in its Withdrawal Agreement and the conclusion of the new Trade and Cooperation Agreement. This article examines the impact of this realignment on private international law, for civil and commercial matters, within the legal systems of the UK, the EU and third countries with whom the UK and the EU had established relationships before their separation. It approaches that subject from three perspectives. First, in describing the rules that will now be applied by UK courts to situations connected to the remaining EU Member States. Secondly, by examining more briefly the significance for the EU and its Member States of the change in the UK’s status from Member State to third country. Thirdly, by considering the impact on the UK’s and the EU’s relationships with third countries, with particular reference to the 2007 Lugano Convention and Hague Choice of Court Convention. The principal focus will be on questions of jurisdiction, the recognition and enforcement of judgments and choice of law for contract and tort.  

The second article by Susanne Zwirlein-Forschner (Ludwig-Maximilians-Universität Munich) concerns itself with the issue of foreign road charge claims brought in front of German courts. Particular emphasis is placed on questions of private international law.  

The abstract reads (translated from German): 

Tolling of public roads has experienced a renaissance in Europe for reasons of equivalence and climate protection. In some Member States, the modern toll systems are designed in such a way that the recovery of unpaid fees is carried out before civil courts. If such an action for payment of a foreign toll is brought before a German court, complex problems of PIL and international civil procedure arise, which will be examined in this article. 

Among the case discussions, two judgments by the CJEU shall be pointed out: firstly, the contribution by Wiebke Voß (Max Planck Institute Luxembourg for Procedural Law) on the decision C-215/18, Primera Air Scandinavia, which dealt with the delineation of contract and tort claims; and secondly, the case note by Chris Thomale (University of Vienna) on the decision C-433/19, Ellmes Property Services, which has already been discussed on this blog. 

A full table of contents can be found here. 

Jens M. Scherpe and Elena Bargelli are the editors of a collection of essays titled The Interaction between Family Law, Succession Law and Private International Law, recently published by Intersentia.

The blurb reads:

There can be no doubt that both substantive family and succession law engage in significant interaction with private international law, and, in particular, the European Union instruments in the field. While it is to be expected that substantive law heavily influences private international law instruments, it is increasingly evident that this influence can also be exerted in the reverse direction. Given that the European Union has no legislative competence in the fields of family and succession law beyond cross-border issues, this influence is indirect and, as a consequence of this indirect nature, difficult to trace.

This book brings together a range of views on the reciprocal influences of substantive and private international law in the fields of family and succession law. It outlines some key elements of this interplay in selected jurisdictions and provides a basis for discussion and future work on the reciprocal influences of domestic and European law. It is essential that the choices for and within certain European instruments are made consciously and knowingly. This book therefore aims to raise awareness that these reciprocal influences exist, to stimulate academic debate and to facilitate a more open debate between European institutions and national stakeholders.

The authors of the contributions are Elena Bargelli (Univ. Pisa), Anne Barlow (Univ. Exeter), Elena D’Alessandro (Univ. Turin), Elise Goossens (KU Leuven), Nigel Lowe (Cardiff Univ.), Robert Magnus (Univ. Bayreuth), Maire Ni Shuilleabhain (Univ. College Dublin), Walter Pintens (KU Leuven), Pablo Quinza Redondo (Univ. Valencia), Lukas Rass-Masson (Univ. Toulouse), Anne Sanders (Univ. Bielefeld), Jens M. Scherpe (Univ. Cambridge), Wendy Schrama (Utrecht Univ.) and Denise Wiedemann (MPI Hamburg).

Further information, including the table of contents can be found here.

AG De La Tour delivered today his opinion in case C‑277/20 (UM), which is about the Successions Regulation. The opinion is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

« L’article 3, paragraphe 1, sous b), du règlement (UE) no 650/2012 […] doit être interprété en ce sens que relèvent de la notion de « pacte successoral » les actes de donation entre vifs en vertu desquels le transfert, au profit du donataire, de la propriété d’un bien ou des biens qui constituent même partiellement le patrimoine successoral du donateur n’intervient qu’à son décès ».

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=243669&pageIndex=0&doclang=FR&mode=req&dir=&occ=first&part=1&cid=23944552