Flux des sites DIP

 Written by Seung Chan Rhee and Alan Zheng

Suppose a company sells tickets for cruises to/from Australia. The passengers hail from Australia, and other countries. The contracts contain an exclusive foreign jurisdiction clause nominating a non-Australian jurisdiction. The company is incorporated in Bermuda. Cruises are only temporarily in Australian territorial waters.

A cruise goes wrong. Passengers, Australian and non-Australian, want relief under the Australian Consumer Law (ACL). They commence representative proceedings alleging breaches of consumer law, and negligence in the Federal Court of Australia. The Australian court must first resolve the conflict of laws problems posed – problems as sustained as they have been complex in the history of private international law.

These are the facts at the heart of the Ruby Princess cruise, and her 2,600 passengers. The story was reported widely. A COVID-19 outbreak prematurely terminated the cruise. Many passengers contracted COVID-19; some died. Unsurprisingly, the cruise then spawned an inquiry and a class action against Carnival plc (Carnival) as charterer and operator of the Ruby Princess, and Princess Cruise Lines Ltd, the Bermuda-registered subsidiary and vessel owner.

Statute has left little of the common law untouched. This short note analyses the interaction between a mandatory law and an exclusive jurisdiction clause in the context of the case. The note observes the tension between the selection of the statutist approach or conventional choice of law rules as an analytical starting point, in difficult consumer protection cases.

Background

The Ruby Princess’ passengers contracted on different sets of terms and conditions (US, UK and AU). The US and UK terms and conditions contained exclusive foreign jurisdiction clauses favouring the US and English courts respectively (PJ, [26], [29]). US customers also waived their rights to litigate in representative proceedings against Carnival (the ‘class action waiver’) (PJ, [27]). In aid of these clauses, Carnival sought a stay of the proceedings vis-à-vis the UK and US passenger subgroups.

Whether a stay is granted under Australian law turns on whether the Australian court is ‘a clearly inappropriate forum’ (See Oceanic Sun Line Special Shipping Co Inc v Fay at 247–8) (Oceanic Sun Line). In Regie Nationale des Usines Renault SA v Zhang (Renault v Zhang), the High Court (at [78]) described the test as requiring the applicant to show the Australian proceeding:

would be productive of injustice, because it would be oppressive in the sense of seriously and unfairly burdensome, prejudicial or damaging, or vexatious …

In Voth v Manildra Flour Mills Pty Ltd (Voth), a majority observed (at 566):

the extent to which the law of the forum is applicable in resolving the rights and liabilities of the parties is a material consideration … the selected forum should not be seen as an inappropriate forum if it is fairly arguable that the substantive law of the forum is applicable in the determination of the rights and liabilities of the parties.

Through these cases the High Court elected not to follow the English approach (see Spiliada Maritime Corporation v Cansulex Ltd) which requires that another forum is clearly or distinctly more appropriate. The Australian test, after Voth poses a negative test and a more difficult bar.

First Instance

Stewart J found the Federal Court was not a clearly inappropriate forum and declined to stay the proceedings. A critical plank of this conclusion was the finding that the exclusive foreign jurisdiction and class action waiver clauses were not incorporated into the contracts (PJ, [74]). Even if the clauses were incorporated, Stewart J reasoned in obiter that the class action waiver was void as an unfair contract term under s 23 of the ACL (PJ, [145]) and the Federal Court was not a clearly inappropriate forum.

As noted in Voth and Oceanic Sun Line, simply because the contract selected the US or UK as the particular lex causae did not end the analysis (PJ, [207]) — the US and UK subgroups were not guaranteed to take the benefit of the ACL in the US and English courts, notwithstanding Carnival’s undertaking that it would not oppose the passengers’ application to rely on the ACL in overseas forums (PJ, [297], [363]). Ultimately, there remained a real juridical advantage for the passengers to pursue representative proceedings together in Australia.

Carnival appealed.

Full Court

The majority (Derrington J, Allsop CJ agreeing) allowed Carnival’s appeal, staying the US subgroup’s proceedings. Unlike the primary judge, the majority reasoned the clauses were incorporated into the US subgroup contracts. Further, a stay should be refused because the US and English courts had similar legislative analogues to the ACL (FCAFC, [383]-[387]). Although he US passengers would lose the benefit of the class action, that was a mere procedural advantage and the question of forum is informed by questions of substantive rights (FCAFC, [388]).

Rares J dissented, upholding the primary judge’s refusal of a stay (FCAFC, [96]).

The passengers appealed to the High Court.

The Interaction between a Mandatory Law and an Exclusive Jurisdiction Clause

Statutes generally fall into one of three categories (see Maria Hook, ‘The “Statutist Trap” and Subject-Matter Jurisdiction’ (2017) 13(2) Journal of Private International Law 435). The categories move in degrees of deference towards choice of law rules. First, a statute may impose a choice of law rule directing the application of the lex fori where a connecting factor is established. Second, a statute may contain, on its proper construction, a ‘self-limiting’ provision triggered if the applicable law is the lex fori. Third, a statute may override a specified lex causae as a mandatory law of the forum. An oft-repeated refrain is that all local Australian statutes are mandatory in nature ([2023] HCATrans 99).

In the High Court, Carnival contended that if contracting parties select a lex causae other than the forum law, the forum statute will not apply unless Parliament has expressly overridden the lex causae.

The passengers (supported by the Commonwealth Attorney-General and ACCC, as interveners) took a different starting point — the threshold question is whether the forum law, as a matter of interpretation, applies to the contract irrespective of the parties’ usage of an exclusive jurisdiction clause. In this case, several factors supported the ACL’s application including s 5(1)(g) of the CCA, and the need to preserve the ACL’s consumer protection purpose by preventing evasion through the insertion of choice of law clauses.

The parties adopted unsurprising positions. The passengers’ case was conventionally fortified by the statutist approach, prioritising interpretation in determining the forum statute’s scope of application. Carnival relied on the orthodox approach, prioritising choice of law rules in controlling when and to what extent forum statutes will apply, and more aligned with comity norms and party autonomy the selection of the governing law of private agreements. The orthodox approach was exemplified in Carnival’s submission that ‘[i]t was not the legislature’s purpose to appoint Australian courts as the global arbiter … of class actions concerning consumer contracts across the world’ (See Respondent’s Outline of Oral Argument, p. 3).

Against that view, it was said that party autonomy should be de-emphasised where contracts are not fully negotiated, involve unequal bargaining power and standard terms (contracts of ‘adhesion’ as here provide a good example): see [2023] HCATrans 99 and the exchange between Gordon J and J Gleeson SC.

As scholars have noted, differences between the two approaches can be almost imperceptible. Characterisation is a ‘species of interpretation’ (Michael Douglas, ‘Does Choice of Law Matter?’ (2021) 28 Australian International Law Journal 1). However, the approach taken can lead to different outcomes in hard cases.

The key obstacle to the statutist approach is uncertainty. If interpretation of a statute’s extraterritorial scope controls the choice of law, then how do contracting parties ensure their selection of law prevails and that they are complying?

Interpretation (both in the choice of law sense and statutory interpretation) invites reasonable arguments that cut in both directions requiring judicial adjudication. Take, for example, Carnival’s response to the passengers’ argument that the ACL’s consumer protection policy weighs against the use of choice of law clauses to evade liability. Carnival contended any evasion can be controlled by a two-step approach: firstly, applying the ACL’s unfair contract provisions to the choice of law clause itself and, if it the clause is void, only then secondly applying the provisions to the contract as a whole. However, this only shifts the application of statutory interpretation to an anterior stage, namely how and when a given choice of law clause, on its face, might be considered unfair. To the extent any determination of unfairness could be made, this turns on the consequences of the clause per se than any particular manner of wording. Such an outcome equally produces unpredictability as to the anticipated effect and application of the forum law.

There is another example on point. Section 5(1)(g) extends the ACL to the ‘engaging in conduct outside Australia’ by bodies corporate carrying on business in Australia. Carnival’s expressio unius-style argument that s 5(1)(g) does not support the passengers’ case because the unfair contracts prohibition is not predicated on ‘engaging in’ any conduct, whereas ACL prohibitions apply to ‘conduct’. Accordingly, taking up a point made by the Full Court majority (FCAFC, [301]), Carnival contended a limitation should be read into s 5(1)(g) else it capriciously apply to companies like Carnival whose business were entirely engaged outside of Australia’s territorial limits.

Nevertheless, as the appellants pointed out (relying on drafting history), ‘when the unfair contract terms legislation was first introduced … s 5(1) was specifically amended to apply to those provisions’ (See Appellant’s Written Submissions, p. 6).  It is therefore apparent how the statutist approach invites a certain level of textual skirmishing.

Choices are available to judges under both the statutist approach and in the application of choice of law rules (see Michael Douglas, ‘Choice of Law in the Age of Statutes’ in Michael Douglas, Vivienne Bath, Mary Keyes and Andrew Dickinson, Commercial Issues in Private International Law: A Common Law Perspective (Hart Publishing, 2019) ch 9). However, it does not follow that there are comparable levels of certainty in the two approaches. Characterisation of a case as contract or tort (to take a very general example) invites a narrower range of choices than the entire arsenal of statutory interpretation techniques deployable analysing words in a statutory provision. That is so because characterisation is controlled by matters external to submissions, namely pleadings and the facts as objectively found (e.g. where was the defective product manufactured, or where was the injury sustained). Interpretation, particularly through the modern focus on text, context and purpose, is not disciplined by facts or pleadings. Instead, it is shaped by submissions and argumentation actuated by the connotative ambiguity found in statute.

That has led the High Court to observe that choice of law rules uphold certainty. In Renault v Zhang, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ stated ([66]-[67]):

The selection of the lex loci delicti as the source of substantive law meets one of the objectives of any choice of law rule, the promotion of certainty in the law.  Uncertainty as to the choice of the lex causae engenders doubt as to liability and impedes settlement.

Against the aim of certainty (and deference to choice of law clauses) are the countervailing considerations arising from legislative policy and the higher-order status of statute over choice of law rules sourced from the common law (see Douglas, ‘Choice of law in the Age of Statutes’). The interveners put it as an ‘unattractive prospect’ if the ‘beneficial’ aspects of the ACL regime could be defeated by expedient foreign jurisdiction clauses.

Insofar as the legislature evinces an intent to confer the benefit of legislation beyond Australia’s territorial bounds, courts bound by an interpretive obligation to give effect to that legislative intention will not be able to defer to choice of law rules. In the case of the CCA and the ACL, s 15AA of the Acts Interpretation Act 1901 (Cth) enjoins courts to prefer the interpretation ‘that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act)’. Douglas and Loadsman (see ‘The Impact of the Hague Principles on Choice of Law in International Commercial Contracts’ (2018) 19(1) Melbourne Journal of International Law 1) observe that:

It is consistent with this purposive approach to statutory interpretation that Australian courts take a broad approach to the geographical scope of Australian statutes. In an environment where Australian lives and businesses increasingly cross borders on a regular basis, it would defeat the purposes of many pieces of Australian legislation if courts were to take a territorially-limited approach to statutes’ scope of operation.

No doubt there is some truth to Carnival’s submission that Parliament did not intend to render Australian courts the global arbiters of consumer contracts. However, subject to a pronouncement to the contrary from the High Court, the judgments to date in Karpik v Carnival plc suggest a statutist analysis, however uncertain, difficult or comity-ablating, will be a necessary precondition to determining the weight given to the wording of a choice of law clause. This is ultimately a consequence of the premium placed on a purposive construction to mandatory laws arising out of the home forum. For better or worse (and a strong case has been made for worse – see Maria Hook, ‘The “Statutist Trap” and Subject-Matter Jurisdiction’ (2017) 13(2) Journal of Private International Law 435), ‘[i]f the purposive approach to statutory interpretation gives rise to forum shopping in favour of Australian courts, so be it’ (see Douglas and Loadsman, 20).

Notwithstanding this, another difficulty with Carnival’s submissions in favour of the choice of law approach is that it functionally revives the common law presumption of non-extraterritorial application of laws and elevates the rebuttability threshold of that presumption to something made ‘manifest’ by parliament (which has been keenly disputed in the High Court: see Respondent’s Submissions, [10]).

It is important to recall that the presumption was always couched in the language of construction. In Wanganui-Rangitiei Electric Power Board v Australian Mutual Provident Society, Dixon J stated (at 601):

The rule is one of construction only, and it may have little or no place where some other restriction is supplied by context or subject matter.

Rebuttability does not arise at all if the context or subject matter of the forum statute, as a matter of interpretation, supplies a relevant territorial connection. If it so supplies, that territorial connection operates as a restriction.

Dixon J also went on to state (at 601):

But, in the absence of any countervailing consideration, the principle is that general words should not be understood as extending to cases which, according to the rules of private international law administered in our courts, are governed by foreign law.

Most recently in BHP Group Ltd v Impiombato, Kiefel CJ and Gageler J (at [23]) considered the common law presumption resembled a ‘presumption in favour of international comity’ rather than one against extraterritorial operation – although it is worth noting that three other judges recognised (at [71]) the common law presumption was ultimately a statutory construction rule which did not always require reference to comity. Nevertheless, an important factor for Kiefel CJ and Gageler J in finding the class action provisions of Part IVA of the Federal Court of Australia Act 1976 (Cth) were not restricted to Australian residents by the presumption was the fact no principle of international law or comity would be infringed by a non-consenting and non-resident group member being bound by a judgment of the Federal Court in relation to a matter over which that court had jurisdiction.

Conversely, as Derrington J noted on appeal (FCAFC, [300]), the extension of s 23 to the transactions of companies operating in overseas markets as a result of their ancillary dealings in Australia would have been an ‘anomalous result’. Such a result would not have promoted comity between Australia and other national bodies politic, where the ACL would have had the result of potentially subjecting foreign companies to obligations additional to those imposed by the laws of their home country. As Carnival put it in the High Court:

if a company happens to carry on business in Australia, all of its contracts with consumers (as defined) all over the world are then subject to Part 2-3 of the ACL. It would mean, for example, that contractual terms between a foreign corporation and consumers in Romania under standard form contracts can be deemed void under s 23 (Respondent’s Submissions, [36]).

Without an expressed intention to the contrary, it was unlikely that Parliament had intended to ‘legislate beyond the bounds of international comity’ – into an area that would ordinarily be expected to be governed by foreign law.

To some extent, the judgments to date, despite their differing conclusions, suggest in common that an entirely non-statutist outcome (insofar as the CCA and ACL is concerned) is something of a will-o’-the-wisp. If it is accepted that matters of high forum public policy can supervene the contractual arrangements of the parties, expressed in no uncertain terms, then a court must always evaluate legislation in a statutist manner to determine how contractual arrangements interact with that policy. This is so even if, as in Derrington J’s view in Carnival plc v Karpik, the conclusion would be that the policy would not be advanced by applying the mandatory law.

The High Court’s decision will not only clarify the ambit of the CCA regime; it will materially bear upon the desirability of Australian courts as a forum for future transnational consumer law class actions. Coxtensively, companies with Australian operations liable to be on the respondent end of such class actions will be watching the developments closely before drafting further exclusive foreign jurisdiction clauses.

Judgment is reserved in the High Court.

Seung Chan Rhee is a solicitor at Herbert Smith Freehills. Alan Zheng is an Australian-qualified lawyer at Linklaters LLP. The views in this note are the views of the authors alone. The usual disclaimers apply.

 

 

 

 

 

 

 

In its Communication Ensuring justice in the EU – a European judicial training strategy for 2021-2024, the European Commission underlined the importance of European judicial training opportunities that enable legal practitioners to understand the role of EU law in their daily practice and to ensure that the rights and obligations stemming from EU law are respected in national judicial proceedings.

The European Institute for Public Administration (EIPA) and ICF are working to create and develop a series of e-learning courses (e-Capsules) for European practitioners on EU Civil Justice, Criminal Justice and Fundamental Rights for the European Commission Directorate-General for Justice and Consumers (DG JUST).

In order to identify the training needs and knowledge gaps all legal professionals within the 27 EU Member States are struggling with in the area of EU fundamental rights, civil justice, and criminal justice, EIPA and ICF have designed an online survey.

Those with an interest in these areas are invited to participate in the online survey that is available here in English, French, and German. The survey is meant to take approximately 10 minutes and can be completed over more than one session, if needed.

The survey is open until 31 October 2023.

Written by Ugljesa Grusic, Associate Professor at University College London, Faculty of Laws

Dr Ugljesa Grusic and Prof Alex Mills are pleased to announce that, alongside the UCL Faculty of Laws Research Scholarships which are open to all research areas, this year we have an additional scholarship specifically for doctoral research in private international law. The scholarship covers the cost of tuition fees (home status fees) and provides a maintenance stipend per annum for full time study at the standard UKRI rate. The annual stipend for 2023/24 (as a guide) was £20,622. The recipient of the scholarship will be expected to contribute to teaching private international law in the Faculty for up to 6 hours per week on average, and this work is remunerated in addition to the stipend received for the scholarship.

We particularly welcome applications with research proposals in fields that fall within our areas of interest, which are broad and include the following sub-topics within private international law: protection of weaker parties; environmental protection; business and human rights; sustainable development; digital technology; party autonomy; the relationship between public and private international law; private international law theory and/or methodology; colonialism; and private international law issues in arbitration and foreign relations law.

More information about UCL Faculty of Laws, our PhD programme, the process of applying and the scholarship is available here, here and here. Applicants should apply through the normal UCL Faculty of Laws PhD application process. All applicants within the relevant subject areas will be considered, but we recommend that applicants also specify in their application that they wish to be considered for these scholarships. The deadline date for applications for the 2024/25 academic year is 16 November 2023.

Prospective students are welcome to get in touch with either Dr Grusic at u.grusic@ucl.ac.uk or Prof Mills at a.mills@ucl.ac.uk.

 

Alex Mills and I are pleased to announce that, alongside the UCL Faculty of Laws Research Scholarships which are open to all research areas, this year we have an additional scholarship specifically for doctoral research in private international law. The scholarship covers the cost of tuition fees (home status fees) and provides a maintenance stipend per annum for full time study at the standard UKRI rate. The annual stipend for 2023/24 (as a guide) was £20,622. The recipient of the scholarship will be expected to contribute to teaching private international law in the Faculty for up to 6 hours per week on average, and this work is remunerated in addition to the stipend received for the scholarship.

We particularly welcome applications with research proposals that fall within our areas of interest, which are broad and include the following sub-topics within private international law: protection of weaker parties; environmental protection; business and human rights; sustainable development; digital technology; party autonomy; the relationship between public and private international law; private international law theory and/or methodology; colonialism; and private international law issues in arbitration and foreign relations law.

More information about UCL Faculty of Laws, our PhD programme, the process of applying and the scholarship is available here, here and here. Applicants should apply through the normal UCL Faculty of Laws PhD application process. All applicants within the relevant subject areas will be considered, but we recommend that applicants also specify in their application that they wish to be considered for these scholarships. The deadline date for applications for the 2024/25 academic year is 16 November 2023.

Prospective students are welcome to get in touch with either myself at u.grusic@ucl.ac.uk or Professor Mills at a.mills@ucl.ac.uk.

Recently, the Hague Academy of International Law published the 2024 programme of its renowned Summer Courses in Public International Law (8-26 July) and Private International Law (29 July – 16 August).

Following the Inauguaral Lecture by Lord Lawrence (former Justice of the UK Supreme Court), this year’s General Course in Private International Law will focus on “The Metamorphoses of Private International Law” and will be delivered by Charalambos Pamboukis (University of Athens).

Furthermore, Special Courses will be offered in English by Jack Coe (Pepperdine Law School), Andrew Dickinson (University of Oxford), Carlos Esplugues (University of Valencia) and Natalie Y. Morris-Sharma (Attorney General’s Chambers Singapore), while Eva Lein (University of Lausanne) and Alessandra Zanobetti (University of Bologna) will deliver their presentations in French. As always, all lectures will be simultaneously interpreted into English or French and vice versa.

Advanced Students, especially those who are ambitious to sit for the prestigious Diploma Exam, are highly encouraged to apply for the Academy’s Directed Studies as well. The French edition of these interactive afternoon seminars will be directed by Fabien Marchadier (University of Potiers), while English-speaking candidates are taught by Jacco Bomhoff (London School of Economics).

Registration is open from 1 November 2023 to 31 January 2024 via the institution’s own Online Registration Form . For further information on the HAIL 2024 Summer Courses and the Academy in general, please consult the HAIL Homepage or refer to the attached PDF Programme.

The Asian Private International Law Academy (APILA) will be holding its second conference at Doshisha University, Kyoto, on 9 and 10 December 2023. The keynote addresses will be delivered by Professor Emerita Linda Silberman on 9 December and Professor Gerald Goldstein on 10 December. The first day of the conference will comprise presentation and discussion of works-in-progress. The conference will devote most of 10 December to discussion and finalisation of the Asian Principles on Private International Law (APPIL) on three topics: (1) recognition and enforcement of foreign judgments, (2) direct jurisdiction, and (3) general choice of law rules. Persons interested in attending or wishing further information should email reyes.anselmo@gmail.com to that effect.  Please note that, while APILA can assist attendees by issuing letters of invitations in support of Japanese visa applications, APILA’s available funding is limited.  In the normal course of events, APILA regrets that it will not be able to provide funding for travel and accommodation expenses.

The Hague Academy of International Law has made known the programme of the summer course of Private International Law of 2024.

The course will be opened by Lord Lawrence Collins of Mapesbury (Former Justice at the United Kingdom Supreme Court) with a lecture on Use and Abuse of Comity in International Litigation.

The general course, titled The Metamorphoses of Private International Law, will be given by Charalambos Pamboukis (National and Kapodistrian University of Athens).

The special courses will be as follows: Jack Coe (Pepperdine Law School), Non-ICSID Convention Investor-State Awards in Domestic Courts; Andrew Dickinson (University of Oxford), Natural Justice in Recognition and Enforcement of Foreign Judgments; Carlos Esplugues (University of Valencia), New Dimensions in the Application of Foreign Law by Courts (and Arbitrators) and non-Judicial Authorities; Eva Lein (University of Lausanne), Breathing Space in International Contractual Disputes; Natalie Y. Morris-Sharma (Director at the Attorney-General’s Chambers Singapore), The Singapore Convention and the International Law of Mediation; Alessandra Zanobetti (University of Bologna), The Effects of Economic Sanctions and Counter-Measures on Private Legal Relationships.

The directors of studies will be Kubo Macák (University of Exeter) and Jacco Bomhoff (London School of Economics and Political Science) for the English-speaking section, Alain-Guy Tachou Sipowo (Université de Montréal) and Fabien Marchadier (University of Poitiers) for the French-speaking session.

All applicants are required to register online. A limited amount of scholarships is available. Registration period for full fee, scholarship, doctoral scholarship and Directed Studies applicants is between 1 November 2023 and 31 January 2024.

More information on the Academy’s programmes, including the upcoming Winter Course, may be found here.

This post was written by Mathilde Codazzi, who is a doctoral student at the University Paris II Panthéon-Assas.

In a judgment of 11 May 2023, the French Supreme Court For private and criminal matters (Cour de cassation) ruled that the requirement in the French civil code that the legal representatives of a child give their consent to his/her adoption, and which applies irrespective of the law governing otherwise adoption, is no ground for denying exequatur to a foreign adoption judgment.

Background

Two decisions rendered by the Nottingham Family Court on 17 March 2009 and two other decisions rendered by the London Family Court on 22 November  2012 granted the adoption of four children to an English national and a French and English national who entered into a civil partnership in 2003 and married in 2017. By a judgment of 17 December 2020, the French first instance court (Tribunal judiciaire de Nantes) granted exequatur to the four English decisions.

Court of Appeal

By a judgment of 25 October 2021, the Rennes Court of Appeal overturned the first instance decision on the ground that the legal representatives of the children, namely their biological parents, had not given their consent to the adoption.

Article 370-3 of the French Civil Code reads

The requirements for an adoption are governed by the national law of the adoptive parent or, in case of adoption by two spouses, by the law which governs the effects of their union. An adoption however may not be declared when it is prohibited by the national laws of both spouses.
Adoption of a foreign minor may not be declared when his personal law prohibits such an institution, unless the minor was born and resides usually in France.
Whatever the applicable law may be, adoption requires the consent of the legal representative of the child. The consent must be free, obtained without any compensation, subsequent to the birth of the child and informed as to the consequences of adoption, especially when it is given for the purpose of a plenary adoption, as to the full and irrevocable character of the breaking off of the pre-existing kinship bond.

According to the Court of Appeal, the requirement contained in Article 370-3 of the French Civil Code that they give their free and informed consent, notably regarding the irrevocability of adoption since the pre-existing bond of filiation is dissolved by a full adoption (“adoption plénière”), is a substantive provision of private international law which must be applied whatever the law applicable to the adoption may be and an essential principle of the French law of adoption. Hence the court concluded that the English decisions were not in conformity with French international public policy and should not be enforced, as their enforcement would deprive the French international public policy of its substance.

Supreme Court

The issue was thus to determine whether Article 370-3 of the French Civil Code, which requires that the legal representative of the child give their free and informed consent to the adoption of the child, can be opposed to the enforcement of a foreign adoption judgment if such consent was not obtained.

By a judgment of 11 May 2023, the French Supreme Court overruled the decision of the Court of Appeal on the ground that Article 370-3 of the French Civil Code may not be invoked against a foreign adoption judgment to prevent its exequatur.

In other words, the fact that the children’s legal representatives did not give their consent to the adoption ordered by a foreign judgment cannot be invoked against the enforcement of this judgment. This judgment confirms the already established solution according to which the violation of the requirement that the free and informed consent of the child’s legal representative is necessary for the adoption to be ordered pursuant to Article 370-3 of the French Civil Code cannot amount to a ground of refusal of enforcement of the foreign adoption judgment. The French Supreme Court had indeed ruled so in a judgment of 7 December 2016 about an Ivorian judgment. Article 370-3 only applies in French adoption proceedings.

The Japanese Institute for International Arbitration Research and Training (JIIART) will be holding an online seminar investigating use of alternative dispute resolution mechanisms in insolvency this Saturday 21 October 2023 at 14:00-16:00 Japan Standard Time. The event is free to attend but registration is required. You may register here. Details of the programme and speakers can be found in the event poster.

US Supreme Court Fellowship applications open Fellows conduct independent research and work with one of four offices – the Office of the Counselor to the Chief Justice, the Administrative Office, the Sentencing Commission, and the Federal Judicial Center (the education and research arm of the US federal judiciary).

Applications are due 17 November 2023.  More information is found below. https://www.supremecourt.gov/fellows/apply.aspx

ACICA Announces First Scholarship Program from Education Fund Established following ICCA Congress

The Australian Centre for International Commercial Arbitration (ACICA) has just announced a new scholarship program supported by the Education Fund Established following the ICCA Congress in Sydney in 2018.  The program includes two biennial scholarships to legal practitioners who are admitted in South Pacific Island jurisdictions. Applications will open in 2024, and recipients will be: “- awarded the opportunity to attend AAW including the ACICA & Ciarb Australia International Arbitration Conference, the lead event of AAW; – supported by the ACICA Secretariat to obtain an understanding of ACICA’s work; – offered the opportunity to be a part of an ADR practitioner network that ACICA seeks to encourage in the South Pacific; and – offered the opportunity to learn more about and participate in ICCA activities directed at aspiring arbitration practitioners, such as the Young ICCA mentoring program, the ICCA Inclusion Fund and the Johnny Veeder Fellowship Program. provided with information or inclusion in relevant ICCA programs.” For more, see  https://protect-au.mimecast.com/s/_yjWCBNqjlCDXpGQoFkYzxS?domain=acica.org.au or https://protect-au.mimecast.com/s/2MiXCANpgjCZKLQyYupsjoq?domain=acica.org.au

 

On Tuesday, November 7, 2023, the Hamburg Max Planck Institute will host its 38th monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CET). Christine Budzikiewicz (Phillips-Universität Marburg) will speak, in German, about

The Proposal for the Creation of a European Certificate of Parenthood

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

Richard de la tour AG opined last Thursday in C‑566/22 Inkreal aka Inkreal s. r.  v Dúha reality s. r. o..

At issue is whether the sole use of international choice of court suffices to escalate a purely internal case to the ‘international’ level, hence within the reach of the Brussels Ia Regulation. The AG opined it does not. I don’t think he is right and I suspect the CJEU will not follow him.

FD, resident in Slovakia, as the assignor, and Dúha reality s. r. o., a company domiciled in Slovakia, as the assignee, concluded two loan agreements on 29 June 2016 and 11 March 2017 respectively. By means of a voluntary assignment agreement dated 8 December 2021, FD assigned the claims arising from those loan agreements to Inkreal, a company domiciled in Slovakia. In each of those agreements, the parties agreed that ‘any ambiguities or disputes arising from the agreement and in connection therewith shall be first resolved by negotiation aimed at reaching a solution acceptable for both parties. If the parties are unable to settle such a dispute, the dispute shall be settled by a court of the Czech Republic having substantive and territorial jurisdiction, in line with the [Code of Civil Procedure], as amended’. Following non-payment, Inkreal brought an action before the Czech courts, in application of the choice of court agreement.

(31) onwards the AG sides with that part of scholarship (most of the authors he refers to wrote in French or German, just a few in English and he seems to only cite Mankowski as holding opposite views; I am not saying that French or German scholarship ought not to be cited, far from it, it ought to much more frequently in all possible EU languages; yet there is more scholarship on the issue both by English scholars and by others writing in English) and national case-law which argues against Article 25 BIa catching such choice of court, alleging lack of ‘international’ element.

He develops five main reasons (see the Opinion for more detail) with often only one source for each.

1. (32).  The mere will of the parties in a purely internal situation must not suffice: existence of an international element has to be established according to “objective criteria”. I for one do not understand how party autonomy is not an “objective criterion”.
2. (33) ff Brussels Ia cannot have the effect of eliminating any distinction between the national and international rules of jurisdiction governed by EU law.  Four arguments to the contrary of a textual or teleological nature based on A25 BIa must in the AG’s view be dismissed. First, that non-EU domiciled parties can make valid choice of law for an EU court in his view is of no value; Second, the independence of the will of the parties cannot enables parties to “call into question the scope of that regulation, which is limited to international and not purely internal situations.” ( a clear circular argument);  Third, A25’s new lex causae rule for substantive validity of choice of court cannot rescue choice of court which does not initially engage with a ‘international’ situation (again circular); Fourth, the clear movement from Brussels I onwards towards supporting choice of court does not justify authorising the parties to derogate from national rules on jurisdiction without any limit or connecting factor. 
3. (38) The AG cites CJEU Owusu, Lindner and IRnova as confirming his view that “objective criteria” are required to support an international element (Owusu and IRnova) or the foreign nationality of the defendant (Lindner).
4. (40 ff) Rome I cannot be used as a benchmark, both because purely internal situations in Rome I remain subject to mandatory national provisions (see of course VinylsItalia) and because Rome I’s DNA is party autonomy which Brussels Ia’s Article 25 it is suggested is not. (Had he not lost me already, the AG would certainly have lost me here). The AG also refers in support to the 2005 Hague Choice of Court Convention and recitals in Council Decision 2014/887 (making the EU accede to that Convention and referring to links between both and one or two Hague anchors in Brussels Ia; but nowhere near the symmetry the AG suggests), opining that A1(2) Hague Convention somehow needs to be extended to Brussels Ia: that Article reads “a case is international unless the parties are resident in the same Contracting State and the relationship of the parties and all other elements relevant to the dispute, regardless of the location of the chosen court, are connected only with that State.” Extending A1(2) Hague 2005 to Brussels Ia in my view is a massive stretch of statutory construction.
5. Finally (43) the AG somewhat backtracks and suggests factors testifying to an international element “should be assessed by the court seised on a case-by-case basis in a flexible manner or according to a broad conception.”

Finally the AG suggests (45 ff) that the CJEU should advice the referring court and ‘practice’ in general on the A25 conflit (viz the ‘international element’) mobile issue. When must the international nature of the situation be assessed: when the jurisdiction agreement is concluded or when the designated court is seised by the parties? Here he emphasises the contractual nature of the determination of jurisdiction (in direct contrast with his views above) and legal certainty rather than foreseeability, and suggests the international nature be assessed at the stage when the choice of court clause is agreed, not when the court is seised. That in my view undermines the core forum shopping intention of both Article 25 and Article 26 (voluntary appearance).

(49) the AG oddly backtracks again on this issue by suggesting that “it might be accepted that, in an internal situation with a prospect of becoming international, the parties [may] agree, when concluding their agreement, to designate a court of a Member State in sufficiently precise terms which express their intention  and provide for the exclusive jurisdiction of national courts where there is doubt as to the existence of a criterion requiring an international element.”  Rather than increasing legal certainty, that is bound to upend it IMHO.

The CJEU of course is not likely to entertain this last part of the Opinion.

In general, I believe it will have a more generous view of party autonomy and an eye on the interests of the European Judicial Area (per prof Dickinson), perhaps also as suggested by Matthew Hoyle, referring to Brussels Ia’s corrective mechanisms both for protected categories and ordre public (Article 45 BIa).

Geert. EU Private International Law. 4th ed. 2024, para 2.22 ff. https://twitter.com/GAVClaw/status/1713835285119648124

On 16 November 2023 the Lyon 3 University will host a colloquium on the French Draft Code of Private international Law, organised by Ludovic Pailler.

The presentation of the colloquium reads as follows:

Following a mission statement, the working group charged with considering the codification of private international law, chaired by Mr. Ancel, submitted its report to the Minister of Justice on 31 March 2022. This was followed by a public consultation and the announcement, by the Minister of Justice, that the project would come to fruition. This codification has already been the subject of two scientific events at our establishment (i.e. Lyon 3 University). One was devoted to the code’s construction model, the other to its content (see here). The third event, to be held on 16 November 2023 in Lyon, concerns a comparative law analysis of the draft code. 

The colloquium is divided into two parts. The first examines codification from the point of view of European Union member states. Both the value of this exercise and the practical ways in which it is carried out will be explored. Does French codification differ from its foreign equivalents? Is it expected? Doesn’t it run counter to European Union law? The second part of the presentation will be devoted to the point of views from outside the EU, with a view to testing the stated ambition of enhancing the attractiveness of French PIL, and analysing it in the light of experiences or initiatives undertaken in contexts where the subject is in decline (United States) or less integrated (Brazil).

The list of speakers and chairpersons includes : Olivier Gout, Cyril Nourissat, Ludovic Pailler, Frédérique Ferrand, Patrick Wautelet, Eva-Maria Kieninger, Pietro Franzina, Daniel Petrache, Hugues Fulchiron, Gian Paolo Romano, Yoko Nishitani, Chris Whytock, Gustavo Ferraz De Campos Monaco and Sabine Corneloup.

The event will be held in French and in English.

For registration see here. The full programme is available here.

Fresh from the print comes the book titled Cross-Border Trade Secret Disputes in the European Union: Jurisdiction and Applicable Law authored by Lydia Lundstedt, Senior Lecturer in Private International Law at the Stockholm University and Senior Lecturer in Intellectual Property Law at the Linköping University.

The book is offering an EU perspective on one of the important ways the companies are protecting their intellectual property and information in general. This book examines different approaches to trade secret protection in the EU Member States, and focuses on the jurisdiction and applicable law under Brussels I bis, Rome I and Rome II.

The book is available here, and code LUND35 will secure a 35% discount on the book price.

The second issue of the Revue critique de droit International privé of 2023 was released in August. It contains four articles and several case notes.

The first part of the issue features the doctrinal work of two young authors, who confront PIL techniques with contemporary developments in social sciences.

The first article Pour une approche décoloniale du droit international privé (A Decolonial Approach to Private International Law) is authored by Dr Sandrine Brachotte (Université Saint-Louis & Université de Lille). Following her doctoral work on The Conflict of Laws and Non-secular Worldviews: A Proposal for Inclusion (see presentation over at EAPIL), Dr Brachotte discusses colonial studies’ implications for PIL scholarship. She examines how plural normativities challenge the traditional conception of conflict of laws and then outlines the potential form of a decolonial PIL. An English translation of the article is available on the website of the editor. Its abstract reads as follows:

This article presents the decolonial approach to private international law, which has recently entered the list of pressing topics for the discipline, not only in colonised countries but also in Europe. In France, the subject may not yet be addressed as such, but it at least appeared in a Ph. D. thesis defended at the Sciences Po Paris Law School in May 2022, entitled “The Conflict of Laws and Non-secular Worldviews: A Proposal for Inclusion”. This thesis argues for an alternative theorisation of the notions of party autonomy, recognition, and international jurisdiction to make them more inclusive of non-occidental worldviews. After having offered a description of the decolonial approach and the current enterprise of decolonisation of private international law, this contribution summarises the essential points of the Ph. D. thesis in this respect and identifies the broader questions that it raises for private international law, especially as regards the notions of “law”, “foreign” and “conflict”.

Dr Élie Lenglart (Université Paris II Panthéon Assas) signed the second article on Les conflits de juridictions à l’épreuve de l’individualisme (Conflicts of Jurisdiction and Individualism). Dr Lenglart prolongs the reflection of his doctoral work on La théorie générale des conflits de lois à l’épreuve de l’individualisme (The General Theory of Conflicts of Laws Confronted with Individualism) in the field of conflicts of jurisdiction. He shows how the rules on jurisdiction and circulation of foreign judgments have been progressively liberalized, the satisfaction of individual interest becoming the gravity centre of PIL. The abstract reads as follows :

Individualism is one the characteristic features of modern legal theories. The emergence of the individualistic approach is profoundly linked to a special perception and evaluation of the reality based of the superiority of the individual. This conception has had decisive consequences in private international law. The impact of this tendency should not be underestimated. Its influence is noticeable in the first place on the determination of international competency of French jurisdictions, both via the provision of available courts to individuals and via the individuals’ propensity to extend their choices of jurisdictions based on their personal interests. It also influences the recognition and enforcement of foreign judgments by imposing the legal recognition of individual statuses under extremely liberal conditions, reorganizing in turn the whole system around the individual.

In the third article, Prof. David Sindres (Université d’Angers) shares some Nouvelles réflexions sur les clauses attributives de compétence optionnelles (New Reflections on Optional Jurisdiction Clauses). He successively discusses the principles and conditions of liceity of both the jurisdiction clauses of optional application and the clauses that establish an option between designated jurisdictions under Brussel 1 recast (from a French law perspective).

The fourth article is dedicated to a selective account of French and European developments in immigration law. Prof. Thibaut Fleury Graff (Université Versailles Saint-Quentin-en-Yvelines) and Inès Giauffret (Ph. D. candidate at Université Versailles Saint-Quentin-en-Yvelines) discuss recent case law on the “age border” (cases about the appreciation of minority and the rights of detained minors) and the “state border” (cases about measures of placement in waiting zones, detention, and expulsion in French law) in a tensed international context.

The full table of contents is available here.

Previous issues of the Revue Critique (from 2010 to 2022) are available on Cairn.

Ugljesa Grusic’s excellent post on  Sayn-Wittgenstein-Sayn v HM Juan Carlos Alfonso Victor Maria De Borbon y Borbon [2023] EWHC 2478 (KB) is prompting me to try and do something about the draft posts queue for the blog. Ugljesa has very good overview and this post can largely refer to his.

Nicklin J had earlier held that in [2022] EWHC 668 (QB) that in a former lover’s harassment case against the former King of Spain, Juan Carlos, the former King does not enjoy foreign sovereign immunity under the State Immunity Act 1978. That was overruled upon appeal [a Saint Nicholas gift for the King, held 6 December 2022 [2022] EWCA Civ 1595] for all pre-abdication conduct which the Court of Appeal held does fall under foreign sovereign immunity. The claim continued for the remainder and is ratione temporis subject to Brussels Ia (the EU jurisdictional rules for cases like this).

Collins Rice J in current judgment resoundingly held [303] ff against jurisdiction on the basis of the gateway for tort, and obiter blew the claim out off the water in many other ways:

My principal conclusion is that the High Court of England and Wales lacks jurisdiction to try this claim. That is because it has not been brought against the Defendant in his country of domicile, as is his default entitlement; and the Claimant has not satisfied me she has a good arguable case that her claim falls within an exception to that default rule. That in turn is because she has not sufficiently established that the ‘harmful event’ of which she complains – harassment by the Defendant – happened in England.

I am not satisfied either that the Defendant has, or should be deemed to have, submitted to the jurisdiction of the High Court by his own conduct of this litigation so far.

In the alternative, if I had been able to conclude that the High Court did have jurisdiction over this claim, I would have refused the Claimant’s application to amend her claim. This application was multifaceted; she wished to amend her claim in a number of respects and my reasons for refusing vary correspondingly. They include the inconsistency of her proposals with the decision of the Court of Appeal on the extent of the Defendant’s state immunity from suit; problems with the clarity, accuracy and consistency of the way she wanted to change her case; and the lack of good enough explanations for the timing of the changes she wanted to make. My conclusion in all the circumstances was that the changes did not introduce and express matters on which she would have a real prospect of succeeding at trial.

I would also have granted the Defendant’s application to strike out her claim. The claim did not comply with the rules of court applicable to the drafting of a harassment claim. As pleaded, I could not be satisfied that her statement of case disclosed reasonable grounds for bringing her claim as she did.

The Claimant has an account she wishes to give of her personal and financial history with the Defendant, and about the harm he has caused her peace of mind and personal wellbeing, and her business, social and family life. I take no view about that account as such. The only question for me has been whether the Claimant can compel the Defendant to give his side of the story to the High Court. My conclusion, as things stand, is that she cannot.

[17] ff the judge discusses ‘submission’ aka voluntary appearance under Article 26 Brussels Ia and essentially held [42] that the former King’s reservation of his jurisdictional position (made within the PCR prescribed 14 days within acknowledgment of service) pending resolution of the state immunity issue was apparently intended to be comprehensive, rather than to have deliberately conceded anything.

I believe that finding is right in essence however there is also a clear warning here for defendants that if they wish to oppose jurisdiction they better be comprehensive about it from the start.

For the determination of locus delicti commissi and locus damni under Article 7(2) Brussels Ia, the judge holds [62] ff

In this case, the parties have proceeded on the basis that I must hold in mind both the autonomous (internationally consistent) meaning of the ‘place of the harmful event’ together with the guidance on that provided by the CJEU, and, at the same time, the function of national tort law in identifying the legally relevant ‘harm’ in the first place. Authority for that appears (in a non-defamation case) in the decision of the Supreme Court in JSC BTA Bank v Ablyazov & Anor [2020] AC 7272 per Lord Sumption and Lord Lloyd-Jones JJSC at [32]-[33]. Having confirmed that the expression ‘place where the harmful event occurred‘ required an autonomous interpretation, the judgment continues:

However, the requirement of an autonomous interpretation does not mean that the component elements of the cause of action in domestic law are irrelevant. On the contrary, they have a vital role in defining the legally relevant conduct and thus identifying the acts which fall to be located … In particular, whether an event is harmful is determined by national law.

Approaching the question of the special jurisdiction therefore requires considering the autonomous question of whether England is either the place of the ‘event giving rise to the damage’ or the place ‘where the damage occurs’; and the relevant ‘event’ and ‘damage’ are determined by English tort law. The latter requires consideration of whether the relevant components of an actionable tort, occurring in England, have been made out to the relevant standard.

A lot more can be said about this issue. The need for autonomous interpretation on the one hand (note [103] the reference to CJEU Melzer which IMHO can work both in the defendant’s and claimant’s favour), the role of the putative lex causae for Vorfrage and characterisation, and the role of the lex fori in same on the other are not easily reconciled.  And as I point out here, there is a lot that JSC BTA Bank did but also a lot it did not entertain.

Ugljesa is absolutely right in his post to refer, as the judge did in current case, to CJEU Shevill’s potential for national law to limit forum shopping possibilities, however the CJEU in Shevill (para 41) does also emphasise the Brussels’ regime’s effet utile (which nb also made it into ECHR Arlewin v Sweden and engages ia Article 6 ECHR):

The criteria for assessing whether the event in question is harmful and the evidence required of the existence and extent of the harm alleged by the victim of the defamation are not governed by the Convention but by the substantive law determined by the national conflict of laws rules of the court seised, provided that the effectiveness of the Convention is not thereby impaired.  (emphasis added)

Ugljesa finally is absolutely right in pointing to the lack of Rome II input into the extraterritoriality issue and this I suspect is but one element on which appeal may and can be sought.

Geert.

EU Private International Law, 4th ed. 2024, Heading 2.2.12.2

1/2 Following earlier only partially successful foreign sovereign immunity defence, former Spanish King Juan Carlos succeeds in Brussels Ia jurisdictional challenge to harassment claim
E&W held to be neither locus damni nor loci delicti commissi, nor centre of claimant's interest

— Geert Van Calster (@GAVClaw) October 6, 2023

https://bsky.app/profile/gavclaw.bsky.social/post/3kb3ifsvp742p

 

That London is a global capital for dispute resolution is well known. But even by London standards, Corinna zu Sayn-Wittgenstein-Sayn v His Majesty Juan Carlos Alfonso Victor Maria De Borbón Y Borbón is a spectacular litigation. Like in all complex international litigation, private international law has a role to play in this case. This is the aspect of the case that the High Court (Rice J) addressed in its judgment of 6 October 2023.

This case is complex, as is the High Court judgment, which spans 307 paragraphs or 92 pages. This post will present the key facts of the case, before addressing the four issues of relevance for private international law that the court addressed, namely submission to the court’s jurisdiction, Article 7(2) of the Brussels I bis Regulation, immunity under the State Immunity Act 1978, and the territorial scope of the Protection from Harassment Act 1997.

Facts

The defendant was King of Spain between 1975 and 2014, when he abdicated the throne. The claimant is an international businesswoman. Both parties have a cosmopolitan lifestyle and maintain homes around the world. The parties agreed that the defendant was domiciled in Spain for the purposes of the proceedings, even though he had been living in Abu Dhabi since August 2020. The claimant is a Danish national with a residence in Monaco and a home in England.

The parties were in an intimate relationship between 2004 and 2009. Their relationship came to public attention in April 2012 in the aftermath of an elephant-hunting trip to Botswana. In June 2012, the defendant paid €65m to the claimant, the purpose of which is a matter of dispute and controversy. Shortly thereafter the defendant allegedly started to harass the claimant. Harassment allegedly continued after the defendant’s abdication.

The facts pleaded by the claimant are complex, but are conveniently summarised at [259]:

the Defendant (a) intimidated and pressured the Claimant over the use of the June 2012 payment, (b) threatened and intimidated her more generally, (c) made allegations of stealing, untrustworthiness and disloyalty with a view to disrupting her relations with friends and family, (d) made similar defamatory statements to her clients and business associates, (e) supplied false information to the media, with a view to publication, relating to her financial probity and alleging she was a threat to the Spanish national interest and/or was trying to blackmail the royal family, and (f) placed her and her advisers under surveillance, trespassed onto and damaged her Shropshire property and intercepted or monitored the mobile and internet accounts of herself and her advisors.

These acts of harassment were alleged to have occurred in different countries, including Austria, the Bahamas, England, Monaco, Saudi Arabia, Spain, Switzerland, Tahiti, United Arab Emirates, and the United States.

It is on the basis of these facts that the claimant brought a claim in England under the Protection from Harassment Act 1997 on 16 October 2020, two and a half months before the expiry of the Brexit transition period on 31 December 2020. This, coupled with the fact that the defendant was domiciled in Spain, meant that Brussels I bis applied.

The defendant’s first line of defence was sovereign immunity. On 6 December 2022, the Court of Appeal held that the defendant enjoyed immunity from the jurisdiction of the English courts under the State Immunity Act 1978 with respect to the allegations about his pre-abdication, but not post-abdication conduct. This paved the way for the issues that the High Court addressed in its judgment of 6 October 2023.

Submission

Submission is a recognised basis of jurisdiction under Article 26 of Brussels I bis. As a matter of High Court procedure, jurisdictional challenge and submission to jurisdiction are dealt with generally by Civil Procedure Rule 11. CPR 11(4)(a) provides that an application under this rule must be made within 14 days after filing an acknowledgment of service. Otherwise, the defendant is to be treated as having accepted that the court has jurisdiction to try the claim pursuant to CPR 11(5)(b).

The defendant filed an acknowledgment of service on 4 June 2021 and ticked the box ‘I intend to contest jurisdiction’. The claimant argued that the defendant should have disputed the court’s jurisdiction under Brussels I bis within 14 days. Instead, the defendant made a general challenge to the court’s personal jurisdiction in his application notice of 18 June 2021 ‘on grounds that England is not the appropriate forum’ and sought ‘to set aside the service on the Defendant out of the jurisdiction, which was improperly effected’. On 21 February 2023, the defendant abandoned his objection to the service of the claim. A specific challenge to the court’s jurisdiction under Brussels I bis was not made until 22 March 2023. This specific challenge was made pursuant to case management directions that followed the Court of Appeal’s judgment on the immunity issue.

The court held that the defendant did not submit on the basis that his jurisdictional challenge was not abusive, that his general challenge to the court’s personal jurisdiction of 18 June 2021 was sufficient at that stage, and that extension of time and relief from sanctions should be granted to cure any deemed submission that might have arisen by virtue of CPR 11(5)(b) from the lapse of a month between the abandonment of the service challenge and its replacement by the Brussels I bis challenge.

Article 7(2) of Brussels I bis

The heart of the judgment concerns the interpretation and application of Article 7(2) of Brussels I bis to a harassment claim and is found at [51]-[134]. This part of the judgment deals with four key points: the relationship between an autonomous interpretation of Article 7(2) and the domestic law under which the claim is pleaded; the elements of the tort of harassment under English law; whether the event giving rise to the damage occurred in England; and whether the damage occurred in England.

Relationship between Autonomous Interpretation and Domestic Law

It is undisputed that the concept of the ‘place of the harmful event’ in Article 7(2) requires an autonomous interpretation. But the question arose whether the domestic law under which the claim was pleaded had a role to play in this respect. The court provided a positive answer to this question. It quoted with approval [32]-[33] of the Supreme Court judgment in JSC BTA Bank v Ablyazov:

However, the requirement of an autonomous interpretation does not mean that the component elements of the cause of action in domestic law are irrelevant. On the contrary, they have a vital role in defining the legally relevant conduct and thus identifying the acts which fall to be located… In particular, whether an event is harmful is determined by national law.

This led the court to conclude that, for the purposes of determining whether the event giving rise to the damage occurred in England and whether the damage occurred in England, ‘the relevant “event” and “damage” are determined by English tort law, [which] requires consideration of whether the relevant components of an actionable tort, occurring in England, have been made out’ to the standard of a good arguable case ([63]-[64]).

Elements of the Tort of Harassment

This brought the Protection from Harassment Act 1997, which introduced the tort of harassment into English law, to the spotlight. According to the court, the essence of the tort of harassment is that

it as ‘a persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress’. The conduct ‘must cross the boundary between that which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the border from the regrettable to the objectionable, the gravity of the misconduct must be of an order which would sustain criminal liability’. ([69], referring to [40] of the High Court judgment in Hayden v Dickinson)

Importantly:

a course of conduct is something more than a series of events attributed to the same person. A ‘course of conduct’ is more than the additive sum of its parts. A nexus between the activities complained of is required; a court must assess whether the acts complained of are separate or linked together to form a specific and coherent whole. ([72])

Armed with this insight, the court proceeded to determine whether the event giving rise to the damage occurred in England and whether the damage occurred in England.

Event Giving Rise to the Damage

The parties clearly had a deep and multifaceted relationship that went spectacularly sour. It was also clear that the parties’ relationship, including its most unpleasant aspects and their consequences, spanned multiple jurisdictions. Two issues of relevance concerning the interpretation of the ‘event giving rise to the damage’ limb of Article 7(2), however, were not clear.

The first issue concerns the fact that acts of harassment can be done by a defendant directly or by another person on the defendant’s behalf. The question arose whether the acts of another person acting on the defendant’s behalf in England could amount to an act of the defendant in England for the purposes of Article 7(2). To answer this question, the court relied on the Melzer judgment of the Court of Justice:

I do not, and do not need to, take from this any clear principle that the acts of an agent cannot constitute the acts of a principal for the purposes of the ‘cause’ limb of the jurisdictional test where the agent acts in one jurisdiction on the authority of a principal in another. But I was shown no clear authority for the contrary principle either. And I do take from Melzer at least the thoughts that (a) the BRR concerns itself in principle with the issue of a causal act by one person being attributed to another under national law for the purposes of determining jurisdiction, because that tends against the fundamental principles of certainty, predictability and the proximity of a defendant’s conduct to the courts of another country and (b) great care needs to be taken with appeals to intuition as to the ‘right’ outcome in such matters, when the starting point is the fundamental principle of a defendant’s entitlement to be sued in his place of domicile, subject only to limited exceptions of a predictable nature made in the interests of the effective administration of justice. ([104])

The second issue is whether Article 7(2) required an English course of conduct to confer jurisdiction on the English courts, or whether an international course of conduct with acts of harassment in England sufficed. The court held that the former approach was right:

The jurisdictional test cannot be satisfied by doing no more than identifying a collection of English acts featuring in a pleaded international course of conduct and inviting an inference that they themselves add up to an actionable course of conduct in their own right… The right approach works the other way around. It has to start with the pleaded identification of an English course of conduct and then establish that, through pleaded constituent acts of the Defendant in England. Whether any ‘English subset’ of a pleaded international course of conduct amounts to an actionable tort in its own right must itself be pleaded and evidenced. It cannot be assumed as matter of logic to have that quality: harassment is a distinctively cumulative tort, and pleading a whole course of conduct as harassment does not imply pleading that any subset of it must itself constitute harassment (even though it may). ([106])

The court ultimately held that the claimant failed to identify and evidence a tortious course of conduct by the defendant with the necessary coherence, connectivity, persistence, and gravity constituting harassment that occurred in England.

Damage

The question of whether the relevant damage occurred in England raised related issues. Does Article 7(2) require that the claimant became aware of harassing events and experienced alarm, fear, and distress in England, that the proximate and direct damage occurred in England, or perhaps that something else occurred in England?

The court held that:

The impact of any individual constituent episode of that course of conduct is simply not the legally relevant ‘damage’ as defined by English tort law. Any individual episode need have no particular effect at all – it is the cumulative, oppressive effect of the total course of conduct which is of the essence of the tort. ([109])

In other words, the legally relevant damage is ‘just “being harassed”’ ([111]).

The claimant failed to identify and plead any specific experience of harassment in England. Instead, she pleaded an indivisible, ambulatory, and international experience of being harassed, which was not recognisable as distinctively English. Consequently, no relevant damage occurred in England. The court suggested that had the claimant had an English domicile, habitual residence, or physical presence in England throughout, she might have satisfied the requirements of the ‘damage’ limb of Article 7(2) ([118]).

Immunity

As mentioned, the Court of Appeal held on 6 December 2022 that the defendant enjoyed immunity from the jurisdiction of the English courts under the State Immunity Act 1978 with respect to the allegations about his pre-abdication, but not post-abdication conduct. Before the High Court, the claimant had another go at this by seeking permission to amend her pleadings to include pre-abdication matters on two bases: that these matters concerned the defendant’s motives for his post-abdication course of conduct; and these matters were part of the relevant background. The court refused permission because these matters were covered by immunity.

Extraterritoriality

Finally, the court addressed the issue of territorial scope of the Protection from Harassment Act 1997. As is well-known, common law courts apply the presumption against the extraterritorial application of domestic statutes. Since the case contained international elements, the question arose whether it fell outside the territorial scope of the Act.

The court indicated briefly that the Act had territorial limits and that the case fell outside those limits:

It is one thing to say that regard may arguably be had to an extraterritorial ‘act of a defendant’ in an otherwise securely pleaded and evidenced ‘course of conduct’ within the jurisdiction. It may also be right that ultimately…some sort of test of preponderance or ‘significant proportion’ might conceivably evolve to meet the facts of a particular case. But there is no authority at present which comes close to giving any basis for concluding that fully ‘international harassment’ is comprehended within the geographical scope of the Act and I was given no contextual basis for inferring a Parliamentary intention to achieve that as a matter of public policy. ([291])

Comment

This is a complex and rich case and it is impossible to examine it fully within the confines of a blog post that is already too long. I want, nevertheless, to mention three points by way of commentary.

The first point concerns Brexit and the civil law/common law divide in international civil litigation. Civil law jurisdiction rules, epitomised by Brussels I bis, allocate jurisdiction in a rigid way. Jurisdictional bases are limited in number and relatively narrow. Common law jurisdiction rules are flexible, and jurisdictional bases are more numerous and relatively broad. These two approaches to jurisdiction, and how they play out in tort disputes, were recently discussed by the UK Supreme Court in Brownlie 2. Mrs zu Sayn-Wittgenstein-Sayn was in a unique position in that she could choose the jurisdictional system under which to bring her claim. By commencing her proceedings in October 2020, she effectively opted for Brussels I bis. Had she waited a few months and commenced her proceedings after the expiry of the Brexit transition period on 31 December 2020, she could have sued the defendant under the common law rules. It is possible that the claim would have passed the tortious jurisdictional gateway, but the forum conveniens doctrine would have presented a significant challenge. That is probably why the claimant chose to sue the defendant under Brussels I bis.

The second point concerns the court’s interpretation and application of Article 7(2) of Brussels I bis. In Shevill, the Court of Justice confirmed that the domestic law under which the claim is pleaded is of relevance for the application of Article 7(2):

The criteria for assessing whether the event in question is harmful and the evidence required of the existence and extent of the harm alleged by the victim of the defamation are not governed by the Convention but by the substantive law determined by the national conflict of laws rules of the court seised, provided that the effectiveness of the Convention is not thereby impaired. ([41])

The court seised on the opportunity created by Shevill to limit the jurisdiction of English courts over harassment claims. Through section 9 of the Defamation Act 2013, Parliament sought to end London’s position as the global libel litigation capital. The High Court judgment in Corinna zu Sayn-Wittgenstein-Sayn v His Majesty Juan Carlos Alfonso Victor Maria De Borbón Y Borbón can be seen as a related development in the field of harassment.

Finally, the third point concerns the choice-of-law aspect of the case. Even though this was a jurisdictional dispute, the court nevertheless opined on the issue of extraterritoriality. It is interesting, however, that the court approached the issue of application of the Protection from Harassment Act 1997 purely as an issue of statutory construction. There was no mention of the possibility that the choice-of-law rules of the Rome II Regulation (which is retained EU law) might have a role to play in this respect. I think that Rome II, at least if it is applied as directly applicable EU law, requires a different approach. The court should have started its analysis by applying the choice-of-law rules of Rome II. If English law applied, the court could have checked whether the case fell within the territorial scope of the Act. If English law did not apply, the court could have checked whether the Act should nevertheless apply on an overriding basis. A further question could then be asked, namely whether Rome II effects in any way the process of statutory construction.

The parties are in a bitter dispute. The claimant is likely to appeal the High Court judgment. The next chapter in this litigation is keenly awaited.

This national conference will be held on 21 February 2024 at The University of Sydney Law School in Australia.

Business compliance in international transactions across the Asia-Pacific region holds immense importance for organizations seeking to expand their activities within this dynamic and evolving landscape. Multinational corporations operating in Asia Pacific often confront unique compliance challenges due to the swiftly changing regulatory and geopolitical environment in the region.

We welcome scholars, irrespective of their career stage, to submit paper or panel proposals for presentation at the conference. The event will take place at the Camperdown campus of the University of Sydney Law School in Sydney, Australia, on February 21, 2024 in a hybrid format (in-person or online presentation). The conference is specifically designed to provide researchers with the opportunity to present their work-in-progress papers to fellow scholars. The primary language of the conference will be English.

We are enthusiastic about receiving proposals that delve into various aspects of business compliance in international business transactions, especially:

• Key Compliance Risk Areas:
  • Criminal Law Compliance: corporate crime, anti-corruption law, fraud and cyber fraud, anti-money laundering and counter terrorism financing, etc.
  • Data Protection and Digital Trade Compliance: cross-border privacy protections, data security laws, crypto asset regulatory frameworks, governance of AI and digital trade, etc.
  • Dispute Resolution related Compliance: complex private international law issues associated with jurisdiction, choice of law, and judgement recognition and enforcement, arbitration and mediation, sanctions, foreign state sovereign immunity, etc.
  • Environmental, Social and Governance (ESG) Disclosure and Traceability Compliance: climate change disclosure regulations, modern slavery laws, regulations for sustainability of international supply chains in circular economy, etc.
• Compliance Expectations in these Risk Areas
• Recommended Best Practices

Other legal issues related to Business Compliance in International Commercial Transactions in Asia Pacific are also welcome.

Requirements for Abstract Submission:

For paper proposals, please submit a title and max 200-word abstract, along with a one-page CV. For panel proposals, please submit a title and max 800-word abstract, along with a three-page CV covering 3-4 panel members.

Proposal Due: 17 November 2023.
Announcement of successful submission: 4 December 2023.
Conference Date: 21 February 2024

More information can be found here.

Originally posted today on the NGPIL website.

On the 23rd November 2023, 5pm (WAT/Lagos/Abuja) the NGPIL will host our guest speaker Professor Wale Olawoyin SAN, FCIArb at this year’s conference. The event will explore the coming into force of the Arbitration and Conciliation Act 2023 and how, from a private international law perspective, the arbitration appeal process in Nigeria can be enhanced. Discussions will build on practice thus far, and will allow practitioners, judges and academics alike to develop knowledge and insight into its utility.

To register: https://us06web.zoom.us/webinar/register/WN_q5pY1JWARiaUxi1TIw8xBQ

These two volumes celebrate the 30th anniversary of the Japan Association of International Economic Law (JAIEL), which was founded in 1991. The Volumes include 30 contributions written by eminent Japanese scholars from different background, in particular, private international law, public international law, international economic law, competition law, intellectual property law etc.

 

                 

 

The blurb of the book reads as follows:

 

These two groundbreaking volumes look at complex legal issues in the changing global economy from the perspective of Asia and/or Japan. Contributors scrutinize the past, present, and future and discuss what the global legal order in economic fields could be like by navigating uncertain and turbulent times.

 

The books address six main themes: (1) Polarization and diversification of values, progress of regionalism and restructuring of multilateral rules, (2) Full-scale arrival of the digital economy and its impact, (3) Empowerment of private persons/entities, (4) Reconsideration of the concept of “territorial jurisdiction”, (5) Law of national security and rule in emergency situations, and (6) Values of Sustainable Development Goals (SDGs) in trade and investment liberalization rules. The books also examine various legal problems under the COVID-19 crisis and suggest how the post-COVID-19 global economic order will be from the perspective of Asia and/or Japan.

 

This comprehensive insight will shed light on the intertwined and complex phenomena of world economy and allow readers of business law and international law to have a better understanding of this volatile era.

 

The two volumes are particularly interesting as they make accessible to the global community of scholars and practitioners the remarkable Japanese scholarship of international economic law. In his Preface, Prof. Takao Suami (Waseda University), pointed out three features of the two volumes’ contributions: “Firstly, all of them are characterized by their Japanese perspectives. Since all lawyers cannot avoid bringing up their understanding of law including international law in their local contexts, it is unavoidable that approaches to international economic law are not identical in different places. These articles expose such non-Western perspectives to the world. Secondly, many of them deal with newly emerging issues. Japanese scholars are sensitive to change in a global society. Therefore, they deal not only with the digitalization of the global economy but also with the impact of COVID-19 or national security on the international economic order. Thirdly, they cover subjects concerning both public and private international laws (conflict of laws). Their combination constitutes a tradition of Japanese academic approaches. Japanese scholars understand that this combination has become more important than ever under the progress of globalization.”

 

The table of content and the contributions’ abstracts are found here (Volume 1) and here (Volume 2).