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Last week’s Opinion of Advocate General Rantos (successor to Sharpston AG) in C-603/20 PPU SS v MCP is of note for its emphasis on the principle of mutual trust that lies at the foundation of European Private International Law. Brussels IIa is not staple diet for the blog and I shall leave more intense analysis to others. In short, the AG opined that a Member State retains jurisdiction under the Regulation, without limit of time, if a child habitually resident in that Member State was wrongfully removed to, or retained in, a non-Member State where it in due course became habitually resident.

The third country at issue is India, a non-Hague Convention State, as opposed to the UK, now also a third country but a Hague State. Note that in future A97(2) Brussels IIa Recast give clear priority to A13 Hague Convention’s lis alibi pendens rule, in cases where the conditions for that article are fulfilled: see Cusworth DJ today in AA & BB [2021] EWFC 17 at 27).

Of note to the blog is the AG’s emphasis on mutual trust, at 62 ff:

all Member States comply, in principle, with EU law justifies recognising, subject to certain conditions, the jurisdiction of the courts of the Member State to which a child was abducted and where he or she has acquired a habitual residence. By contrast, if a child has been abducted to a non-Member State, the cooperation and mutual trust provided for in EU law cannot apply. Therefore, having regard to the context of Article 10 of Regulation No 2201/2003, there is no justification for accepting the jurisdiction of the courts of that non-Member State, including in the case where the abducted child has acquired his or her habitual residence in the latter State.

and at 84

Regulation No 2201/2003 is based on cooperation and mutual trust between the courts of the Member States, which allows, subject to certain conditions, jurisdiction to be transferred between those courts. Since provision is not made for cooperation and mutual trust in the case of courts of a non-Member State, it appears to me entirely justified and consistent with that regulation for the courts of the Member State in which a child was habitually resident before his or her abduction to a non-Member State to continue to have jurisdiction for an unlimited period of time, with a view to ensuring that the best interests of that child are protected.

With this he dismissed the view of the referring court,  that A10 BIIA should be interpreted as having a territorial scope confined to the Member States because otherwise the jurisdiction retained by the Member State of origin would continue to exist indefinitely. In that court’s view, that Member State would thus be in a stronger position jurisdictionally vis-à-vis a non-Member State than a Member State.

Geert.

EU Private International Law, 3rd ed. 2021, various places (see Index: ‘Mutual Trust’).

Opinion Rantos AG C-603/20 PPU Brussels IIa.
MS retains jurisdiction, without limit of time, if a child habitually resident in that MS was wrongfully removed to (or retained in) a non-MS where she, following such removal (or retention), in due course became habitually resident. https://t.co/8E9KUJxcSK

— Geert Van Calster (@GAVClaw) February 23, 2021

Since 2018, UNIDROIT has been studying the prospect of working on the enforcement of claims.

In September 2020, it eventually established a Working Group on the Best Practices for Effective Enforcement. The Working group held its first meeting between 30 November and 2 December 2020, based on an Issues Paper.

The purpose of the project will be to adopt a soft instrument proposing solutions that States would be free to adopt (best practices followed by comments, on the model of the ELI-UNIDROIT Rules of civil procedure). It would focus on the enforcement process, and would not cover the process of obtaining a judgment against a defaulting party or the process of declaring enforceable foreign judgments in the forum. It would include the enforcement of provisonal and protective measures.

During the first meeting, the participants discussed a variety of issues, including the concept of enforcement, the types of claims that should be covered and the impact of technology. The Report of the meeting is available here.

The next meeting will be held in April 2021. Three sub-groups were established: Subgroup 1 on  “post-adjudication” enforcement; Subgroup 2 on enforcement of secured claims (collateral); Subgroup 3 on the impact of technology on enforcement.

As noted earlier on this blog, on 5 March 2021, from 5 to 6.30 p.m. (CET), the European Association of Private International Law will host its third (Virtual) Seminar, devoted to the digitalization aspects of the revised Service of process and Taking of evidence Regulations.

Those wishing to attend have time until 3 March 2021 at noon to register. The registration form is available here.

Registered participants will receive the details to join the Seminar by e-mail the day before the Seminar (please note the e-mails with these details occasionally end up in the spam folder).

For more information, please write an e-mail to Apostolos Anthimos at apostolos.anthimos@gmail.com.

March 2021 edition of the virtual workshop series “Current Research in Private International Law” will host Professor Horatia Muir Watt from the University Sciences-Po Paris. She will be speaking on “Capitalism’s Boundary Struggles: a Private International Law Approach”.

The guest speaker’s abstract states:

Our current awareness of crisis (whether sanitary, ecological, financial, economic, social etc) has led to various reflections and initiatives within law designed for the most part to improve regulation. The focus of this paper is very different and builds upon research currently conducted within the Globinar “Law Crisis and Capitalism” (with H. Alviar and G. Frankenberg). It starts from the idea that the “boundary struggles” that produce crises are endemic to capitalism’s modus operandi (as in the “critical conversation” between N. Fraser and R. Jaeggi). This metaphor suggests that private international law is a good place to think about the role of law in the generation, evolution, exacerbation or pacification of such conflicts that arise at the frontiers of different spheres. In this presentation, I shall suggest a few areas in which an analysis in terms of private international law’s political economy may be instructive.

The virtual workshop will take place on Tuesday, 2 March 2021 at 11:00 hours (CET) via Zoom. Access is free of charge, but registration is required by 1 March 2021 using the registration link.

On 1 February 2021, the HCCH 1965 Service Convention entered into force for the Marshall Islands. It currently has 78 Contracting Parties. More information is available here.

On 1 February 2021, the HCCH 2007 Child Support Convention entered into force for Serbia. At present, 41 States and the European Union are bound by the Convention. More information is available here.

On 1 February 2021, the HCCH 1993 Adoption Convention entered into force for Saint Kitts and Nevis. It currently has 103 Contracting Parties. More information is available here.

From 1 to 5 February 2021, the Experts’ Group on Jurisdiction met for the fifth time, via videoconference. The discussion focused on questions of policy, including in relation to rules of direct jurisdiction, parallel proceedings, related claims, and mechanisms for judicial coordination and cooperation. More information is available here.

From 8 to 11 February 2021, the Experts’ Group on International Transfer of Maintenance Funds met via videoconference. The Group continued its work discussing good practices and identifying possible future improvements in relation to the cross-border transfer of child support payments, with a view to facilitating the most cost-effective, transparent, prompt, efficient and accessible cross-border transfer of funds. More information is available here.

From 15 to 17 February 2021, the Experts’ Group on Parentage/Surrogacy met for the eighth time, via videoconference. The Group discussed what the focus of its work should be at its next meeting(s) in order to prepare its final report on the feasibility of a possible future general private international law instrument on legal parentage and the feasibility of a separate possible future protocol with private international law rules on legal parentage established as a result of an international surrogacy arrangement. More information is available here.

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

The fourth issue of 2020 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) has been released. It features:

Cristina Campiglio, Professor at the University of Pavia, Il matrimonio in età precoce nel diritto internazionale privato (Child Marriage in Private International Law; in Italian)

• In recent years, international instruments to combat early and forced marriages have been flanked by national legislative interventions aimed at denying, or at least limiting, the recognition of marriages concluded abroad by minors. The private international law techniques used in Europe are different but fundamentally referable to special public policy clauses, in some cases inspired by the German doctrine of Inlandsbeziehung. Failure to recognize marital status – with the inevitable repercussions on immigration policies, specifically in the context of family reunification – can harm the fundamental rights of those concerned. Due to its abstract nature, the legislative approach is not able to carry out the evaluation of the minor’s concrete interest that only a case-by-case approach can ensure.

Costanza Honorati, Professor at the University Milan-Bicocca, Il ritorno del minore sottratto e il rischio grave di pregiudizio ai sensi dell’art. 13 par. 1 lett. b della convenzione dell’Aja del 1980 (Return of the Abducted Child and the Article 13(1)(b) ‘Grave Risk of Harm’ Defence in the 1980 Hague Convention; in Italian)

• The “grave risk of physical or psychological harm, or of an intolerable situation” defense pursuant to Article 13(1)(b) of the 1980 Hague Convention constitutes the central hub of the conventional system. In fact, it expresses the difficult balance between, on the one hand, the general imperative to return the abducted child and, on the other, the need to refuse his return in the individual specific case, when this is likely to cause the minor a grave risk of harm. This article examines the application that the exception receives both in the recent Guide to Good Practice prepared by the HCCH Conference and published in March 2020, and in the Italian courts. Through the analysis of many unpublished cases, the peculiarities of the Italian practice on a central provision for effective protection of the abducted child are thus highlighted.

The following comments are also featured:

Loris Marotti, Research Associate at the University of Milan, Aspetti problematici dell’accordo sull’estinzione dei trattati bilaterali di investimento tra Stati membri dell’Unione europea (Problematic Aspects of the Agreement for the Termination of Bilateral Investment Treaties between EU Member States; in Italian).

• On 5 May 2020, 23 Member States signed the Agreement for the termination of Bilateral Investment Treaties between the Member States of the European Union, providing for the termination of all Intra-EU BITs concluded between the parties. The Termination Agreement, which entered into force on 29 August 2020, represents the last step taken by Member States to comply with the European Court of Justice ruling in the Achmea judgment, where the Court found investor-State arbitration based on BITs incompatible with EU treaties. This paper discusses a number of issues arising out of the Termination Agreement. After illustrating its scope and content, the paper focuses on its most controversial aspects, namely the termination of BITs together with the sunset clauses therein contained, and the impact of the Agreement on pending arbitration proceedings. It is argued that while the Agreement seems to be in line with the general international law on treaty termination, its impact on pending proceedings is likely to be problematic according to the general principles regulating the judicial function in international law. Moreover, the paper analyses the controversial implications stemming from the Agreement in terms of the relations between Member States parties to the Agreement and third parties to the ICSID Convention, as well as its impact on investors’ position under international and domestic law.

Marco Pedrazzi, Professor at the University of Milan, Dal disdegno per il diritto internazionale («notwithstanding»…) alla prevalenza del «rule of law»: il controverso percorso che ha portato alla promulgazione della legge del Regno Unito sul mercato interno (From the Contempt for International Law (‘Notwithstanding’…) to the Prevalence of the ‘Rule of Law’: The Controversial Path that Led to the Promulgation of the UK Internal Market Act 2020; in Italian).

In addition to the foregoing, this issue features the following book review by Francesca C. Villata, Professor at the University of Milan: Christopher Kuner, Lee A. Bygrave, Christopher Docksey (eds.), The EU General Data Protection Regulation (GDPR). A Commentary, Oxford University Press, Oxford, 2020, pp. XXXV-1393.

To the best of my knowledge, March 2021 will be another quiet month at the Court (for private international law issues). In fact, there is only one event to be reported, namely the judgment in case C-307/19, Obala i lučice, by the 1st Chamber (Bonichot, Bay Larsen, Safjan, Jääskinen, and Toader as reporting judge), which will be published on Thursday 25th.

Readers of this blog may remember that the main proceedings concern a dispute to recover the principal amount of HRK 84 (some 11 Euros) owed as payment for a daily parking ticket for a car parked on the public highway in Zadar (Croatia) on 30 June 2012. The national court – the Visoki trgovački sud Republike Hrvatske (Commercial Court of Appeal, Croatia)- referred nine questions to the Court in Luxembourg, on the interpretation of a number of provisions of several regulations. AG Bobek’s opinion was delivered on 26 November 2020.

A similar trend is announced for April. Therefore, while waiting for the opinions and decisions of the many pending cases directly related to private international law, I would suggest to have a look at nearby fields. A proposal: case C-919/19, Generálna prokuratura Slovenskej republiky, on the mutual recognition of judgments in criminal matters. The CJEU has been asked to interpret Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union, as amended. The questions are:

Is Article 4(1)(a) of the Framework Decision to be interpreted to the effect that the criteria set out therein are satisfied only when the sentenced person has, in the Member State of his nationality, such family, social, professional or other links that it is possible to reasonably assume from those links that enforcement in that State of the sentence may facilitate his social rehabilitation, and as therefore precluding national legislation such as Paragraph 4(1)(a) of Zákon č. 549/2011 Z.z. [Law No 549/2011] (in the version in force until 31 December 2019) which, in such cases, enables a judgment to be recognised and enforced in the event of merely formally recorded habitual residence in the executing State, regardless of whether the sentenced person has concrete links in that State which could enhance his social rehabilitation?

If that question is answered in the affirmative, is Article 4(2) of the Framework Decision to be interpreted to the effect that the competent authority of the issuing State is required also in the situation provided for in Article 4(1)(a) of the Framework Decision to satisfy itself, even before forwarding the judgment and certificate, that enforcement of the sentence by the executing State would serve the purpose of facilitating the social rehabilitation of the sentenced person and is, furthermore, required to provide the information gathered for that purpose in section (d), point 4, of the certificate specifically, where the sentenced person claims in the statement of his opinion provided for in Article 6(3) of the Framework Decision that he has concrete family, social or professional links in the issuing State?

If question 1 is answered in the affirmative, must Article 9(1)(b) of the Framework Decision be interpreted to the effect that where, in the situation set out in Article 4(1)(a) of the Framework Decision, despite the consultation under Article 4(1)(3) of that Decision and any provision of other necessary information, it is not proven that there are such family, social or professional links from which it could reasonably be assumed that the enforcement in the executing State of the sentence may facilitate the social rehabilitation of the sentenced person, there is still a ground for refusing to recognise and enforce the judgment?

An opinion, again by AG Bobek, is expected mid-April.

The Court of Justice delivered on 25 February 2021 its decision in case C‑804/19 (BU v Markt24 GmbH), which is about Section 5 Brussels I bis and Article 21:

“1. The provisions set out in Section 5 of Chapter II of Regulation (EU) No 1215/2012 […], under the heading ‘Jurisdiction over individual contracts of employment’, must be interpreted as applying to a legal action brought by an employee domiciled in a Member State against an employer domiciled in another Member State in the case where the contract of employment was negotiated and entered into in the Member State in which the employee is domiciled and provided that the place of performance of the work was located in the Member State of the employer, even though that work was not performed for a reason attributable to that employer.

2. The provisions set out in Section 5 of Chapter II of Regulation No 1215/2012 must be interpreted as precluding the application of national rules of jurisdiction in respect of an action such as that referred to in point 1 of the operative part of the present judgment, irrespective of whether those rules are more beneficial to the employee.

3. Article 21(1)(b)(i) of Regulation No 1215/2012 must be interpreted as meaning that an action such as that referred to in point 1 of the operative part of the present judgment may be brought before the court of the place where or from where the employee was required, pursuant to the contract of employment, to discharge the essential part of his or her obligations towards his or her employer, without prejudice to point 5 of Article 7 of that regulation”.

Source: http://curia.europa.eu/juris/document/document.jsf?text=&docid=238167&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=1675407

AG Rantos delivered on 23 February 2021 his opinion in case C‑603/20 PPU (SS v MCP), which is about Article 10 Brussels II bis:

“Article 10 of Council Regulation (EC) No 2201/2003 of 27 November 2003 […] must be interpreted as meaning that the courts of the Member State in which a child was habitually resident immediately before his or her wrongful removal or retention retain their jurisdiction to rule on parental responsibility in respect of that child, for an unlimited period of time, in the case where that child is abducted to a non-Member State, including where the child acquires his or her habitual residence in that non-Member State”.

Source: http://curia.europa.eu/juris/document/document.jsf;jsessionid=4F3789D7FC162870CBB1FA7EC0C4CCF2?text=&docid=238087&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=1675407

AG Bobek delivered on 23 February 2021 his opinion in case C‑800/19 (Mittelbayerischer Verlag KG v SM), which is about Article 7(2) Brussels I bis:

“Article 7(2) of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that the establishment of the jurisdiction based on the centre of interests does not require that the allegedly harmful online content names a particular person.

However, in order to establish jurisdiction pursuant to Article 7(2) of that regulation, a national court must verify that there is a close connection between that court and the action at issue, thus ensuring the sound administration of justice. In the particular context of online publications, the national court must ensure that, in view of the nature, content, and the scope of the specific online material, assessed and interpreted in its proper context, there is a reasonable degree of foreseeability of the potential forum in terms of the place where the damage resulting from such material may occur”.

Source: http://curia.europa.eu/juris/document/document.jsf;jsessionid=4F3789D7FC162870CBB1FA7EC0C4CCF2?text=&docid=238085&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=1675407

Motacus Constructions Ltd v Paolo Castelli SpA [2021] EWHC 356 (TCC)  to my knowledge is the first case post-Brexit that shows how a jurisdictional discussion that might have been settled swiftly under Brussels Ia, leads to a lot more chewing over under 2005 Hague Convention (on choice of court) principles. It may not be ‘important‘ in terms of its impact on authority (this is a first instance judgment; and it may be overly enthusiastic in engaging with the issues) yet it nevertheless is a good illustration of what was left behind.

The Private International Law (Implementation of Agreements) Act 2020 has given the 2005 Convention force of law in the UK.

The ‘Governing Law & Dispute Resolution’ clause (clause 19) of a contract between contractor and subcontractor re a London hotel provided ‘This Agreement shall be governed by and construed in accordance with the laws of Italy’ and for all disputes to ‘submitted to the exclusive jurisdiction of the Courts of Paris, France’. A payment issue ensued and the contractor started classic English construction sector adjudication proceedings despite the aforementioned clause: the Housing Grants, Construction and Regeneration Act 1996 is overriding mandatory law /loi de police /loi d’application immédiate in England and Wales [3]. To address cash flow problems in the construction industry, and the shortcomings of the traditional litigation process in serving the needs of the construction industry, Parliament decided there should be a short-form process of adjudication producing binding, and readily enforceable, decisions [25].

The UK has not made a reservation under Hague 2005 viz contracts in the construction sector  [18] (compare the EU’s reservation viz insurance contracts).

Sub-contractor actively took part, yet declined to make the necessary payment which the adjudicator’s decision had instructed. Adjudication enforcement proceedings were started on 12 January 2021. Sub-contractor challenged the enforcement proceedings, arguing the proceedings could only be commenced in Paris under the choice of court.

Claimant’s case is that the High Court should accept jurisdiction and enforce the adjudicator’s decision, notwithstanding the exclusive jurisdiction clause, in light of the provisions in either A6(c) or A7 Hague 2005. It submits that it would be manifestly contrary to the public policy enshrined in the 1996 Act, or alternatively it would be manifestly unjust, to refuse to enforce an otherwise enforceable adjudicator’s decision in reliance on clause 19 of the contract. In any event, it is argued, the enforcement of an adjudicator’s decision is the enforcement of an interim measure of protection. It falls outside the scope of Hague 2005 and so the defendant cannot rely on its provisions.

A6(c) Hague 2005 provides that a court of a contracting state (in this case the UK) other than that of the chosen court (in this case Paris, France), “… shall suspend or dismiss proceedings to which an exclusive choice of court agreement applies unless – (c) giving effect to the agreement would lead to a manifest injustice or would be manifestly contrary to the public policy of the State of the court seised. 

A7 provides that: “Interim measures of protection are not governed by [the Hague] Convention. [That] Convention neither requires nor precludes the grant, refusal or termination of interim measures of protection by a court of a Contracting State and does not affect whether or not a party may request or a court should grant, refuse or terminate such measures.”

Spiliada, Fiona Trust, The Eleftharia etc. are all discussed in what looks like a bonfire of the CJEU authorities. The impact of Italian law as lex contractus, for the construction of the choice of court clause (under BIa this would have to be French law) is also signalled, but not entertained for this is an application for summary judgment in which, in the absence of proof of Italian law, its contents are presumed to be the same as English law [51].

Hodge J at 54 declines the suggestion of A6(c) ordre public. ‘Manifest’ requires a high burden of proof, no reservation has been made and there is no good reason why the parties should not be held to the bargain that they freely made when they incorporated clause 19 into their construction contract.

At 56 ff however claimant’s arguments on interim measures having been carved out, does lead to success: it is held that an application for summary judgment to enforce an adjudicator’s decision is an interim measure of protection within A7 Hague 2005. ‘The concept extends to any decision that is not a final and conclusive decision on the substantive merits of the case…The function of the adjudicator’s decision is to protect the position of the successful party on an interim basis pending the final resolution of the parties’ dispute through the normal court processes (or by arbitration).’ [57] The summary judgment application before the High Court has that same DNA: ‘What is before this court is not the underlying dispute between these parties but whether an interim procedure and remedy have been followed and granted.’

Interesting. Geert.

And so it has started
Whether choice of EN Court ousted by Paris exclusive jurisdiction clause – Housing Grants, Construction, Regeneration Act 1996
Held: A7 2005 Hague Convention @HCCH_TheHague engaged, interim measures exception
BIa assessment would have been much more succinct https://t.co/FctAia7bqF

— Geert Van Calster (@GAVClaw) February 22, 2021

The Journal for European, Private International and Comparative Law (Zeitschrift für Europarecht, Internationales Privatrecht und Rechtsvergleichung – ZfRV) just released its latest issue. It includes two interesting articles.

The first, published in English and authored by Leszek Bosek and Grzegorz Żmij, is titled “On the CETA’s compatibility with European Union law in light of Opinion No 1/17 of the Court of Justice of 30 April 2019” (ZfRV 2020, p. 248). The summary reads:

The CJEU’s opinion No 1/17 regarding the CETA’s compatibility with European Union law is an important document demonstrating the evolution of the Court’s position when faced with the challenges of the world’s economic globalisation and the effect of various factors related to it on its case law. In our view, the Court of Justice has not sufficiently explained why it has departed from the principal determinations laid down in its Opinions Nos 2/13 and 1/09 and the Court’s judgement in the Achmea case, which were demonstrably in accordance with the line of the Court’s case law consistently defined by its subsequent judgements to date, demarcating in a clear way the fundamental constitutional principles of EU legal and judicial order. In particular, it is hard to accept as satisfactory its contention that the CETA tribunals will not apply or interpret the EU’s or Member States’ law, requiring a uniform interpretation in accordance with the rules laid down in Article 267 of the TFEU, which does not agree with observations from the international investment arbitration practice. The solutions adopted in the CETA seem to be pragmatic, but may raise doubts from the point of view of Article 19 of the TEU and Article 47 of the Charter of Fundamental Rights, and the corresponding guarantees in the constitutions of Member States. Those issues have not been sufficiently tackled by the Court of Justice.

The second article, published in German by Caroline Kohlhaupt, deals with the change of the Consumer Rights Directive’s substantive scope of application through the Omnibus Directive (“Die Änderung des sachlichen Anwendungsbereichs der Verbraucherrechte-RL 2011/83/EU durch die Omnibus-RL (EU) 2019/2161”, ZfRV 2020, p. 276). The summary reads:

The Directive (EU) 2019/2161 brings various amendments to the Consumer Rights Directive 2011/83/EU. When it comes to the material scope of Directive 2011/83/EU, especially the following clarification is substantial: The Directive shall – in principle – also apply where the trader supplies or undertakes to supply digital content which is not supplied on a tangible medium or a digital service to the consumer and the consumer provides or undertakes to provide personal data to the trader.

The post below was written by Serena Forlati, Professor of International Law at the University of Ferrara. It follows a post by Andrew Dickinson which opened an on-line symposium devoted to the fate of the 1968 Brussels Convention. One more contribution will be published on this blog in the coming days.

The symposium follows a lively exchange prompted by a post by Matthias Lehmann (Brexit and the Brussels Convention: It’s All Over Now, Baby Blue?), which attracted comments by Eduardo Álvarez-Armas, Apostolos Anthimos, Gilles Cuniberti, Burkhard Hess, Costanza Honorati, Alex Layton, François Mailhé and Fabrizio Marongiu Buonaiuti.

Readers are encouraged to share their comments to the contributions. Those wishing to submit a full contribution to the on-line symposium are invited to get in touch with Pietro Franzina at pietro.franzina@unicatt.it.

Matthias Lehmann’s post on the possibility to ‘revive’ the Brussels Convention in the relationship between the United Kingdom and EU Member States, and the discussion it triggered, raise a number of interesting issues of both private and public international law.

I intend to offer a few reflections from the latter perspective, and more specifically from the standpoint of the international law of treaties. While termination of the Brussels Convention is regulated by customary international law (see Article 4 of the Vienna Convention on the Law of Treaties of 1969), I will refer to the rules enshrined in the Vienna Convention since the grounds of termination it sets forth largely codify custom (see notably the ICJ Judgment in Gabčíkovo/Nagymaros, paras 46, 99-100, and here also for further references).

Whether the Brexit could revive the Brussels Convention in the relations between the United Kingdom and the EU Member States was already discussed in this blog (see here and here). I tend to rule out such possibility, for the reasons set out by Andrew Dickinson and Burkhard Hess. The picture would however be clearer if one could argue that, before Brexit, the Brussels Convention was no longer applicable as regards Aruba and relevant French overseas territories – as the revival of a treaty that was already completely terminated (cf Article 59 VCLT) would be difficult to conceive. An aspect worth raising in this regard (and I thank Pietro Franzina for pointing it out to me) concerns the impact of the Lugano Convention 2007 on the applicability of the Brussels Convention to such territories. Notably Article 69(7) of the 2007 Lugano Convention stipulates:

Insofar as the relations between the Member States of the European Community and the non-European territories referred to in Article 70(1)(b) are concerned, this Convention shall replace the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, signed at Brussels on 27 September 1968 … as of the date of the entry into force of this Convention with respect to these territories in accordance with Article 73(2).

In discussing this text, the Pocar Explanatory Report (para. 186) characterized the continuing applicability of the Brussels Convention to non-European territories as a ‘problem’ which the 2007 Convention ‘supplied an opportunity to resolve’, thus indicating that a complete termination of the Brussels Convention would be advisable. Still, Article 69(7) did not automatically achieve this result: the Lugano Convention could actually replace of the older instrument only upon completion of the simplified accession procedure under Article 70(1)(b) on behalf of those non-European territories ‘that are part of the territory of [a] Member State or for whose external relations [a] Member State is responsible’. This does not seem to be the case.

More specifically, the French Parliament has authorized the accession to the Lugano Convention on behalf of overseas territories to which the Brussels Convention applies through law No. 2019-983 of 26 September 2019 (see here, and here for the explanatory report); however, apparently the French Government did not follow suit, as no notification of accession is mentioned to date in the repository of the Swiss Government, as depositary of the Lugano Convention; nor is there any record of similar steps being taken by the Netherlands on behalf of Aruba (see here). Article 69(7) of the Lugano Convention and the implementing practice would thus seem to offer no conclusive indication ruling out a revival of the Brussels Convention.

Assuming, for the sake of argument, that the Brussels Convention still regulates the relationship between the UK and the EU, and should the EU challenge the United Kingdom’s claim that it does not apply in its regard, which options would the United Kingdom have under the international law of treaties to terminate a treaty relationship that it deems no longer to meet its interests? None of the grounds of termination discussed in the previous posts would seem to be fully adequate for the purpose.

Firstly, as regards termination on grounds of breach, Matthias Lehmann rightly questions whether the repeal of implementing legislation would as such qualify as a ‘material breach’ of the Brussels Convention. Although this is not straightforward, the repeal, taken together with the notification to the European Council of 29 January 2021, could amount to a ‘repudiation’ of the treaty (see Article 60, para 3(a) VCLT); this notion is understood as ‘encompass[ing] all means by which a party intends to relieve itself from its obligations under a treaty’  (cf here B. Simma, C. Tams, ‘Article 60’, para 16), and this is clearly the intention of the United Kingdom. However, under the rule reflected in Article 60(2)(a) VCLT the United Kingdom’s non-performance could be invoked as a ground for termination only by all the other Parties to the Brussels Convention acting together – most likely through the EU Institutions, in light of the EU’s acquired exclusive external competence in the issue. Should such a consensus exist, it would be much more practical to express it right away – even if only implicitly by accepting the UK’s request to accede to the Lugano Convention, in line with the approach of the other contracting Parties to the latter instrument (see here and here). The possibility for ‘specially affected States’ to individually suspend the Brussels Convention (Article 60(2)(b) VCLT) would seem to raise further difficulties also in light of the EU’s exclusive competence in the matter.

Whether the United Kingdom could invoke a fundamental change of circumstances is also doubtful in my view. I agree that the ‘subjective’ requirement set forth by Article 62 VCLT is met in this case, since membership in the European Union was ‘an essential basis of the consent’ of the United Kingdom to be bound by the Brussels Convention.  However, as Matthias Lehmann notes in his reply of 17 February 2021, it is by no means certain that a renewed application of that instrument would ‘radically […] transform the extent of obligations still to be performed under the treaty’ (Article 62(1)(b) VCLT).

The United Kingdom may be on safer ground in invoking Article 56 of the Vienna Convention, whose paragraph 1 stipulates: ‘A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless: (a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty’. Arguably the presumption against withdrawal enshrined in Article 56 can be rebutted in the case of the Brussels Convention (and of the 1978 Luxembourg Convention) by relying on either the intention of the parties or the nature of the treaty in question.

The scope of these exceptions is admittedly ambiguous, and the burden of proving that the situation falls under their scope would fall upon the United Kingdom (see here  T. Giegerich on Article 56, p. 1048, margin note 24). Notably the exception linked to the ‘nature’ of a treaty was the object of much controversy during the negotiations. According to the International Law Commission’s Special Rapporteur Waldock, the category would include ‘commercial and trading’ treaties, that seem much closer to the Brussels Convention than the examples of treaties which in his view ‘shall continue in force indefinitely’, listing treaties establishing boundaries and territorial regimes, treaties of peace, treaties concerning the final settlement of international disputes and multilateral treaties codifying general international law (see under Article 17 in his Second Report on the Law of Treaties, p. 64; on practice subsequent to the adoption of the Vienna Convention see however T. Christakis’ comment to Article 56, para 59).

A further indication as to the possibility to withdraw unilaterally from the Brussels Convention could come from ‘the intention of the parties’, under Article 56(1)(a) VCLT. The silence of the Brussels Convention could arguably be read in light of its nature as an instrument of EC Law, that others have highlighted in this discussion; this would militate in favour of a possibility for the United Kingdom to withdraw unilaterally once its membership in the EU has ceased, without necessarily meeting the requirements for termination in light of a fundamental change of circumstances. Nonetheless, a clear stance by the EU in this respect would be welcome in the interest legal certainty and of the stability of future relations.

French Private International Law (“PIL”) has never been codified despite various proposals of codification in the last century (see for instance here and here). The growing European acquis of PIL and the idea of an European Code of PIL (see for instance here and more recently within the EAPIL here), as well as the numerous codifications in the field within EU Member States have probably contributed to a re-launch of the reflection, in particular among French governement officials.

An expert group has be appointed two years ago under the leadership of Jean-Pierre Ancel (former President of the first Chamber of the French Court of Cassation) to draft a project of French PIL Act.

Against this backdrop, Ludovic Pailler (University of Lyon 3) organises a webinar (in French) titled “Codification of French Private International Law in the European context” (La codification du droit international privé français à l’heure européenne).

It will take place on 18 March 2020, 2 to 5 PM (CET).

The speakers are Jean-François de Montgolfier (Director of the Civil Affairs of the French Ministry for Justice), Marc Cagniart (Notary, SCP Castiglione, Paris), Alain Devers (University of Lyon 3 & Lawyer at the Lyon Bar) and Emmanuel Putman (University of Aix-Marseille).

The program is available here.

Those wishing to attend the webinar may write an e-mail to marie.brossard@univ-lyon3.fr.

Tamás Szabados (Eötvös Loránd University) published Constitutional identity and judicial cooperation in civil matters in the European Union – An ace up the sleeve?, in the Common Market Law Review (vol. 58, February 2021).

The paper discusses the constitutional identity-based arguments in the field of private international law.

He has kindly provided us with an extended abstract :

Constitutional identity has become a fashionable concept that is used by politicians and courts alike. But how does constitutional identity affect private international law?

The use of constitutional identity-based arguments has been primarily examined in the context of EU and domestic constitutional law. Constitutional law discourse has mainly centred around the interpretation of Article 4(2) of the TEU. However, less attention has been devoted to the role and impact of arguments related to constitutional identity on the development of EU private international law. This is notwithstanding the fact that constitutional identity seems to shape the application and creation of private international law rules.

Constitutional identity has a twofold effect on private international law. First, peculiar constitutional norms and values belonging to constitutional identity can be safeguarded through the public policy exception. This opens the door for courts to disregard the otherwise applicable foreign law or to reject the recognition of a foreign situation on the ground that it violates the constitutional identity of the forum state.

Second, arguments based on constitutional identity may be relied on to stay outside the enactment of new private international legislation by the EU. In particular, due to the unanimity requirement laid down by Article 81(3) TFEU, Member States have a strong bargaining power in the area of international family law. This can be well illustrated by the recent adoption of Matrimonial Property Regulation and the Regulation on the Property Regimes of Registered Partners where the opposition of some Member States led to the enactment of these regulations in enhanced cooperation procedure. Staying outside from the adoption of these regulations has been motivated by protecting the domestic concept of family as part of national or constitutional identity. In this way, constitutional identity undoubtedly contributes to the fragmentation of EU private international law.

Nevertheless, constitutional identity can be rarely used as a trump by the Member States in the area of the judicial cooperation in civil matters. There are at least two limits concerning the application of the autonomous private international law rules of the Member States. First, as long as an international legal dispute demonstrates some connection to EU law, Member States must respect the fundamental principles of EU law, in particular the principles of free movement and non-discrimination. Second, even if no such connection exists, the limits stemming from international conventions, such as the ECHR, cannot be ignored.     

The details of the article are available through the journal website here.

Premier Cruises Ltd v DLA Piper Rus Ltd & Anor [2021] EWHC 151 (Comm) is a textbook case for the relationship between arbitration and the Brussels Ia regulation, as well as relevance of lex arbitri on what is within the scope of an arbitration agreement.

Claimant is Premier Cruises Limited (“PCL”), a company originally domiciled in the British Virgin Islands and now domiciled in the Seychelles, which owns or operates two vessels. Defendants are entities within the DLA Piper Group of legal practices. The First Defendant is DLA Piper Rus Limited (“DLA Russia”), an English company with operations in Russia. The Second Defendant is DLA Piper UK LLP (“DLA UK”), an English LLP.  On 29 January 2020 (within the scope of Brussels Ia, therefore, at least as against DLA UK), PCL commenced proceedings against DLA in the Commercial Court claiming damages in contract and/or in tort for professional negligence.

DLA Russia argues the claim is within the scope of its arbitration agreement included in the engagement letter (International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation). DLA UK accepted it was not included in that agreement and applied for a case-management stay.

PCL argue its action against DLA Russia is in respect of advice allegedly given and work allegedly carried out by DLA Russia prior to 26 May 2015 when the Engagement Letter came into force.

At 52, Edward J identified Russian law as both lex contractus and lex arbitri, and held at 138 after hearing the Russian law experts, that upon contractual construction, PCL’s claim was not included in the clause for it was not meant to apply retroactively.

At 147 ff he agreed with PCL that a case-management stay for the claim against DLA UK is not possible given, with reference to Recital 12 BIa, that the arbitration exception is not engaged: ‘The claim made against DLA UK in this action is not one in respect of which PCL and DLA UK have entered into an arbitration agreement [161]; Arbitration is not the principal focus of the English proceedings against DLA UK; the essential subject matter of the claim made against DLA UK does not concern arbitration; and the relief sought in the proceedings is not ancillary to or an integral part of any arbitration process [163] (reference is made to The Prestige].

The claim being within BIa, Owusu rules out a case management stay. The judge should have outright rejected the additional suggestion ([158 juncto [164]) of a temporary stay being within the Owusu confines.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.3.4, para 2.110 ff.

Application for stay in favour of #arbitration proceedings dismissed.
Viz the Rus party, on basis of Russian law principles of construction applicable to arbitration agreements.
Viz the UK party given CJEU Owusu, in casu not displaced by Brussels Ia arbitration exemption. https://t.co/JzqRyVQ6Px

— Geert Van Calster (@GAVClaw) February 9, 2021

The Committee Investigating Intercountry Adoption, has recommended that The Netherlands suspend intercountry adoptions. The interdisciplinary committee considered the history and legal evolution, and did an in-depth investigation into adoptions from five selected countries (Bangladesh, Brazil, Colombia, Indonesia and Sri Lanka). It looked into the consequences for the people involved (adoptees, birth families and adoptive families), the perception in society, the best interests of the child and the right to know one’s origins and identity. It came to the conclusion that there have been too many abuses and that the current system is still open to fraud and abuses. It further stated that the lessons learned should be applied to new methods of family formation such as surrogacy.

For those who do not read Dutch, the Commission issued a press release in English and published an English summary of the report.

The Committee, established by the Minister for Legal Protection, Mr. Sander Dekker, was chaired by Mr. Tjibbe Joustra and further composed of Prof. Dr. Beatrice de Graaf and Mr. Bert-Jan Houtzagers.

POAM (Protection of Abducting Mothers in Return Proceedings) is a research project co-funded by the European Commission. It explores the intersection between domestic violence and international parental child abduction within the European Union. The project is concerned with the protection of abducting mothers who have been involved in return proceedings under the 1980 Hague Abduction Convention and the Brussels IIa Regulation, in circumstances where the child abduction had been motivated by acts of domestic violence from the left-behind father.  POAM examines the usefulness of the Protection Measures Regulation and the European Protection Order Directive in the context of such return proceedings.

The POAM Conference will take place online via Zoom – due to the current global circumstances and, unfortunately, not as initially planned in Munich – on Friday, the 26th March 2021 from 9 a.m. to 1 p.m. (CET).

In the Conference, the POAM research team will present the results of the project and their best practice guide, and invite discussions moderated by external speakers and a panel to engage the participants. Please see the attached POAM Conference Programme for more details.

REGISTRATION: If you are interested in attending the online Conference, please register by email to tatjana.tertsch@jura.uni-muenchen.de

Please also indicate in the email whether you would require a confirmation of participation after attendance. We will provide you with the necessary link for the Zoom Conference a week before the event.

The CJEU’s interpretation of Article 7(2) Brussels Ia with regard to online defamation has long been criticized (including on this blog) for its lack of predictability, especially from the defendant’s point of view. While these concerns could, in many cases, be dismissed as purely academic, Case C-800/19 Mittelbayerischer Verlag seems to put them back on the agenda in a politically somewhat delicate context. AG Bobek’s Opinion on the case has been published today.

As a reminder, the legal framework emerging from the Court’s decisions in Shevill, eDate and Bolagsupplysningen can be summarised as follows: the victim of an alleged violation of personality rights can

• either seize the courts of their centre of interests (which regularly coincides with their domicile) and seek compensation of the entire damage as well as all other remedies,
• or seize the courts of each other Member State in which the content in question has been made available, with compensation being limited to the damage caused through publication in that Member State and ‘indivisible’ remedies such injunctions to rectify or delete not being available (the so-called ‘mosaic’ approach).
  

The case in Mittelbayerischer Verlag concerns the claim of a Polish holocaust survivor living in Poland, who is suing a German local newspaper who published an article on the internet that referred to a Nazi concentration camp in then-occupied Poland, using the phrase ‘Polish extermination camp’. As some readers might remember from a similar affair involving a German public broadcoaster and resulting in the refusal to enforce a Polish judgment by the German Bundesgerichtshof, Polish substantive law considers the use of the term ‘Polish extermination camp’ as an infringement of the personality rights of any Polish survivor of Nazi concentration camps because it could create the impression that those who have been prisoners in these camps may have played a role in their creation or operation.

Unlike the Court of Appeal of Kraków in the 2016 case, the Court of Appeal of Warsaw had doubts as to its international jurisdiction based on Article 7(2) Brussels Ia. While Warsaw clearly constituted the claimant’s centre of interest, the Court wondered if this was sufficient to render it competent for the entire range of remedies sought by the claimant (damages; prohibition to use the term in the future; public apology) given the circumstances of the case. In particular, the Warsaw court pointed out that the claimant did not claim to have personally accessed, let alone understood the article, which had only been online for a few hours; the claimant had also not been personally identified in the article in any way; the defendant, on the other hand, had not directed their article, or any other part of their online presence, to an audience in Poland.

The Warsaw Court of Appeal thus referred the following questions to the CJEU:

1. Should Article 7(2) [Brussels Ia] be interpreted as meaning that jurisdiction based on the centre-of-interests connecting factor is applicable to an action brought by a natural person for the protection of his personality rights in a case where the online publication cited as infringing those rights does not contain information relating directly or indirectly to that particular natural person, but contains, rather, information or statements suggesting reprehensible actions by the community to which the applicant belongs (in the circumstances of the case at hand: his nation), which the applicant regards as amounting to an infringement of his personality rights?
2. In a case concerning the protection of material and non-material personality rights against online infringement, is it necessary, when assessing the grounds of jurisdiction set out in Article 7(2) [Brussels Ia], that is to say, when assessing whether a national court is the court for the place where the harmful event occurred or may occur, to take account of circumstances such as:
   – the public to whom the website on which the infringement occurred is principally addressed;
   – the language of the website and in which the publication in question is written;
   – the period during which the online information in question remained accessible to the public;
   – the individual circumstances of the applicant, such as the applicant’s wartime experiences and his current social activism, which are invoked in the present case as justification for the applicant’s special right to oppose, by way of judicial proceedings, the dissemination of allegations made against the community to which the applicant belongs?’

In his Opinion, Advocate General Bobek (who had also rendered the AG Opinion in Bolagsupplysningen, calling for the abolition of ‘mosaic’ jurisdiction in cases of violations of personality rights) leaves no doubt that he still believes the current approach to Article 7(2) Brussels Ia to be imperfect (paras. 39–44). Yet, he argues that the present case is not the right place for its reconsideration because ‘the sticky issue in this case does not concern international jurisdiction, but rather the substance of the claim’ (para. 43). Thus, he proposes to adopt ‘a narrow and minimalist approach’ (para. 44).

He develops this approach through two steps. First, he explains why he does not believe that the question of whether or not the claimant has been named (or otherwise personally identified) in the publication in question provides a helpful criterion for the establishment of centre-of-interests jurisdiction (paras. 45–57) as there is ‘no visible line in the sand’ (para. 51) but rather

[55] … a fluid, continuum of possible ‘degrees of individualisation’ to be assessed in the light of the infinite factual variety of cases, when looking at a given statement assessed in its context with regard to a particular claimant.

In a second step, AG Bobek then explains that centre-of-interests jurisdiction as established in eDate nonetheless requires a certain degree of foreseeability to be reconciliable with the aims of foreseeability and sound administration of justice as required by Recitals (15) and (16) of the Regulation. He believes that such foreseeability does not depend on the subjective intent of the publisher but rather requires an objective centre-of-gravity analysis (along the lines suggested by AG Cruz Villalón in his Opinion on eDate):

[69] I would also caution against introducing, in essence, ‘a criterion of intent’ to online torts. The subjective intent of the publisher at the time of publication, if indeed discernable, may be used as an indication only. It is, however, not conclusive. Instead, what matters is whether, as deduced from a range of objective ‘items of evidence’, it could reasonably have been foreseen that the information published online would be ‘newsworthy’ in a specific territory, thereby encouraging readers in that territory to access it. Such criteria could include matters such as the subject matter of the publication, the top-level domain of the website, its language, the section in which the content was published, the keywords supplied to search engines, or the website access log.

[70] However, since those considerations apply to the impact side of Bier, that is to say, where the damage occurred, it is indeed logical that they focus on the objective, subsequent impact of a given publication from the point of view of the public, rather than being primarily concerned with the original and rather subjective intentions of a publisher. It is from this perspective that, in line with recital 16 of Regulation No 1215/2012, a clear objective connection between the action and the forum ought to be assessed, which then justifies the seising of jurisdiction, as a counterweight to the virtually unlimited geographical reach of online content.

This culminates in the following proposition:

[73] … [A]t the level of international jurisdiction, the issue of foreseeability ought to be properly characterised as enquiring as to whether a particular statement, in view of its nature, context and scope, could have caused harm to a given claimant within the given territory. It thus relates clearly to foreseeability and predictability of the given forum. It should not be reduced to the question of whether a particular publisher knew or could have known the domicile of a possible victim at the time the material was uploaded online.

Applied to the case at hand

[74] … it is indeed difficult to suggest that it would have been wholly unforeseeable to a publisher in Germany, posting online the phrase ‘the Polish extermination camp of Treblinka’, that somebody in Poland could take issues with such a statement. It was thus perhaps not inconceivable that ‘the place where the damage occurred’ as a result of that statement could be located within that territory, especially in view of the fact that that statement was published in a language that is widely understood beyond its national territory. Within that logic, while it is ultimately for the national court to examine all those issues, it is difficult to see how jurisdiction under Article 7(2) of Regulation No 1215/2012 could be axiomatically excluded.

Although unlike eDate and Bolagsupplysningen, the case has not been assigned to the Grand Chamber, making any proper reconsideration of the two former decisions unlikely, it certainly provides another opportunity for incremental adjustments. The AG’s proposition may just fit that bill.