Flux des sites DIP

by Wolfgang Hau, University of Munich

This year’s Dispute Resolution Day of the Munich Center for Dispute Resolution on 6 May is dedicated to the above mentioned highly topical issue: Can companies in Germany be held responsible for human rights violations that have occurred somewhere in the global supply chain? Are civil lawsuits and commercial arbitration at all suitable for enforcing international human rights obligations of business enterprises? Such and related questions will be examined and discussed by renowned speakers. The conference will be held in German at the University of Munich. You can find the programme and registration information here:

https://www.mucdr.jura.uni-muenchen.de/munich_dispute_resolution_day/drd-2022-flyer.pdf

 

 

Conference The HCCH 2019 Judgments Convention: Cornerstones – Prospects – Outlook

 

Registration now open!

 

 

Dates:                       Friday, 9 September 2022, and Saturday, 10 September 2022 

Venue:                      Universitätsclub Bonn, Konviktstraße 9, D – 53113 Bonn 

Registration:          sekretariat.weller@jura.uni-bonn.de 

 

Registration fee: € 200.- Young Scholars rate (limited capacity): € 100.- Conference Dinner on 9 September 2022:                         € 50.-

Registration: Please register with sekretariat.weller@jura.uni-bonn.de. Clearly indicate whether you want to benefit from the young scholars’ reduction of the conference fees and whether you want to participate in the conference dinner. You will receive an invoice for the respective conference fee and, if applicable, for the conference dinner. Please make sure that we receive your payment at least two weeks in advance. After receiving your payment we will send out a confirmation of your registration. This confirmation will allow you to access the conference hall and the conference dinner.

Please note: Access will only be granted if you are fully vaccinated against Covid-19. Please confirm in your registration that you are, and attach an e-copy of your vaccination document. Please follow further instructions on site. Thank you for your cooperation.

Further information: https://www.jura.uni-bonn.de/professur-prof-dr-weller/the-hcch-2019-judgments-convention-cornerstones-prospects-outlook-conference-on-9-and-10-september-2022

 

Programme

 

Friday, 9 September 2022

 

8.30 a.m. Registration 9.00 a.m. Welcome notes

Prof Dr Wulf-Henning Roth, Director of the Zentrum für Europäisches Wirtschaftsrecht, Rheinische Friedrich-Wilhelms-Universität Bonn, Germany

Dr Christophe Bernasconi, Secretary General of the HCCH

    Part I: Cornerstones

1. Scope of application

Prof Dr Xandra Kramer, Erasmus University Rotterdam, Utrecht University, Netherlands

2. Judgments, Recognition, Enforcement

Prof Dr Wolfgang Hau, Ludwig-Maximilians-Universität Munich, Germany

3. Indirect jurisdiction

Prof Dr Pietro Franzina, Catholic University of Milan, Italy

4. Grounds for refusal

Dr Marcos Dotta Salgueiro, Adj. Professor of Private International Law, Law Faculty, UR, Uruguay; Director of International Law Affairs, Ministry of Foreign Affairs, Uruguay

5. Trust management: Establishment of relations between Contracting States

Dr João Ribeiro-Bidaoui, First Secretary, HCCH / Dr Cristina Mariottini, Senior Research Fellow at the Max Planck Institute for International, European and Regulatory Law Luxemburg

  1.00 p.m.

  Lunch Break

    Part II: Prospects for the World

1. The HCCH System for choice of court agreements: Relationship of the HCCH Judgments Convention 2019 to the HCCH 2005 Convention on Choice of Court Agreements

Prof Dr Paul Beaumont, University of Stirling, United Kingdom

2. European Union

Andreas Stein, Head of Unit, DG JUST – A1 “Civil Justice”, European Commission

3. Canada, USA

Professor Linda J. Silberman, Clarence D. Ashley Professor of Law, Co-Director, Center for Transnational Litigation, Arbitration, and Commercial Law, New York University School of Law, USA

Professor Geneviève Saumier, Peter M. Laing Q.C. Professor of Law, McGill Faculty of Law, Canada

4. Southeast European Neighbouring and EU Candidate Countries

Prof Dr Ilija Rumenov, Associate Professor at Ss. Cyril and Methodius University, Skopje, Macedonia 8.00 p.m. Conference Dinner (€ 50.-)

 

Saturday, 10 September 2022

 

9.00 a.m. Part II: Prospects for the World (continued)

 

5. Middle East and North Africa (including Gulf Cooperation Council)

Prof Dr Beligh Elbalti, Associate Professor at the Graduate School of Law and Politics at Osaka University, Japan

6. Sub-Saharan Africa (including Commonwealth of Nations)

Prof Dr Abubakri Yekini, University of Manchester, United Kingdom

Prof Dr Chukwuma Okoli, Postdoctoral Researcher in Private International Law at the T.M.C. Asser Institute, Netherlands

7. Southern Common Market (MERCOSUR)

Prof Dr Verónica Ruiz Abou-Nigm, Director of Internationalisation, Senior Lecturer in International Private Law, School of Law, University of Edinburgh, United Kingdom

8. Association of Southeast Asian Nations (ASEAN)

Prof Dr Adeline Chong, Associate Professor of Law, Yong Pung How School of Law, Singapore Management University, Singapore

9. China (including Belt and Road Initiative)

Prof Dr Zheng (Sophia) Tang, University of Newcastle, United Kingdom

  1.00 p.m.

  Lunch Break

    Part III: Outlook

1. Lessons from the Genesis of the Judgments Project

Dr Ning Zhao, Senior Legal Officer, HCCH

2. International Commercial Arbitration and Judicial Cooperation in civil matters: Towards an Integrated Approach

José Angelo Estrella-Faria, Principal Legal Officer and Head, Legislative Branch, International Trade Law Division, Office of Legal Affairs, United Nations; Former Secretary General of UNIDROIT

3. General Synthesis and Future Perspectives

Hans van Loon, Former Secretary General of the HCCH

Toni Marzal and George Pavlakos (both from University of Glasgow) posted recently on RSSN their article titled A Relations-First Approach to Choice of Law.

The article forms part of the forthcoming volume Philosophical Foundations of Private International Law edited by Roxana Banu, Michael Green and Ralf Michaels to be published by Oxford University Press. The volume is an outcome of an interdisciplinary project carried under the same title. As underlined by Roxana Banu:

PIL situates virtually every legal topic in a different, transnational and pluralistic context. It is therefore hard to comprehend why a philosophical inquiry has thus been far lacking. We seek to penetrate the long-standing isolation existing between the two disciplines and investigate the many opportunities for mutual enrichment.

The abstract of the article reads as follows:

The question of applicable law remains central in the doctrine and practice of private international law (PIL), raising a host of disagreements around the criteria that govern its determination. Paradoxically, this question is commonly approached through a positivist lens, whilst at the same time being guided by a commitment to individual autonomy. In this paper we propose, against mainstream practice, to frame the issue of applicable law as involving a series of questions about relational morality, which ought to be answered independently of any established legal order, and from a concern for the common good. We will proceed in four parts. First, we will demonstrate that a purely positivist understanding fails to properly account for today’s practice, given its propensity to exclude normative considerations as irrelevant to the determination of legal facts, whilst at the same time resorting to such considerations under the cover of hopelessly circular reasoning – a failure that is particularly manifest in the context of PIL. Second, we will show how current PIL tends to accomplish this operation by smuggling into legal reasoning a pre-institutional notion of individual autonomy, which implicitly guides the determination of applicable law, and is divorced from any considerations of relational morality (as well as from ideals of the common good that are left to the ex-post intervention of institutionalised legal orders). Third, we emphasise the independent value of addressing the question of legal relations in pre-institutional terms and propose a fresh way of understanding the legality of such relations among private parties, on the basis of a revised reading of Savigny and Kantian right, as key to the determination of the applicable law. Finally, we explore the downstream implications of our relations-first approach, by considering the topical question of applicable law to claims against parent/buyer companies for the harm caused by their subsidiaries/providers overseas.

The final conference of the JUDGTRUST project on the application of the Brussels I bis Regulation will take place in the Hague (and on-line) on 21 and 22 April 2022, organised by the Asser Institute with the University of Hamburg, the University of Antwerp and the Internationaal Juridisch Instituut.

The conference concludes a two-year project on the correct and consistent application of the Regulation. The research findings of the project will be presented and the conference will provide an opportunity to share knowledge amongst academics, legal practitioners and legislators on how to achieve a greater consistency among various instruments in order to enhance the legal certainty, predictability and access to justice in cross border legal transactions.

The conference will offer an opportunity to discuss about the interpretation of the Regulation; the difficulties in the application and interpretation of the Regulation by State courts; consistency within the European private international law system, and possible solutions.

Speakers include Michał Gondek (European Commission), Markus Tobias Kotzur (University of Hamburg), Vesna Lazić (Asser Institute, Utrecht University), Burkhard Hess (MPI Luxembourg), David Althoff (The Hague Institute of Private International and Foreign Law), Louise Ellen Teitz (Roger Williams University School of Law, Bristol, Rhode Island), Wolfgang Hau (Ludwig-Maximilians University of Munich), Antonio Leandro (University of Bari), Michiel de Rooij (Asser Institute), Javier Carrascosa González (University of Murcia), Gilles Cuniberti (University of Luxembourg), Fieke van Overbeeke (The Hague Institute of Private International and Foreign Law), Mukarrum Ahmed (University of Lancaster), Jachin Van Doninck (Free University Brussels), Luis de Lima Pinheiro (University of Lisbon), Lisette Frohn (The Hague Institute of Private International and Foreign Law), Beatriz Añoveros Terradas (University of Barcelona), Pontian Okoli (University of Stirling) and Francesca Villata (University of Milan).

The full programme is available here. See here for registration.

Ansgar Ohly (Ludwig Maximilian University Munich) wrote an interesting article addressing matters of jurisdiction and choice of law in trade secrets misappropriation cases. The article entitled Jurisdiction and Choice of Law in Trade Secrets Cases: the EU Perspective has been published in an Edward Elgar Research Handbook on Information Law and Governance edited by Sharon K. Sandeen, Christoph Rademacher and Ansgar Ohly. A version of the paper is now available for free consultation on SSRN.

The abstract reads as follows:

Trade secrecy law is a hybrid between intellectual property and unfair competition law. This makes the characterisation of trade secrecy law for the purposes of private international law difficult. This paper argues that neither the EU conflict of law rules for unfair competition law nor those for IP law can be applied, but that a sui-generis solution is called for.

The paper is structured around two parts: one dedicated to determining jurisdiction in trade secrets cases – Part II – and another to applicable law – Part III.

The analysis is systematic and starts from matters of jurisdiction in tort or contract cases, discussing the Bogsitter case (C-548/12) and Wikingerhof case (C-59/19; the judgment was not yet given by the CJEU), Trade Secrets Directive (Directive (EU) 2016/943), and looking at the place where ‘the harmful event occurs’.

For applicable law, the EU provisions seem to force the courts to address the difficult question of whether the protection of trade secrets is a part of intellectual property or of unfair competition law.

One of the problematic aspects of the analysis is related to the specificity of trade secrecy that usually involves a chain of events which consists of the acquisition, the disclosure, and the use of the information.

All of these acts are separate acts of infringement, but at the same time they are related (see the “cascade of liability” established by Article 4 Trade Secrets Directive).

Hence, the question is whether these acts should be dealt with separately for the purpose of establishing jurisdiction and determining the applicable law or whether the entire dispute should be handled by one forum based on one applicable law or other sui generis solution should be considered.

In the context of the Vici project ‘Affordable Access to Justice’, the project team (Erasmus School of Law) is organising a series of online seminars dedicated to the Trends and Challenges in Costs and Funding of Civil Justice.

The next session is scheduled for Wednesday, 20 April 2022 (14:00-16:00 CET) on the topic: Austerity policies and litigation costs reforms.

The relationship between access to justice, efficiency of courts, and litigation costs has never been an easy one. Yet, finding a proper balance has never been more challenging than in recent times. The EU economic crises of the last decade and austerity policies deeply affected justice budgets in several EU Member States and triggered justice reforms, particularly in the area of litigation costs. Building on the experiences of three EU jurisdictions that have been greatly affected by such developments (namely, Greece, Portugal, and Spain), the seminar will assess the impact of austerity measures on access to justice.

Speakers: Panagiotis Perakis (Vice President CCBE), Paula Costa e Silva (Lisbon University), Fernando Gascón Inchausti (Complutense University of Madrid)

To attend the online event, please register here.

With thanks to Adriani Dori for the tip-off.

Since the Millennium, public interest litigation has become a growing phenomenon in civil courts. Activists and NGOs are filing civil lawsuits, both domestic and cross-border, in order to promote societal and political shifts.

Typical examples are (business and) human rights claims, environmental claims, climate change litigation but also cartel damage claims. Targeted defendants react also developing litigation strategies, such as bringing the disputes to the general public through the media. A currently much discussed example are SLAPP, strategic lawsuits against public participation – libel lawsuits brought against journalists, media and other stakeholders of the civil society in order to deter them from making investigations.

On 8 April 2022, at 4 pm CET, a Max Planck Law curriculum course is taking place under the title Strategic Litigation – A New Phenomenon in Civil Litigation?, where Burkhard Hess (Director, MPI Luxembourg) will present strategic litigation on the basis of actual cases, and analyse the main features of this (not that new?) phenomenon. The class will primarily focus on civil actions but equally look at recent developments at constitutional and international courts, trying to assess whether and to what extent this type of dispute is transforming civil litigation as we know it.

Those wishing to attend are required to register here by 6 April 2022.

In February 2022, a Working Group has been established within the European Association of Private International Law. The task of the Group was to respond to a public consultation launched by the European Commission on the prospect of an EU-wide protection for vulnerable adults, i.e., persons aged 18 or more who are unable to protect their interests because of an impairment or insufficiency of their personal faculties.

The Group presented the preliminary draft of a position paper prepared for this purpose at a webinar on 10 March 2022.

Having taken note of the feedback received from the participants in the webinar and other interested academics, practitioners and stakeholders, the Working Group shared a final draft with the Association’s Scientific Council.

The position paper, as approved by the EAPIL Council and submitted to the European Commission, is available here.

Here are some of the key takeaways of the paper:

1. Private international law has an important role to play in the realisation of the fundamental rights of persons aged 18 and more who are not in a position to protect their interests due to an impairment or insufficiency of their personal faculty.
2. The Union should urgently adopt measures of judicial cooperation aimed to support, in cross-border situations, the exercise of legal capacity by the adults concerned, in accordance with the United Nations Convention on the Rights of Persons with Disabilities.
3. In taking the above measures, the Union should preserve the operation and the prospect of success of the Hague Convention of 13 January 2000 on the International Protection of Adults. To this end, the Union should combine external action and legislation, meaning that the Convention should provide the basic legal framework in this field, common to all Member States, but legislation should be enacted by the Union to strengthen cooperation between Member States and improve the operation of the Convention in their relations.
4. The legal basis for the above measures would be Article 81 TFEU, with the clarification that the protection of adults should not be deemed to fall within the scope of “family law” within the meaning of Article 81(3).
5. The Union has external competence, based on Article 216 TFEU to authorise the Member States that have not yet done so to ratify, or accede to, the Hague Adults Convention “in the interest of the Union”, on the ground that the conclusion of the Convention would be “necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties”.
6. The legislation of the Union aimed to improve the Hague Convention regionally should relate, inter alia, to choice of court by the adult concerned and the law applicable to ex lege powers of representation.
7. Specifically, the Union should enact a rule whereby ex lege powers of representation are governed by the law of the (Member) State where the adult concerned has their habitual residence at the time when those powers are relied upon, without prejudice to the application of the provisions on ex lege powers of representation as may be in force in the Member State where the powers are invoked, whenever the provisions themselves are meant to apply regardless of the law specified by conflict-of-laws rules.

On 7 April 2022, the Court will deliver the judgment in C-568/20, H Limited. The request, with three questions, was lodged in November 2020 by the Oberster Gerichtshof (Austria); it concerns the interpretation of several provisions of Chapter III of the Brussels I bis Regulation, in addition to its Article 2(a). The dispute on the merits focuses on the enforcement of an order based on a decision of the High Court of Justice, Business and Property Courts of England & Wales, Commercial Court (QBD). AG Pikamäe’s opinion, published on December 16, 2021, proposed the following answers to the CJEU:

Articles 45 and 46 of [the Brussels I bis Regulation] should be interpreted as meaning that the court of the Member State addressed, to which an application for refusal of enforcement is made, may grant that application on the grounds that the judgment and the certificate, provided for in Article 53 of that regulation, adopted by the court of the Member State of origin breach the public policy of the Member State addressed, where the error of law relied upon constitutes a manifest breach of a rule of law regarded as essential in the legal order of the European Union and therefore in the legal order of that State. This is the case of an error affecting the application of Article 2(a) and Article 39 of that regulation requiring that the judgment of which enforcement is sought be given in a Member State.

When reviewing whether there has been a manifest breach of public policy in the Member State addressed through failure to comply with a substantive or procedural rule of EU law, the court of that State must take account of the fact that, save where specific circumstances make it too difficult or impossible to exercise the legal remedies in the Member State of origin, the individuals concerned must avail themselves of all the legal remedies available in that Member State with a view to preventing such a breach before it occurs.

The reporting judge is M. Safjan.

The decision on C-645/20, V A et Z A , is scheduled for the same day. The French Court of Cassation had addressed to the Court a single question on the interpretation of Article 10(1)(a) of the Succession Regulation, lodged in December 2020. AG M. Campos Sánchez-Bordona had suggested to reply as follows:

Article 10(1)(a) of [the Succession Regulation] must be interpreted as meaning that, in the case where the deceased did not have his last habitual residence in any Member State of the European Union, the court of a Member State in which a dispute in a matter of succession has arisen must declare of its own motion that it has jurisdiction to settle the succession as a whole if, in the light of facts alleged by the parties which are not in dispute, the deceased was a national of that State at the time of his death and was the owner of assets located there.

M. Ilešič was appointed reporting judge.

Easter vacation imposes a break on the publication of decisions and opinions. For PIL purposes, the next one will be the opinion of AG M. Richard de la Tour in C- 604/20 ROI Land Investments, a request from the Bundesarbeitsgericht (Germany), lodged on November 2020. The questions referred concern both jurisdiction and applicable law (the Rome I Regulation) in employment and (maybe, or) consumer matters:

1. Is Article 6(1) read in conjunction with Article 21(2) and Article 21(1)(b) of [the Brussels I bis Regulation] to be interpreted as meaning that an employee can sue a legal person – which is not his employer and which is not domiciled in a Member State within the meaning of Article 63(1) of the [Regulation] but which, by virtue of a letter of comfort, is directly liable to the employee for claims arising from an individual contract of employment with a third party – in the courts for the place where or from where the employee habitually carries out his work in the employment relationship with the third party or in the courts for the last place where he did so, if the contract of employment with the third party would not have come into being in the absence of the letter of comfort?
2. Is Article 6(1) of the [Brussels I bis Regulation] to be interpreted as meaning that the reservation in respect of Article 21(2) of the [the same Regulation] precludes the application of a rule of jurisdiction existing under the national law of the Member State which allows an employee to sue a legal person, which, in circumstances such as those described in the first question, is directly liable to him for claims arising from an individual contract of employment with a third party, as the ‘successor in title’ of the employer in the courts for the place where the employee habitually carries out his work, if no such jurisdiction exists under Article 21(2) read in conjunction with Article 21(1)(b)(i) of the [Regulation]?
3. If the first question is answered in the negative and the second question in the affirmative:

(a) Is Article 17(1) of the [Brussels I bis Regulation] to be interpreted as meaning that the concept of ‘professional activities’ includes paid employment in an employment relationship?

(b) If so, is Article 17(1) of the [Brussels I bis Regulation] to be interpreted as meaning that a letter of comfort on the basis of which a legal person is directly liable for claims of an employee arising from an individual contract of employment with a third party constitutes a contract concluded by the employee for a purpose which can be regarded as being within the scope of his professional activities?

4. If, in answer to the above questions, the referring court is deemed to have international jurisdiction to rule on the dispute:

(a) Is Article 6(1) of [the Rome I Regulation] to be interpreted as meaning that the concept of ‘professional activities’ includes paid employment in an employment relationship?

(b) If so, is Article 6(1) of the Rome I Regulation to be interpreted as meaning that a letter of comfort on the basis of which a legal person is directly liable to an employee for claims arising from an individual contract of employment with a third party constitutes a contract concluded by the employee for a purpose which can be regarded as being within the scope of his professional activities?

The delivery is expected on 28 April 2022. M. Safjan will be the reporting judge.

The Grand Chamber of the Court of Justice delivered this week (29 March) its judgment in case C-132/20 (BN and alii), which is about the Rule of Law and Fair Trail requirements for Courts composed for part of judges originally appointed under totalitarian (Communists) regimes or by a body created on the ground of legislation later declared unconstitutional. The judgment is currently available in selected EU official languages only (and therefore not in English). Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

“1) L’article 19, paragraphe 1, second alinéa, TUE, l’article 47 de la charte des droits fondamentaux de l’Union européenne ainsi que l’article 7, paragraphes 1 et 2, de la directive 93/13/CEE du Conseil, du 5 avril 1993, concernant les clauses abusives dans les contrats conclus avec les consommateurs, doivent être interprétés en ce sens que la circonstance que la première nomination d’un juge dans un État membre à un tel poste ou sa nomination ultérieure dans une juridiction supérieure résulte d’une décision adoptée par un organe d’un régime non démocratique qu’a connu cet État membre avant son adhésion à l’Union européenne, y compris lorsque les nominations de ce juge dans des juridictions après que ce régime a pris fin étaient fondées notamment sur l’ancienneté acquise par ledit juge au cours de la période durant laquelle ledit régime était en place ou lorsqu’il a prêté le serment judiciaire uniquement lors de sa première nomination en tant que juge par un organe de ce même régime, n’est pas en soi de nature à susciter des doutes légitimes et sérieux, dans l’esprit des justiciables, quant à l’indépendance et à l’impartialité de ce même juge, ni, partant, à remettre en cause la qualité de tribunal indépendant et impartial, établi préalablement par la loi, d’une formation de jugement dans laquelle il siège.

2) L’article 19, paragraphe 1, second alinéa, TUE, l’article 47 de la charte des droits fondamentaux ainsi que l’article 7, paragraphes 1 et 2, de la directive 93/13 doivent être interprétés en ce sens qu’ils ne s’opposent pas à ce que soit qualifiée de tribunal indépendant et impartial, établi préalablement par la loi, une formation de jugement relevant d’une juridiction d’un État membre dans laquelle siège un juge dont la première nomination à un poste de juge ou sa nomination ultérieure dans une juridiction supérieure est intervenue soit à la suite de sa sélection comme candidat au poste de juge par un organe composé sur le fondement de dispositions législatives ultérieurement déclarées inconstitutionnelles par la juridiction constitutionnelle de cet État membre, soit à la suite de sa sélection comme candidat au poste de juge par un organe régulièrement composé mais au terme d’une procédure qui n’était ni transparente, ni publique, ni susceptible de faire l’objet d’un recours juridictionnel, dès lors que de telles irrégularités ne sont pas d’une nature et d’une gravité telles qu’elles créent un risque réel que d’autres branches du pouvoir, en particulier l’exécutif, puissent exercer un pouvoir discrétionnaire indu mettant en péril l’intégrité du résultat auquel conduit le processus de nomination et semant ainsi, dans l’esprit des justiciables, des doutes sérieux et légitimes quant à l’indépendance et à l’impartialité du juge concerné ».

Source: https://curia.europa.eu/juris/document/document.jsf;jsessionid=768367F474045381829A4693E86C265D?text=&docid=256761&pageIndex=0&doclang=fr&mode=req&dir=&occ=first&part=1&cid=6822307

The Court of Justice delivered last week (24 March 2022) its judgment in case C‑723/20 (Galapagos BidCo. Sàrl), which is about the Insolvency bis Regulation:

“Article 3(1) of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings must be interpreted as meaning that the court of a Member State with which a request to open main insolvency proceedings has been lodged retains exclusive jurisdiction to open such proceedings where the centre of the debtor’s main interests is moved to another Member State after that request has been lodged, but before that court has delivered a decision on it. Consequently, in so far as that regulation is still applicable to that request, the court of another Member State with which another request is lodged subsequently for the same purpose cannot, in principle, declare that it has jurisdiction to open main insolvency proceedings until the first court has delivered its decision and declined jurisdiction”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=256469&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=6830618

The final programme of the conference on Regulation Brussels Ia: a standard for free circulation of judgments and mutual trust in the European Union (JUDGTRUST) 21 and 22 April 2022 at The Hague can be found here. A previous post introduced the themes, speakers, moderators and the coordinator of the conference.

I have just blogged on the Leuven public law blog, on the independent expert penal’s Ecocide proposal, here. I am reposting here for completeness’ purposes.

Geert.

On 31 March 2022, the EU Commission disclosed that it has been working on a proposal for a bilateral treaty to be concluded with the UK focused on recognition and enforcement of foreign judgments.

The purpose of the treaty would be to facilitate the circulation of judgments between the EU and the UK. It would not be a double convention and thus would not include rules governing the (direct) jurisdiction of the courts of the Contracting States.

Scope

At the present time, the material scope of the treaty would be limited to civil and commercial matters. It would not, therefore, extend to family law.

Jurisdiction of the Foreign Court

The (indirect) jurisdiction of the foreign court would be assessed by a single flexible text. Foreign courts would be considered to have jurisdiction if there was a meaningful connection between the foreign court and the dispute. The French presidency might have pushed for adopting this test, which is currently applied in the French common law of foreign judgments.

In addition, a provision of the treaty would clarify that the test would not be satisfied if the foreign court had retained jurisdiction on the basis of a number of exorbitant rules of jurisdiction that would be identified. This list seems to be clearly inspired for the red list of the Brussels instruments.

Public Policy Exception

The public policy clause is probably the most innovative provision of the treaty. It would be applicable in principle, unless “actual mutual trust” could be found to exist between the relevant EU Member State and the UK.

A provision would then identify cases where such “actual mutual trust” would be presumed.

No scrum, no trust

This would be the case for all judgments circulating between France and the UK, because France participates in the 6 Nations Rugby Championship (so-called “scrum proviso”).

The scrum proviso would apply between Italy and the UK for judgments rendered 32 days after Italy would win its first Championship or would win in Twickenham by more than 20 points.

More details on the draft treaty are available here.

Documents & Publications

On 9 March 2022, the Permanent Bureau announced the launch of the post-event publication of HCCH a|Bridged – Edition 2021, focused on contemporary issues relating to the application of the 2005 Choice of Court Convention, including the promotion of party autonomy. More information is available here.

On 9 March 2022, the Permanent Bureau published the results of the 2022 survey for arbitration institutions on the 2015 Principles on Choice of Law in International Commercial Contracts. More information is available here.

On 16 March 2022, the Permanent Bureau of the HCCH published an Information Note on the subject of “Children deprived of their family environment due to the armed conflict in Ukraine: Cross-border protection and intercountry adoption”. More information is available here.

Vacancies

The Permanent Bureau is currently welcoming applications for the position of Diplomat Lawyer (Secretary or First Secretary). The deadline for the submission of applications is 15 April 2022 (5.00 p.m. CEST). More information is available here.

Other

CEDEP’s Choice of Law online course is now open to the public, featuring an introductory lecture on the Legal Guide to Uniform Instruments in the Area of International Commercial Contracts, with a Focus on Sales, published year by the Secretariats of UNCITRAL, UNIDROIT and the HCCH. The lecture is available here, and more information about the course is available here.

 

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

May the 30-day time limit within which the defendant has to sent a statement of opposition against a European order for payment, set in Article 16(2) of the Regulation No 1896/2006 (the EOP Regulation), be interrupted through application of the national provision that, for a specified timeframe related to the pandemic of SARS-CoV-2, provides for such effect ?

This is, in essence, the question that Advocate General Collins addresses in his Opinion in the case Uniqa Versicherungen, C-18/21.

 

Legal context of the preliminary question

As summarized at point 2 of the Opinion, Article 16(2) of the EOP Regulation provides that a statement of opposition to a European order for payment shall be sent within 30 days of service of the order, in the absence of which that order becomes enforceable against the defendant.

A defendant who does not lodge a statement of opposition within that 30-day time limit may, in a number of exceptional cases, apply for a review of the order pursuant to Article 20 of the Regulation.

According to its Article 26, procedural issues not specifically dealt with in that Regulation are governed by national law.

Against this background, as the referring court in the present case, the Austrian Supreme Court (Oberster Gerichtshof), puts it in its request for a preliminary ruling, some authors take the view that Article 20 of Regulation takes account (in the abstract) of situations such as the COVID-19 crisis and, for such situations, has provided for the possibility to have European orders for payment reviewed and, if necessary, declared null and void. According to that view, recourse to national law is therefore not permissible in view of Article 20, which was created precisely to address cases of force majeure.

The opposing view, also reported by the referring court, is based on the interpretation according to which the interruption of the time limit set in Article 16(2) of the EOP Regulation has remained unregulated by EU law, with the result that – pursuant to Article 26 of the Regulation – recourse is to be done to national law.

 

Preliminary question

All this prompted the Austrian court to refer a following preliminary question to the Court:

Are Articles 20 and 26 of the EOP Regulation to be interpreted as meaning that those provisions preclude an interruption of the 30-day period for lodging a statement of opposition to a European order for payment, as provided for in Article 16(2) of that Regulation, by Paragraph 1(1) of the Austrian Law on accompanying measures for COVID-19 in the administration of justice, pursuant to which all procedural periods in proceedings in civil cases for which the event triggering the period occurs after 21 March 2020 or which have not yet expired by that date are to be interrupted until the end of 30 April 2020 and are to begin to run anew from 1 May 2020?

 

Assessment of the preliminary question provided for in the Opinion

In the first place, in his overview of the EOP Regulation, AG Collins convincingly demonstrates that the review procedure under Article 20 of the Regulation does not purport to be a substitute for the opposition procedure under Article 16 (see, for detailed argumentation, points 31 et seq.).

Building upon that demonstration, in the second place, he addresses the legal issue at hand and presents a series of arguments that lead him to the conclusion according to which the EOP Regulation “[does] not preclude the adoption, in the circumstances of the COVID-19 pandemic, of a national measure that interrupted the 30-day time limit for lodging a statement of opposition to a European order for payment contained in Article 16(2) thereof” (point 49).

In particular, AG Collins contends, firstly, that the EOP Regulation “lays down minimum standards to ensure the recognition and enforcement of an order adopted in another Member State without the necessity to bring any prior intermediate proceedings in the Member State of enforcement” and, as a consequence, “a general interruption of time limits due to the COVID-19 pandemic is a procedural issue not dealt with in [the] Regulation” (point 42).

He indicates, secondly, that “national procedural measures adopted in accordance with Article 26 of [the EOP Regulation] may not […] undermine the objectives pursued by that regulation” (point 43).

Benchmarking the national measure related to COVID-19 against that requirement, he explains that this measure does not undermine the objectives of the Regulation “since a general interruption of time limits does not add another procedural step to the recognition and enforcement of a European order for payment” and, as a consequence, “the uniform mechanism established by [the EOP Regulation] is unaltered” (point 45).

Thirdly, AG Collins backs his findings by the considerations relating to Article 47 of the Charter, with a further reference to the case law of the ECtHR (see footnote 35). In essence, refusing to interrupt the time limit for sending the opposition against a European order for payment and, thus, ignoring the impact of the pandemic on the practical possibility to sent that statement could run against the rights of the defendant (points 46 and 47).

The Opinion is available here.

‘Access to Justice and International Organisations: Coordinating Jurisdiction between the National and Institutional Legal Orders’ by Rishi Gulati has just been published by Cambridge University Press. The author has kindly provided us with the follow summary:

This book addresses some of the most difficult legal challenges that international institutions confront. As is all too evident, we live in a denial of justice age when it comes to the individual pursuit of justice against international organisations (IOs). Victims of institutional conduct are often denied reasonable means of dispute settlement at the international level. Victims are also generally unable to seek justice at the national level due to IO immunities, which aim to secure institutional independence. Access to justice and IO independence are equally important values and satisfactorily realising them both has so far proven elusive. In this book, Rishi Gulati argues that private international law techniques can help allocate regulatory authority between the national and institutional orders in a nuanced manner by maintaining IO independence without sacrificing access to justice. As private international law rules can be adjusted nationally without the need for international action, the solution proposed can be readily implemented, thereby resolving a conundrum that public international law has not been able to address for decades.

The book is divided into five chapters. Chapter 1 provides the basis of, and nature of an IO’s access to justice obligation. It  demonstrates that under international law, IOs must provide ‘appropriate’ modes of dispute resolution to the victims of institutional conduct. Relying on international human rights law in general, and the right to a fair trial in particular, chapter 2 goes on to specify the criteria for assessing the ‘appropriateness’ of dispute resolution mechanisms that should be created at IOs. The discussion does not stop here. Chapter 3 goes on to rigorously apply those criteria to assess dispute resolution mechanisms at IOs, where such mechanisms even exist. It is concluded that where such mechanisms exist, they tend to be deficient. This is the case with several international administrative tribunals created to resolve employment disputes. Alarmingly, in many instances, dispute resolution mechanisms are completely absent, meaning that a denial of justice is a foregone conclusion.

It is thus hardly surprising that more and more, national courts are asked by victims to adjudicate claims against IOs. However, adjudication at the national level is complicated due to the existence of an IO’s jurisdictional immunities before national courts. Chapter 4 considers the nature of institutional immunities, and shows that the application of IO immunities is a conundrum that is yet to be resolved. This chapter considers the latest jurisprudence on the topic. It provides a succinct analysis of all aspects of the law on IO immunities, showing that the manner in which the law is currently applied results in further denials of justice. It is pointed out that no satisfactory solution has been implemented to realise access to justice for victims and an IO’s functional independence simultaneously. Chapter 5 resolves this long-standing international legal challenge. It shows how private international law techniques can be used to realize access to justice in claims against IOs but without compromising on IO independence. This book shows how the various branches of public international law, including international human rights  and international organisations law, do and should interact with private international law with a view to solve a particularly difficult regulatory challenge. The work is not only intended to be academically rigorous, but it seeks to provide real life answers to hard cases.

The author of this post is Martina Mantovani, Phd Candidate at the University Panthéon-Assas.

Climate change litigation has increased dramatically since 2015, the year of the Paris Agreement. A 2021 Report drafted by the Grantham Research Institute on Climate Change and the Environment inventoried more than 1.000 new cases brought to court over the past six years. Among these, a specific type of disputes is gaining considerable momentum: those initiated by children and youth applicants.

While youth-led climate change litigation may at first appear rather “niche”, a closer look at the number and types of cases brought in the name of children demonstrates that this phenomenon is all but negligible for its size, its geographical scope, and its impact on domestic legal systems. A blog post authored by Lorenzo Gradoni and myself for Verfassungsblog and Völkerrechtsblog examines this strand of climate change litigation in a North-South perspective, offering insights on its origin, actors, drivers and prospects.

From the standpoint of the private international lawyer, it is worth remarking that just one of out of the 76 judicial complaints of this kind speaks the language of conflicts of laws. Milieudefensie et al. v. Royal Dutch Shell plc., decided by the Hague District Court in May 2021, is a class action brought by seven NGOs – including Young Friends of the Earth – and 17,379 individuals against a private corporation having its principal place of business in the Netherlands. The case raised the question as to whether a private company can violate a duty of care and human rights obligations by failing to take adequate action to curb greenhouse gas emissions. Before moving on to the merits of a case that presented several cross-border elements, the Hague District Court had to assess its own jurisdiction over the defendant and to identify the applicable law. The Brussels I bis and the Rome II Regulation were deemed applicable to the case at hand.

Considering the outcome of this case – a big victory for the plaintiffs – one may wonder why only 1.3 per cent of the examined cases borrows private international law (PIL) techniques to advance the fight against climate change. The marginal role played by PIL until now may seem surprising, especially when compared to the much bigger part reserved to public international law, whose arguments and discourse feature in most of the domestic complaints and star in some prominent cases brought before the European Court of Human Rights, the Inter-American Commission on Human Rights, the UN Committee on the Rights of the Child (CRC), with a possible debut before the International Court of Justice.

This post sheds some light on the broader phenomenon of youth-led climate change litigation, while addressing at once the plausible reasons behind the performance gap between private and public international law in this field.

Strategic Litigation All Around

Why choosing children and youth as applicants? That’s among the burning questions raised by youth-led climate change litigation. And, indeed, the background of the cases belonging to this trend suggests that we are faced, in this regard, with a strategic move made by the promoters of this litigation. Even though most of the examined cases have been filed by children and youth in their own name, these received substantial support (not only legal, but often also organisational and financial) from several NGOs, who place a special emphasis on their role as initiators of strategic litigation.

The American NGO Our Children’s Trust (OCT) deserves a special mention, being the undisputed forerunner of this kind of litigation. Having brought, since 2011, a great number of actions in the US and consistently acting as an advisor in high-profile cases brought in other jurisdictions,  OCT defines itself as “a non-profit public interest law firm that provides strategic, campaign-based legal services to youth from diverse backgrounds to secure their legal rights to a safe climate”. The “highly strategic legal campaign” this organization is leading “includes targeted media, education, and public engagement work to support the youths’ legal actions”. In the same vein, the Centre for Environmental Rights, who is behind the first South African youth-led constitutional case, “engages in strategic litigation, advocacy, and supports community groups in defending their right to a healthy environment though training and other support initiatives”. Plan B, the initiator of several youth-led climate change cases in the UK, “has been established to support strategic legal action against climate change” with a view to “harnessing market forces towards a better future for us all”. (All italics of this paragraph are added for emphasis). ​ ​​

Strategy is the deliberate search for a plan of action that will develop a competitive advantage and compound it, with a view to facilitate the achievement of the envisioned objectives. These goals emerge with particular clarity from the definition of “strategic litigation” given by the Grantham Research Institute on Climate Change and the Environment, i.e.,  lawsuits “where the claimants’ motives for bringing the cases go beyond the concerns of the individual litigant and aim to bring about some broader societal shift”, such as “advancing climate policies, creating public awareness, or changing the behaviour of government or industry actors” (here, at 12).

When thinking in terms of legal strategy, child and youth applicants may bring along an important competitive advantage, insofar as they can advance specific arguments both on the merits and on procedural grounds that would be either unavailable or not as compelling if put forth by adults (more on this later). But there could be more to youth applicants than sheer legal advantages. In our blogpost, Lorenzo and I suggest that youth-led litigation may be a sophisticate implementation of a broader strategy that straddles law and behavioural sciences, as expressed by Lovejoy’s Law, a presumptive law of social psychology named, curiously enough, after Helen Lovejoy, the Reverend’s wife in The Simpsons. According to Lovejoy’s Law, the love for children is likely to be invoked as an emotional trump card when opponents in a political dispute run out of rational arguments. Said otherwise, it is hard(er) to say no to children, and adults might be more willing to make compromises for the sake of their kids than they would normally make for their own good. Youth-led litigation might therefore create higher engagement, both in the members of the presiding court and in the general public, in keeping with the strategies pursued by the promoting NGOs.

The Absence of PIL from Youth-Led Litigation

None of the above explains why youth-led litigation has not embraced PIL in the fight against climate change. On the contrary, such omission remains baffling for two reasons.

First, the effects of Lovejoy’s law, if any, could be felt in a trial against a private multinational corporation just as well as in an action against a sovereign state, a type of action which is vastly prevalent in current youth-led climate change litigation. In this respect, it is interesting to note that the complaint in Milieudefensie evokes this Lovejoyan motive, when it affirms that “[c]limate change is an urgent issue. Not only are we already confronted with the consequences every day at present but our children’s future is at stake too. […] Milieudefensie senses that responsibility and it, therefore, makes climate justice the central theme of this new General Policy Plan (here, § 153). The action brought against Royal Dutch Shell aimed at implementing said Plan (at § 154).

Second, PIL has traditionally given the nod to strategic litigation, forum shopping being, according to some scholars, among the most unforgettable notions of this field of law, that keeps lingering even in the minds of those who are largely uninterested in the subject (here, at 49).

The absence of PIL from the toolbox of youth-led climate change litigation has seemingly little to do with the alleged inability of this field of law of addressing global governance issues in a meaningful way. Rather, the explanation appears more “down to earth”, one may say, insofar as it may stem, on the one side, from the particular way in which this strategy is conceived and implemented at the global level and, on the other side, from the current state of climate change legislation.

As for the latter, the statements made by ClientEarth – one of the most important NGOs in the field – are particularly revealing of the dissatisfaction with the current state of climate change legislation. In a section named “How we work”, this NGO distinguishes between “shaping” and “enforcing the law”, suggesting that much works needs to be done on both accounts. This explains why most of the efforts made until aims at filling the gaps of the extant legal framework, either by holding states accountable for commitments made in international agreements (rather than in ad hoc national legislation) or by proposing innovative and expansionist readings of traditional legal notions of domestic (constitutional) law, with a view to deploying them in relation to the “new” problems created by climate change (e.g. the use of the public trust doctrine in the US: see here, at 875). In the words of ClientEarth, the promoters of this litigation: “know how to use the legal system as a lever of change, how to enforce it and how to win” and thy do “not shy away from challenging governments and businesses in court”.

Lawsuits of this kind are situated at the crossroads between “shaping” and “enforcing” domestic laws. This is evidenced (a) firstly, by the lack of global consensus, among the applicants, on very important aspects of such litigation, such as the criterion for apportioning the burden of mitigating measures among states and, (b) secondly, by the emphasis placed by NGOs on the efforts made to adopt, for the purposes of human rights-based litigation, a common (ie global) scientific standard regarding emission reductions, on the assumption that such standard is not satisfactorily embodied in current laws (correspondence with NGOs on file with the author). Against this backdrop, choosing to pursue the action against states seems the most logical way forward, fuelled by the hope of triggering Neubauer-like scenarios, whereby a big win in a (constitutional) forum is followed by a wide-ranging adaptation of existing legislation. Once the desired scientific standard is enshrined in domestic laws, cases against non-compliant businesses may be less cumbersome and become a more straightforward expression of a strategy based on the sheer “enforcement of laws”, in its “public” and “private” variations.

The main reason for the absence of PIL from youth-led climate change litigation lies, precisely, in the choice of defendant made by the “first generation” of claims. A case – even a civil claim – brought against a state in relation to its (sovereign) environmental policy choices will never give rise to issues of jurisdiction, understood as the identification of the competent (state) courts. In fact, this sovereign will have to be summoned before its own courts, in order to prevent the use of state immunity as a foreseeable defence. In the same vein, when the claim questions the quality or the adequacy of a state’s legislation, or invokes the responsibility of said state in relation to an alleged violation of its obligations or duties of care, there is no real issue of applicable law. This will always be the law of the defendant state, eventually read in the light of pertinent international norms. In other words, PIL has not much to say on these matters, the international fungibility between (state) courts and between (state) laws that lies at its core being plainly and incurably lacking in cases presenting this specific conformation.

This is not to say that PIL will not play any role in the future. A closer look at the genesis and conception of the litigation strategy behind the youth-led cases brought until now reveals its highly experimental nature. This strategy is built on a process of trial and error: small and bigger changes are tried and tested, on an experimental basis, in subsequent cases, those that are beneficial being gradually transposed and tested in other jurisdictions. A similar pattern will likely be replicated as regards the choice of defendants: in this sense, the win in Milieudefensie may pave the way to other youth-led climate change cases brought against oil and gas corporations.

PIL Moving into the Spotlight?

Intimations of a change in this direction come directly from the world of NGOs. The Children’s Investment Fund Foundation is “the world’s largest philanthropy that focuses specifically on improving children’s lives” and counts “climate change” among its priorities. It is currently among the major funders of youth-led climate change litigation, that it backs with a $ 83,6 million grant. More precisely, a $ 26,4 million grant is tied to the “ClientEarth Phase III” project, which supports “strategic litigation to accelerate Europe’s low carbon transition and secure Europe’s climate leadership by putting it on a Paris-aligned trajectory”, and $ 21,9 millions are allocated to the File project, which supports similar litigation “in multiple jurisdictions”. It is also worth stressing that the Children’s Investment Fund Foundation has recently been the recipient of some criticism: despite having being created to improve “the lives of children in developing countries who live in poverty”, this organisation has, more recently, allegedly “been used … to pass money towards environmentalist campaigns and other foundations pushing for legal action against energy companies due to the cost of climate change”.

The assumption underpinning this criticism is, at best, debatable: legal actions against energy companies in rich countries might well have indirect beneficial effects on the lives of children in developing countries. However, what is important for the purpose of this blogpost is the acknowledgment of a shift in the flow of funds, that seems to favour, at present, litigation directed against private corporations. Consequently, PIL will play an increasingly important role: owing to a variety of factors – such as the breadth of the activity of transnational corporations, the geographical complexities of their corporate structure, the origin of the applicants, the ubiquity of the damage caused by CO2 emissions, etc – these cases will likely present a “foreign element”, triggering questions about jurisdiction, applicable law and, why not, enforcement of foreign civil judgments.

Transposable Legal Strategies?

It is hard to foresee whether this prospective “private strand” of climate change litigation will turn out to be similar to the cases directed against states In cases brought against states before constitutional and international courts, child and youth applicants may be in a more favourable position when arguing both on the merits of the case and on its admissibility.

Concerning admissibility, child applicants might more convincingly plead for the setting aside of the requirement of the prior exhaustion of domestic remedies. While the CRC decisions in Sacchi may disprove this assumption, this is what the lawyers in Duarte Agostinho are trying to advance (here, § 40), given that, in applying this rule, the ECtHR has traditionally paid due regard to the “personal circumstances of the applicant” in order to prevent disproportionate obstacles to the effective exercise of the right of individual application under Article 34 of the Convention (here § 109 and 111). Concerning the merits, child and youth applicants may invoke, first, a principle of non-discrimination, whereby they shall be entitled to the same level of protection of fundamental rights afforded to prior and present generations of adult citizens. Second, they may allege a specific kind of damage. According to the constitutional complaint in Held v Montana, § 231, owing to their “unique physiological characteristics and vulnerabilities, and lack of autonomy and dependency on caregivers” children are “more vulnerable to rights violations”. Being“at a critical development stage in life, as their capacities evolve and their physiological and psychological maturity develops more rapidly than at any other time in life”, youth and children form part of “a separate suspect, or quasi-suspect, class in need of extraordinary protection“. While being specific to a constitutional complaint made under the equal protection clause, arguments of a similar kind could be also invoked within the framework of an action, such as the one put forth by Milieudefensie, aiming at imposing a “duty of care” upon corporations. This should therefore be especially stringent and more compelling vis-à-vis children and youths, as a special class of individuals in need of extraordinary protection.

One should also ask whether, in a lawsuit brought against a corporation, PIL would grant child and youth applicants any kind of comparable favor that is, one that would place them in a better position than an adult filing a comparable claim. In current law, the answer is in the negative. Concerning access to justice, only a few EU Regulations in the field of parental responsibility manifest a certain favor for the child as such, insofar as the sheer presence of the child on the territory of a Member State may, in exceptional circumstances, justify the exercise of jurisdiction by the authorities of that state (e.g. Article 11 of the Brussels IIter Regulation). Outside this particular case, the mere quality of being a child cannot be invoked to bend, in any way, the uniform rules of jurisdiction set by the EU legislator, ie to open a forum in Europe when there is none. The CJEU has confirmed, in case C-393/18 PPU, that the particular vulnerability of the child, deriving from his lack of decisional autonomy and his dependency vis-à-vis his caregivers, cannot serve as a basis for an extensive interpretation of the grounds of jurisdiction established by EU law.

This same argument should apply, a fortiori, in civil and commercial matters, which youth-led climate change litigation belongs to. Here, the principle of the best interests of the child is no longer at the forefront, and there is no detectable favor for younger applicants. As far as the Brussels Ibis and the Rome II Regulations are concerned, child and youth applicants are in the exact same position as an adult bringing a comparable claim. It is equally unlikely that the condition of dependency of the child vis-à-vis the caregivers could warrant the opening of a forum of necessity under domestic rules of PIL, on the basis that “proceedings abroad are impossible or cannot reasonably be required” (cf art. 3 of the Swiss law on PIL).

Nonetheless, there are good reasons to suspect that an increasing number of youth-led climate change cases against corporations will land in Europe in the near future. In fact, despite the neutral attitude adopted by PIL vis-à-vis child applicants, the procedural framework set out by EU law remains remarkably advantageous for the plaintiffs.

First, these could profit from the “hard-and fast” logic underpinning the rules of the Brussels Ibis Regulation, that makes establishing jurisdiction vis-à-vis a corporate defendant having its statutory seat, its central administration or its principal place of business in the EU a relatively straightforward affair, as evidenced by cases such as Luciano Lliuya v. RWE AG or Milieudefensieitself. Youth-led climate change litigation could also follow the trail blazed by the cases on social corporate responsibility and learn from this experience in order to attract, in that same European forum, eventual subsidiaries domiciled in third states. Second, in terms of applicable law, the EU legal framework might be particularly appealing in the light of the policy-oriented rule of conflict set out by Art. 7 of the Rome II Regulation, that grants the plaintiffs a choice between the law of the country where the damage occurred and that of the country of the unlawful event. This could point, in most cases, to the applicability of the law of a Member State, embodying the European acquis on environmental law and abiding to a fairly high standard of protection.

A thorough analysis of the advantages (and potential inconveniences) underpinning the rules of EU PIL is beyond the scope of this blog post. I formerly discussed the possible strategies employed to “open” a forum in the EU based on the Brussels Ibis Regulation here. For the rest, I gladly refer to the overview given here by Eduardo Álvarez-Armas. It should just be added that the recently published Proposal for a Directive on corporate sustainability due diligence might bring along a new, unprecedented advantage for child applicants who succeed in seizing a court in the EU. The proposed Directive – which purports to effectively contribute to combating climate change: cf Recital 50 – seeks to introduce, inter alia, a uniform rule on civil liability for the violation of the (also uniform) obligations of due diligence set out by the proposed instrument. This rule would be applicable also to companies established outside the EU “where 80-90 % of the harm of EU production may occur”, provided that the turnover criterion set out in Art. 2(2) of the proposed Directive is complied with (see here, at 8). Equally remarkable is the fact that the rule on civil liability shall be “of overriding mandatory application in cases where the law applicable to claims to that effect is not the law of a Member State” (Art. 22 (5) of the Proposal). This civil liability rule will therefore complement the law identified under Art. 7 of the Rome II Regulation, in cases where the latter provision will not, due to the specific features of the harmful event, point to the law of a Member State. This plaintiff-friendly legal framework, coupled with the existence of child-specific and geographically targeted funding within the framework of the ClientEarth Phase III project, will likely turn Europe into the hub of youth-led climate change litigation against corporations in the coming years.

The author of this post is Julian Henrique Dias Rodrigues, lawyer in Lisbon.

On 27 January 2022, the Lisbon Court of Appeal gave a decision concerning the (non) recognition in Portugal of notarial deeds attesting a de facto union.

The Case

A suit for recognition and enforcement of a foreign judgment (“ação especial de revisão de sentença estrangeira”) was filed in Lisbon in November 2021 by a Portuguese citizen and a British citizen, based on a Declaration of de facto union signed earlier that year before a notary public in London, where the couple lived.

The couple claimed that the above deed corresponds, under English law, to a judgement, and that it confers on the authors of the declaration the status of a relationship equivalent to that of spouses under English law.

The Portuguese Court analyzed the English Civil Partnership Act of 2004 (CPA).

For the Court, the civil partnership corresponding to the Portuguese de facto union is formalised by means of registration before a registry office, which results in the signature of a civil partnership document before the registry officer, with the presence of two witnesses (Article 2, Section 2, of the CPA).

The decision highlights that, under English law, a simple civil partnership agreement does not have any legal force (“does not under the law of England and Wales have effect as a contract giving rise to legal rights”, as stated in Article 75 of the CPA).

The Court acknowledged that it had previously recognized a public deed of de facto union of Brazilian origin. However, according to the reporting magistrate “[t]he legal situation brought in these proceedings is not analogous to the união estável recognized in Brazil. The English legal institute equivalent to the Brazilian stable union, foreseen and regulated in the United Kingdom, is the civil partnership”.

Relying on English legislation and case-law, the Court concluded that the document does not produce legal effects in the English legal order that go beyond the mere evidential force of the declaration. The legal significance of a partnership does not arise from it. That formal declaration is merely an additional element which the authority deciding whether or not to grant a claim based on the partnership will take into account in deciding in favour of the applicant.

In the Court’s view, the Deed in question was something different than a “civil partnership” under British law. For this reason, the Court refers to civil partnership to underline the difference between the situation created by the Deed and the situation of parties to a civil partnership agreement under UK law.

Returning to the Brazilian example, the judgment highlights that

contrary to what happens in Brazil, where the marriage and the ‘união estável’ can be dissolved by notarial deed, in the United Kingdom the divorce and the dissolution of the civil partnership need the intervention of a court according to the Matrimonial Causes Act 1973, and as for the dissolution of the civil partnership, article 37 of the Civil Partnership Act 2004.

In conclusion, the Lisbon Court of Appeal rejected the request as it considered that the “statutory declaration” is not equivalent in the United Kingdom – or in Portugal – to a judgement or judicial decision, not producing the respective effects.

Public Deed of Brazilian de facto Union: Divergence Continues

The Lisbon Court of Appeal issued between 2019 and 2021 a series of judgments admitting the recognition of a public deed of de facto unions established in Brazil, by means of the suit of recognition of foreign judgment. However, there is no consensus on the matter.

In most cases the requests for recognition are made in the context of the acquisition of Portuguese nationality by the de facto union.

At least three judgments of the Supreme Court of Justice (“Supremo Tribunal de Justiça – STJ”) contradict the trend of the Lisbon Court of Appeal (Case 106/18.0YRCBR.S on February 2019, Case 559/18.6YRLSB.S1 on March 2019 and Case 249/18.0YPRT.S2 on December 2019).

For the STJ “the applicants declaration in a Public Declaratory Deed of De Facto Union, before a foreign administrative authority (notary public) that they live in a de facto union since July 2013, should not be considered as covered by the provision of Article 978 no 1, of the Code of Civil Procedure, and cannot be revised and confirmed to produce effects in Portugal” (Case 249/18.0YPRT.S2).

However the divergence remains open in the STJ itself.

By a ruling of 8 September 2020 the Court granted recognition to a declaration of a de facto union, issued before a notary public, and stating “The contracting parties expressly recognize the fact that they have been living as if they were married since January 2005” and that “they have said so, I, the undersigned, have requested and drawn up this instrument, which, having been read aloud and found to be in conformity, they have accepted, granted and signed, together with the witnesses, present at all acts” (Case No. 1884/19.4YRLSB.S1).

To reach this understanding, the reporting magistrate observed that

the Brazilian ‘união estável’ is a fact and not a legal act. The intervention of the public official foreseen in the legal system is constitutive, in the sense of producing effects in the legal order, namely the declarative one of the verification of the situation of de facto union.

As seen above, the matter is likely to continue to be the object of controversy among Portuguese courts.

Written by Catherine Shen, ABLI

The Asian Business Law Institute (ABLI) has recently released a free publication titled Enforcement of Foreign Judgments in ASEAN: Ranking the Portability of ASEAN Judgments within ASEAN, a derivative publication under its Foreign Judgments Project.

The Association of Southeast Asian Nations (ASEAN) comprises of Brunei Darussalam, Cambodia, Indonesia, Lao, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam. These jurisdictions are of different legal traditions of civil law (Cambodia, Indonesia, Lao, Thailand and Vietnam), common law (Brunei Darussalam, Malaysia, Myanmar and Singapore) and hybrid law (Philippines) tradition. There are two primary hurdles for increasing the portability of ASEAN judgments within the bloc. First, some ASEAN jurisdictions, such as Indonesia and Thailand, have no law that allows foreign judgments to be recognised and enforced. Second, most civil law jurisdictions in ASEAN still have rather rigid requirements on reciprocity. These two hurdles are the main influencers of the ranking.

Three key takeaways can be gleaned from the ranking.

First, Vietnamese judgments claim the crown of being the most portable of ASEAN judgments within ASEAN. They can be enforced in seven out of the other nine ASEAN countries, provided, of course, that the requirements for enforcement under the laws of those countries are satisfied. This is a portability rate of close to 78%. Compared to other ASEAN jurisdictions, Vietnam has the benefit of having bilateral agreements with Cambodia and Lao which allow its judgments to be enforced in the latter two jurisdictions. Cambodia requires a guarantee of reciprocity while Lao PDR requires a bilateral treaty with the relevant country covering the enforcement of each other’s judgments before reciprocity is satisfied.

Second, judgments rendered by the other civil law countries of ASEAN come in second place. They can be enforced in six out of nine ASEAN countries.

Third, judgments from the common law countries of ASEAN and the hybrid law jurisdiction of the Philippines are jointly in third place. They can be enforced in five out of nine ASEAN countries, namely in the other common law and hybrid law jurisdictions, as well as Vietnam. Although Vietnam, being a civil law jurisdiction, imposes a condition of reciprocity, it appears relatively easy to satisfy this requirement.

This result may be surprising or even perverse since most civil law jurisdictions, i.e., Cambodia, Indonesia, Lao and Thailand, have comparatively illiberal regimes for the enforcement of foreign judgments (whether due to the rigid requirement of reciprocity or the lack of relevant laws), while the common law and hybrid law jurisdictions in ASEAN have comparatively liberal rules for foreign judgments enforcement. This “asymmetry” is mainly due to the inability of those civil law jurisdictions to return the favour of the more liberal rules of the common law and hybrid law jurisdictions in ASEAN given the state of their laws, namely, the requirement that there be reciprocity between the two countries.

The Enforcement of Foreign Judgments in ASEAN: Ranking the Portability of ASEAN Judgments within ASEAN is available for free and can be downloaded here. ABLI regularly publishes latest developments in the field of recognition and enforcement of foreign judgments in Asia on its website and LinkedIn.