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In C-280/20, ZN v Generalno konsulstvo na Republika Bulgaria v grad Valensia, Kralstvo Ispania [the Bulgarian consulate], the CJEU last week essentially confirmed CJEU C-154/11 Mahamdia. ZN is a Bulgarian national residing in Sofia who holds a permit to reside in Spain, where she provided services relating to the activity of the Consulate General. ZN brought an action in Bulgaria against the Consulate General seeking, first, recognition of her employment relationship and, second, payment of compensation in lieu of paid annual leave not taken during a period in which she provided services concerning the receipt of documents. The Consulate General contests the jurisdiction of the Bulgarian courts and invokes the jurisdiction of the Spanish courts as the courts of ZN’s place of employment. The referring court has doubts as to the existence of cross-border implications in so far as the dispute at issue in the main proceedings concerns a Bulgarian employee and a Bulgarian employer, and the fact that their legal relationship is closely connected with the Republic of Bulgaria.  It also notes that Bulgarian law expressly provides that, in the case of contracts concluded between a Bulgarian employer established abroad and a Bulgarian national working abroad, any disputes may be examined only by the Bulgarian courts.

In Mahamdia the Court first of all applied the Vienna Convention on Diplomatic Relations and held that an embassy often acts iure gestionis, not iure imperii, and that under the Vienna rules, the EU is perfectly entitled to apply the Regulation given that it applies to ‘civil and commercial’ matters. In that vein, an embassy may very well have to be regarded as an ‘establishment’ within the meaning of Article 20(2) (on employment contracts). In ZN, the Court [28-29] suggests that services in connection with the receipt of documents in files opened at the consulate by Bulgarian nationals and the management of those files, do not fall within the exercise of public powers and do not risk interfering with the security interests of the Republic of Bulgaria. Hence it strongly suggests the issue is a ‘civil and commercial one’, leaving final determination of same to the referring court. I would intuitively have thought that processing documents at a country’s consulate quite au contraire, does engage closely with diplomatic functions that must be qualified as iure imperii, particularly seeing as before said processing one is likely not to have knowledge of the documents’ content.

On the issue of ‘international element’ required to trigger Brussels Ia, the Court per Mahamdia considers a consulate to be an ‘establishment’ of one Member State in another Member State. Hence one of the parties to the dispute must be considered to be domiciled or habitually resident in a Member State other than that of the court seised [37]: the cross-border element is clearly present, which will not surprise many of us. One also assumes that the  aforementioned Bulgarian rule on exclusive jurisdiction for employment disputes between Bulgarians even with an international element present, does not meet with EU law requirements.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.35, para 2.128.

This post was drafted by Paul Eichmüller and Matthias Lehmann.

Almost six years after the Volkswagen Dieselgate scandal became public, the issue of international jurisdiction for damage claims arising from the fraud is still creating headaches. In a recent decision from 24 March 2021, the Austrian Supreme Court decided a case that was in many respects similar to the one giving rise to the much discussed ECJ judgment of C-343/19, VKI/VW – yet, there was one important difference: the car was transported to another country after its purchase.

Like in previous cases, the Austrian Supreme Court had to decide on a damage claim resulting from the sale of a car produced by a member of the VW group. The claimant was resident in Austria but had acquired the car directly from the manufacturer in Germany, where the vehicle was also handed over to the buyer. He then paid the price from his Austrian bank account and imported the car to Austria, where he continued to use it. The manufacturer’s representative had been aware of this intention at the time when the contract was concluded. After the discovery of the emission fraud scandal, the buyer brought a claim for damages against the manufacturer in Austrian courts, claiming compensation for the decreased value of the car due to the fraud.

The courts of first and second instance both declined international jurisdiction since the car had been bought and handed over in Germany. They argued that for the sale of movable goods, the place where the damage occurs in the sense of Article 7(2) Brussels I bis Regulation should always be located where a good is handed over, and not in the country of (intended) habitual use.

The Austrian Supreme Court agreed with the legal opinion of the lower courts. It cited the CJEU ruling in C-343/19, VKI/VW, according to which the damage occurs at the place of purchase (see para 37). As in its view the damage had already occurred in the moment of the purchase in Germany, the Austrian Supreme Court concluded that the subsequent transport to Austria – be it with the previous knowledge or even the consent of the seller – could not change the competent court.

Neither did the fact that the payment was effected from an Austrian bank account establish jurisdiction of Austrian courts change the analysis in the eyes of the Austrian Supreme Court. It distinguished the CJEU judgment in C-304/17, Löber, on the ground that the damage materialised in a tangible object and not in a bank account.

The buyer’s final argument was based on the fact that the seller had allegedly directed his activity to Austria and thus, the applicable law to the contract would be Austrian law pursuant to Art 6(1)(b) Rome I Regulation. However, this argument was rejected on purely procedural grounds.

Austrian courts thus lacked jurisdiction and the claim was rejected. The Supreme Court did not deem a request for a preliminary ruling necessary, as it considered it a case of the acte éclairé doctrine.

The judgment by the Austrian Supreme Court is a logical next step from the CJEU ruling in VKI/VW. The latter gave precedence to the place of purchase, citing the interest of legal certainty, the need for the court to determine the market conditions at this place and the competitive relations or collective consumer interests that may be affected there as the main reasons. These considerations force the conclusion that the damage occurs at the place of purchase irrespective of where the car is subsequently used. This new ruling results from the CJEU using a single connecting factor in VKI/VW instead of weighing a number of different factors. Assigning jurisdiction to the courts of Germany may pose a disadvantage for some customers, but they must be aware that a purchase in a foreign country may also have legal side-effects.

Louis Perreau-Saussine and Sophie Lemaire (Université Paris Dauphine) are the editors of a new book on International Mandatory Rules in International Business Law (L’impérativité en droit international des affaires : questions d’actualité).

Contributors include Pierre Mayer, Louis Perreau-Saussine, Sophie Lemaire, Mathias Audit, Patrick Mathet, Hubert de Verdelhan, Stéphanie Francq, Andrea Bonomi, Martine Behar-Touchais, Juliette Morel-Marroger, Tristan Azzi, Etienne Pataut.

The book collects the proceedings of a conference held at the Cour de cassation in Paris on February 2018. Videos of the conference are freely available here.

On 7 June 2021, the Council of the European Union has adopted a political document titled Conclusions on the Protection of Vulnerable Adults across the European Union.

The document sets out the views of the Council in this area with respect to both civil and criminal matters.

As regards civil matters, the document stresses the importance of the Hague Convention of 13 January 2000 on the international Protection of Adults, which is currently in force for ten Member States, and some third countries, such as Switzerland and the UK (albeit only with respect to Scotland).

The Council invites the Member States for which the Hague Convention is already in force to promote greater awareness of the  Convention among courts and practitioners.

Member States that are engaged in procedures procedures to ratify the Convention, are invited to advance such procedures with a view to finalising the ratification as swiftly as possible, in particular in view of the 2022 Special Commission on this Convention organised by the Hague Conference on Private International Law.

Finally, the Council invites all other Member States to commence and/or advance domestic consultations on a possible ratification of the Convention as swiftly as possible.

The document highlights the relevance of the (international) protection of adults, as understood by the Convention, to the implementation of the EU Strategy for the Rights of Persons with Disabilities (2021-2030).

It also notes that both the number and proportion of older people are growing across Europe. According to the Ageing Report 2021 issued by the European Commission on 20 November 2020, the total population of the EU is projected to decline in the long term, and the age structure will change significantly in the coming decades. The EU population is projected to decline from 447 million people in 2019 to 424 million in 2070 and, during this period, Member States’ populations will age dramatically given the dynamics in fertility, life expectancy and migration. The median age is projected to rise by five years over the coming decades.

A significant number of adults – the document observes – face limitations. Eurostat expects a fifth of the EU population to have some form of disability by 2050. Many of these adults are or will become vulnerable and, by virtue of the multiple barriers that are still in place for persons with a serious mental and/or physical disability, are not or will not be in a position to protect their own interests without adequate support.

This situation impacts the legal capacity of vulnerable adults, who face challenges and difficulties in protecting their rights, defending their interests and accessing justice, both in national and in cross-border situations. In cross-border situations, for instance in the case of citizens residing in a State other than that of their nationality, these existing difficulties may be exacerbated by additional obstacles with respect to language, representation or access to the judicial system and to public services in general.

Today, there are no uniform private international law rules applicable in the field of judicial cooperation in civil matters regarding the protection of vulnerable adults in cross-border situations across the EU, and there are disparities between Member States’ laws on jurisdiction, applicable law, and the recognition and enforcement of protection measures.

The Council acknowledges in its Conclusions that diversity of the rules on these issues might impair the exercise of the right of vulnerable adults to move freely and reside in the Member State of their choice, and might also hinder the possibility for these citizens to obtain adequate protection regarding the administration of their property in a cross-border context.

The document further recalls that the right to self-determination is a fundamental right, and powers of representation through which an adult has made arrangements in advance for his or her care and/or representation should be respected within the EU. The Hague Convention, among other things, ensures that such a power of representation has legal force in a Contracting Party.

Finally, the Council takes note that at the ‘High-Level Conference on the protection of vulnerable adults across Europe: the way forward’, held on 30 March 2021, some panelists stressed that, while it is important to build experience and assess the results of implementing the 2000 Hague Convention, the EU should be more ambitious and go further in seeking the approximation of private international law rules to ensure the effective protection of vulnerable adults on the basis of the principle of mutual recognition.

The Conclusions, however, do not include any indication as to whether and when the political institutions of the Union might consider the adoption of such additional measures.

Published in the Oxford University Commonwealth Law Journal by Saloni Khanderia, Alexander von Humboldt Fellow (Experienced Researcher), Chair for Civil Law, International Private Law and Comparative Law, Ludwig Maximilian University, München and Professor of Law, OP Jindal Global University, Sonipat, India.

The article provides a comparative analysis of the mechanism to determine the ‘international jurisdiction’ of a court in the recognition and enforcement of foreign judgments in civil and commercial matters in Indian and South African private international law. It examines the theoretical bases for executing foreign judgments in these jurisdictions and the grounds on which a foreign court will be considered as ‘internationally competent’ under the private international laws of these BRICS jurisdictions. Accordingly, it demonstrates how the rules to ascertain the competency of the foreign forum in these jurisdictions are narrow and, consequently, impede the free movement of judgments and prevents access to justice. The article highlights some plausible ways to improve the free movement of judgments and access to justice in India and South Africa. In particular, it suggests the endorsement of the Hague Conventions on the Choice of Court Agreements and the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters.

The full text of the article may be found here.

The conference titled Child-friendly procedures in cases of international child abduction will take place online on 24 and 25 June 2021. The conference will present the results of research conducted with the INCLUDE project on what is considered to be ‘good practice’ for professionals in a context of child abduction as seen by children themselves. You can consult the agenda of the conference here, and register for it here.

The INCLUDE project, as explained by its coordinators, aims to enhance the wellbeing of children at all stages of an international child abduction by providing guidelines and good practices to legal and other professionals.

The deliverables of the project (including an International Child Abduction – Legal Framework and Literature Study) are available on the project’s website.

The University of Szeged Faculty of Law and the ELKH Centre for Social Sciences, Institute for Legal Studies are organizing an international online conference: “Cross-Border Litigation in Central-Europe: EU Private International Law before National Courts”. The conference will present the main results of the EU-funded CEPIL research project (“Cross-Border Litigation in Central-Europe: EU Private International Law before National Courts”, 800789 — CEPIL — JUST-AG-2017/JUST-JCOO-AG-2017). The CEPIL project inquires whether EU PIL functions optimally in the CE Member States in order to secure “a Europe of law and justice”. It examines whether EU PIL instruments are applied in CE Member States in a correct and uniform manner, whether Member State courts deal appropriately with disputes having a cross-border element and whether the current legal and institutional architecture is susceptible of securing legal certainty and an effective remedy for cross-border litigants. The project’s research output will be published by Kluwer International.

The online conference will take place via Microsoft Teams on July 6, 2021. The full programme of the event is available here. Participation is free but online registration is kindly requested to receive the link to the conference, which will be emailed shortly before the event.

The INCLUDE project is nearing it end. The project, co-funded by the European Commission, departed from the finding in previous research that children involved in child abduction cases feel frustrated by the lack of clear information and involvement. The teams discussed with youngsters what they think the needs of children are in child abduction cases. These workshops took place in Hungary and Cyprus and led to a Pratice Guide aimed at professionals dealing with child abduction proceedings or the enforcement of return orders. The national reports of Hungary and Cyprus are also available.

The results will be set out and discussed at the final conference (on Zoom) on 24 June (afternoon) and 25 June (morning). Registration is free: see the site of Missing Children Europe.

The United Nations Convention on International Settlement Agreements resulting from Mediation (the ‘Singapore Convention’) entered into force on 12 September 2020. However, the Convention has not been signed by the EU or its Member States. What keeps the EU or its member states from signing the Singapore Convention on Mediation? Experts will discuss pertinent aspects of the Singapore Convention on Mediation to create awareness of the Convention and will debate the EU’s position.

Webinar Link
DATE: Friday 18 June 2021 | 11:00 – 13:00 CET Vienna time (17:00 -19:00 GMT+8
Singapore Time)

To access the webinar use this link:

https://vuw.zoom.us/webinar/register/WN_hSFTXym_SrKRCTIsZ7NgLQ
Please email herman.verbist@everest-law.be if you have any questions.

11.00 (CET) Welcome by Sir Michael Burton, President of FICA

11.05 (CET) Roundtable “The reflection process of the European Commission”
• Is the accession to the Singapore Convention an exclusive jurisdiction of the EU or is it a shared competence of the EU and Member States?
• To what extent would the Singapore Convention benefit EU stakeholders?
• Developing mediation policies and practices in Europe.
• The views of States that signed the Singapore Convention.

12.00 (CET) Break

12.05 (CET) Roundtable “What is the impact of the Singapore Convention on the EU laws and policies?”
• Does the Singapore Convention interfere with the EU internal regulatory framework (as REIO)?
• The role of the Hague Convention on Choice of Forum 2005 or the Hague Judgments Convention 2019.

Panellists include:
• Dr Nadja Alexander, Professor at Singapore Management University
• Ms Anna Joubin-Bret, Secretary of UNCITRAL
• Sir Michael Burton, President of FICA
• Mrs Francisca da Silva Dias Van Dunem, Minister of Justice of Portugal & Chair of the Council of Ministers of Justice during the Portuguese Presidency to the Council (tbc)
• Dr Catherine Kessedjian, former Deputy Secretary General of the Hague Conference on Private International Law & Professor emerita at University Panthéon-Assas Paris II
• Mr Bernard Lange, Chairman of INTA, European Parliament (tbc)
• Dr Dr hc Thomas Pfeiffer, Professor at Heidelberg University & Chair of the European Law Institute Special Interest Group on Dispute Resolution
• Mr Didier Reynders, European Commissioner for Justice (tbc)
• Dr Norel Rosner, Legal and Policy Officer, Directorate-General for Justice and Consumers, European Commission
• Ms Natalie Morris-Sharma, former Chair of UNCITRAL Working group II which drafted the Singapore Convention & Deputy Senior State Counsel with Singapore’s Attorney-General Chambers
• Dr Rimantas Simaitis, Chairman of the CEPEJ-GT-MED
• Mr Aleš Zalar, former Minister of Justice of Slovenia and current co-chair of ELI hub in
Slovenia, will be moderating the roundtable.

Participants will be able to raise questions. Participation is free of charge. In cooperation with:

This Thursday, the Court of Justice delivered its judgment in the case ZN, C-280/20, which heavily relies and confirms the judgment in Mahamdia, C-154/11.

The request for a preliminary ruling arouse out of proceedings in which ZN, a Bulgarian national residing in Sofia, brought an action in Bulgaria against the Consulate General of the Republic of Bulgaria in Valencia, submitting that, in Spain, she has been providing services concerning the receipt of documents in files opened at the consulate and the handling of those files.

In these circumstances, the Bulgarian court referred a following question to the Court:

‘Is Article 5(1) of [the Brussels I bis Regulation], in conjunction with recital 3 thereof, to be interpreted as meaning that the regulation applies for the purpose of determining the international jurisdiction of the courts of a Member State to adjudicate in a dispute between a worker from that Member State and the consular service of that Member State in the sovereign territory of another Member State? Or should those provisions be interpreted as meaning that the national jurisdictional rules of the Member State of which both parties are nationals apply to such a dispute?’

In its judgment delivered without Advocate General’s Opinion, the Court interpreted the question as limited solely to the application of the Brussels I bis Regulation as such and not concerning the determination of the jurisdiction (international/territorial, I suppose given the wording of the national jurisdictional rules at hand) of the Bulgarian or Spanish courts (paragraph 40).

In this regard, the Court held, in the first place, that a dispute involving a Consulate General and a person who provides services which do not fall within the exercise of public powers and which do not risk interfering with the security interests of the Republic of Bulgaria, falls within the notion of “civil and commercial matters” within the meaning of Article 1 of the Brussels I bis Regulation (paragraph 28).

In the second place, echoing the doubts of the referring court (see point 50 of the request for a preliminary ruling), the Cour examined whether the dispute at hand has cross-border implications and as such does indeed fully fall within the scope of the Brussels I bis Regulation. Considering that this is indeed the case, it held that a consulate is an ‘establishment’ of one Member State in another Member State and therefore one of the parties to the dispute must be considered to be domiciled or habitually resident in a Member State other than that of the court seised (paragraph 37). Moreover, the Court added that the contracts for the provision of services at issue in the main proceedings have been concluded in Spain and it was in that Member State that the obligations imposed by those contracts have been performed (paragraph 38).

Interestingly, admitting that the international aspect whose existence is a condition for the applicability of the Brussels I bis Regulation, the Court referred itself to its recitals 3 and 26, where the term ‘cross-border disputes’ is employed with no further guidance as to its definition (paragraph 30). In the present judgment the Court did not rely on the legal basis of the Regulation in order to substantiate the requirement of the international aspect, while it may be argued that such approach would also be possible in the light of the considerations pertaining to the Brussels II bis Regulation in the judgment in UD, C-393/18 PPU, paragraphs 38 to 40.

Ultimately, the Court considered that:

“Article 5(1) of the [Brussels I bis Regulation], read in conjunction with recital 3 of that regulation, must be interpreted as meaning that it applies for the purposes of determining the international jurisdiction of the courts of a Member State to hear and rule on a dispute between an employee from a Member State who does not carry out duties involving the exercise of public powers and a consular authority of that Member State situated in the territory of another Member State”.

The judgment can be consulted here.

A short note on the claim form for the collective claim by a group of parents based in The Netherlands against TikTok Technology Limited, domiciled at Dublin, Ireland.  It engages Article 79 GDPR, as well as the consumer section of Brussels Ia. At the applicable law level, it suggests application of Article 6 Rome I (consumer contracts; a logical counterpart of the jurisdictional analysis) and, in subsidiary fashion, Article 4 Rome II, each to suggest application of Dutch law.

I wrote on Article 79 here, and the problems which I signalled have in the meantime surfaced in case-law, as I signalled ia here.  Current TikTok claim however prima facie would seem to be more straightforward under both GDPR, BIa and Rome I – one imagines a possible TikTok’s defence to go towards the meaning of ‘establishment’.

Geert.

Dutch collective claim against #TikTok
Claim form here https://t.co/YhQ8IfXxA8
At jurisdictional level it engages A79 #GDPR (see https://t.co/KBZ4s5diN7) & consumer section BIa
Re applicable law, A6 Rome I, A4 Rome II.
A claim form only, the analysis on both is as yet incomplete. https://t.co/ShOhuQwzP4

— Geert Van Calster (@GAVClaw) June 2, 2021

The Council of the European Union will aim at establishing a general approach on the regulation on assignments of claims on 7 June 2021 in Luxembourg.

The text which should be adopted is an amended version of the 2018 proposal of the European Commission for a Regulation on the law applicable to the third-party effects of assignments of claims, which was adopted by the European Parliament  in 2019 with 24 amendments.

The main features of the new text are as follows.

One of the most debated issues was whether the principle should be that third party effects of assignment of claims should be governed by the law of the habitual residence of the assignor or the law of the assigned claim. The Commission had proposed to retain the former, with certain exceptions.

In line with the Commission proposal, the law of the assignor’s habitual residence received more support than the assigned-claim law as it would lead to more predictability for third parties. The law of the assignor’s habitual residence was deemed suitable for bulk assignments subject to different laws and future claims and consistent with Regulation (EU) 2015/848 (Insolvency Regulation).

The list of exceptions, however, has slightly increased. The law of the assigned claim would apply to a longer list of claims in financial markets, but also to credit claims. This last exception will not doubt be criticised. Recital 27(b) clarifies its scope, which seems extensive:

The third-party effects of assignments of claims arising out of agreements whereby credit is granted in the form of a loan should be governed by the law of the assigned claim. This should include credit claims as defined in point (o) of Article 2(1) of Directive 2002/47, often used as financial collateral within the Eurosystem. In order to facilitate the cross-border assignment of claims arising out of syndicated loans and lending-based crowdfunding on secondary financial markets, the third-party effects of the assignment of claims arising out of syndicated loans and lending-based crowdfunding should also be subject to the law of the assigned claim.

It was also thought that the scope of the instrument should be further clarified and restricted. In particular, three matters are excluded from the scope of the future regulation:

– the transfer of financial instruments, including securities and derivatives;
– the transfer of crypto-assets; and
– the assignment of claims where the claims are not in intangible form but incorporated in a certificate or represented by a book entry.

Franco  Ferrari (New York University School of Law) has published his Hague Lectures on Forum Shopping despite Unification of Law in the Collected Courses of The Hague Academy of International Law (volume 413). 

The abstract reads:

It has often been suggested that forum shopping is “evil” and needs to be eradicated. And it is in this context that one must understand statements by commentators to the effect that the unification of substantive law through international conventions constitutes one way to reach this result. These lectures show not only that the qualification of forum shopping as something that is deplorable is outdated, that the negative attitude vis—à—vis forum shopping seems grounded on outdated preconception and prejudice, and disregards, for example, that critical analysis has demonstrated that forum shopping also has beneficial effects, such as the promotion of ethical representation of one’s client, the protection of access to justice, and the provision of a remedy for every injury.

These lectures also show that the drafting of uniform substantive law convention cannot prevent forum shopping, for many reasons, of which these lectures create a taxonomy. The reasons are classified into two main categories, namely convention-extrinsic and convention-intrinsic reasons. The former category comprises those reasons upon which uniform substantive law conventions do not have an impact at all, and which therefore will continue to exist regardless of the coming into force of any such convention. These reasons range from the costs of access to justice to the bias of potential adjudicators to the enforceability of judgments. These and the other convention-extrinsic reasons discussed in these lectures are and will not be influenced by uniform substantive law conventions.

The convention-intrinsic reasons, on the other hand, are reasons that relate to the nature and design of uniform substantive law conventions, and include their limited substantive and international spheres of application as well as their limited scope of application, the need to provide for reservations, etc. And no drafting efforts will be able to do away with these convention-intrinsic reasons, because they touch upon features of these conventions that are ontological in nature.

The lectures also address another forum shopping reason that cannot be overcome, namely the impossibility to ensure uniform applications and interpretations of the various uniform substantive law conventions. As these lectures show, as long as these conventions are interpreted horizontally, diverging interpretations and applications by courts of different jurisdictions of conventions that need to be drafted using vague language cannot be avoided. This is due mostly to a natural tendency by adjudicators to rely on their domestic legal background and notions when having to resolve problems arising in the context of the interpretation and application uniform substantive law conventions.

It is in light of all of the above that the lectures predict that forum shopping is here to stay.

More details, including the table of contents, can be found here.

Written by Béligh Elbalti (Associate Professor, Graduate School of Law and Politics – Osaka University)

1. Introduction

Assume that you successfully obtained a favourable judgment from a foreign court that orders the losing party to pay punitive damages in addition to compensatory damages. Assume also that, later, you could obtain a partial satisfaction of the amount awarded by the court by way of compulsory execution in the rendering state. Happy with the outcome and knowing that punitive damages cannot be enforced in Japan, you confidently proceed to enforce the remaining part before a Japanese court arguing that the payment you would like to obtain now corresponds to the compensatory part of the award. Could the judgment be enforced in Japan where punitive damages are considered as contrary to public policy? In other words, to what part of the damages the paid amount corresponds: the compensatory part or the punitive part?

This is the question that the Supreme Court of Japan answered in its recent judgment rendered on 25 May 2021.

The present case has already yielded an important Supreme Court decision rendered on 18 January 2019 (decision available here). The main issue that was addressed therein concerned the compatibility of the foreign judgment with the procedural public policy of Japan. The summary below will however be limited to the issue of punitive damages as this was the main issue the Supreme Court has addressed in its decision reported here.

2. Facts:

In 2013, the Xs (Appellees) filed an action with a Californian court seeking damages against the Y (appellant) and several other persons for illegally obtaining their trade secrets and business models. In 2015, the Californian court rendered a default judgment against Y ordering him to pay about USD 275,500, including punitive damages (USD 90,000) and compensatory damages (USD 184,990) as well as other related additional fees. Soon after the decision became final and binding, Xs petitioned for the compulsory execution of the said decision in the US and could obtain partial payment of the awarded damages (USD 134,873). Thereafter, Xs moved to claim the payment of the remaining part (i.e. USD 140,635) by seeking the enforcement of the Californian judgment after deducting the part of the payment already made. Xs argued that the judgment did not violate public policy as the amount they were seeking to obtain in Japan was anyway confined within the scope of the compensatory damages. Y challenged the petition for enforcement, inter alia, on the ground that punitive damages were incompatible with Japanese public policy and therefore had no effect in Japan; accordingly, the payment made in the US should be appropriated to the satisfaction of the compensatory part of the foreign judgment. Thus the question above.

3. Rulings

The first instance court (Osaka District Court) considered that the punitive damages ordered by the Californian court were effectively punitive in nature and as such against public policy and had no effect in Japan. The court then considered that the payment made abroad could not correspond to the payment of the punitive damages part, because this would result in enlarging the scope of the enforcement of the other part of the judgment and consequently lead to a result that did not substantially differ from the recognition of the effect of the punitive award. The court stated that the payment made abroad corresponded to the part other than the punitive portion of the damages. It finally ruled that the enforcement petition was to be admitted to the extent of the remaining amount (i.e. only USD 50,635), after deducting both the payment already made (USD 134,873) and the punitive damages part (USD 90,000).

On appeal, the issue of punitive damages was not addressed by the second Instance Court (Osaka High Court). The Court decided to reject the enforcement of the Californian default judgment on the ground of violation of procedural public policy of Japan because Y was deprived of an opportunity to file an appeal as the notice of entry of judgment was sent to a wrong address. However, unsatisfied with the ruling of the High Court as to whether Y was actually deprived of an opportunity to file an appeal, the Supreme Court quashed the High Court ruling and remanded the case to the same court for further examination. Again, the issue of punitive damages was not raised before the Supreme Court.

Before the Osaka High Court, as the court of remand, the issue of the enforceability of punitive damages was brought back to the center of the debate. In this respect, like the Osaka District Court, the Osaka High Court considered that the USD 90,000 award was punitive in nature and therefore incompatible with public policy in Japan. However, unlike the Osaka District Court, the High Court considered that since the obligation to pay punitive damages in California could not be denied, the payment made abroad through the compulsory execution procedure should be appropriated to the satisfaction of the amount ordered by the Californian court as a whole. Therefore, the since the remaining part (i.e. USD 140,635) did not exceed the total amount of the foreign judgment excluding the punitive damages part (i.e. USD 185,500), the High Court considered that its enforcement was not contrary to public policy. Unhappy with this ruling, Y appealed to the Supreme Court.

The Supreme Court disagreed (decision available here, in Japanese only). According to the Supreme Court, “if payment was made with respect to an obligation resulting from a foreign judgment including a part ordering the payment of monies as punitive damages, which do not meet the requirements of Art. 118(iii) CCP, it should be said that the foreign judgment cannot be enforced as if the said payment was appropriated to the satisfaction of the punitive damages part, even when such payment was made in the compulsory execution procedure of the foreign court” (translation by author).

The Supreme Court considered that the payment made should be appropriated to the satisfaction of the parts of the foreign judgment other than punitive damages. According to the Supreme Court, punitive damages had no effect in Japan and therefore, there could be no obligation to pay punitive damages when deciding the effect of a payment of an obligation resulting from a foreign judgment. The Supreme Court finally agreed with the Osaka District Court in considering that, since there was no obligation on the part of Y to pay punitive damages due to their incompatibility with Japanese public policy, Y’s obligation under the foreign judgment was limited to USD 185,500. Therefore, since Y had already paid USD 134,873 in the compulsory execution procedure in rendering state, Xs were entitled to claim only the difference of USD 50,635.

4. Comments:

The ruling of the Supreme Court is interesting in many regards. First, the Supreme Court reiterated its earlier categorical position on the incompatibility of punitive damages with Japanese public policy. This position is in line with the prevailing opinion in Japan according to which punitive damages are in principle contrary to Japanese public policy due to the fundamental difference in nature (civil v. criminal) and function (compensatory v. punitive/sanction) (For a general overview on the debate in Japan, see Béligh Elbalti, “Foreign Judgments Recognition and Enforcement in Civil and Commercial Matters in Japan”, Osaka University Law Review, Vol. 66, 2019, pp. 7-8, 24-25 available here).

Second, the solution in the present decision can be regarded as a logical consequence of the absolute rejection of punitive damages. In effect, in deciding as it did, the Supreme Court showed its intention to discharge the judgment debtor from his/her obligation to pay punitive damages resulting from a foreign judgment even in the case where a partial payment has been made as a consequence of a compulsory procedure before the foreign court. Indeed, since there can be no obligation to pay punitive damages resulting from a foreign judgment, any payment made abroad should be appropriated to the satisfaction of the parts of the awarded damages other than the punitive portion.

Third, after the first Supreme Court decision on punitive damages, a practice has been established based on which judgment creditors who seek the enforcement of a foreign judgment containing punitive damages, usually, content themselves with the request for the enforcement of the compensatory part to the exclusion of the punitive part of the foreign judgment. (See for example, the Supreme Court judgment of 24 April 2014, available here). For a comment on this case from the perspective of indirect jurisdiction, see Béligh Elbalti, “The Jurisdiction of Foreign Courts and the Recognition of Foreign Judgments Ordering Injunction – The Supreme Court Judgment of April 24, 2014, Japanese Yearbook of International Law, vol. 59, 2016, pp. 295ss, available here). This practice is expected to continue after the present decision as well. However, in this respect, the solution of the Supreme Court raises some questions. Indeed, what about the situation where the judgment creditor initiates a procedure in Japan seeking the enforcement of compensatory part of the judgment first? Would it matter if the judgment creditor shows the intention to claim the payment of the punitive part later so that he/she ensures the satisfaction of the whole amount of the award? More importantly, if the judgment debtor was obliged to pay for example the full award including the punitive part in the rendering state (or in another state where punitive damages are enforceable), would it be entitled to claim in Japan the payment back of the amount that corresponds to the punitive part of the foreign judgment? Only further developments will provide answers to these questions.

In any case, one can somehow regret that the Supreme Court missed the chance to reevaluate its position with respect to punitive damages. In effect, the court ruled as it did without paying the slightest heed to the possibility of declaring punitive damages enforceable be it under certain (strict) conditions. In this regard, the court could have adopted a more moderate approach. This approach can consist in admitting that punitive damages are not per se contrary to public policy, and that the issue should be decided on a case by case basis taking into account, for example, the evidence produced by the judgment creditor to the effect that the awarded amount would not violate public policy (see in this sense, Toshiyuki Kono, “Case No. 67” in M Bälz et al. (ed.), Business Law in Japan – Cases and Comments – Intellectual Property, Civil, Commercial and International Private Law (Wolters Kluwer Law & Business, 2012), p. 743s); or when the amount awarded is not manifestly disproportionate with the damages actually suffered (for a general overview, see Béligh Elbalti, “Spontaneous Harmonization and the Liberalization of the Recognition and Enforcement of Foreign Judgments, Japanese Yearbook of Private International Law, Vol. 16, 2014, pp. 274-275 available here).

In this respect, it is interesting to note that such an approach has started to find its way into the case law in some jurisdictions, although the methods of assessment of compatibility of punitive damages with the public policy of the recognizing state and the outcome of such an assessment differed from one jurisdiction to another (for a general overview, see Csongor I Nagy, Recognition and Enforcement of US Judgments Involving Punitive Damages in Continental Europe, 30 Nederlands Internationaal Privaatrecht 1 2012, pp. 4ss). For example, the Greek Supreme Court has refused to enforce punitive damages but after declaring that punitive damages may not violate public policy if they are not excessive (judgment No. 17 of 7 July 1999, decision available at the Greek Supreme Court homepage). The French Cour de cassation has also refused to enforce a foreign judgment awarding punitive damages, but – again – after declaring that punitive damages were not per se contrary to French ordre public, and that that should be treated as such only when the amount award was disproportionate as compared with the sustained damages (judgment No. 09-13.303 of 1 December 2010, on this case, see Benjamin West Janke and François-Xavier Licari, “Enforcing Punitive Damages Awards in France after Fountaine Pajot”, 60 AJCL 2012, pp. 775ss). On the other hand, the Spanish Supreme Court accepted the full enforcement of an American judgment including punitive damages (judgment of No. 1803/2001 of 13 November 2001; on this case see Scott R Jablonski, “Translation and Comment: Enforcing U.S. Punitive Damages Awards in Foreign Courts – A Recent Case in the Supreme Court of Spain” 24 JLC 2005, pp. 225ss). Finally, the recent extraordinary revirement jurisprudentiel of the Italian Supreme Court deserves to be highlighted. Indeed, in its judgment No. 16601 of 5 July 2017, the Corte Suprema di Cassazione declared that punitive damages could be enforced under certain conditions after it used to consider, as Japanese courts still do, that punitive damages as such were contrary to Italian public policy (on this case see, Angelo Venchiarutti, “The Recognition of Punitive Damages in Italy: A commentary on Cass Sez Un 5 July 2017, 16601, AXO Sport, SpA v NOSA Inc” 9 JETL 1, 2018, pp.104ss). It may take some time for Japanese courts to join this general trend, but what is sure is that the debate on the acceptability of punitive damages and their compatibility with Japanese public policy will certainly be put back in the spotlight of doctrinal discussions in the coming days.

The Court of Justice delivered today its judgment in Case C‑280/20 (ZN v Generalno konsulstvo na Republika Bulgaria v grad Valensia, Kralstvo Ispania), which is about Brussels I bis and an employment contract concluded with a consular representation of the Member State of the employee in another Member State:

“Article 5(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, read in conjunction with recital 3 of that regulation, must be interpreted as meaning that it applies for the purposes of determining the international jurisdiction of the courts of a Member State to hear and rule on a dispute between an employee from a Member State who does not carry out duties involving the exercise of public powers and a consular authority of that Member State situated in the territory of another Member State”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=242028&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=9748919

The Court of Justice delivered today its judgment in case C‑914/19 (Ministero della Giustizia v GN). The judgment is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

« L’article 21 de la charte des droits fondamentaux de l’Union européenne et l’article 6, paragraphe 1, de la directive 2000/78/CE du Conseil, du 27 novembre 2000, portant création d’un cadre général en faveur de l’égalité de traitement en matière d’emploi et de travail, doivent être interprétés en ce sens qu’ils s’opposent à une réglementation nationale qui fixe une limite d’âge de 50 ans pour pouvoir participer au concours d’accès à la profession de notaire, dans la mesure où une telle réglementation ne paraît pas poursuivre les objectifs d’assurer la stabilité de l’exercice de cette profession pendant une durée significative avant la retraite, de protéger le bon fonctionnement des prérogatives notariales et de faciliter le renouvellement générationnel ainsi que le rajeunissement de ladite profession et, en tout état de cause, dépasse ce qui est nécessaire pour atteindre ces objectifs, ce qu’il appartient à la juridiction de renvoi de vérifier ».

I reported on the AG’s Opinion in C-913/19 CNP here. The CJEU held on 20 May.

The case essentially queries the application of Section 3 BIa (‘matters relating to insurance’) and Section 2 (the ‘special jurisdictional rules’, in particular contract and tort) in the event of assignment and /or subrogation of claims from the natural person to a professional party. As many of us may have experienced, filing an insurance claim particularly in the automotive sector immediately engages 2, 3 or more distinct businesses: insurance agents, insurers, towing trucks and garages…. The case also discusses whether some of those business may be considered a ‘branch’ of the insurance company on account of their close relationship as experienced by repairers and insureds.

In the case at hand, a road traffic accident occurred in Poland, in which two vehicles collided. The person responsible for the accident had, before that time, taken out a contract for motor liability insurance with Gefion, domiciled at Denmark. The injured party paid to lease a replacement vehicle from the repair workshop to which his damaged vehicle had been entrusted. By way of payment for that lease service arrangement, that person transferred the claim against Gefion to the repair workshop pursuant to a contract for assignment of the claim. Slightly later, pursuant to a new contract for the assignment of claims, the repair workshop assigned that claim to CNP. CNP requested Gefion to pay it the amount invoiced for the lease of the replacement vehicle. That request was sent to the address of Polins, a limited liability company established in Poland,  which represented Gefion’s interests in Poland. Crawford Polska, a company established in Poland and entrusted by Gefion with loss adjustment, then validated the invoice relating to the leasing of the replacement vehicle in part and granted CNP part of the amount invoiced for such lease. In its correspondence, Crawford Polska referred to the possibility of making a claim against it as the entity authorised by Gefion, or directly against Gefion, ‘either under the general provisions on jurisdiction or before the court with jurisdiction for the place where the policyholder, the insured person, the beneficiary or any other person entitled under the insurance contract is resident or established’. CNP then brought an action against Gefion in Poland, citing the information published by Gefion according to which Polins was its principal representative in Poland.  Gefion opposes the subsequent payment order, arguing inter alia that the Polish courts do not have jurisdiction.

Gefion rely in large part on CJEU Hofsoe, which as I noted in my review of UKSC Aspen Underwriting, is not as clear as one might hope. The Court in CNP v Gefion refers again to Hofsoe and Voralberger and zooms in on the professional activities of the corporations involved: [40] no special protection is justified where the parties concerned are ‘professionals in the insurance sector’; [43] CNP recovers claims from insurance undertakings. This precludes  it from being regarded as a party in a weaker position than the other party.

This finding as such arguably has no impact on the authority of Aspen Underwriting, in which the professional party, the Bank, is the named loss payee under the Policy and therefore the “beneficiary” of that Policy.

[46] The Court then confirms that Section 2’s special jurisdictional rules do open up in such circumstances.

As to whether Crawford may be considered a Gefion branch, the Court employs the criteria suggested by the AG (see my review of the opinion) and notes [56] that Crawford has every power to carry out activities involving the loss adjustment and settlement of claims which are binding on the insurer, meaning that Crawford Polska must be regarded as a centre of operations which has the appearance of permanency, such as the extension of a parent body. [57] Whether that centre is materially equipped to negotiate business with third parties, so that they do not have to deal directly with the parent body, is something which the referring court has to verify (and which will therefore determine branch jurisdiction).

Per CJEU Ryanair, [59] Crawford’s role here seems to have been more than just a data hatch: it was an active contributor (in deciding, upon having given such overall authority by Gefion,  only half of the amount claimed would be settled) to the legal situation that led to the dispute in the main proceedings. Therefore provided the aforementioned ‘material equipment’ criterion is met, the dispute is to be regarded as ‘arising out of the operation of the branch’.

All in all a bit more follow-up work to be done by the referring court and, as I noted in my review of the AG’s Opinion, not great publicity for the predictability of jurisdictional rules.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.293 ff, para 2.73 ff.

Sabine Corneloup (Université Paris II Panthéon-Assas) and Jinske Verhellen (Ghent University) have recently posted on SSRN an article titled Providing legal identity for all – A means to empower migrants to exercise their rights, which forms part of the volume SDG 2030 and Private International Law edited by R. Michaels, V. Ruiz Abou-Nigm and H. van Loon to be published by Intersentia. The volume will be an outcome of the project The Private Side of Transforming our World UN Sustainable Development Goals 2030 and the Role of Private International Law. The project, as underlined by its leaders, “aims to raise an awareness of how PIL – with its methods and institutions – is also capable of making a significant contribution in the quest for sustainable development” as defined in UN Sustainable Development Goals 2030. The resulting findings will also be presented in the framework of a conference to be held on 9 to 11 September 2021 at the Max Planck Institute for Comparative and International Private Law in Hamburg.

The abstract of the article reads as follows:

This paper focusses on Target 16.9 of the Sustainable Development Goals (SDGs), which states: “By 2030, provide legal identity for all, including birth registration.” It is a tentative attempt to explore the reciprocal influences between private international law and SDG Target 16.9.

In chapter 1, Target 16.9 will first be presented in itself, before being analyzed in the context of SDG 16 as a whole, as well as in the context of global migration, which also brings other SDGs into the picture and highlights the link to private international law.

The purpose of chapter 2 is twofold: on the one hand, it is to give an overview of existing PIL instruments and methodologies concerning legal identity on a global, regional and national level and, on the other hand, to assess their relevance in a migration context. A survey of the international conventions and EU regulations on private international law will reveal that none of the existing instruments plays a prominent role, if any, in a migration context. Indeed, even though some international conventions and EU regulations contain potentially interesting provisions, none of them has proven relevant, if migration issues such as access to asylum, to a residence permit or to nationality are at stake. At the national level, private international law comes into play in the context of migration, when legal identity is addressed from the perspective of States of destination or States of transit, because then a cross-border element arises.

Chapter 3 takes a different perspective and looks at legal identity issues from the angle of an evolving new global framework according to the SDGs, emphasizing human rights. The question then arises whether this global SDG perspective could improve the situation in the States of origin by promoting and implementing birth registration and consequently impact on legal identity matters in PIL and whether, in its turn, a ‘revitalized’ PIL holds potential to contribute to the further development of the new global framework according to SDG 16.9.

by Mag. Paul Patreider, Institute for Italian Law, Private Law Section, University of Innsbruck, Austria

In November 2020, a team of researchers at the Universities of Verona (I), Innsbruck (A) and Thessaloniki (EL), in cooperation with associations of registrars – EVS[1] and ANUSCA[2] – launched the project “Identities on the move – Documents cross borders (DXB)”, co-financed by the e-justice programme. The project focuses on the use of authentic instruments within the European Union and on the implementation of Regulation (EU) 2016/1191. A first workshop with practitioners and representatives from academia was successfully held on April 30th.

The Regulation was initially meant to simplify the circulation of public documents, favouring the free movement of citizens in a cross-border context and abolishing the need for legalisation. As first responses from registrars,[3] however, show, it finds little application in everyday practice and has remained largely unnoticed in scholarly debates. In order to comprehend the implications and the framework of the Regulation, the project (DXB) investigates the context of national civil status systems and places the Regulation under the strict scrutiny of obligations deriving from the Treaties and, in particular, the Charter of fundamental rights of the European Union. Research is developed by means of a permanent dialogue with registrars. The outcome[4] will be transferred to practitioners and various stakeholders.

To gain a better understanding of the current implementation of the Regulation within national systems and to raise awareness among registrars and legal practitioners, a first workshop was organised by the University of Innsbruck on April 30th.

The event focused on the cross-border region between Italy, Austria and Germany and involved representatives from each country. After an introduction by Prof. Laura Calafà from the University of Verona, who highlighted the general framework of the project, the first session was opened. It dealt with multilingual standard forms issued under the Regulation and tackled hard cases in civil status matters. Public documents covered by Regulation (EU) 2016/1191 and their certified copies are generally exempt from all forms of legalisation and similar formalities (Arts 1, 4). This applies, to a certain extent, also to official translations of authentic instruments.[5] To simplify their circulation and the civil status registration process, (country specific) translation aids were introduced in 2016.[6] Due to their somewhat complex nature and time-consuming processing, these multilingual standard forms remain, however, unsatisfactory. Oliver Reithofer (Bundesministerium für Inneres, Austria[7]) highlighted these aspects from an Austrian point of view. The number of standard forms issued by the Austrian authorities has so far remained very low, especially when compared to documents issued under the ICCS-Conventions.[8]

The second speaker, Giacomo Cardaci (University of Verona, Italy), addressed potential “hard cases” arising from the application of the Regulation. Given that the Regulation itself does not apply to the recognition of legal effects and that the legal terminology differs from Member State to Member State, problems are mainly due to the use of multilingual standard forms and the scope of application[9] of the Regulation. Standard forms for parentage, for example, are currently missing, other facts may not emerge from the translation aids or may not be registered therein (e.g. intersexuality, gender reassignment, maiden name, …). As a result, to ensure the continuity of personal status in private international law, additional documentation is frequently needed when bringing authentic instruments abroad.

During the first round table, participants reflected on the scarce application of the Regulation stressing the fact that it would not affect the application of other international instruments such as the ICCS-Conventions. The latter already provide for clear standard forms with evidential value. Despite the Regulations multilingual standard forms not having similar effects (Art 8(1)), it was proposed that they could be deemed valid certified copies, since they contain information taken from original documents, are dated and signed by a public official.

The second session was opened by a comparison of selected ICCS Conventions and the Public Documents Regulation by Renzo Calvigioni (ANUSCA). Calvigioni went on to identify a number of problematic aspects regarding Regulation (EU) 2016/1191. Registrars face difficulties when confronted with multilingual standard forms as they merely summarise the original public document. The partial translations often do not contain enough information in order to proceed to the registration of a civil status event. It can be difficult to verify if a document is contrary to public policy when certain facts cannot be identified from the standard form (e.g. adoptions, use of reproductive technologies, surrogacy). The need for legalisation (or an apostille) does, however, not necessarily arise in these cases, as the information could be supplemented. Contrary to the objective of simplification of Regulation 2016/1191, additional documentation would need to be attached to the original document. As far as certain ICCS-Conventions are concerned (e.g. No. 16), this would not be the case.[10]

Besides the bureaucratic burden and the economic costs for citizens that wish to obtain public documents and translation aids (subject to two separate fees in Germany), a big concern, shared by Gerhard Bangert (Director of the German Association of Registrars), is related to the authenticity of public documents. So far, the verification process set up in the Regulation relies on the Internal Market Information System (IMI). Where the authorities of a Member State have a reasonable doubt as to the authenticity of a public document or its certified copy,[11] they can submit a request for information through IMI to the authority that issued the public document or certified copy (or to a Central authority[12]). The information should then be made available within the shortest possible period of time and in any case within a period not exceeding 5 or 10 working days (where the request is processed through a central authority). As some registrars noted, delays frequently happen, making the proceedings not always efficient. The topic has been picked up by the EU Commission’s Expert Group as well, with further improvements currently on the way.

Giovanni Farneti (ANUSCA) then illustrated the “European Civil Registry Network (ECNR)”, an EU-funded pilot project finalised in 2011 that worked on a web interface for the (online) exchange of public documents. In the years to come the relevance of electronic public documents will further increase. Some countries, such as Belgium, are currently in a transition period to fully digitalise documents in civil status matters. Regulation 2016/1191 should also cover electronic versions of public documents and multilingual standard forms suitable for electronic exchange. However, each Member State should decide in accordance with its national law whether and under which conditions those public documents and multilingual standard forms may be presented.[13] The topic of digital public documents, unknown to most ICCS-Conventions,[14] was further developed by Alexander Schuster (University of Innsbruck, DXB coordinator). Even though the Regulation does not affect EU legislation in the field of electronic signatures and identification (e.g. eIDAS-Regulation), certain issues can already be identified.[15] The two main aspects pertain to the nature of the document itself (public documents created digitally or digital copies of documents originally issued in paper format) and to the way its authenticity can be ensured. It is still unclear which type of electronic signature is to be used in order for them to be accepted as a valid public document. National systems vary in this regard as Member States decide when an electronic document is valid, despite not complying with eIDAS standards. Therefore, to simplify their circulation and to coordinate family statuses across Europe, it is necessary to investigate how Member State regulate their digital instruments.

Even if – as of now – no extensive statistics exist with regard to the implementation of Regulation (EU) 2016/1191, it seems that it is mostly used in relation to States that are not Parties to the ICCS-Conventions. The multilingual standard forms raise problems for both issuing and receiving authorities.[16] Future developments will focus on the use of digital public documents and their circulation within the European Union. It is the project’s intention to contribute to the implementation and the future improvement of the Public Documents Regulation and to supply possible solutions for the issues posed by it.

[1] Europäischer Verband der Standesbeamtinnen und Standesbeamten e.V. (European Association of Registrars).

[2] Associazione Nazionale Ufficiali di Stato Civile e d’Anagrafe (Italy’s Association of Registrars).

[3] For a detailed report see https://www.identitiesonthemove.eu/ (accessed 1.6.2021).

[4] The two-year project will produce a thorough commentary on the Regulation and several other publications, carry out an EU-wide comparative survey placing the Regulation in the context of everyday and national practice and distribute a multilingual handbook (11.500 copies) offering among other things checklists, solutions to hard cases and country profiles in the appendix. Online and freely accessible electronic resources are meant to enrich the tools in view of widespread dissemination.

[5] Art. 5 ff. Reg. (EU) 2016/1191.

[6] See https://e-justice.europa.eu/content_public_documents-551-en.do (accessed 1.6.2021).

[7] Federal Ministry of the Interior (BMI).

[8] International Commission on Civil Status (Commission Internationale de l’État Civil; CIEC).

[9] E.g. the Regulation could not technically be applied to marriage certificates issued by the Holy See according to Canon law and registered in a Member state as the Vatican is to be regarded as a third state for the purposes of Reg. 2016/1191 (Art 2(3)(a)).

[10] Extracts from civil status records (issued at the request of an interested party or when their use necessitates a translation) prepared according to the aforementioned Convention are accepted without any additional documentation.

[11] Models of documents are currently made available in the repository of IMI. They have to be checked first but are in practice not always sufficient.

[12] Cf https://e-justice.europa.eu/content_public_documents-551-en.do (accessed 1.6.2021).

[13] Rec 9.

[14] Neither Convention (No. 30) on international communication by electronic means signed at Athens on 17 September 2001 nor Convention (No. 33) on the use of the International Commission on Civil Status Platform for the international communication of civil-status data by electronic means signed at Rome on 19 September 2012 have yet entered into force, cf http://ciec1.org/SITECIEC/PAGE_Conventions/mBkAAOMbekRBd0d4VVl3VVRT9gw?WD_ACTION_=MENU&ID=A10 (accessed 1.6.2021).

[15] Art 17(2).

[16] Standardised forms for all Member States could have been introduced but a similar proposition was rejected by Member States during the legislative procedure.

This post was contributed by Fabienne Jault-Seseke, who is Professor at University Paris Saclay (UVSQ), and a member of GEDIP.

On 26 May 2021, the French supreme court for private and criminal matters (Cour de Cassation) issued an important judgment requiring the ex officio application of a European conflict of laws rule. The Court specifically relies on the principles of primacy and effectiveness of EU law to justify the solution, which is different from its traditional doctrine on the application of conflict of laws rules.

The case involves Mienta France and Groupe SEB-Moulinex, a French group, in relation to their activities on the Egyptian market. Groupe SEB-Moulinex granted Intercommerce the exclusive representation and distribution of Moulinex brand products. It also granted Blendex an exclusive licence to use the international Moulinex brands and a licence to manufacture certain products, while lending it moulds and supplying certain components. After these relationships were terminated,  Groupe SEB-Moulinex sued Intercommerce and Blendex for liability for  brutal termination of an established commercial relationship. The group brought also an action for forced intervention against Mienta France. It is alleged that Mienta manufactures, directly or through Blendex, small household appliances which it markets under the Mienta brand on the Egyptian market, in particular through the company Intercommerce. These products are likely to create harmful confusion in the public mind with the Seb group’s own products. It is alleged that these facts constitute unfair competition and parasitism.

The question of the law applicable to the dispute does not appear to have been discussed before the Court of Appeal. The Cour of Cassation therefore decided to set aside the judgment of the lower court for failing to apply ex officio Article 6 of the Rome II Regulation to the issue of unfair competition. It should be noted that the court does not decide here the question of the law applicable to the action for brutal termination of established commercial relations. Article 6 designates the applicable law to unfair competition (law of the country where competitive relations or the collective interests of consumers are affected, or if the act of unfair competition affects exclusively the interests of a specific competitor, the law of the country in which the damage occurs or the law of the country where the person claimed to be liable and the person sustaining damage both have their habitual residence) and specifies also that the law applicable may not be derogated from by an agreement.

The Court refers to two sets of norms to require ex officio application of Article 6. The first is Article 12 of the French Code of Civil Procedure, which states that “the judge shall decide the dispute in accordance with the rules of law applicable to it”. The second are “the principles of primacy and effectiveness of European Union law”. To our knowledge, this combination is used for the first time to justify the authority of a conflict of laws rule. The Cour de Cassation has used it once to ensure the application of the product liability regime established by the 1985 Directive.

More specifically, the Court rules that courts must apply a conflict of laws rule ex officio when it is forbidden to derogate from it. Implicitly, the Court deduces that Article 6 of the Rome II Regulation must be applied because the parties do not have the power to agree on the applicable law. For the first time, it is thus indicated that courts must apply ex officio conflict of laws rule which excludes party autonomy in choice of law.

Placed under the patronage of the principles of primacy and effectiveness of European Union law, the solution is limited to conflict rules of European origin. Nevertheless, one might consider extending it to the whole of French Private international law. First of all, the regime of conflict rules has not been harmonized at European level. Consequently, there is no need to distinguish the European rules from other conflict-of-laws rules. As regards the Rome II Regulation specifically, the foreign law regime ressembles the Arlesian woman, about which one speaks, but that one never sees (see Article 30, 1. I and the lack of any study). Secondly, the proposed solution would be more readable than the one that results today from the criterion of the free availability of rights (libre disponibilité des droits) that the Cour de Cassation usually uses.

The application of Article 6 in the dispute brought by the Seb group is likely to lead to the application of Egyptian law, which will upset those who point out that in matters of unfair competition the law of origin of competitors should prevail over the law of the market (see V. Pironon, Rev. crit DIP 2020. 814). It may be possible to avoid this by establishing that Mienta France has its habitual residence in France and that only the interests of the Seb group are affected. In this case, the judgment of 26 May 2021 will simply have made it possible to refine the regime of the conflict of laws rule. This is already a lot.