Conflictoflaws

This post has been prepared by

Dr. Jorg Sladic, Attorney in Ljubljana and Assistant Professor in Maribor (Slovenia)

In judgment of 25 October 2017 in case I Cpg 1084/2016 (ECLI:SI:VSLJ:2017:I.CPG.1084.2016) published on 31 January 2018 the Slovenian Appellate Court ruled on a question of implied consent to application of Slovenian law.

Unfortunately the underlying facts are not described with the necessary precision. It would appear that there was a three-person contractual chain between an Austrian, an Italian and a Slovenian commercial company. Apparently the Italian company was the seller, the roles of both the Austrian and Slovenian company are not very clearly described. The underlying transaction that led to the dispute was a contract for the sale of goods concluded under the CISG. The ruling does not state where the seller had the habitual residence, yet the condemnation to perform the payment can only be construed in such a way that the Italian plaintiff was the seller.

The court of first instance condemned the defendant (a Slovenian commercial company) to payment of the sum of 52.497,28 EUR to the Italian claimant (Italian commercial company) and dismissed the Slovenian defendant’s defense of set-off (exceptio compensationis) in the sum of 50.000,00 EUR.

The condemnation was based upon a sales contract for goods concluded under the application of the CISG. The Slovenian defendant contended that the Italian claimant did not sign the double order / mandate addressed to the Austrian third person (named the client or the orderer) who had been instructed to perform the payment to the Italian company. The Austrian client later withheld the performance of payment due to a non signed double order / mandate (double order/mandate is a figure where a principal gives the first mandate to the agent to perform an obligation to a third person (recipient) and the second mandate to the third person (recipient) to accept the performance of such an obligation, see Art. 1035 Slovenian Code of Obligations: Through an instruction one person, the principal, authorizes a second person, the agent, to perform an obligation for the latter’s account to a certain third person, the recipient (the beneficiary), and authorizes the third person to accept performance in the third person’s name. The Slovenian legislative provision corresponds to § 1400 Austrian ABGB, § 784 German BGB and Art. 468 Swiss Code of Obligations). The defendant claimed in his defense of set-off that there was an extra-contractual obligation (a delict) due to lack of performance of the Austrian agent that was caused by the Italian company.

One of the pleas in appeal was that Italian and in the alternative the Austrian substantive law should be applied for assessing the existence of the obligation to be set-off. The Court of Appeal dismissed such a plea. The Slovenian defendant alleged an allegedly mature and liquid non-contractual obligation to be set-off. The assessment of facts narrated by the Slovenian company i.e. the damages set-off due to non signature of an order given to the Austrian company shows that there is in essence a defense of breach of the claimant’s obligation in accepting the performance based on the same facts as the claimant’s claim to payment. The Appellate Court expressly avoided the characterization of the said breached obligation as contractual or as non-contractual. There was only a precisions that the facts underlying both the contractual obligation to perform a payment and the allegedly breached obligation are identical.

According to the Appellate Court in Ljubljana the court of first instance found that there was an implied consent to apply the Slovenian law, neither party contested the application of Slovenian law in the first and also in the appellate instance. The law applicable to the obligation that was claimed in set – off is therefore Slovenian law. Even if such an obligation were non – contractual, Slovenian law would have to be applied under Art. 4(1) and (3) in connection with Art. 15 Regulation (EC) No 864/2007 (Rome II).

The ruling does not contain any explicit connecting factor. The issue is not Art. 17 Rome I Regulation (Regulation (EC) No 593/2008). One can assume that under Art. 1(1) CISG the applicable law is the CISG as Austria, Italy and Slovenia are contracting parties to the said UN convention. However, the interesting part is the reference to the implied consent to the application Slovenian substantive law. Under Art. 4(1)(a) Rome I Regulation (Regulation (EC) No 593/2008) “a contract for the sale of goods shall be governed by the law of the country where the seller has his habitual residence”. This should prima facie be the Italian law, as the Italian company applied for payment after having performed the specific performance under the sales contract. However, not contesting the application of Slovenian substantive law in judicial proceedings in first and also in the appellate instance was then construed as “implied consent” to Slovenian substantive law (Art. 3(2) Regulation Rome I). Seen in pragmatic perspective, in order to avoid a uneasy modus vivendi or fine tuning of Art. 3 and 15 of the Regulation Rome II with Art. 17 Regulation Rome I the Slovenian Appellate Court preferred to refer to Slovenian law even if under conditions that do not easily fit in Art. 3(2) and 10 Rome I Regulation.

On February 7th, a workshop on the EU Matrimonial and Partnership Property Regulations will take place at the University of Strasbourg. Coordinated by Prof. Estelle Naudin and Delphine Porcheron, the workshop will explore the strategies of anticipation provided by the new regulations and some of the practical issues raised by French-German situations.

Speakers include :

• Richard Crône, Notary in Paris, Member of the Institut Notarial Europe et International (INEI)
• Alain Devers, University of Lyon III
• Claire Farge, Lawyer, Member of the Legal Committee of FNDP
• Michel Farge, University of Grenoble-Alpes
• Eric Fongaro, University of Bordeaux
• Estelle Gallant, University Paris I
• Estelle Naudin, University of Strasbourg
• Delphine Porcheron, University of Strasbourg

Click here to access the full program.

On 26 January 2018, the European Commission published the second General Report of the study on procedural law undertaken by the Max Planck Institute Luxembourg. This strand of the study concerned the effect of divergences in national procedural laws on the equivalence and effectiveness of the procedural protection of consumers under EU consumer law. For the first strand of the study, see here.

More information available here.

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

B. Heiderhoff: The new EU Regulations on Matrimonial Property Regimes and on the Property Consequences of Registered Partnerships

The two new EU Regulations on matrimonial property regimes (2016/1103) and on property consequences of registered partnerships (2016/1104) will come into force on 29th January 2019. This contribution provides an introduction to the new acts and analyses their central provisions. Firstly, the material and personal scope of the Regulations are clarified. The author then considers the conflict of laws rules. Here, the Regulation is consistent with Rome III and the 2007 Hague Protocol in allowing a limited choice of law. It is highlighted that the habitual residence at the time of the marriage is of central importance, but that several issues will need further clarification. In particular, the exact time at which the habitual residence of the couple must be established under Article 26 para 1 needs to be fixed. Furthermore, the escape clause in Article 26 para 3 is described as being too narrow. It is then shown that the formal requirements for marriage contracts in Article 25 refer to the lex causae which may cause difficulty. Finally, the rules on jurisdiction are briefly described. The author ends with an overall positive assessment.

T. Koops: Res judicata under the Brussels I Recast – Can the ruling in Gothaer Allgemeine Versicherung ./. Samskip GmbH be reconciled with the Brussels I Recast Regulation?

In Gothaer Allgemeine Versicherung ./. Samskip GmbH the CJEU developed a European concept of res judicata, encompassing not only the operative part of the judgment, but also its ratio decidendi, based on the Brussels I Regulation. This article argues contrary to the CJEU, that today’s European law of Civil Procedure cannot cope with a European concept of res judicata. Far from being a fully-fledged system of law it cannot furnish “its” concept of res judicata with a corresponding system of legal protection. An autonomous concept would sever the connection between the legal effect of a decision and the legal protection of the parties under national laws. Therefore, the effect of a decision, when recognized in another member state, should in principle be determined by the law of the state in which it was rendered. On the other hand, some of the provisions of what is now the Brussels I Recast do indeed require a uniform European concept of res judicata, albeit with a narrow scope. This leaves us with a European law of Civil Procedure under which the concept of res judicata should, but cannot be entirely based on national law.

P.F. Schlosser: Agents acting on behalf of a corporate entity or debtors jointly and severally liable together with it personally bound by jurisdiction agreements in the contract?

The opinion of the Court of Justice in its decision of June 26, 2017, case C-436/16, is correct and cannot be subject to any doubt. A jurisdiction agreement cannot by itself bind persons acting for the respective contract partner in the capacity of a managing director or holder of a power of attorney. The solution is corresponding to what is correct in the framework of arbitration. Persons acting on behalf of the respective contracting party may only be bound by an agreement relating to them specifically and meeting the form requirements of Art. II New York Convention of 1958 or Art. 25 Brussels Ibis Regulation, respectively.

R. Magnus: The jurisdiction at the place of performance for the repayment of a loan

This article comments on a recent decision of the Higher Regional Court in Hamm (Germany), in which the court ruled that for the repayment of a loan Art. 5 Nr. 1 lit. b Brussel I-Regulation conferred jurisdiction upon the courts at the seat of the lender or likewise the seat of the transferring credit institution. The Court decided that the decisive element that constitutes the place of performance in accordance with Art. 5 Nr. 1 lit. b Brussel I-Regulation is the location, where the lender initiated the transfer of the money to the borrower’s bank account. This article discusses the implications of this decision, criticizes its reasoning and considers alternative foundations for the jurisdiction in the case at hand.

G. Schulze: Attributability of a declaration of intent in cases of doubtful agency – triple relevance of the same fact (dreifach relevante Tatsache)

The matter in question was whether a business woman’s declaration of intent should be attributed to herself or to a Spanish joint-stock company (S.L.) which she was an agent of. This question was decisive for jurisdiction (jurisdiction clause, Art. 23, and special jurisdiction, Art. 5 Regulation (EC) No 44/2001) as well as the decision on the merits (payment of remuneration for work). Therefore, the ECJ’s ruling in Kolassa applied (28.1.2015 C-375/13, IPRax 2016, 143) which allows accordingly to the lex fori different requirements for fact adjudication in “good arguable cases”. Given the unional concept of res judicata in Gothaer Versicherungs AG (15.11.2012 C-456/11, IPRax 2014, 163) the ratio of this ruling seems to be outdated, at least in cases within the Single Market.
In private international law the issue at stake is: Which law governs the consequences of a declaration of intent in cases of doubtful agency? Therefore, the German law applicable to contracts and the Spanish law applicable to companies should be considered. Multiple and indirect representation are both questions of substantive law of agency. Nevertheless, the issue should be characterized as a question of contract law: The heart of the problem is who should be a party to the contract. The recently enacted provision on the conflict of laws of agency does not contain any ruling on this problem (Art. 8 Introductory Act to the Civil Code). The Higher Regional Court held rightly that German contract law is applicable to the defendant’s capacity to be sued and, in casu, this capacity was denied.

D. Martiny: Jurisdiction and habitual residence in respect of a deceased cross-border commuter

The case concerns a conflict of local jurisdiction between the Local Court of Pankow/Weißensee, where the succession-waiving daughter of the deceased had her domicile, and the Local Court of Wedding, in whose district the deceased had lived prior to relocating to Poland. The Berlin Court of Appeal (Kammergericht) rules that the deceased still had his habitual residence in Germany despite the fact that he lived in a flat in a rented storage depot in Poland. The court identifies the criteria relevant to the determination, particularly his activities as a “cross-border commuter” in and out of Germany and his not having integrated in Poland. The international competence and local jurisdiction of the Local Court of Pankow/Weißensee for the declaration of a waiver of succession is based on Art. 13 European Succession Regulation in conjunction with § 31 International Succession Proceedings Act (Internationales Erbrechtsverfahrensgesetz; IntErbRVG), independent of Art. 4 European Succession Regulation. Local jurisdiction of the Local Court of Wedding for protective measures can be based on the former habitual residence of the deceased in this district (§ 343 para. 2 Family Proceedings Act – Familienverfahrensgesetz; FamFG).

B. Haidmayer: Parallel divorce proceedings in Germany and Switzerland

The judgment deals with the issue of lis alibi pendens of parallel crossborder divorce proceedings. Under European Union law and domestic law, the first-in-time rule determines the precedence of a proceeding. The moment defining lis alibi pendens is decisive for the priority rule; however, in this regard the two coordination systems of the supranational and the domestic jurisdiction diverge. This contribution analyses the approach taken by the court and particularly examines whether the Brussels IIbis Regulation contains any requirements for parallel divorce proceedings in non-member states.

H. Roth: Vollstreckungsbefehle kroatischer Notare und der Begriff „Gericht“ in der EuGVVO und der EuVTVO

The two important decisions of the ECJ deserve approval. A Croatian notary, acting on the foundation of a “credible deed” by issuing a writ of execution is not a “court” within the meaning of the Brussels Ia Reg. Furthermore, a proceeding concerned with the enforcement of a judgment falls as a “civil matter” within the scope of Art. 1 (1) Brussels Ia Reg., even if a parking fee is charged for a public parking lot, which belongs to the property of the municipality.

K. Siehr: Greek Reduction of Salaries and Employment Contracts Governed by German Law

In some German cities there are Greek schools in which teachers teach the Modern Greek language. These teachers are employed by the Greek government which pays the teachers in Germany, accepts German law as the law governing the labour contracts and agrees to German jurisdiction. In 2009, Greece started to reduce the salaries of teachers and applied this legislation also to teachers in Germany. Some of these teachers sued the Greek Republic in Germany and asked for full payment without the reduction provided in recent legislation. The Federal Labour Court asked the European Court of Justice for a preliminary ruling on Art. 9 Rome I Regulation. The ECJ decided in the case of Greece v. Nikiforidis on 18/10/2016 that foreign overriding mandatory rules, except those of the country of performance (Art. 9 no. 3 Rome I Regulation), cannot be applied directly but may be indirectly taken into account by the substantive law governing the contract. The German Federal Labour Court on 26/4/2017 decided the payment claim of Grigorios Nikiforidis in his favour and declined to recognize Greek legislation of reduction of salaries directly and also decided that under German law no employee is obliged to accept a reduction of his salary without a new contract stipulated between the parties.

J. von Hein/B. Brunk: Shall we let her go? Legal conditions for the cross-border movement of companies

The ECJ cases Cartesio (C-210/06) and Vale (C-378/10) established guidelines for cross-border changes of legal form within the EU. Subsequently, the German Higher Regional Courts Nuremberg and Berlin were confronted with the issue of cross-border movement of companies from other Member States to Germany. Conversely, the OLG Frankfurt judgment concerns the outward migration of a German company for the first time. The company’s decision to transfer its statutory seat to Italy was refused to be registered by the German authorities for reasons of noncompliance with German transformation laws. The OLG Frankfurt allowed the company’s appeal against this refusal arguing that it violated the company’s freedom of establishment (Art. 49, 54 TFEU). The following article discusses the OLG Frankfurt judgment against the background of the ECJ Cases Cartesio and Vale while examining the premises posed by private international law and substantive law.

F. Heindler: International Jurisdiction over Claims of Shareholders relating to the Dieselgate-Scandal

The annotated judgement focuses on the international jurisdiction of Austrian courts for damage claims brought against Volkswagen in the aftermath of the Dieselgate scandal. Volkswagen, by cheating pollution emissions tests, allegedly was in breach of applicable ad-hoc announcement requirements and caused damages to shareholders situated in Austria. The Austrian Surpreme Court in Civil and Criminal Matters (Oberster Gerichtshof), however, referring inter alia to the place where the harmful event occurred, rejected jurisdiction of Austrian courts under the Brussels Ibis Regulation.

F. Koechel/B. Woldkiewicz: Submission by appearance in European Procedural Law and lex fori

Jurisdiction under Art. 26 of the Brussels Ibis Regulation is based on the defendant’s entering of appearance – a procedural act under domestic law. Art. 26 of the Brussels Ibis Regulation and the lex fori are therefore closely interlinked. In a recent judgment, the Polish Supreme Court (Sa¸d Najwyz?szy, 3.2017 – II CSK 254/16) ruled on the interplay of Art. 26 of the Brussels Ibis Regulation and the national rules governing the status of a party and the legal capacity of a defendant. One can only enter an appearance within the meaning of Art. 26 of the Brussels Ibis Regulation, if they are considered as the defendant under domestic law. The question arises, whether the defendant enters an appearance according to Art. 26 of the Brussels Ibis Regulation by submitting factual or legal allegations in writing with regard to his status as a party and his legal capacity. Contrary to the European Court of Justice’s caselaw, the notion of the entering of an appearance should be interpreted autonomously, without unnecessary recourse to the law of the forum State. Generally, written submissions by the defendant on his status as a party to the proceedings and his legal capacity are to be considered as an entering of an appearance within the meaning of Art. 26 of the Brussels Ibis Regulation. Nevertheless, the determination of whether the defendant, in making such submissions implicitly contests the court’s jurisdiction is one that needs to be examined carefully in each single case. The defendant is deemed to implicitly contest jurisdiction according to Art. 26 of the Brussels Ibis Regulation if, from the defendant’s allegations it is objectively apparent for the court and the claimant that the defendant invokes the lack of jurisdiction.

The first Commentary on the Service Regulation (1393/2007) in Greece has just been published.

The volume sheds light on all aspects of cross border service within the EU, approaching the topic both from a domestic and an EU-case law viewpoint.

The authors are the following:

Prof. Arvanitakis (Aristotle University, Thessaloniki): Introduction, Article 1-3 & 8-9

Dr. Triantafyllidis (Judge): Articles 4-7 & 10-11

Ass. Professor Yiannopoulos (Democritus University, Thrace): Articles 12-15

Prof. Vassilakakis (Aristotle University, Thessaloniki) : Article 16

Dr. Anthimos (Lecturer, European University Cyprus): Articles 17-26

This book is part of an ambitious project, inspired by two of the authors (Prof. Arvanitakis & Prof. Vassilakakis), which aims at publishing a full set of Commentaries on Private International Law EU – Regulations in Greek. The project kickstarted with the publication of the Commentary on the Brussels II bis Regulation (2016). Commentaries on the Small Claims and at a later stage the Brussels I a Regulations will follow.

Written by Tobias Lutzi, DPhil Candidate and Stipendiary Lecturer at the University of Oxford.

Yesterday, the ECJ has rendered its decision in Case C-498/16 Maximilian Schrems v Facebook Ireland Limited. The case will be of interest to many readers of this blog as its facts are not only closely linked to the ECJ’s well-known decision in Case C-362/14 Schrems but also could have come straight out of a conflict-of-laws textbook.

Maximilian Schrems has been litigating against Facebook and the way in which the company uses the personal data of its users since 2011, when he first submitted a range of complaints to the Irish Data Protection Commissioner. In 2013, he submitted another complaint, which ultimately lead to the annulment of the ‘Safe Harbour’ framework between the EU and the US in the aforementioned decision; the proceedings continued with a reformulated version of this complaint and have recently been referred to the ECJ for a second time. Over the course of this litigation, Schrems built a reputation as a privacy activist, publishing two books, giving talks and lectures, and founding a non-profit organisation that uses ‘targeted and strategic litigation’ to enforce privacy and data protection laws across Europe.

The proceedings that gave raise to yesterday’s decision by the ECJ are formally unrelated to the aforementioned litigation. In 2014, Schrems set out to bring a ‘class action’ against Facebook for numerous violations of privacy and data protection laws. For this purpose, 25,000 Facebook users assigned their claims to him. Only eight of these claims, regarding Schrems’ own Facebook account and Facebook ‘page’ as well as the accounts of seven other users from Austria, Germany, and India, formed the object of the present proceedings. The claims were brought at Schrems’ domicile in Vienna, Austria, based on the special head of jurisdiction for consumer contracts in Art 16(1) Brussels I (= Art 18(1) of the recast Regulation).

The proceedings raised two separate questions, which the Austrian Oberster Gerichtshof ultimately referred to the ECJ:

• Can Schrems still be considered a consumer in the sense of Art 15(1) Brussels I, despite his continued activism and professional interest in the claims?
• If so, can he also rely on the privilege of Art 16(1) Brussels I regarding claims that have been assigned to him by other consumers who are domiciled in (a) the same EU Member State; (b) another Member State; (c) a non-member State?

Following the Advocate General’s opinion (reported here), the Court answered the first question in the positive (I.) and the second one in the negative (II.). Both answers are testimony to a nuanced interpretation of the special rules of jurisdiction for consumer contracts (III.).

1. The Consumer Exception

According to the ECJ’s well-known decisions in Case C-269/95 Benincasa and Case C-464/01 Gruber, the assessment of whether a party is a ‘consumer’ in the sense of Art 15(1) Brussels I does not depend on their subjective qualities but on the ‘the position of the person concerned in a particular contract’ (Benincasa, [16]), which must have been ‘concluded for the purpose of satisfying an individual’s own needs in terms of private consumption’ (ibid, [17]); where a contract has been concluded for a purpose that is partly private and partly professional, the professional aspect of it must be ‘so slight as to be marginal’ for the contract to still fall under the provision (Gruber, [39]).

In the present case, this definition raised two questions. The Court first had to decide whether the assessment was to be made only at the moment when the contract was originally concluded or whether subsequent changes of circumstances must also be taken into account. It held that

[38] … a user of [a digital social network] may, in bringing an action, rely on his status as a consumer only if the predominately non-professional use of those services, for which the applicant initially concluded a contract, has not subsequently become predominately professional.

Second, the Court had to decide whether this was the case for Schrems, who had originally entered into a contract with Facebook for private purposes but subsequently developed a professional activity involving litigation against Facebook. According to the Court,

[39] … neither the expertise which [a] person may acquire in the field covered by those services nor his assurances given for the purposes of representing the rights and interests of the users of those services can deprive him of the status of a ‘consumer’ within the meaning of Article 15 [Brussels I].

[40] Indeed, an interpretation of the notion of ‘consumer’ which excluded such activities would have the effect of preventing an effective defence of the rights that consumers enjoy in relation to their contractual partners who are traders or professionals, including those rights which relate to the protection of their personal data. …

Interestingly, the Court put little emphasis on the possible distinction between Schrems’ private Facebook ‘profile’ and his arguably professional Facebook ‘page’ (see [34]–[36]). Instead, it seemed to generally exclude ‘representing the rights and interests of the users’ of a particular service from the range of professional activities that might prevent the contract for this service from being considered a consumer contract. The Court explicitly linked this interpretation to the objective of ensuring a high level of consumer protection in Art 169 TFEU. Thus, its decision might not even have been different had Schrems joined Facebook with the sole aim of enforcing his (and other users’) rights. This way, the Court effectively sidestepped the problems created by the increasingly wide range of uses to which social media and other online platform accounts can be put, which the Advocate General had so colourfully described as ‘fifty shades of (Facebook) blue’ (Opinion, [46]) – and which, for the time being, remain unaddressed.

1. Jurisdiction for Assigned Claims

With regard to using the second alternative of Art 16(1) Brussels I to bring claims that have been assigned to the claimant by other consumers at the claimant’s domicile, the Court held:

[45] The rules on jurisdiction laid down, as regards consumer contracts, in Article 16(1) of the regulation apply, in accordance with the wording of that provision, only to an action brought by a consumer against the other party to the contract, which necessarily implies that a contract has been concluded by the consumer with the trader or professional concerned ….

…

[48] … [T]he assignment of claims cannot, in itself, have an impact on the determination of the court having jurisdiction …. It follows that the jurisdiction of courts other than those expressly referred to by Regulation No 44/2001 cannot be established through the concentration of several claims in the person of a single applicant. … [A]n assignment of claims such as that at issue in the main proceedings cannot provide the basis for a new specific forum for a consumer to whom those claims have been assigned.

This interpretation seems to align well with earlier decisions by the Court, according to which the special head of jurisdiction in Art 16(1) Brussels I is only available personally to the consumer who is party to the consumer contract in question (Case C-89/91 Shearson Lehman Hutton, [23]; Case C-167/00 Henkel), [33]), and according to which the assignment of a claim does not affect international jurisdiction under the Brussels I Regulation (Case C-352/13 CDC Hydrogene Peroxide, [35]–[36]).

An interesting, and arguably unfortunate, side effect of this restrictive interpretation is that it may even exclude the consolidation of the claims of other Austrian consumers in the same forum, considering that the second alternative of Art 16(1) does not only contain a rule of international jurisdiction but also determines local (internal) jurisdiction. In this regard, the Advocate General argued that an additional forum in which such consumer claims could be brought could be created under national law (Opinion, [117]), a proposition that does not appear easily reconcilable with the clear wording of Art 16(1).

Contrary to the claimant’s press release, though, the fact that a consumer is not allowed to avail him- or herself of the privilege in Art 16(1) Brussels I in order to bring the claims 25,000 other consumers that have been assigned to him at his or her domicile does not mean that company’s can ‘divide and conquer’ and ‘block enforcement of consumer rights’. A claimant is free to rely on the first alternative of Art 16(1) Brussels I (which mirrors Art 2(1)) and bring all claims in the defendant’s Member State of domicile, the procedural law of which will then decide on whether the claims may be consolidated.

III. A Nuanced Approach to the Consumer Exception

What seems to emerge from the decision is a nuanced approach to the special provisions for consumer contracts. The Court applies a rather flexible interpretation to Art 15(1) Brussels I, allowing for changes of circumstances to be taken into account but also distinguishing the enforcement of (consumer) rights from other types of professional activities. At the same time, it interprets the special head of jurisdiction in Art 16(1) restrictively, limiting the privilege to each individual consumer and excluding the possibility of other consumers assigning their claims to one who is domiciled in what may appear as a more favourable forum.

Of course, there may well be strong arguments for the existence of such a possibility, especially in cases where each individual claim is too small to justify litigation but the sum of them is not. But it seems questionable whether Art 16(1) Brussels I would be the right instrument to create such a mechanism of collective redress – and, indeed, whether it should be the Court’s role to implement it.

The Hellenic Republic is the sole EU Member State which provides for the application of Sharia law in its territory for more than a century. A recent amendment is granting Greek Moslems the right to opt-out, and resort to domestic civil law. At the same time, the new law respects the right to opt-in for the application of Sharia law, upon the condition of mutual agreement between the parties.

Law 4511/2018 was enacted on January 15. It contains only one article (the second simply declares that the law will be in force upon publication in the State Gazette), which amends the previous status of Sharia courts in Greece. A new Paragraph (4) is added to Art. 5 Law 1920/1991. By virtue of the new provision, the jurisdiction of the Mufti becomes the exception, whereas (until today) it was the rule for Greek Moslems living in the region of (Western) Thrace. The Mufti has jurisdiction for a vast number of family and succession matters, which are listed under Article 5.2 Law 1920/1991. A prerequisite is that the parties have submitted the above matters to Sharia law.

The new law grants the right to each party to seek Justice before domestic courts, and in accordance with Greek substantive and procedural law. The Mufti may exercise jurisdiction only if both parties file an application for this cause. Once the case is submitted to the Mufti, the jurisdiction of national courts is irrevocably excluded.

In addition, the new law paves the path for a more structured procedure before the Mufti: A drafting Committee will be authorized to prepare a decree, which will shape (for the first time) the Rules and Regulations of the Mufti ‘courts’. Signs of a formalized process are already clearly visible in the new law (Article 4.b).

Inheritance matters are also regulated by the new legislation: In principle they are subjected to Greek law, unless the testator solemnly states before a notary public his wish to submit succession matters to Sharia law. A parallel application of Greek and Sharia law is not permitted. However, revocation of the testator’s declaration is allowed, pursuant to Greek succession law provisions embedded in the Civil Code.

The new law has certainly conflict of laws ramifications too, most notably in light of the recent Sahyouni case of the CJEU. In this respect it is important to underline that all decisions rendered by the Mufti are passing through a hybrid process of domestic exequatur, which is rudimentarily regulated under Article 5.3 Law 1920/1991. Failure to submit the Mufti decisions to domestic courts’ scrutiny, deprives them of res iudicata and enforceability. Hence, EU Member States courts, whenever confronted with a request to recognize or enforce Mufti decisions within their jurisdiction, will always have to examine whether a Greek court has granted full faith and credit to the Mufti’s ruling.

The last issue of the “Revue critique de droit international privé” will shortly be released.

It contains several casenotes and one article, authored by Professor Andrea Bonomi (Lausanne University): « La compétence internationale en matière de divorce. Quelques suggestions pour une (improbable) révision du règlement Bruxelles IIbis ».

A full table of contents is available here.

On 14 December 2017  the CJEU has ruled on the scope of the Regulation (EC) No 805/2004  European Enforcement Order for uncontested claims – Case C-66/17 – Chuda?. Hereby a brief report on the case.

As stated by the CJEU, “Article 4(1) and Article 7 of Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims must be interpreted as meaning that an enforceable decision on the amount of costs related to court proceedings, contained in a judgment which does not relate to an uncontested claim, cannot be certified as a European Enforcement Order.”

In other words, given the definition of an uncontested claim, a EEO can be issued only in relation to a condemnatory decision, not in relation to a declaratory one.

Facts and main proceedings

Mr and Mrs Chuda? had brought a declaratory action before a Polish court of first instance (S?d Rejonowy Pozna?-Grunwald i Je?yce w Poznaniu (District Court in Pozna?, Poland) to establish whether they had acquired the right of ownership over a motor vehicle. The DA Deutsche Allgemeine Versicherung Aktiengesellschaft (Germany) was summoned to appear in the proceedings as defendant, but did not appear.

The court delivered a default judgment, in which it held that Mr and Mrs Chuda? had acquired the right of ownership over the motor vehicle and ordered DA Deutsche Allgemeine Versicherung Aktiengesellschaft to pay the costs of the proceedings. Mr and Mrs Chuda? then initiated the procedure in order to have to the costs of the proceedings certified as a European Enforcement Order.

The District court had doubts as to whether the type of decision felt within the substantive scope of the Regulation No 805/2004 and referred following question to the Court of Justice for a preliminary ruling.

Question for a preliminary ruling

[24] ‘Should Article 4(1) of Regulation … No 805/2004 …, read in conjunction with Article 7 of that regulation, be interpreted as meaning that a European Enforcement Order certificate may be issued in respect of a decision concerning reimbursement of the costs of proceedings contained in a judgment in which a court has established the existence of a right?’

Main considerations

According to the CJEU,

…

[31] Article 4(1) of that regulation defines a ‘judgment’ as encompassing any judgment given by a court or tribunal of a Member State, including ‘the determination of costs or expenses by an officer of the court’. Second, an enforceable decision on the amount of costs related to the court proceedings amounts, in principle, to a ‘claim’ within the meaning of the definition of that term provided by Article 4(2) of the regulation.

[32]  However, as has been noted in paragraph 29 of the present judgment, under the specific provisions governing costs related to court proceedings laid down in Article 7 of Regulation No 805/2004, a decision on the amount of such costs cannot be certified as a European Enforcement Order independently of a judgment on an uncontested claim. In so far as the decision on those costs is intrinsically linked to the outcome of the principal action, which alone justifies the certification of a judgment as a European Enforcement Order, the definitions laid down in Article 4 of that regulation cannot affect the applicability of the regulation.

An international seminar on new procedural legislation in civil and family matters will be held from 13 to 15 February 2018 in Toluca, Mexico. This seminar is being supported by the Conferencia Nacional de Gobernadores (Conago – National Conference of Governors) and there is no registration fee. There will be speakers from Argentina, Mexico, Spain and Germany.

This seminar will showcase two important Mexican initiatives: the draft National Law on Private International Law and the future National Code of Civil and Family Procedure. The former is an initiative of the Mexican Academy of Private International and Comparative Law (Amedip) and other stakeholders. The latter is the result of a groundbreaking reform by the Mexican Congress passed last year which intends to put in place one single code of procedure in civil and family matters in all Mexican states (32) (to replicate the recent experience in criminal matters). This is particularly interesting given that Mexico is a federal State and each state has competence to legislate on matters of civil procedure and as a result, has passed its own code.

For more information, click here for the seminar’s programme or contact direccion.investigaciones@pjedomex.gob.mx

Thanks to Horatia Muir Watt and Hélène van Lith for this post

PAX MOOT  – Bilingual Moot Court Conflict of Laws/Droit International Privé – 6th EDITION

Sciences Po – Law School / école de droit

Sciences Po Law School is delighted to announce the 6th edition of the inter-university Private international law Moot Competition. Sciences Po Law School has been organizing a bilingual moot court on Private International Law in the past 5 years. This 6th edition will be going global and will be called the PAX Moot.

The inter-university PAX Moot will include teams from universities in Europe and beyond. We thank the following institutions for their support and willingness to open the competition to their students: Sorbonne University Paris I, London School of Economics, HEC, Heidelberg University, Luxembourg University, Cambridge University, University College London (UCL), King’s College London, University of Antwerp, Erasmus University, Université Libre de Bruxelles (ULB), Sciences Po Law School. Participation is also open to US exchange students from Harvard, Columbia, Duke, Northwestern, Northeastern, Duke and Penn law schools. Registration is (still) possible until January 31th 2018.

The concept and goal of the PAX Moot is to study and apply private international law for the resolution of cross border disputes through a concrete problem “the Case” and to train law students and practitioners of tomorrow in arguing and analysing complex global legal questions in international litigation.

The Jury of the PAX Moot consists of panels of Moot Court Judges. In previous years, it has comprised at least three professional judges, faculty professors, practicing lawyers, or members of the Hague Conference of Private international law.

The hypothetical case concerns a cross border climate change dispute and includes a number of complex transnational legal questions in Private International Law will be made available to participants on January 31th 2018.

The PAX Moot will consist in oral arguments only and will take place in two rounds: A General Eliminatory Round to be held in Paris at the International Chamber of Commerce (ICC) and a Final Round will be held in The Hague, symbolising the “legal capital of the world” and home of The Hague Conference of Private International Law, which also marks its 125th anniversary.

The PAX MOOT Prize for the best and winning Mooters consist of an internship with the international commercial litigation departments of renowned law firms such as Nauta Dutilh, Amsterdam.

Inquiries can be addressed to Dr. Hélène van Lith by email at helene.vanlith@sciencespo.fr

On February 26th, a workshop on the organization of databases on European civil procedural law will take place at the Max-Planck-Institute (MPI) Luxembourg. The workshop is part of a research project in which the MPI is participating together with major European Universities (Complutense, Milan, Rotterdam, Wroclaw), coordinated by Prof. Jan von Hein, Freiburg (the so called IC2BE project: Informed Choices in Cross-Border Enforcement). The final aim of the project is to assess the working in practice of the “second generation” of EU regulations on procedural law for cross-border cases, i.e., the European Enforcement Order, Order for Payment, Small Claims (as amended by Regulation (EU) 2015/2421) and the Account Preservation Order Regulations. In this framework, we intend to create a data base of national case law. With the input of experts from the Commission and the CJEU on the one hand, and from potential users of the data base on the other, the workshop will explore the possible content and design of such a data base.

As part of the knowledge dissemination strategy, we would like to open the workshop to practitioners (or senior academics) interested in the application of the above mentioned Regulations to apply for an invitation to the workshop. A selection will be made based on a short CV/explanation for being professionally interested in the topics discussed. The invitation would cover the travel expenses and one night accommodation in Luxembourg.

Date: Monday 26th February 2018, from (approx.) 9.30 am to 5 pm. A dinner will take place the day before for those arriving on Sunday 25th.

Venue: Max Planck Institute Luxembourg

Contact person: marta.requejo@mpi.lu

Deadline for applications: 1st February.

Following up on my previous post here, the United States Supreme Court granted certiorari on January 12, 2018 in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. (No. 16-1220).  The grant was limited to the following question presented:

Whether a court may exercise independent review of an appearing foreign sovereign’s interpretation of its domestic law (as held by the Fifth, Sixth, Seventh, Eleventh, and D.C. Circuits), or whether a court is “bound to defer” to a foreign government’s legal statement, as a matter of international comity, whenever a foreign government appears before the court (as held by the opinion below in accord with the Ninth Circuit).

For some of my thoughts on this question, offered well in advance of this case, see here.

It has not yet been mentioned on this blog that the Münchener Kommentar zum Bürgerlichen Gesetzbuch, Vols. 11 and 12, is now available in its seventh edition (2018). This work is a standard treatise not only on German private international law, but on European PIL as well. The new edition contains detailed commentaries on the Rome I, II and III Regulations (by Abbo Junker, Munich; Dieter Martiny, Hamburg/Frankfurt [Oder], Ulrich Spellenberg, Bayreuth, Peter Winkler von Mohrenfels, Rostock), the Hague Protocol on Maintenance (Ansgar Staudinger, Bielefeld) and the European Succession Regulation (Anatol Dutta, Munich). It also contains an introduction to the new EU Regulations on Matrimonial Property and Registered Partnerships (by Dirk Looschelders, Düsseldorf). The relevant Hague Conventions on the Protection of Children and Adults are commented on as well (by Bettina Heiderhoff, Münster, Ansgar Staudinger, Bielefeld and Volker Lipp, Göttingen). The seventh edition is the second one prepared by Jan von Hein (Freiburg/Germany) as volume editor, who has updated the commentary on the general principles of European and German PIL.

From reviews of the 6th edition (2015):

„…a truly indispensable work“ (Ludwig Bergschneider, FamRZ 2015, 1364).

Further information is available on the publisher’s website here.

A working paper authored by Prof. Dr. Dres. h.c. Burkhard Hess, where he contests with strong arguments the suitability of the Lugano Convention (2007) to serve as a bridge between the UK and the EU after Brexit, has just been published at the MPI Luxembourg Working-Paper Series. 

In the current discussion on the post-Brexit judicial cooperation in civil and commercial matters, many consider the ratification of the 2007 Lugano Convention (LC) by the United Kingdom as a suitable avenue for an alignment of the UK with the current regime of European co-operation. Similarly, the UK government has already shown some sympathy for this option. So far, the European Commission has not endorsed any official position.

At first sight, the 2007 Lugano Convention appears an ideal tool for maintaining the core of the existing system of judicial cooperation between the EU and the UK: Although the LC has not been amended to reflect the latest changes (and improvements) introduced with the Brussels Ibis Regulation, it nevertheless provides for the essential provisions of the Brussels regime on jurisdiction, pendency and recognition and enforcement. In addition, Protocol No 2 to the LC requires the courts of non EU Member States only to “pay due account” to the case-law of the Court of Justice of the European Union (ECJ) on the Brussels I Regulation. Hence, Protocol No 2 might provide an acceptable way for British courts to respect the case-law of the ECJ – without being bound by it – in the post-Brexit scenario.

However, as I am going to argue in this posting, the 2007 Lugano Convention is not the appropriate instrument to align judicial cooperation between the United Kingdom and the European Union after Brexit. In the first part, I will briefly summarize the functioning of Protocol No 2 of the LC, as demonstrated by the practice of the Swiss Federal Tribunal. The second part will address the cultural divergences between the continental and the common private international and procedural laws by making use of two examples related to the Brussels I Regulation: the scheme of arrangement, on the one hand, and anti-suit injunctions, on the other hand. As I will explain in my conclusions, only a bilateral agreement between the European Union and the United Kingdom can offer a solution which is suitable and acceptable for both sides.

To continue reading click here.

The Apostille Handbook was originally published in the official languages of the Hague Conference, English and French, and is also available in Greek, Spanish, and Vietnamese.  All language versions are available here.

On December 21, 2017, the Japanese Supreme Court rendered a decision on the Hague Abduction Convention.  The Court upheld a lower court decision in favor of the Japanese mother, even though she  had turned back on her promise to return the kids from a visit to Japan, and even though that same court had earlier issued a return order in favor of the American father. The matter had received international press attention, and even a Congressional subcommittee hearing.

Japan had long refused to join the Hague Convention, and when it did, in 2014, critical observers already expected that courts would find ways to undermine it. Those observers see themselves vindicated.

Colin Jones reports critically on the decision; he has previously written on Japan’s joining the Convention and on reluctance to enforce it. Useful background from the Law Library of Congress is here.

Japanese accession to the Convention has been a frequent scholarly topic, both in Japan and elsewhere. Yuko Nishitani, who had already written about “International Child Abduction in Japan” in (2006) 8 Yearbook of  Private International Law 125-143, and who wrote a long report (in Japanese) for the Japanese Ministry in 2010, provided a brief  analysis in 2011.  Dai Yokomizo discussed the accession in (2012) Revue critique 799; Jun Yokohama did so in the Mélanges van Loon (2013, pp 661-72).  Vol. 57 (2014) of the Japanese Yearbook of International Law contains articles by Tatsuki Nishioka and Takako Tsujisaka, Masayuki Tanamura, Masako Murakami, Martina Erb-Klünemann, and Nigel Vaughan Lowe.  Takeshi Hamano helpfully explains the Japanese reluctance with regard to the Japanese ideology of the family. Outside of Japanese authors, Barbara Stark and Paul Hanley wrote most recently in the United States; the topic is also addressed in several student  notes. The accession was also discussed by Bengt Schwemann (in German) and Francisco Barberán Pelegrín (in Spanish).

Last year we posted about an upcoming conference at the University of Sydney Law School on Commercial Issues in Private International Law.

The programme for the conference, which will take place on 16 February 2018, is now available here. Professor Andrew Dickinson, University of Oxford, and Professor TM Yeo, Singapore Management University, will give the keynote addresses.

Conference registration can be carried out via this link.

Shortly before Christmas the UKSC released its decision on jurisdiction in Brownlie v Four Seasons Holdings Incorporated (available here).

Almost all the legal analysis is obiter dicta because, on the facts, it emerges that no claim against the British Columbia-based holding corporation could succeed (para 15) and the appeal is allowed on that basis. I suppose there is a back story as to why it took a trip to the UKSC and an extraordinary step by that court (para 14) for the defendant to make those facts clear, but I don’t know what it is. On the facts there are other potential defendants to the plaintiffs’ claim and time will tell whether jurisdictional issues arise for them.

The discussion of the value of the place of making a contract for jurisdiction purposes is noteworthy. In para 16 two of the judges (Sumption, Hughes) are critical of using the traditional common law rules on where a contract is made for purposes of taking jurisdiction. This has been the subject of debate in some recent Canadian decisions, notably the difference in approach between the Court of Appeal for Ontario and the Supreme Court of Canada in Lapointe Rosenstein Marchand Melançon LLP v Cassels Brock & Blackwell LLP, 2016 SCC 30 (available here). The SCC was fine with using the traditional rules for this purpose. In Brownlie, I do not think it is clear as to what view the other three judges take on this point.

Even more interestingly, the UKSC judges split 3-2 on how to understand the idea of damage in the forum as a basis for jurisdiction. Three judges (Hale, Wilson, Clarke) retain the traditional broad common law view – the position in many Canadian provinces prior to Club Resorts Ltd v Van Breda, 2012 SCC 17 (available here) – that ongoing suffering in the forum in respect of a tort that happened abroad is sufficient. Two judges (Sumption, Hughes) reject that approach and adopt a more narrow meaning of damage in the forum (it must be direct damage only).

This 3-2 split is closer even than it might first seem, since Lord Wilson (para 57) suggests that in a different case with fuller argument on the point the court might reach a different result.

Canadian law does not get a fair description in the UKSC decision. The court notes twice (para 21 and para 67) that Canada’s common law uses a broad meaning of damage for taking jurisdiction. Club Resorts, and the change to the law it represents on this very issue, is not mentioned. This is yet another illustration of the importance of being careful when engaging in comparative law analysis.

In Beaver v Hill, 2017 ONSC 7245 (available here) the applicant sought custody, spousal support and child support. All relevant facts happened in Ontario.

In response, the respondent asserted that the “inherent right of the Haudenosaunee and the Six Nations to govern themselves includes the right to have inter and intra-familial disputes decided through Haudenosaunee governance processes and protocols and according to Haudenosaunee laws”.

This took the court in some very interesting directions. It held “One of the novel issues that this case raises is whether general conflict of laws jurisdiction principles are also relevant on a more ‘micro-level,’ to an intra-provincial jurisdiction dispute between two Ontario citizens. In my view, these principles remain relevant in this case, even though the dispute has arisen at the intra-provincial level. Although the Respondent is not alleging that the Haudenosaunee or the Six Nations constitute a sovereign nation or other type of territorial entity within Ontario, his jurisdictional challenge is based on an alleged right to be governed by a complete system of dispute resolution, adjudicative processes and laws for handling Family Law matters that is independent of Ontario’s court system, processes and laws. This broad claim has raised basic preliminary issues about the appropriate forum for decision-making and the applicable laws. These are precisely the types of disputes that conflict of laws principles are intended to address.” (para 53)

I think the reaction to this analysis will be mixed. It seems possible that a court could have held exactly the opposite: that conflict of laws principles have nothing at all to do with the objections raised by the respondent. Instead, some form of public or constitutional law analysis is required to determine whether the respondent’s objections to Ontario jurisdiction and law are valid. But I also understand that some scholars have suggested an approach that accords with the court’s: that private international law principles can be used to address conflicts within one jurisdiction between the domestic legal system and indigenous legal systems or approaches. See for example Sara L. Seck, “Treaties and The Emancipatory Potential of International Law” in Michael Coyle and John Borrows, eds, The Right Relationship: Reimagining the Implementation of Historical Treaties (Toronto: University of Toronto Press, 2017).