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I was delighted to learn something I had not been aware of in Szpunar AG’s Opinion in C-467/16 Brigitte Schlömp: namely the slightly diverging approach to the notion of ‘court’ in Brussels cq Lugano.

The AG also opines on the question of lis alibi pendens, suggesting (at 48) that since the conciliation procedure before the Behörd constitutes an integral part of proceedings before a(n) (ordinary) court, the moment of seizure of the Schlichtungsbehörde is the determining moment under the lis alibi pendens provisions of Articles 27 and 30 of the Lugano II Convention. [He also refers to [2014] EWHC 2782 (Ch) Lehman Brothers Finance AG v Klaus Tschira Stiftung GmbH & Anor  which followed the same approach].

Is the Swiss ‘Schlichtungsbehörde’ or conciliation authority, intervening in disputes between local councils and relatives with respect to maintenance and social care payments, a ‘court’ under Lugano?

Ms Schlömp, who resides in Switzerland, is the daughter of Ms H.S., who receives supplementary social assistance from the Landratsamt Schwäbisch Hall (administrative authority of the district of Schwäbisch Hall) in Germany because of her care requirements. Under German law (indeed similarly in many a Member State), benefits handed out by social welfare bodies, are claim back from children of recipients, subject to ability to pay. To assert its claim for recovery, the German welfare body lodged an application for conciliation in regard to Ms Schlömp with the conciliation authority (‘Schlichtungsbehörde’), competent under Swiss law. What follows is a series of procedures left, right, even centre. Their exact order is outlined by the AG, they matter less for this post: what is relevant to my own insight, is whether a Schlichtungsbehörde under Swiss law is covered by the term ‘court’ within the scope of Articles 27 and 30 of the Lugano II Convention.

Here comes my moment of surprise: at 58: ‘the concept of ‘court’ in the Lugano II Convention differs from that in Regulations No 44/2001 and No 1215/2012, as that Convention contains an article which has no parallel in the latter two instruments: Article 62 of the Lugano II Convention states that the expression ‘court’ is to include any authorities designated by a State bound by that convention as having jurisdiction in the matters falling within the scope of that convention.’ Like in recent case-law under the Brussels I Recast, bodies which prima facie are outside the judicial system, may be considered ‘courts’. A confirmation of the functional as opposed to the formal classification approach.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.16.1.1.

Thank you Tom Whitton and Helen Kavanagh  for flagging Algeco Scotsman PIK SA [2017] EWHC 2236 (Ch). Algeco has COMI in Luxembourg.  This was clear when the relevant scheme of arrangement (‘SAR’) was being discussed. To manage potential problems at the jurisdictional stage, Hildyard J at 22 lists the precautions the company and the majority of the lenders took:

‘Accepted by the relevant 75 per cent or more, was first, the amendment of the governing law clause in the PIK Loan Agreement to change the governing law from New York law to English law; secondly, the amendment of the jurisdiction clause to submit the parties to the non-exclusive jurisdiction to the courts of England; and thirdly, a waiver of any restrictions under the PIK loan agreement so as to permit the company to take all steps necessary to confirm or establish sufficient connection with England including, if appropriate, to take steps to ensure that its COMI is in England.’

When the unsuspected reader sees ‘COMI’ of course (s)he is forgiven for immediately pondering application of the EU’s Insolvency Regulation – quod certe non: for it is clear (ia as a result of schemes of arrangement not being included in relevant Annex) that SARs fall under company law. Hildyard J’s jurisdictional kick-off at 43 is telling: ‘Dealing first with jurisdiction, the primary question is whether this Luxembourg company, the subject of the scheme, is a qualifying company so to be subject to section 895 of the Companies Act’. Idem at 45.

At 47 the High Court then applies the jurisdictional test viz the Brussels I Recast Regulation arguendo: if it were to apply (which the English Courts have taken no definitive stance on), would an English court have jurisdiction? Yes, it is held: under Article 8 (anchor defendants) and under Article 25 (choice of court).

Yet this in my view is where recourse to SARS in the English courts continues to be exposed: loan agreements and facilities agreements now routinely adopt choice of court and law in favour of English courts and ditto law. Yet where they do not, or did not, the ‘willing’ creditors consent to a change in the agreement in favour of the English courts, with the unwilling creditors left behind. Whether this holds scrutiny under Rome I is far from certain. As for Article 8, its use here may be seen as a form of abuse, disciplined under the Regulation.

Hildyard J considers the case one of ‘good forum shopping’ (at 57-58), with reference to Apcoa which I review here. The concerns above continue in my view to highlight weaknesses in the construction, which so far have not led to any collapse of this restructuring tourism. At 58 the High Court emphasises that there are cases of inappropriate forum shopping in this context (one of that includes haste) yet the role of Rome I in this context has so far played little of a role.

It is noteworthy that in my view (and I so testified in re Apcoa) even a wrong view of the English courts on Rome I’s impact, would not suffice for jurisdictions outside of the UK to refuse to recognise the scheme under Brussels I – all with the huge Brexit caveat evidently.

Geert.

(Handbook of) EU Private International Law, 2nd edition 2016, Chapter 5.

Appreciation of the title of this piece of course depends on how one as an individual likes Bauhaus, or not. A November 2017 European Parliament Study on looted works of art and cultural goods is something of  a treasure trove for public and private international lawyers alike. The study looks at substantive law on the issue in the Member States (not the cup of tea for this blog) but kicks off with good overview of the challenges of sovereign immunity; applicable law (particularly with respect to choice of law; with inspiration being sought in the Belgian Private International Law Act, Article 90 (lex furti as a principle – the place from which the object was removed, but with corrections), and the issue of the application of foreign public international law by the courts.

Parliament is quite active on this issue. In May 2016 it had already published a study with more focus on the specific issue of art looted in times of conflict, and alternatives to court litigation but nevertheless with a short forray into conflict of laws (and reference to one or two interesting national cases).

Together the two studies are a good exercise for the conflicts mind.

Geert.

On 3 and 4 December 2017, the 11th “Luxemburger Expertenforum” on the development of EU law took place at the Court of Justice of the European Union. This forum is a workshop that is organised regularly by the German members of the Court of Justice (including the members of the European Court [formerly of First Instance] and the Advocates General); it is presided by the President of the CJEU, Koen Lenaerts, and attended by non-German members of the Court as well (although the discussions at the meeting are held in German).

This year’s forum was divided into four parts. It started on Sunday evening with a dinner speech by the protestant Bishop of Berlin-Brandenburg, Markus Dröge, who looked back at the 500 year anniversary of the reformation and reflected upon the relationship between the church(es) and the state(s) under domestic and European laws. The latter topic was also the general subject of Monday’s first morning session, which was titled “Constitutional challenges at the workplace”. In this session, which was chaired by Advocate General Juliane Kokott, the tensions between an employee’s right to exercise his or her religious freedom and the employer’s desire for a neutral and harmonious working environment were discussed. Moreover, the speakers looked at the implications of a case pending before the CJEU for the impact of the Anti-Discimination Directives on employees working in hospitals or schools run by churches (C-68/17). The topics were approached from a constitutional perspective by Monika Hermanns, judge at the German Constitutional Court, and Rüdiger Stotz, General Director at the CJEU and a member of the working group on EU law set up by the Conference of European Churches. Inken Gallner, judge at the Federal Labour Court, and Felix Hartmann, professor of labour law at the Free University of Berlin, added both practical and academic views from the perspective of labour law. Matthias Bartke, a social-democratic member of the German parliament, commented both on matters of politics and policy.

The second session was chaired by chamber president Thomas von Danwitz and devoted to a subject dear to readers of our blog: “Mutual trust and mutual recognition – are the structural principles of EU law still valid?”. This question was approached from various angles: Dirk Behrendt, senator of justice of Berlin and a member of the German Green party, gave an overview over Berlin court practice concerning the recognition and enforcement of foreign judgments. Tim Eicke, a British judge at the European Court of Human Rights in Strasbourg, looked at the implications of the European Convention on Human Rights for mutual recognition between the EU member states. Harald Dörig. judge at the Federal Administrative Law Court, analysed the principle of mutual trust (or rather the lack thereof) in the field of migration and asylum law. Yvonne Ott, judge at the German Constitutional Court, and Alexandra Jour-Schröder, director for criminal justice at the European Commission, discussed tensions between European law on arrest warrants and domestic constitutional guarantees. After the short speeches, Jan von Hein, professor at the University of Freiburg, opened the discussion with a survey on the current state of play with regard to European civil procedure.

During lunch, Luxembourg’s Minister of Foreign Affairs, Jean Asselborn, gave a speech on current challenges facing the EU and its member states, in particular with regard to migration politics (you may read the text of his speech here).

The third and final session was chaired by Alfred Dittrich, judge at the European Court, and dealt with the issue of whether and under which conditions national tax exemptions may qualify as prohibited subsidies under the TFEU. The speakers of this panel were Rudolf Mellinghoff, the president of the Federal Tax Court, Johannes Laitenberger, the General Director of the DG Competition, Kirsten Scholl from the German Ministry of Economics, Johanna Hey, professor at the University of Cologne, and Ulrich Soltész, lawyer at Gleiss Lutz in Brussels. Different views on the relationship between EU law on subsidies and domestic laws on taxation gave rise to an open and fruitful discussion.

Thank you Dan Svantesson for sharing preparatory work for a February 2018 conference on access to digital evidence in the cloud. The document, written by a group which comprises academia, relevant companies (including Apple, Google, Facebook and Microsoft) as well as regulators (including the EC and the USDJ), at this stage does not offer solutions. Rather, it sets out principles along which a future framework could be set out, including the concept of data control (not to be confused with data controller) and actual provision of service.

One of the issues to look out for is how a future international approach to access and jurisdiction in criminal matters may differ from courts’ and regulators’ approach in civil jurisdiction (including data protection and privacy).

Geert.

For those able to read Portuguese, two new books have been recently released, as a result of theses defended earlier this year at the Universities of Coimbra and Lisbon.

English abstracts provided by the Authors read as follows (more info, respectively, here and here):

AFONSO PATRÃO, Freedom of Choice in Mortgage and a Reinforcement of International Cooperation

Abstract: This dissertation concerns the implementation of a European mortgage market, identifying obstacles to its accomplishment and offering solutions to overcome them.

Considering statistical data that indicate national compartmentalisation of mortgage markets (as land security rights are essential for internal credit but, internationally, less than 1% of all international credit involves mortgages), we start by justifying the inclusion of international mortgages within the scope of European Treaties, demonstrating that the European Union objectives include the free movement of land security rights.

Next, we identify obstacles to the acceptance, by lenders, of land security rights on immovable property in other Member States. These barriers, potentially contrary to European law, must be correctly understood in order to arrive at accurate solutions. As such, in Part I, we deal with the mandatory submission of land property rights and land registry to lex situs, analysing its purpose; we demonstrate substantial differences in European mortgage and land registry laws; we scrutinise the execution of a mortgage on a plot situated in another Member State; and we highlight the complexity of setting up a mortgage in a foreign country.

In Part II, we assess the proposals which have so far been offered as solutions. In particular, we discuss the feasibility of unifying or harmonising mortgage laws; the introduction of Eurohypothec as an additional optional legal regime; the securitisation of granted mortgage loans; and the establishment of the country of origin principle. The analysis concludes that standing proposals do not adequately solve the issue at hand.

Solutions are offered in Part III of the dissertation. The first suggestion is to recognise party autonomy in mortgages (conferring the right to choose the applicable law to land security rights), in harmony with the movement of dépeçage of private international law on property rights and with the purpose of European integration. We demonstrate that, provided that adequate precautions are taken, there is no reason for the obligatory application of lex situs.

In addition, we advocate strengthening of international cooperation in the field of mortgage constitution — especially between notaries of the country where the contract is concluded and registrars of the Member State where the plot is located.

These recommendations are designed to be introduced in a European Regulation, considering that they would be a factor in dismissing barriers on the free movement of capital.

JOÃO GOMES DE ALMEIDA, Divorce in Private International Law

Abstract: The cross-border movement of people is an increasingly widespread reality, due mainly to technological progress. Within the European Union this phenomenon is also enhanced by the freedom of movement of persons, goods, services and capital. Nowadays, it is no longer unusual to find couples of different nationalities, couples with one or more common nationalities that habitually reside in a State that is not one of the States of their nationalities and even couples, with or without a common nationality, that do not habitually reside in the same State. And it appears that this trend will only grow stronger in the future. In brief, transnational family relationships – family relationships that are connected to more than one sovereign State – are increasingly common.

Of the various kinds of transnational family relationships, the present dissertation focuses on the transnational divorce. Divorce is the dissolution of marriage. As such, it is a significant event in the lives of the spouses, as it extinguishes the marital bond, terminating the family relationship that arose from marriage. Transnational divorce raises specific questions: in which sovereign State must the applicant initiate the divorce proceedings? Which law applies to a transnational divorce? Is it possible for a foreign judgment on transnational divorce to be recognised and produce its effects in the same way as a domestic judgment? These specific questions are answered, respectively, by the rules on jurisdiction, applicable law and recognition of foreign judgments.

These questions, although different, cannot be considered as totally unrelated. They are interconnected. The specific connections between the rules on jurisdiction, on applicable law and on recognition of foreign judgments on divorce justify a joint analysis, so that one does not lose sight of these connections and is able to avoid incoherent solutions. The present dissertation is a study of the issues raised by the Private International Law aspects of divorce law, from the perspective of Portuguese law.

Over the course of the last decades the European legislature has adopted a total of 18 Regulations in the area of private international law (including civil procedure). The resulting substantial degree of legislative unification has been described as the first true Europeanisation of private international law and even as a kind of “European Choice of Law Revolution”. However, until today it is largely unclear whether the far-reaching unification of the “law on the books” has turned private international law into a truly European ”law in action”: To what extent is European private international law actually based on uniform European rules common to all Member States rather than on state treaties or instruments of enhanced cooperation? Is the way academics and practitioners analyse and interpret European private international law really different from previously existing domestic approaches to private international law? Or is the actual application and interpretation of European private international law rather still influenced or even dominated by national legal traditions, leading to a re-fragmentation of a supposedly uniform body of law?

To answer these and related questions Jürgen Basedow (MPI Hamburg), Jan von Hein (University of Freiburg), Eva-Maria Kieninger (University of Würzburg) and Giesela Rühl (University of Jena) kindly invite you to the conference “How European is European Private International Law?”. that will take place on 2 and 3 March 2018 in Berlin. Bringing together academics and practitioners from all over Europe the conference will provide a platform to shed light on the present lack of „Europeanness“of European private international law and to discuss how European private international law can become more truly European in the future.

More information is available on the conference website and on the conference flyer. Please register by 1 February 2018.

The programme reads as follows:

Friday, 2 March 2018

9.00 am    Registration

9.30 am    The Europeanisation of Private International Law

• Prof. Dr. Dr. h.c. Jürgen Basedow, MPI Hamburg (Germany)
• Prof. Dr. Giesela Rühl, University of Jena (Germany)
• Dr. Andreas Stein, Head of Unit, DG Justice and Consumers, European Commission

1st Part: Europeanness of Legal Sources

10.00 am   The relationship between EU and international Private International Law instruments

• Speaker: Prof. Pietro Franzina, Università degli Studi di Ferrara (Italy)
• Commentator: Prof. Dr. Dr. h.c. Jürgen Basedow, MPI Hamburg (Germany)

10.45 am    Discussion

11.15 am     Coffee break

11.45 am     The relationship between EU and Member State Private International Law

• Speaker: Prof. Johan Meeusen, Universiteit Antwerpen (Belgium)
• Commentator: Prof. Dr. Jan von Hein, University of Freiburg (Germany)

12.30 pm    Discussion

1.00 pm      Lunch break

2nd Part: Europeanness of Actual Court Practice

2.00 pm     The application of European Private International Law and the ascertainment of foreign law

• Speaker: Prof. Marta Requejo Isidro, MPI Luxembourg (Luxembourg)
• Commentator Prof. Paul Beaumont, University of Aberdeen (United Kingdom)

2.45 pm     Discussion

3.15 pm      Coffee break

3.45 pm      The application of European Private International Law and the role of national judges

• Speaker: Prof. Agnieszka Frackowiak-Adamska, University Wroclaw (Poland)
• Commentator: Prof. Michael Hellner, Stockholms Universitet (Sweden)

4.30 pm     Discussion

5.00 pm     The application of European Private International Law and the role of national court systems

• Speaker: Prof. Xandra Kramer, Universiteit Rotterdam (Netherlands)
• Commentator: Prof. Pedro de Miguel Asensio, Universidad Complutense de Madrid (Spain)

5.45 pm     Discussion

6.15 pm     End of day 1

7.30 pm     Reception and conference dinner

Saturday, 3 March 2018

3rd Part: Europeanness of Academic Discourse and Legal Education

8.30 am       National styles of academic discourse and their impact on European Private International Law

• Speaker: Prof. Sabine Corneloup, Université de Paris/Sorbonne (France)
• Commentator: Prof. Dário Moura Vicente, Universidade de Lisboa (Portugal)

9.15 am     Discussion

9.45 am     Coffee break

10.15 am    Overriding mandatory laws, public policy and European Private International Law

• Speaker: Prof. Marc-Philippe Weller, University of Heidelberg (Germany)
• Commentator: Prof. Stephanie Francq, Université Catholique de Louvain (Belgium)

11.00 am     Discussion

11.30 am     Legal education and European Private International Law

• Speaker: Prof. Thomas Kadner Graziano, Université de Genève (Switzerland)
• Commentator: Prof. Gilles Cuniberti, Université de Luxembourg (Luxembourg)

12.15 pm     Discussion

12.45 pm     Lunch break

2.00 pm      The future of European Private International Law in theory and practice

• Opening statement: Karen Vandekerckhove, Former Head of Unit, DG Justice and Consumers, European Commission
• Discussants: Prof. Paul Beaumont, Prof. Gilles Cuniberti, Prof. Dr. Eva-Maria Kieninger Prof. Johan Meeusen, Prof. Marta Requejo Isidro

4.00 pm     Concluding remarks

• Prof. Dr. Jan von Hein, University of Freiburg (Germany)

4.15 pm     End of conference

The Hague Academy has long offered three week summer courses in private international law. Beginning in 2019, it will also offer winter courses in January.

This is mainly because universities in the southern hemisphere are teaching during the months of July and August, when the Academy’s courses are taking place, which makes it difficult for their students to come to The Hague during that period. On the other hand, their vacation period during the southern summer will allow these students to come to the Academy in January without conflicting with their academic year. The winter courses were therefore created in the first instance with students from this part of the world in mind.

However, these students are not the only ones for whom the courses are designed. Doctoral students, from whichever part of the world they may come, are not generally required to be present at their university at all times. Therefore, those from the northern hemisphere can also attend these courses every January. In such a case, they will have an additional opportunity to meet distinguished professors from various countries, as well as other doctoral students from other parts of the world, and to benefit from exchanges in the common interest of their doctoral research work. As it does during the summer, the Academy will facilitate these exchanges with the assistance of a teacher who will be put in charge of organising and channelling them.

As for the rest, the organisation of the courses and their publication, seminars, directed studies and diploma will be exactly the same as in the summer. The only difference is that the distinction between a public international law period and a private international law period has been abolished in favour of a single three-week period of “international law”, taking into account the general trends in the development of the subject.

Registrations will open from 3 January 2018.

Further information at
https://www.hagueacademy.nl/programmes/winter-courses/

The program for January 2019 is here.

by Antonella Nolten, Research Fellow at the EBS Law School, Wiesbaden, Germany.

On 22 November 2017 the Academy of European Law (ERA) hosted a conference on the recent developments on the Proposal for a Digital Content Directive in Brussels.

After welcoming remarks by Dr. Angelika Fuchs, Prof. Bénédicte Fauvarque-Cosson, University Paris II – Panthéon-Assas, chaired the first panel on the scope of the Directive. To begin with, Prof. Fauvarque-Cosson reminded the participants of the past developments in European contract law, mentioning the UPICC, the Principles of European Contract Law, and the CESL. The challenges these projects had to face clearly showed that for most member states contract law represented the heart of their legal traditions, and member states were therefore reluctant towards radical changes.

Evelyne Gebhardt, MEP, Co-rapporteur for the IMCO and JURI Committees, explained the position of the IMCO/JURI joined committee after the vote on 21 November 2017. In order to ensure updates for consumers and interoperability, a sensible inclusion of embedded digital content (EDC) was proposed. The scope of the Directive was extended to also include OTTs (Over-the-top content) in order to ensure remedies and conformity rights in this field. The overall objective were a high level of consumer protection and to anticipate rules for digital content on a European scale in order to prevent deviating national legislation.

Jeremy Rollson, Microsoft, praised the work of the Commission and the European Parliament. With regard to platforms, he proposed a modernization of the scope. Since the release of the proposal in 2015 by the commission, the technology had already gone through major changes. As various forms of OTTs existed, it proved hard to find a one size fits all model, however it were necessary to agree on certain principles. Rollson outlined the difficulties businesses were facing, because many different legal instruments had to be considered. He suggested a targeted scope in order to ensure the applicability of the rules.

The question, which rules should apply to embedded digital content, was addressed by Prof. Karin Sein, University of Tartu, Estonian EU Presidency Team. After having explained the advantages and disadvantages of the different approaches, she reported on the council’s opinion to exclude embedded digital content from the scope of the Digital Content Directive. This solution offered the upside that from a consumer’s perspective it was easily understandable, that the rules for goods also applied to smart goods. The overall goal was to achieve a future-proof solution, which was at the same time easily understandable for the average consumer.

In the following discussion Evelyne Gebhardt disagreed with Prof. Sein on the topic of embedded digital content and presented the European Parliament’s opinion to extent the scope of the directive to EDC. The European Parliament preferred the split approach. This approach offered the main advantage that it were not up to the consumer to define where the product’s defect lay, but the supplier had to determine whether the defect touched the digital content or the good itself. Prof. Sein replied that, overall, it was less relevant, where the rules were installed, since this was only a question of technique. Nevertheless, the installation of specific rules remained the main objective. Prof. Staudenmayer, Head of Unit – Contract Law, DG Justice, European Commission, agreed and added the main requirements of the rule were that it needed to be forward-looking and at the same time practical for consumers. Prof. Fauvarque-Cosson highlighted the different scope of the Digital Content Directive in contrast to the CESL, as the scope was limited to B2C-contracts and moreover the territorial scope covered domestic as well as cross-border contracts.

Prof. Karin Sein introduced the audience to the second panel’s focus on conformity criteria, remedies and time limits. Agustín Reyna, BEUC, compared the specifications of the conformity criteria in the Commission’s proposal to the Council’s proposal and the IMCO/JURI report. During the upcoming Trilogues he would expect an agreement on a balance between objective and subjective criteria. He pointed to the possible conflicts between contractual disclaimers (subjective) and consumer expectations (objective). He praised the amendment in Art. 6a (5), which introduced specific rules for updates for digital content or digital services. In his opinion the relation between third party rights and copyright issues needed further clarification.

Staudenmayer added to the discussion on the inclusion of updates that consumers needed to be informed about possible updates as well as a right to terminate. The topic, whether the consumer should be able to keep the old version, was discussed controversially. With regard to the remedies package, Staudenmayer justified the facilitation of the right of termination by stating that most suppliers also preferred a termination of the contract, caused by the fact that they did not want to invest in a bad product and rather develop a new one. On the other hand consumers also profited, as the easier termination gave an incentive to suppliers to develop good products. Regarding the reversal of burden of proof, he reported on the commission’s reason to not imply a time limit, since digital content was not subject to wear and tear. However, as the council and the European Parliament supported a time limit for the burden of proof, a discussion on how long this period will be and when it should start is expected. To conclude, Staudenmayer emphasized the transition our economy is undergoing as it is turning towards a digital economy and reminded the participants of the importance of promoting this change in order to stay competitive on a global scale.

Panel II ended with a Round Table on the topic “Balancing the interest of suppliers and consumers? Watering down full harmonization?”. Fauvarque-Cosson explained the historic development from a preference for minimum to a preference for maximum harmonization and indicated that recently some member states saw the subsidiarity principle endangered. Therefore she suggested more targeted rules as a substitute for full harmonization. Concerning updates, Anna Papenberg, stated that updates could often be very burdensome and consumers needed access to previous versions. Prof. Schulte-Nölke referred to the suggestion of the ELI regarding embedded digital content, which proposed that in this case hard- and software should be subject to remedies and the consumer should be allowed to cherry-pick a system. The Round Table ended with the conclusion that defining a targeted scope could lead to similar results as full harmonization.

After a short lunch break, Stephen Deadman, Facebook Global Deputy Chief Privacy Officer reported on “Data and its role in the digital economy”. He stated that in the future, as part of a new wave of innovation, people would be made aware of the value of their data with the aim of empowering people in their life by using their data. In his opinion data driven innovation and privacy should become mutually enforcing. He underlined that data were not to be classified as a currency, as it were neither finite nor exclusive. In fact, data were superabundant and, by using data, people did not give up data.

Romain Robert, Legal Officer, Policy & Consultation Unit, EDPS, presented the “Interaction of the GDPR, the e-Privacy legislation and the Digital Content Directive”. He stressed the EDPS’s opinion that data were significantly different from money as a counter performance. He referred to the EDPS opinion from April 2017 on the proposed Directive and explained the position, why the term “data as a counter performance” should be avoided. Differences between the Digital Content Directive and the GDPR arose with regard to the definition of personal data. In the EDPS opinion almost all data provided by the consumer would be considered as personal data.

Insight on the topic “Data as a price under contract law?” was provided by Prof. Hans Schulte-Nölke, University of Osnabrück and the Radboud University Nijmegen. In his opinion the Digital Content Directive was not properly coordinated with the GDPR. He pointed to a conflict between contract law and the GDPR, as under data protection law personal data were protected as a fundamental right, whereas in contract law personal data could be considered as a counter-performance for a service. Hence under contract law the contract was the reason for the right to exchange, thus for what had been exchanged under the contract. Therefore the supplier had a right to keep the counter performance after proper performance of the contract. Meanwhile the GDPR granted a right to withdraw consent at any time (Art. 7 (3) GDPR). How can a balance be achieved in a way that, on the one hand, contract law is interpreted in the light of the GDPR and, on the other hand, considering the principle that GDPR supersedes contract law, but contract law purposes are still met. He came to the conclusion the GDPR should not hinder contract law. Further, he raised the question, whether a counter performance could be assumed, in the case that a supplier gathered more information than the amount that were necessary for the performance of the service.

“Provision of data and data processing under the proposed regime” was the subject of the Round Table at the end of the conference day. Jeremy Rollson drew the attention to his opinion that data were neither comparable to oil nor to a currency, but without doubt very valuable. Robert Reyna agreed and further elaborated that the idea of “data as a counter performance” put suppliers in a very strong position, as they could determine, which data to label as a counter performance and which to label a necessity for the contract. A solution to balance this power of determination could be a presumption in consumer law. Anna Papenberg specified that a consumer could not give away personal data, but, more specifically, the exploitation rights of data. The fact that consumers did not give up data, but that their data was being used, were not the same as a counter performance, added Stephen Deadman. It was agreed on the necessity to limit the power of the supplier in order to define, which data counted as counter performance and which was necessary for the execution of the contract. The event ended with warm words of thanks to the organizers and speakers for a highly interesting conference day.

I have reported before on the relevance of lex curia /curial law and other lex causae decisions to be made in the arbitration context. I have also reported on the qualification of ‘international‘ for conflict of law /private international law purposes. And finally of course privity of choice of court and -law is no stranger in my postings either. All these considerations apply in the arbitration context, too.

Thank you Herbert Smith for flagging CS(COMM) 447/2017 GMR Energy, in which all these issues featured in the arbitration context. The judgment would not seem to add anything new (mostly applying precedent) however it is a usual reminder of the principles. As reported by HS (and with further factual background there), GMR Energy argued

• on the plain reading of the arbitration clauses, Singapore was not the seat of arbitration but only the chosen place or venue for hearings; Not so, the High Court found: reference to SIAC rules and to Singapore  points to Singapore as the curial seat;
• the parties being Indian, choice of a foreign seat for arbitration would be in contravention of Section 28 of the Indian Contract Act 1872 which provides that agreements which restrain parties’ rights to commence legal proceedings are void (save for those which do so by way of an arbitration agreement) – GMR Energy contended that an agreement between Indian parties to arbitrate offshore would fall foul of this provision. This, too, the High Court rejected: per precedent, offshore arbitration is compatible with the Act. (It is also particularly useful for Indian subsidiaries of foreign companies); and
• for two Indian parties to choose an overseas seat for their arbitration (thereby disapplying Part I of the Arbitration Act) would amount to a derogation from Indian substantive law, and therefore would not be permissible. This, the High Court ruled, is not a decision to make at the stage of jurisdictional disputes between the parties.

Further, on  the issue of privity, Doosan India ‘contended that GMR Energy should be party to the SIAC Arbitration proceedings by virtue of common family ownership and governance, lack of corporate formalities between the companies, common directorships, logos and letterheads, and GMR Energy’s past conduct in making payments towards GCEL’s debts’ (I am quoting HS’s briefing here). This is referred to as the alter ego doctrine and the High Court upheld it. Liability for affiliated undertakings’ actions is to be discussed on the merits (here: by the arbitral tribunal). But a the level of jurisdiction (including reference to arbitration), Doosan India’s arguments were upheld: the common ownership between the entities; the non-observance of separate corporate formalities and co-mingling of corporate funds; and GMR Energy’s undertaking to discharge liabilities of GCEL (and the fact that it had made part payments towards the same) all conspire to the conclusion that GMR Energy is bound by the arbitration agreement.

An interesting confirmation of precedent and ditto application of the alter ego doctrine.

Geert.

by Lukas Schmidt, Research Fellow at the Center for Transnational Commercial Dispute Resolution (TCDR) of the EBS Law School, Wiesbaden, Germany.

With International Insolvency Law Part II having been published, Bob Wessels’ 10 volume series ‘Insolventierecht’ (Insolvency Law) is now completed in its 4th edition. The publication comprehensively deals with the European Insolvency Regulation Recast as entered into force on 26 June 2017, while International Insolvency Law: Part I Global Perspectives on Cross-Border Insolvency Law, already published at the end of 2015, covers the core concepts of Cross-Border Insolvency Law, other regional frameworks than the EIR and relevant instruments of soft law. Thus, both books collectively provide a comprehensive overview of the current state on Cross-Border Insolvency Law. The book is ‘user supported’ as it was possible to send useful information or comments to the author on drafts of texts of the book which were available online in early 2017. International Insolvency Law Part II comes in form of a commentary, which makes its structure more or less self-explaining. Besides the commentary itself, it offers an introduction to the EIR, a bibliography, table of cases and legislation, as well as five appendices and a consolidated index for Part I and Part II.

The commentary itself is up to date, as it includes all recent case-law and literature so that you can find profound information on all questions relevant in the context of the EIR. Highly recommended is the part on Cross-Border Cooperation and Communication, which sheds some light into this area of cross-border insolvency law that is shaped by practitioners and courts more than by the legislator. Then again, one might have wished to see some more thoughts on the new instrument of the undertaking in Art. 36 EIR, e. g. on the question of applicable law, especially the interplay between the undertaking and the rules governing rights in rem and acts detrimental to creditors.

Not only the commentary itself, but also its exhaustive bibliography and table of cases covering presumably every source relevant in cross-border insolvency law today make International Insolvency Law Part II a standard reference for practitioners as well as academics.

International Insolvency Law: Part II European Insolvency Law, 4th edition 2017 is available here.

Thank you Bob Wessels for again alerting us timely to two recent decisions by the Dutch courts, applying the Insolvency Regulation 2015, on the determination of COMI – Centre of Main Interests. Bob’s review is excellent per usual hence I am happy to refer for complete background. In short, the decisions are

• in Powerstorm: textbook applications on the public expression (hence ascertainability by third parties, to use the CJEU’s phrase of words) of COMI, which third parties have to rely on. Here: to displace the presumption of COMI in the United States (place of incorporation; in re Powerstorm) in favour of Amsterdam.
• in Bezuijen BV against X, a natural person: with extensive reference to the recitals of the EIR 2015, that the Dutch courts have to consider jurisdiction proprio motu, evidently, and that they need serious evidence to uphold jurisdiction against a natural person who, both parties agree, no longer has his residence in The Netherlands (where it is, is in dispute but it is probably somewhere in the vicinity of Paris).

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 5, Heading 5.6.1.

By Ana Koprivica, Research Fellow MPI Luxembourg.

On 20th and 21st November 2017 in Brussels, the Academy of European Law (ERA) hosted the seminar: “Access to Documents in the EU and Beyond: Regulation 1049/2001 in Practice”, bringing together national and EU civil servants, lawyers, active members of the NGOs and civil society, and academics. The seminar aimed at providing participants with answers to practical questions on access to information and documents in the European Union. The focus in particular was on the practical implementation of Regulation 1049/2001 on access to documents by the EU institutions, on one hand, and by the relevant institutions in Member States, on the other. The seminar further provided for an overview of recent relevant case law of the Court of Justice of the European Union and the opportunity to deliberate about how best to implement those judgments in practice. Lastly, it offered a platform for a discussion of the future development of access to information. This post provides a brief overview of the presentations. For a full report on the presentations and of the discussions on the issues raised, see Full Report.

Following the introductory remarks by the organisers, Prof. Päivi Leino-Sandberg (University of Eastern Finland) provided the audience with a comprehensive overview of the diverse European Union legal landscape in which the right to information operates: namely, the EU Treaties, the Charter of Fundamental Rights and the European Convention of Human Rights.

This set the scene for the discussion about the challenges of practical implementation of the Regulation by the representatives of the European Commission (Martine Fouwels), the European Parliament (Chiara Malasomma) and the Council of the EU (Emanuele Rebasti). The audience was next given a valuable insight into the best practices of several Member States, namely Sweden (Sara Johanesson), Finland (Anna Pohjalainen), and Poland (Ewa Gromnicka), in the application of Regulation 1049/2001 as well as the insight into the common challenges they are confronted with in this context.

Katarzyna Szychowska (General Court of the European Union) provided the audience with a comprehensive overview of the recent case law of the CJEU in matters relating to access to documents under Regulation 1049/2001. In this respect, a distinction was made between the different types of documents to which access has been requested and on which the Court has built its case law.

Day One closed with a stimulating workshop, which was prepared and conducted by Emanuele Rebasti. The participants were presented with a hypothetical problem of handling a request for access to documents and asked to apply the information gained during the seminar.

The next morning Vitor Teixeira from Transparency International Brussels presented the activities of his organisation, oriented towards creating a new system of EU lobby transparency. The focus in particular was on the idea of a mandatory EU lobby register.

The conference closed with a round table discussion on new ideas with regard to access to documents. Nick Aiossa (Transparency International Brussels), Helen Darbishire (Access Info Europe), Graham Smith (European Ombudsman Cabinet), exchanged their views on the ways in which to improve the dialogue between the citizens and the authorities in the area of access to information. This prompted a lively discussion amongst the participants.

The overall conclusion of the conference was that the debate on transparency and access to documents has become much more sophisticated since the adoption of the Regulation 1049/2001 and that a lot has been done in order to improve its implementation. The importance was stressed of the dialogue among all the stakeholders in order to better the situation.

At the end of October the Rechtbank Amsterdam held that ‘booze bikes’ can be kept from parts of Amsterdam. The municipality had resorted to the ban both to address congestion (the bikes are slow and chunky; the roads in the part of Amsterdam concerned, narrow) and rowdiness (the bikes are often used for stag parties and let’s just say that the ‘bike’ part of the trip is not the one that attracts its users). In my experience (from a resident’s point of view) these bikes are a bit like Brexit: attractive for five minutes to some; a right nuisance for the remainder of the journey.

In 2009 I wrote a short piece reflecting on use restrictions from an EU point of view. In it I refer ia to C-142/05 Mickelsson and to C-110/05 Commission v Italy (motorcyle trailers) – my analysis and that of Peter Oliver may be applied here mutatis mutandis. The degree to which lawfully marketed products may be restricted in their use has so far not entertained the Court of Justice in great numbers. Yet the use of such restrictions is bound to increase, with local authorities in particular imposing restrictions for environmental, public health and other ‘sustainable development’ purposes. Witness e.g. Venice banning wheeled suitcases, historic city centres banning diesel cars etc.

In the booze bike case the Court at Amsterdam (at 2.9) simply said that applicants should have provided detail of their argument as to why the ban might contravene EU law. Expect a second round on similar cases at some point.

Geert.

The vacancy for the position of Diplomat Lawyer at the Permanent Bureau of the Hague Conference on Private International Law (HCCH) has been reopened. The deadline for applications is 22 January 2018. For more information, click here.

As announced, the responsibilities of the selected candidate will be as follows:

“The selected candidate will oversee the completion of the “Judgments Project” and subsequent efforts to promote the Convention. His or her portfolio will also include work relating to the 2005 Choice of Court Convention and the Hague Principles, and any other legal work of the Permanent Bureau as required. He or she will be part of the senior management team and assure a good, co-operative working atmosphere, conducive to team work and efficient communications, both within the Permanent Bureau and in relations with representatives of States and Organisations (respect of the Permanent Bureau’s core values is essential). The selected candidate will represent the HCCH in dealings with Members as well as other stakeholders and interested parties. He or she will also be expected to assist with the administration of the Permanent Bureau.”

Others have studied the EU’s legal basis for energy policy much better than I have. Chiefly among them prof Leonie Reins. e.g.  for RECIEL here and in her Phd here. The impact of this discussion is high: since the introduction of an energy Title in the EU Treaties (following Lisbon) whether so designed or not, the prospect of that Title’s requirement on unanimity for measures which ‘have a significant effect on a Member State’s choice between different energy sources’ looms heavily over the EU’s environment policy. The EU’s emissions trading system – ETS is the prime candidate for falling victim to an extensive interpretation of Article 192(2)c TFEU, which harbours the unanimity requirement.

In C-5/16 Poland v EP and Council Mengozzi AG Opined last week. At issue is Poland’s opposition to a MSR – a market stability reserve for the Union greenhouse gas emission trading scheme, essentially a long-term parking for surplus allowances to enable the ETS to safeguard collapse of prices in the event of excess supply. The resulting increase in the price of allowances was inter alia intended to encourage fuel switching and to discourage investments in coal-fired power stations (hence of course Poland’s interest).

Relevant to future reference is especially the AG’s view at 25, which I include in full: ‘as a derogation, Article 192(2)(c) TFEU is to be interpreted strictly, especially since an efficient modern environment policy cannot ignore energy questions. I share the fears expressed by the defendants and the interveners that the applicant’s proposed interpretation of Article 192(2)(c) TFEU and the conclusions which it draws from that interpretation for the examination of the legal basis of the contested decision would effectively block any legislative initiative by recognising a right of veto for Member States, as the Union would adopt measures inviting them only to rationalise their CO2-consuming activities. Furthermore, such an interpretation would doom the ETS to failure as it would prevent the EU legislature from correcting its structural deficiencies. In addition, although I would point out that the goal of introducing the MSR is not to form the price of allowances but simply to ensure the efficiency of the ETS, in any event, an operator’s choice of a certain energy source or production technology cannot depend on that price alone, which does not in itself define the production costs, which are determined by a variety of factors. Even with the introduction of the MSR, the choice of technology still remains in the hands of operators and is not dictated by the European Union.’

I am not sure to what degree the Court’s judgment will enable us to draw criteria with wider impact than just the current case – but it would certainly be helpful. Mengozzi AG firstly emphasises strict interpretation of the ‘energy mix’ exception. Further, in the paras preceeding the aforecited one, links amendments to existing laws largely to the latter’s legal basis. Supports the Institutions and Spain, France and Sweden (intervening; the position of Germany, also intervening, was not made clear) in their warning against veto power in the energy /climate change context; and finally further dilutes the exception by looking at policies as they work in practice, not just in theory. On this point, the AG looks at the ETS specifically however his view has broader appeal: it would essentially mean that when Member States’ and individuals’ /undertakings’ behaviour is determined by regulatory intervention, some of which clearly based on a legal basis other than Article 192(2)c TFEU, the latter is not determinant in deciding proper legal basis.

This is an important case for the future of EU environment and energy policy.

Geert.

A meeting of the Working Group on the Authentication of Documents Generated by Supranational and Intergovernmental Organisations took place on 1 December 2017 and its Report has just been made available on the Hague Conference (HCCH) website (click here). This is both the first and the last meeting of the Working Group.

A couple of Information Documents were drawn up for the meeting, in particular a summary of proposals for consideration and a comparative summary of documents generated by supranational and intergovernmental organisations and their authentication practices. As is evident from the findings of the latter, it would appear that some documents generated by intellectual property organisations (such as patents, trademarks and designs) may experience difficulties when it comes to authentication. However, this does not mean that these are the only documents generated by supranational and intergovernmental organisations that may need to be authenticated and the Report is thus drafted in general terms.

The Report indicates:

“Having reviewed the different practices across Contracting Parties with respect to authenticating documents generated by supranational and intergovernmental organisations in their territory, the Group recommended the following options, if and when a need to authenticate such documents for use in another Contracting Party arises:

1. the relevant Competent Authority of the host State, in possession of the required sample signatures and seals of the officials that issue such documents for the organisation in question, may directly apostillise the documents;

2. a notary of the host State may first authenticate the document or a copy of the document and this notarial authentication is subsequently apostillised by the relevant Competent Authority;

3. a government office or authority may be designated by the host State, and which holds the required sample signatures and seals of the officials that execute such documents for the organisation in question, to act as an intermediary for the purposes of authenticating such documents and this authentication is subsequently apostillised by the relevant Competent Authority.”

In [2017] EWHC 2932 (Fam) Radseresht v Radsheresht-Spain Cohen J is asked to recognise a divorce (and ensuing financial arrangements) granted under Dubai law.

I will not discuss the merits of the case (Justice Cohen does so proficiently, not just to my lay eye but I am assuming also the expert eye; he decides there was an intention to continue to stay married). Rather, the case is an interesting example to show those having to get used to conflict of laws. The High Court has no hesitation to apply Dubai law with all its in and outs (part of the judgment queries whether there were continued sexual relationships between the (ex?) spouses), in a court in London.

Of note is also that the High Court suggests that but for the very late raising of the issue, it could have queried whether the courts at Dubai had jurisdiction in the first place, habitual residence of the parties not having been at the UAE (the suggestion seems to have been made by counsel of the husband that the relevant criterion would have been nationality anyway).

Geert.

On the initiative of Tobias Asser, the First Diplomatic Session of the Hague Conference on Private International Law (HCCH) was convoked on 12 September 1893. In 2018, the HCCH is celebrating this joyous occasion with several events throughout the year.

On the anniversary date, 12 September 2018, the official ceremony will take place in The Hague. The event will feature selected speeches as well as an official photo opportunity and will be followed by a reception.

On 18-20 April 2018, the global conference “The HCCH 125 – Ways Forward: Challenges and Opportunities in an Increasingly Connected World” will be held in Hong Kong SAR. This event will gather leading experts to discuss the opportunities for, and challenges to, private international law.
On 10 September 2018, the Embassy of Hungary in The Hague will host a half-day colloquium to discuss the determinant role and impact of the HCCH’s work, and its instruments, on national private international law legislation.

In October/November 2018, the Embassy of Austria in The Hague plans to organise a discussion event relating to the work of the HCCH and its relationship with the EU, as part of Austria’s Presidency of the Council of the European Union.

Please follow the Facebook page HCCH 125 to receive updates on the events to be held in relation to the anniversary.

The Max Planck Institute Luxembourg is currently recruiting new members for its team. Two  positions are open, one for a Research Fellow (PhD candidate) for the Department of European and Comparative Procedural Law, and one for a Senior Research Fellow for the same Department. In both cases the offer is for a fixed-term contract for at least 18 month – contract extension is possible.

Applications are to be made on line until 15th December 2017. Details of the offer and documents required are indicated there as well.

Task

For a period of at least 18 months, the Research Fellow/Senior Research Fellow will conduct legal research and cooperate at the Max Planck Institute Luxembourg within the project ‘Informed Choices in Cross-Border Enforcement’ which aims at analyzing the application of the 2nd generation Regulations (the EEO, the EPO, the ESCP and the EAPO) by European Courts, in order to determine why these instruments have so far failed to realize their full potential, and how to improve such situation.

The successful candidate will be in charge of compiling data in terms of the case law of the European Court of Justice but also the French and Luxemburgish courts regarding the application of the following EU regulations:

– EEO, Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims (European Enforcement Order)
– EPO, Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure
– ESCP, Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure
– EAPO, Regulation 655/2014 establishing a European Account Preservation Order procedure (“EAPO”) establishes a new uniform European procedure for the preserving of bank accounts,
– Regulation (EU) 2015/2421 of the European Parliament and of the Council of 16 December 2015 amending Regulation (EC) No 861/2007 establishing a European Small Claims Procedure and Regulation (EC) No 1896/2006 creating a European order for payment procedure

Additionally, the Research Fellow is expected to assist in the achievement of the objectives of the Project, namely by interviewing relevant stakeholders (judges, lawyers etc.) on the same instruments. Furthermore he/she will assist in all project related activities such as uploading data to the pertinent data base, drafting minutes of meetings, contributing to interim and final reports as well as to the final book, helping in the organization of conferences and the communication with the partners.

Profile- Research Fellow

Regarding the Research fellow, the Institute is looking for a highly motivated candidate who would be interested in writing a PhD thesis under the supervision of Prof. Dr. dres Hess leading the Department of European and Comparative Procedural Law (or in a co-tutelle) in a topic connected to the project. For the purposes of the project she /he would work under the instructions of senior research fellow Prof. Dr. Marta Requejo Isidro.

Applicants must have earned a degree in law and be PhD candidates working or intending to work on a thesis related to the project’s topic or, alternatively, on a topic falling within the scope of European Procedural Law in civil and commercial matters . According to the academic grades already received, candidates must rank within the top 10 %.

The successful candidate shall demonstrate a strong interest and aptitude for legal research and have a high potential to develop excellence in academic research. Prior publications in this field of the law shall be highly regarded in the selection process.

Full proficiency in English and French is compulsory (written and oral).

Profile- Senior Research Fellow

The Institute is looking for a highly motivated candidate who would join the Department of European and Comparative Procedural Law led by Prof. Dr. dres Hess and composed by a team of five senior research fellows and 15 research fellows. For the purposes of the project she /he would work under the instructions of senior research fellow Prof. Dr. Marta Requejo Isidro.

Applicants must have earned a degree in law and hold a PhD degree by the time the join the MPI, preferably in a subject matter related to the project’s topic or, alternatively, in a topic falling within the scope of European Procedural Law in civil and commercial matters.

The successful candidate shall posses a strong interest and aptitude for legal research and have a high potential to develop excellence in academic research.

Her/his CV must portray a consolidated background in EU private international and procedural law in civil and commercial matters: prior publications in this field of the law shall be highly regarded in the selection process.

Full proficiency in English and French is compulsory (written and oral).