Conflictoflaws

A volumious book on the International Protection of Adults, edited by Richard Frimston, Alexander Ruck Keene, Claire van Overdijk and Adrian Ward, has just been published (Oxford University Press, 2015).

The blurb reads:

Increasing numbers of people have connections with one country, but live and work in another, frequently owning property or investments in several countries. People with lifelong or subsequently developed impairments of capacity move cross-border or have property or family interests or connections spread across different jurisdictions. This new work fills a gap in a specialist market for a detailed work advising lawyers on all the considerations in these situations.

The book provides a clear, comprehensive, and unique overview of all relevant capacity and private international law issues, and the existing solutions in common law and civil law jurisdictions and under Hague Convention XXXV. It sets out the existing law of various important jurisdictions, including detailed chapters on the constituent parts of the UK, Ireland, Jersey, the Isle of Man and the Hague 35 states; and shorter chapters on 26 Non-Hague states and those within federal states, including coverage of the United States, several Australian and Canadian states, and a number of other Commonwealth jurisdictions. Containing a number of helpful case studies and flowcharts, the book draws upon the expertise of the editors in their respective fields, together with detailed contributions from expert practitioners and academics from each relevant jurisdiction.

Furhter information is available here.

A volumious book on the International Protection of Adults, edited by Richard Frimston, Alexander Ruck Keene, Claire van Overdijk and Adrian Ward, has just been published (Oxford University Press, 2015).The blurb reads:

Increasing numbers of people have connections with one country, but live and work in another, frequently owning property or investments in several countries. People with lifelong or subsequently developed impairments of capacity move cross-border or have property or family interests or connections spread across different jurisdictions. This new work fills a gap in a specialist market for a detailed work advising lawyers on all the considerations in these situations.

The book provides a clear, comprehensive, and unique overview of all relevant capacity and private international law issues, and the existing solutions in common law and civil law jurisdictions and under Hague Convention XXXV. It sets out the existing law of various important jurisdictions, including detailed chapters on the constituent parts of the UK, Ireland, Jersey, the Isle of Man and the Hague 35 states; and shorter chapters on 26 Non-Hague states and those within federal states, including coverage of the United States, several Australian and Canadian states, and a number of other Commonwealth jurisdictions. Containing a number of helpful case studies and flowcharts, the book draws upon the expertise of the editors in their respective fields, together with detailed contributions from expert practitioners and academics from each relevant jurisdiction.

Furhter information is available here.

By Polina Pavlova, research fellow at the MPI Luxembourg.

July, 21st 2015 has marked another important step in the private enforcement of competition law in Europe. Only two months after the long awaited preliminary ruling in the case CDC Hydrogen Peroxide (C-352/13) was delivered on May, 21st, the Amsterdam Court of Appeal seems to be the first one to apply the new ECJ case law on jurisdiction in cartel damage cases. Its judgment (accessible here in Dutch and German) dealt with compensation claims against members of the sodium chlorate cartel and applied the recently established ECJ principles even before the referring court itself (the Dortmund District Court) could render a judgment on its jurisdiction.

Background of the case is the bundled enforcement of the claims of damaged customers in the aftermath of the Decision of the EU Commission from June, 11th 2008 fining a number of undertakings for their participation in a sodium chlorate cartel operating EEA wide. Following this decision, Cartel Damage Claims, a special purpose vehicle based in Brussels, started buying off claims of the cartel victims and filed a suit against several cartel members before the District Court of Amsterdam. The latter accepted jurisdiction with a judgment from June, 4th 2014: a judgment which was subject to scrutiny and eventually confirmed by the Amsterdam Court of Appeal.

The application in the appeal proceedings questioned the jurisdiction of the Dutch courts over a cartel member seated in Finland. The Amsterdam judges confirmed the decision of the lower court according to which, since one of the co-defendants in the first instance proceedings was seated in the Netherlands, jurisdiction can be based on ex-Article 6 (1) of the Brussels I Regulation. Transposing the reasoning of the ECJ in CDC Hydrogen Peroxide – issued in a parallel scenario – to the proceedings at hand, the Court of Appeal considered the EU jurisdictional rule on joint defendants applicable. The close connection between the claims in the sense of ex-Article 6 (1) and in particular the same situation of fact and law – a requirement well established in ECJ case law – was deemed fulfilled: Following CDC Hydrogen Peroxide, the national appellate court decided that the commitment of a continuous competition law infringement sanctioned by the Commission’s Decision was sufficient to create an identical factual and legal background of the cartel damage claims. In addition, the court clarified that a company which has been held responsible for the cartel by the Commission can serve as an anchor defendant for the purposes of ex-Article 6 (1) even where the latter is a parent company of a cartel member and has not directly participated in the infringement.

Finally, the Amsterdam Court of Appeal (upholding the first instance decision) confirmed that the standard jurisdiction and arbitration clauses contained in the supply agreements between the cartel members and their customers do not apply to cartel damage claims. As far as the evoked jurisdiction agreements were concerned, the appellate court applied the reasoning of the ECJ in CDC Hydrogen Peroxide relating to the interpretation ex-Article 23 (para 70 f.). The disputes were qualified as deriving from a competition law infringement previously unknown to the customers and not from the multiple contractual relationships between suppliers and customers as such. They could thus not be covered by the standard wording of a jurisdiction clause regulating the contractual relation of the parties. Regarding the arbitration agreements, the court saw no reason to deviate from the aforementioned interpretation.

The appeal of the Finish cartel member was thus dismissed.

It is interesting to note that in this judgment the national Court of Appeal merely confirms what the Amsterdam District Court had already decided in 2014, long before the ECJ rendered its CDC Hydrogen Peroxide ruling. Even though the lower court did not await the judgment of the ECJ, its result seems to fall completely in line with the now EU-wide binding principles formulated by the Luxembourg judges. This demonstrates that the ECJ case law now simply prescribes what private enforcement friendly jurisdictions were doing anyway.

What is perhaps more intriguing, is to observe where the national court went even one step further than the ECJ in completely transposing the considerations on the material scope of the choice-of-court clauses to the other type of dispute resolution clauses at issue, i.e. the arbitration agreements. This was motivated by the sole consideration that there are no reasons to judge differently in this regard. While this might be a welcome interpretation, the issue of the applicability and interpretation of arbitration clauses was left untouched by the ECJ ruling (see para 58, particularly evident in comparison to the Advocate General’s opinion in the CDC Hydrogen Peroxide proceedings which dealt extensively with the issue, see there at para 118 ff.). Nevertheless, the equal treatment of the two types of (standard) dispute resolution clauses as regarding their scope seems to be common before Member State courts. This feature might prove to broaden the actual effect of the CDC Hydrogen Peroxide case law beyond its explicit scope (see e.g. the judgment of the District Court of Helsinki from of the July, 4th 2013, also concerning the Hydrogen Peroxide cartel). It remains to be seen how other jurisdictions will see the application of arbitration clauses in cartel damage cases.

The mentioned proceedings are only instances of a much broader landscape of private enforcement of cartel damage claims in the EU conducted to a great extent by special vehicles such as CDC. It seems that the Dutch jurisprudence might be, once again, setting an example on how international jurisdiction in competition law damage cases is to be dealt with by member state courts.

 

 

 

This post has been written by Ester di Napoli.

On 16 July 2015, the European Court of Justice (ECJ) rendered its judgment in the case of A v. B (C-184/14), clarifying the interpretation of Regulation No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (the Maintenance Regulation).

More specifically, the ruling regarded the interpretation of Article 3 of the Regulation. This provides, inter alia, that jurisdiction in matters of maintenance lies with “(c) the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties”, or with “(d) the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties”.

The dispute in the main proceedings concerned the legal separation of two Italians and the custody of their children. These proceedings had been brought by A (the husband) against B (the wife) before the District Court of Milan.

The Court of Milan asserted its jurisdiction in respect of legal separation relying on Article 3(1)(b) of Regulation No 2201/2003 (Brussels IIa), but held that, pursuant to Article 8(1) of that Regulation, it lacked jurisdiction over parental responsibility, as the children were, at the material time, habitually resident in the UK. The Court of Milan further held that, according to Article 3(c) and (d) of the Maintenance Regulation, it had jurisdiction to decide on the issue of maintenance for the benefit of the wife, but not to decide on maintenance for the benefit of the children, since the latter request was not ancillary to proceedings over personal status, but to proceedings concerning parental responsibility.

The case eventually reached the Italian Supreme Court, which decided to request the ECJ for a preliminary ruling. The Supreme Court asked whether, in circumstances such as those described above, a maintenance request pertaining to the child may be ruled on both by the court that has jurisdiction over legal separation or divorce, as a matter ancillary to the proceedings concerning the status of a person, within the meaning of Article 3(c) of that Regulation, and by the court that has jurisdiction to entertain the proceedings concerning parental responsibility, as a matter ancillary to those proceedings, within the meaning of Article 3(d) of that Regulation; or whether a decision on a similar matter can only be taken by the latter court.

Put otherwise, the issue was whether the heads of jurisdiction set out in Article 3(c) and (d) of the Maintenance Regulation must be understood to be mutually exclusive, or whether the conjunction “or” in the provision implies that the courts that have jurisdiction over legal separation and parental responsibility may be both validly seised of an application relating to maintenance in respect of children.

In its judgment, the ECJ begins by observing that the scope of the concept of “ancillary matter” cannot be left to the discretion of the courts of each Member State according to their national law. The meaning of this expression should rather be determined by reference to the wording of the relevant provisions, their context and goals.

The wording of Article 3(c) and (d) indicates that a distinction should be made between proceedings concerning the status of a person and proceedings concerning parental responsibility. In the face of this wording, it cannot be unequivocally established “whether the alternative nature of those criteria means that the applications relating to child maintenance are ancillary only to one set of proceedings concerning parental responsibility, or whether those applications may be deemed ancillary also to proceedings concerning the status of a person”.

As regards the context of the pertinent provisions, the ECJ notes that the above distinction echoes the distinction made by the Brussels IIa Regulation between disputes concerning divorce, legal separation and marriage annulment, on the one hand, and disputes regarding the attribution, exercise, delegation, and restriction or termination of parental responsibility, on the other. The ECJ further notes in this connection, based on Recital 12 of the preamble of the latter Regulation, that the rules on jurisdiction relating to parental responsibility underlie a concern for the best interests of the child, and adds that “an application relating to maintenance in respect of minor children is … intrinsically linked to proceedings concerning matters of parental responsibility”.

The ECJ concludes that “it is vital to take into account, in interpreting the rules on jurisdiction laid down by Article 3(c) and (d) of Regulation No 4/2009, the best interest of the child”, and that the implementation of such Regulation “must occur in accordance to Article 24(2) of the Charter of Fundamental Rights of the European Union”, according to which, in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

Finally, as regards the goals of the provisions at stake, the Court considers that the main objective of the Maintenance Regulation is to ensure, in this field, the proper administration of justice within the EU. This implies that the court to which jurisdiction is conferred to decide on parental responsibility should be the court that finds itself “in the best position to evaluate in concreto the issues involved in the application relating to child maintenance, to set the amount of that maintenance intended to contribute to the child’s maintenance and education costs, by adapting it, according to (i) the type of custody (either jointly or sole) ordered, (ii) access rights and the duration of those rights and (iii) other factual elements relating to the exercise of parental responsibility brought before it”.

In light of the above, the ECJ concludes that, when the court of a Member State is seised of proceedings concerning legal separation or divorce between the parents of a minor child, and the court of another Member State is seised of proceedings involving matters of parental responsibility over the same child, Article 3(c) and (d) of Regulation No 4/2009 must be interpreted as meaning that “an application relating to maintenance concerning that child is ancillary only to the proceedings concerning parental responsibility, with the meaning of Article 3(d) of that Regulation”.

Professor Dr. Tim W. Dornis, who teaches law at the Leuphana University (Lüneburg/Germany), has published a very interesting article on the application of the local data theory in European private international law in the Swiss Review of International and European Law (SZIER/RSDIE): Tim W. Dornis, Die Theorie der local data: dogmatische Bruchstelle im klassischen IPR, SZIER/RSDIE 25 (2015), p. 183. The author has kindly provided us with the following English summary:

“Quite often, the applicable law in international torts is not the law of the place where the tortfeasor acted. Indeed, both article 17 of Rome II and article 142 of the Swiss PIL provide for a consideration of “local rules of safety and conduct” instead of an application of the lex causae. Nevertheless, many questions around this so-called local-data doctrine remain unanswered—in particular, the distinction between rules that are “strictly territorial” and rules that are deemed to allow for more “flexibility” is problematic.

An oft-enunciated illustration of the first category is a traffic accident between two German tourists in England. While the German lex domicilii communis may be applied with respect to the liability of the tortfeasor, the English rule of driving on the left side of the street must provide for the standard of conduct. Of course, the tortfeasor cannot claim that he was acting in accordance with German traffic laws while driving his car in England. An example of the second, more flexible category can be found in rules on alcohol limits. These rules are supposed to be more adaptable insofar as parties from the same country are able to ‘carry’ their lex communis with them into a foreign jurisdiction.

If agreement exists—and it does—that considering local data serves lawmakers’ concern for maintaining the local order, this differentiation is questionable. Don’t alcohol limits also promote the safety of local traffic? A closer look at these and other problems reveals that the issue of local data lies at the heart of a debate confronting European choice of law in the Savignian tradition: the discussion on the interrelation between substantive justice and conflicts justice. As this article suggests, a more policy-oriented view allows for modest changes in the categorization of local rules of safety and conduct. This ultimately paves the way for consistent and practically workable results.”

(I am grateful to Prof. Francesca Villata – University of Milan – for the following presentation of the latest issue of the RDIPP)

The second issue of 2015 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features one article and two comments.

In her article Costanza Honorati, Professor at the University of Milano-Bicocca, examines the issue of child abduction under the Brussels IIa Regulation in “La prassi italiana sul ritorno del minore sottratto ai sensi dell’art. 11 par. 8 del regolamento Bruxelles II-bis” (Italian Practice on the Return of the Abducted Child Pursuant to Art. 11(8) of the Brussels IIa Regulation; in Italian).

The vast majority of return applications filed with the Italian Central Authority under the 1980 Hague Convention on the civil aspects of international child abduction concern children who are habitually resident in Italy and have been wrongfully removed to a foreign State (so-called “outgoing cases”). Therefore, it is not surprising that some of the foreign decisions refusing to return a child on the grounds of Article 13(1)b of the Convention were challenged before Italian courts with the special procedure provided under Article 11(8) of the Brussels IIa Regulation. Indeed, Italy stands out as one of the very few EU States that provide some case law on Article 11(8) of the Brussels IIa Regulation. However, it does come as a surprise that in most of these cases Italian courts, after a thorough analysis of the facts, including what was produced in the foreign proceedings, have confirmed the foreign non-return order and dismissed the request for return. In fact, only in a small number of cases the court has found the foreign decision to be ill-founded and has adopted a «trumping» return order. The present article aims at reviewing and analysing both groups of decisions, showing, on one side, how the time factor is often crucial and rightly kept into consideration by the court of habitual residence when deciding for non-return. On the other side, time is of the essence also in cases where the court of habitual residence orders for the children to be returned. When such order is not complied with or enforced in a very short time, it is here assumed that best interest of the child would call for a subsequent review of the decision rendered by the court of the place of the child’s habitual residence.

In addition to the foregoing, the following comments are also featured:

Elisabetta Bergamini, Associate Professor at the University of Udine, discusses status of children in a private international law perspective in “Problemi di diritto internazionale privato collegati alla riforma dello status di figlio e questioni aperte” (Questions of Private International Law Related to the Status of Children and Open Issues; in Italian).

This paper examines the Italian law reforming the status of children (Law No 219/2012), which finally abolished all discriminations between children born in and out of wedlock, and the consequences such abolishment entails at a private international law level. The first part of the paper analyses the reform, its principles and the problems related to the definition of the rules on the unity of the status of the child as “overriding mandatory provisions”. The second part tackles some of the most relevant unsolved problems related to children status, such as the establishment of the parental link in case of medically assisted reproduction, the regime applicable to surrogate motherhood, and the legal vacuums affecting children of same-sex couples. In this regard, particular attention is paid to the Italian case-law, as well as its relationship with the ECtHR and the EU case-law, and to the possible solutions to the non-recognition of the personal status acquired in a foreign country.

Silvia Marino, Researcher at the University of Insubria, tackles choice-of-court agreements in parental responsibility matters in “La portata della proroga del foro nelle controversie sulla responsabilità genitoriale” (The Scope of Choice-of-Court Agreements in Disputes over Parental Responsibility; in Italian).

This article examines two recent judgments of the European Court of Justice concerning choice of forum in matters related to parental responsibility. These decisions offer the opportunity to reflect on the pre-conditions for the validity of the choice of forum clause, i.e. the agreement, the proximity, the interest of the child and the connection with another proceeding, and the relationships between different bases of jurisdiction (habitual residence and forum non conveniens). Analysing the peculiar facts of the cases and the clarifications provided by the ECJ, the article tackles those pre-conditions from a practical and concrete standpoint with a view to understanding when and how the different bases of jurisdiction can be used. Some final considerations are devoted to the concrete range of the choice of the parties.

Indexes and archives of RDIPP since its establishment (1965) are available on the website of the Rivista di diritto internazionale privato e processuale. This issue is available for download on the publisher’s website.

The publishing house C.H. Beck has recently released the “Gedächtnisschrift für Hannes Unberath”. Edited by Stefan Arnold and Stephan Lorenz the volume contains, among others, four German language contributions relating to private international law and international civil procedure:

• Frank Bauer, Art. 59 EuErbVO: Verfahrensrechtliche Kollisionsnorm zur Sicherung des freien Verkehrs öffentlicher Urkunden (pp. 19 ff.)
• Wolfgang Hau, Zivilsachen mit grenzüberschreitendem Bezug (pp. 139 ff.)
• Peter Kindler, Der europäische Vertragsgerichtsstand beim Warenkauf im Lichte der Rechtsprechung des Europäischen Gerichtshofes (pp. 253 ff.)
• Gerald Mäsch, Patrick Battistons Jackettkronen und das Kollisionsrecht, oder: Das Deliktsstatut bei Verletzungen im Rahmen von internationalen  Sportgroßveranstaltungen (pp. 303 ff.)

For more information see the publisher’s website.

…For the Spanish lawmaker to fulfill the promise, made in 2000, of a Ley de cooperación juridical internacional en material civil.

The new Act can be downloaded here. It will come into force  in twenty days.

 

Many thanks to Dr. Cristian Oró for the hint.

 

 

Dr. Agnieszka Oko?ska, LL.M. (Leipzig), has just published a monumental comparative study on “The Counterclaim in the Civil Procedural Law of the European Union and its Member States” (Die Widerklage im Zivilprozessrecht der Europäischen Union und ihrer Mitgliedstaaten, Mohr Siebeck, Tübingen, 2015, XLVI, 672 pages; Veröffentlichungen zum Verfahrensrecht Vol. 118, € 99.00). The laws on civil procedure of all European Union member states and the contracting states of the Lugano Convention are familiar with the counterclaim. Agnieszka Oko?ska examines meticulously the interaction between national provisions and those contained in the EU Regulations on counterclaims (the Brussels Ibis Regulation, Small Claims Regulation and the Maintenance Regulation). The author identifies pervasive conflicts and offers solutions to them. Her analysis is based on a thorough comparative analysis of various European legal orders, in particular Germany, Austria, France, England and Poland. The author also looks at the counterclaim in public international and ecclesiastical law. Her study was accepted by the law faculty of the University of Trier as a doctoral dissertation “summa cum laude” under the supervision of Professor Dr. Jan von Hein (now University of Freiburg/Germany). For further information, see here.

The Institute of European and Comparative Law at the University of Oxford is organising a conference on “General Principles of Law: European and Comparative Perspectives” that will be held at St Anne’s College Oxford and the Mathematical Institute, University of Oxford, on 25-26 September 2015.

The description of the conference on the Institute’s website reads as follows:

” ‘General principles of law’ are one of the most visible areas of intersection between EU law and comparative law: as long as they are understood as ‘the general principles common to the laws of the Member States’ (Art 340(2) TFEU) their fleshing out requires careful comparative preparatory work. True, more often than not, the general principles of EU law were not developed on the basis of thorough and textbook style analysis. This does not make it less interesting to look at the interaction of EU law and comparative law in this particular field. Those working together in elaborating general principles of EU law tend to be responsive to input from national laws, and the laws of the Member States have no choice but to be responsive to the general principles developed at EU level.

It is the purpose of this conference to look at this particular interaction from the perspectives of EU law and comparative law alike. Leading scholars and practitioners from both fields will come together to discuss the most recent developments in the field.

The conference will be held on the occasion of the twentieth anniversary of the Oxford Institute. It will bring together current and former members, visitors and friends of the Institute, as well as those who might belong to one of these categories in the future. Celebration will be an essential part of the proceedings!”

Further information, including the full programme and registration details can be found here.

It has already been announced on this blog that the Academy of European Law (ERA) will host an international, English-language conference on recent experience and current trends in international commercial litigation, with a special focus on European private international law (see our earlier post here). The event will take place in Trier (Germany), on 8-9 October 2015. A slightly revised programme has now been put online and is available here. Registration is still possible here – so don’t miss the early bird rebate (before 8 September 2015)!

Professor Dr. Stefan Arnold (University of Graz, Austria) is organising a workshop on general principles of European private international law in Munich on 18 September 2015. Renowned speakers will deal with pervasive problems such as the notion of a family in PIL, the applicability of religious law, general principles of attachment, party autonomy, renvoi and public policy. The programme may be downloaded here. The conference will be held in German at the Bavarian Academy of Sciences. Participation is free of charge, but prior registration is required here.

Professors Anatol Dutta (University of Regensburg), Tobias Helms (University of Marburg) and Walter Pintens (University of Leuven) are organising a conference on a draft for a European regulation on the law applicable to names in Marburg (Germany) on Friday, 27 November 2015; for the programme, further information and registration, see here. The background of this event lies in the fact that, in spite of the far-reaching Europeanization of private international law, common conflicts rules on this matter are currently lacking. As a consequence, natural persons moving from one Member State to another may suffer from a non-recognition of a name that they have acquired abroad. In order to cure those “limping” legal relationships, a Working Group was convened by the Federal Association of German Civil Status Registrars in order to elaborate a proposal for a European Regulation. The resulting proposal has been published in English in the Yearbook of Private International Law XV (2013/14), pp. 31-37 and in French in the Revue critique de droit international privé 2014, pp. 733 et seq. The aim of the upcoming conference is to present and analyse the Working Group’s proposal and to trigger further academic discussion on the subject. The conference language will be German. Participation is free of charge, but registration is required before or on 31 October 2015 at the latest.

Paul Beaumont and Katarina Trimmings (Director and Deputy Director of the Centre for Private International Law, University of Aberdeen, respectively) have just published a highly interesting paper on “Recent jurisprudence of the European Court of Human Rights in the area of cross-border surrogacy: is there still a need for global regulation of surrogacy?”. The article is the second paper in the Working Paper Series of the Centre for Private International Law (University of Aberdeen) and is now available on the Centre’s website here.

The first part of their paper examines the recent decisions of Chambers of the European Court of Human Rights in cases of Mennesson v. France (on this case, see the earlier post by Marta Requejo), Labassee v. France (cf. the earlier post by F. Mailhé), and Paradiso and Campanelli v. Italy. It then makes some suggestions as to how the Grand Chamber should deal with the Paradiso and Campanelli case before analysing the likely consequences of the Mennesson and Labassee judgments for national authorities in the context of surrogacy. The article then explores whether, following these decisions, there is still a need for an international Convention regulating cross-border surrogacy.

For those interested in recent developments in German case law on cross-border surrogacy, I also recommend an earlier post by Dina Reis.

PhD Researcher Elena Alina Ontanu (supervised by Prof. Xandra Kramer) from Erasmus University Rotterdam is conducting an empirical and comparative research on the functioning of the European Order for Payment and the European Small Claims Procedure in England and Wales, France, Italy and Romania. Practitioners from one these jurisdictions having experience with (one of) these procedures are warmly invited to fill in the surveys by clicking the links below. The collected data aim to gain a better insight into the use and functioning of these procedures in the selected Member States.

England and Wales
– European Order for Payment
– European Small Claims Procedure

France
– Injonction de payer européenne
– Règlement européen des petits litiges

Italy
– Ingiunzione europea di pagamento
– Procedimento europeo per le controversie di modesta entità

Romania
– Somatia europeana de plata
– Procedura europeana privind cererile cu valoare redusa

The surveys are divided in several sections regarding various aspects of the procedures. Please note that some questions might not be relevant for all legal professions. The time necessary for filling in a survey ranges between fifteen to thirty minutes, and participation will remain anonymous. Multi-session access to the surveys is possible from the same computer. The survey will remain open until 30 September 2015.

We thank you for sharing your invaluable experience and views.

On July 16, 2015, the often-thought-of-as-“liberal” (but it may surprise you) Ninth Circuit issued a decision confirming the high hurdles to bring suit against non-U.S. corporations in U.S. courts (and also confirmed how hard it can be to bring suit against U.S. corporations for alleged harms occurring abroad).  The plaintiff in the case, Loredana Ranza (a U.S. citizen residing in the Netherlands at the time of suit and now living in Germany), brought suit against her Netherlands employer, Nike European Operations Netherlands, B.V. (NEON), and its parent corporation, Nike, Inc., for violations of federal law prohibiting sex and age discrimination.  The questions before the Court were (1) whether NEON was subject to general jurisdiction in Oregon, (2) whether Nike’s contacts with Oregon could be attributed to NEON to establish general jurisdiction, and (3) whether the case should be dismissed on forum non conveniens grounds.

As to NEON, the Ninth Circuit noted that merely doing business in the forum state cannot suffice for purposes of general jurisdiction.  The Court deemed it insufficient to establish general jurisdiction that NEON employees traveled frequently to Oregon and entered into business agreements there.  Thus, because NEON did not have its principal place of business and was not incorporated in Oregon, it was not subject to general jurisdiction.  Note:  there has been some question following recent Supreme Court decisions whether merely “doing business” in the forum can establish general jurisdiction.  The Ninth Circuit has come down on the side of “no,” which could be very influential as other courts continue to deal with this issue.

Next, the Court considered whether Nike’s contacts could be attributed to NEON to establish general jurisdiction.  Note the twist:  most imputation cases involve using a domestic subsidiary’s contacts with the forum state to get jurisdiction over a foreign parent corporation.  This question had been briefed but was not decided by the Supreme Court in its Daimler decision.  Here, the Ninth Circuit held that contacts could only be attributed when the subsidiary acts as the alter ego of the parent.  Because the plaintiff could not show that the corporate formalities were not observed, Nike’s contacts could not be imputed to NEON.  In so holding, the Ninth Circuit interred its agency test for attribution, whereby contacts could be imputed when the subsidiary performed “important” work that the parent would have to do for itself if the subsidiary did not exist.  In light of the alter ego test, it will now be incredibly hard to base jurisdiction on attribution of contacts in the Ninth Circuit.

Finally, since Nike was subject to general jurisdiction in Oregon, the Court considered whether the case should be dismissed on forum non conveniens grounds.  According to the Court, “[o]n balance, the inconvenience of litigating this case in Oregon, the inefficiency and inadvisability of relitigating claims the Dutch ETC has already decided, and the adequacy of the ETC as an alternative forum establish that the District of Oregon is not an appropriate forum for Ranza’s claims.”

Taken as a whole, this case confirms that U.S. may be moving away from permissive jurisdictional rules, and that the U.S. may no longer be quite such a magnet forum.

The publishing house Gieseking has recently released the “Festschrift für Dagmar Coester-Waltjen” (for more information see the publisher’s website). Edited by Katharina Hilbig-Lugani, Dominique Jakob, Gerald Mäsch, Phillipp Reuß and Christoph Schmid the volume contains, in part II, a large number of (mostly, but not only German language) contributions relating to private international law and international civil procedure:

• Tu?rul Ansay, State Courts in Commercial Arbitration and Confidentiality (pp. 843 ff.)
• Jürgen Basedow, Gegenseitigkeit im Kollisionsrecht (pp. 335 ff.)
• Katharina Boele-Woelki, Van het kastje naar de muur – Zur Eheschließung in Deutschland bei bestehender registrierter Partnerschaft nach niederländischem Recht (pp. 349 ff.)
• Josef Drex, The European Unitary Patent System: On the ‘Unconstitutional’ Misuse of Conflict-of-Law Rules (pp. 361 ff.)
• Reinhold Geimer, Grenzüberschreitender Gewaltschutz in der Europäischen Union: Eine Facette der Europäisierung des internationalen Verfahrensrechts (pp. 375 ff.)
• Peter Gottwald, Aktuelle Probleme des Internationalen Schiedsverfahrensrechts (pp. 389 ff.)
• Beate Gsell, Die Zulässigkeit von Gerichtsstandsvereinbarungen mit Verbraucherbeteiligung und Drittstaatenbezug unter der neuen EuGVO (pp. 403 ff.)
• Bettina Heiderhoff, Der Erfolgsort bei der Persönlichkeitsrechtsverletzung im Internet (pp. 413 ff.)
• Tobias Helms, Neubewertung von Privatscheidungen nach ausländischem Recht vor dem Hintergrund der Entwicklungen im deutschen Sach-, Kollisions- und Verfahrensrecht (pp. 431 ff.)
• Dieter Henrich, Im Ausland begründete und im Inland fortgeführte heterosexuelle Lebenspartnerschaften (pp. 443 ff.)
• Burkhard Hess, Grenzüberschreitende Gewaltschutzanordnungen im Europäischen Justizraum (pp. 453 ff.)
• Erik Jayme, Zur Formunwirksamkeit von Testamenten im Internationalen Privatrecht (pp. 461 ff.)
• Eva-Maria Kieninger, Das internationale Sachenrecht als Gegenstand eines Rechtsakts der EU – eine Skizze (pp. 469 ff.)
• Peter Kindler, Gerichtsstandsvereinbarung und Rechtshängigkeitssperre: Zum Schutz vor Torpedo-Klagen nach der Brüssel Ia-Verordnung (pp. 485 ff.)
• Helmut Köhler, Wettbewerbsstatut oder Deliktsstatut? – Zur Auslegung des Art. 6 Rom-II-VO (pp. 501 ff.)
• Herbert Kronke, Internationales Beweisrecht in der Praxis des Iran-United States Claims Tribunal (pp. 511 ff.)
• Volker Lipp, Anerkennungsprinzip und Namensrecht (pp. 521 ff.)
• Dirk Looschelders, Die allgemeinen Lehren des Internationalen Privatrechts im Rahmen der Europäischen Erbrechtsverordnung (pp. 531 ff.)
• Nigel Lowe, Strasbourg in Harmony with The Hague and Luxembourg over Child Abduction? (pp. 543 ff.)
• Ulrich Magnus, Rom I und der EuGH – für die Auslegung der Rom I-VO bereits relevante EuGH-Rechtsprechung (pp. 555 ff.)
• Peter Mankowski, Primärrechtliche Anerkennungspflicht im Internationalen Familienrecht? (pp. 571 ff.)
• Heinz-Peter Mansel, Gesamt- und Einzelstatut: Die Koordination von Erb- und Sachstatut nach der EuErbVO (pp. 587 ff.)
• Dieter Martiny, Internationale Kindesentführung und europäischer Menschenrechtsschutz – Kollision unterschiedlicher Ansätze (pp. 597 ff.)
• Thomas Pfeiffer, Der internationale Anwendungsbereich des Mindestlohngesetzes (pp. 611 ff.)
• Peter Picht, „Wo die Liebe Wohnsitz nimmt“ – Schlaglichter auf deutsch-schweizerische Ehegattenerbfälle in Zeiten der EuErbVO (pp. 619 ff.)
• Hanns Prütting, Der Fall Weber des EuGH und der dingliche Gerichtsstand des Art. 22 Nr. 1 EuGVVO (pp. 631 ff.)
• Thomas Rauscher, Nur ein Not-Sitz des Rechtsverhältnisses Zum gewöhnlichen Aufenthalt im Personalstatut (pp. 637 ff.)
• Walter Rechberger, Zu den Bewilligungsvoraussetzungen einer vorläufigen Kontenpfändung nach der EuKoPfVO (pp. 651 ff.)
• Oliver Remien, Unsicherheiten bei astreinte, dwangsom und Zwangsgeld im Europäischen Rechtsraum – zu Art. 55 EuGVVO 1215/2012 / Art. 49 EuGVVO 44/2001 sowie der GMVO in der Rechtspraxis – (pp. 661 ff.)
• Philipp M. Reuß, Gestaltung des europäischen abstammungsrechtlichen Kaleidoskops – Einige Überlegungen zur Anerkennung der niederländischen Duo-Mutterschaft in Deutschland (pp. 681 ff.)
• Giesela Rühl, Grenzüberschreitender Verbraucherschutz: (Nichts) Neues aus Brüssel und Luxemburg? (pp. 697 ff.)
• Klaus Sachs und Evgenia Peiffer, Schadensersatz wegen Klage vor dem staatlichen Gericht anstatt dem vereinbarten Schiedsgericht: Scharfe Waffe oder stumpfes Schwert im Arsenal schiedstreuer Parteien? (pp. 713 ff.)
• Haimo Schack, Beweisregeln und Beweismaß im Internationalen Zivilprozessrecht (pp. 725 ff.)
• Peter Schlosser, „Interventionsklagen“ in Deutschland? (pp. 733 ff.)
• Klaus Schurig, Der Anlauf zu einem Paradigmenwandel im internationalen Gesellschaftsrecht (pp. 745 ff.)
• Rolf A. Schütze, Das chess clock Verfahren und andere Probleme des Beweisrechts im internationalen Schiedsverfahren (pp. 757 ff.)
• Kurt Siehr, Zur Reform des deutschen Internationalen Abstammungsrechts (Art. 19 und 20 EGBGB) (pp. 769 ff.)
• Hans Jürgen Sonnenberger, Zur Reform der kollisionsrechtlichen Behandlung der Eingehung einer Ehe und anderer personaler Lebens- und Risikogemeinschaften – ein zweiter Zwischenruf (pp. 787 ff.)
• Ulrich Spellenberg, Die zwei Arten einstweiliger Maßnahmen der EheGVO (pp. 813 ff.)
• Andreas Spickhoff, Vorsorgeverfügungen im Internationalen Privatrecht (pp. 825 ff.)
• Michael Stürner : Die Rolle des Kollisionsrechts bei der Durchsetzung von Menschenrechten (pp. 843 ff.)
• Rolf Stürner. Prozessökonomie als gemeineuropäischer Verfahrensgrundsatz? (pp. 855 ff.)
• Luboš Tichý: Die Anerkennung des Trusts als ein spezifisches Problem des IPR (pp. 865 ff.)
• Satoshi Watanabe: The Ratification of the Hague Child Abduction Convention and its Implementation in Japan (pp. 883 ff.)
• Marc-Philippe Weller: Die lex personalis im 21. Jahrhundert: Paradigmenwechsel von der lex patriae zur lex fori (pp. 897 ff.)
• Pelayia Yessiou-Faltsi: Deutsche Urteile über die Vaterschaftsfeststellung von nichtehelichen Kindern aus der Sicht der griechischen öffentlichen Ordnung (pp. 913 ff.)
• Reinhard Zimmermann: Assessment of Damages: Three Specific Problems (pp. 921 ff.)

Tobias Lutzi, the author of this post, works at the Institute of Foreign Private and Private International Law of the University of Cologne and studies at the University of Oxford.

The ECJ’s recent decision in Gazprom (Case C-536/13) is the latest addition to a series of judgments by the Court that have considerably reduced the remedies available to claimants who seek to enforce the negative dimension of an arbitration agreement, i.e. the other party’s obligation not to initiate court proceedings. They have created a coherent framework for the protection of arbitration agreements within the EU, which has been sanctioned and complemented by the recast of the Brussels I Regulation. Yet, a number of questions still remain open – some of which are unlikely to be answered any time soon.

The current status quo

Traditionally, four types of remedies are available to parties seeking enforcement of the negative dimension of an arbitration agreement from a court. First, they may ask the court seised by the other party to stay or dismiss the proceedings. Second, they may ask another court to issue an injunction against the party in breach in order to restrain the latter from initiating or continuing litigation (so-called ‘anti-suit injunctions’). Third, they may bring an action for damages to recover the loss incurred due to the litigation. Fourth, they may apply for the foreign judgment not to be recognized and enforced.

While courts in all member states of the EU regularly dismiss or stay proceedings brought in violation of an arbitration agreement, and refuse to recognize and enforce judgments obtained in breach of such an agreement, only English courts have granted anti-suit injunctions and awarded damages for breach of an arbitration agreement in the past. Yet, as far as litigation in the courts of EU member states is concerned, all of these remedies have been affected by the harmonized regime of jurisdiction and recognition and enforcement of judgments in civil and commercial matters that has been established by the Brussels Convention and its successor regulations.

It is true, though, that regarding the first remedy, i.e. a dismissal or stay of local proceedings, there has never been much doubt that the European instruments do not require the courts of a member state to adjudicate if this would violate a valid arbitration agreement; instead, they have to send the case to arbitration, as required by Art. II(3) of the New York Convention. The ECJ’s decision in Gazprom and the first paragraph of the new recital (12) of the Brussels I Recast merely confirm that this is still the case.

Access to the second remedy, i.e. anti-suit injunctions issued by English courts to prevent a party from litigating in breach of an arbitration agreement, has however been radically restricted by the ECJ’s case law. Consistently with its reasoning in Gasser (Case C-116/02) and Turner v Grovit (Case C-259/02), the Court held in West Tankers that “even though proceedings [to enforce an arbitration agreement via an anti-suit injunction] do not come within the scope of [the Brussels I Regulation], they may nevertheless have consequences which undermine its effectiveness”, if they “prevent a court of another Member State from exercising the jurisdiction conferred on it by [the Regulation]”, which includes the decision on the jurisdictional defence based on an arbitration agreement. Accordingly, “it is incompatible with [the Regulation] for a court of a Member State to make an order to restrain a person from commencing or continuing proceedings before the courts of another Member State on the ground that such proceedings would be contrary to an arbitration agreement.”

While the new recital (12) tries to clarify the scope of the exclusion of arbitration in Art. 1(2)(d) of the Regulation, nothing in the legislative history of the Recast, which left the actual text of the regulation otherwise unchanged, suggests that it was supposed to reverse the decision of the Grand Chamber in West Tankers. Thus, it was to the surprise of many that Advocate General Wathelet, in his opinion on Gazprom, argued that “the EU legislature intended to correct the boundary which the Court [in West Tankers] had traced between the application of the Brussels I Regulation and arbitration” with the Recast. He opined that para. 2 of recital (12), which excludes decisions “as to whether or not an arbitration agreement is null and void, inoperative or incapable of being performed” from the rules on recognition and enforcement, should be understood as excluding “the verification, as an incidental question, of the validity of an arbitration agreement [entirely!] from the scope of the Brussels I Regulation”. Consequently, “the fact that the Tribunale di Siracusa [in West Tankers] had been seised of an action the subject-matter of which fell within the scope of the Brussels I Regulation would not have affected the English courts’ power to issue anti-suit injunctions in support of the arbitration because […] the verification, as an incidental question, of the validity of an arbitration agreement is excluded from the scope of that regulation.”

But as the question submitted to the ECJ concerned the pre-recast regulation (No. 44/2001), the Court – while implicitly rejecting the Advocate General’s proposition that recital (12) “in the manner of a retroactive interpretative law, explains how that exclusion must be and always should have been interpreted” – did not need to (and did not) discuss this proposition; instead, the Court simply distinguished the present question of recognition and enforcement of “an arbitral award prohibiting a party from bringing certain claims before a court of that Member State from the question of the court issuing itself “an injunction […] requiring a party to arbitration proceedings not to continue proceedings before a court of another Member State”, only the latter type of injunction being “contrary to the general principle which emerges from the case-law of the Court that every court seised itself determines, under the applicable rules, whether it has jurisdiction to resolve the dispute before it”. Yet, the fact that the Court deemed such a distinction necessary and referred repeatedly to its decision in West Tankers may be seen as an indication that it does not consider this decision to be already overruled by the Recast.

Against this background, it certainly is surprising that the third remedy, i.e. damages for the breach of an arbitration agreement, has yet to be subject to a decision of the ECJ – and has neither been affected by any paragraph of the new recital (12). As English courts may no longer issue anti-suit injunctions – a remedy expressly admitted to prevent that “the plaintiff will be deprived of its contractual rights in a situation in which damages are manifestly an inadequate remedy” (Lord Millett in The Angelic Grace [1995] 1 Lloyd’s Rep 87) – it seems very likely that damage awards will become much more prevalent in English courts. They have thus been allowed by the High Court after the ECJ’s decision in West Tankers ([2012] EWHC 854 (Comm)) and awarded by the Court of Appeal in The Alexandros T [2014] EWCA Civ 1010.

Regarding the fourth remedy, i.e. the refusal to recognize and enforce a judgment obtained in breach of an arbitration agreement, recital (12) now provides a clear solution, which seems to limit the ECJ’s decision in Gothaer (Case C-456/11) and to reverse recent English case law (cf The Wadi Sudr [2009] EWCA Civ 1397). According to its paras 2 and 3, decisions as to the validity of an arbitration agreement are excluded from the provisions on recognition and enforcement, while decisions as to the substance of the dispute are subject to these provisions unless this would require a member state to violate its obligations (i.e. to enforce a valid arbitral award) under the New York Convention. This is not only a welcome step towards the legal certainty that the difficult relationship between the Regulation and the Convention indubitably requires but should also be understood as an attempt to counter-balance the absence of anti-suit injunctions within the Brussels I framework.

Open Questions

The case law of the ECJ and recital (12) of the Recast seem to provide a coherent and workable framework for the protection of arbitration agreements; they put a strong emphasis on the principle of mutual trust between the member states, but balance it out with their obligations under the New York Convention. Still, some questions remain open.

First, and foremost, the ECJ has held in Gazprom that the Regulation does not preclude the courts of a member state “from recognising and enforcing […] an arbitral award prohibiting a party from bringing certain claims before a court of that Member State”. But does the same apply to an arbitral anti-suit injunction restricting proceedings before a court of another member state? Several of the Court’s arguments – which are all carefully limited to the question of recognition and enforcement in the state where the relevant proceedings are brought – indicate that this might not be the case: while enforcing an arbitral award by ordering a party to stop or limit local proceedings raises “no question of an […] interference of a court of one Member State in the jurisdiction of the court of another Member State”, enforcing an award by ordering a party to stop or limit proceedings elsewhere might indeed amount to such an interference. While there is no risk “to bar an applicant who considers that an arbitration agreement is void, inoperative or incapable of being performed from access to the court before which he nevertheless brought proceedings” if they can contest recognition and enforcement in this very court, the defendant will indeed be denied access to that court if the courts of another member state enforce an arbitral award by ordering him to stay these proceedings. And while failure to comply with an arbitral anti-suit injunction “is not capable of resulting in penalties being imposed upon it by a court of another Member State”, the enforcement of such an injunction in another member state would attach to the award that exact kind of penalty. Thus, while the recognition of such an arbitral award in the member state where the proceedings are brought is no more contrary to the Brussels I Regulation than the court’s power to stay proceedings of its own motion in order to give effect to an arbitration clause, the enforcement of such an award by the courts of another member state would be much more similar to the situation which the ECJ ruled out in West Tankers.

Second, the ECJ has not yet decided on the admissibility of damage awards in view of its restrictive approach to anti-suit injunctions. English courts seem to distinguish the one from the other by treating anti-suit injunctions as a remedy for the jurisdictional dimension of arbitration agreements while considering damages as a remedy for their contractual dimension. Yet, one may argue that the practical effects of both remedies are still very similar, especially if damages are granted, as in The Alexandros T, by way of an indemnity even before litigation has finished. But although it is hard to see why the ECJ would not consider damage awards to be contrary to “the general principle that every court seised itself determines, under the rules applicable to it, whether it has jurisdiction to resolve the dispute before it” as formulated in West Tankers, it is indeed not very likely that the Court will get a chance to make such a decision after the English courts – the only courts that actually grant such awards – saw no need to submit the question in The Alexandros T.

Finally, it has been noted (by Hartley [2014] ICLQ 843, 866) that the new rules on recognition and enforcement of decisions that have been obtained in violation of an arbitration agreement in paras 2 and 3 of recital (12) leave open one particular case, namely the situation where a court is asked to recognize and enforce both an arbitral award made within the jurisdiction (and thus not creating an obligation under the New York Convention) and a conflicting judgment on the merits from another member state. While the wording of recital (12) indicates that the court has to give effect to the judgment, this would give the arbitral award the weakest effect in its “home jurisdiction”. The better approach therefore seems to be to consider arbitral awards made within the jurisdiction as a “judgment given between the same parties in the Member state addressed” and apply Art. 45(1)(c) of Brussels I by analogy.

This post has been written by Irene Maccagnani.

On 2 July 2015, Advocate General Pedro Cruz Villalón delivered his Opinion in Thomas Cook Belgium (C-245/14), a case before the ECJ concerning the interpretation of Regulation No 1896/2006 creating a European order for payment procedure (the Opinion is not available in English; the French version may be found here, the Italian version here and the German version here).

The request for a preliminary ruling arose from a dispute concerning a contract concluded between a Belgian travel agency and an Austrian company.

The Austrian company applied for a European order for payment, alleging that the travel agency had failed to fulfill its obligations under the contract. The application was filed before the Vienna Commercial Court on the assumption that jurisdiction could be asserted on the basis of Article 5(1) of Regulation No 44/2001 (Brussels I), now Article 7(1) of Regulation No 1215/2012 (Brussels Ia), Vienna being the place of performance of the relevant obligation.

In the application, the Austrian company omitted to mention that the contract concluded with the travel agency featured a choice-of-court agreement conferring exclusive jurisdiction on Belgian courts.

The Vienna Commercial Court issued the order for payment. The defendant was duly served with the order, but did not lodge a statement of opposition within the 30-day time limit indicated in Article 16(2) of Regulation No 1896/2006. Only later did the travel agency applied for a review, relying on Article 20 of the Regulation (“Review in exceptional cases”).

Seised of the request for review, the Vienna Commercial Court asked the ECJ to clarify the interpretation of Article 20(2). Pursuant to this provision, the defendant is entitled to apply for a review “where the order for payment was clearly wrongly issued, having regard to the requirements laid down in this Regulation, or due to other exceptional circumstances”. According to Recital 25 of the Regulation, such other exceptional circumstances “could include a situation where the European order for payment was based on false information provided in the application form”.

Specifically, the Vienna Commercial Court asked whether “exceptional circumstances” within the meaning of Article 20(2) could be deemed to exist when an order for payment has been issued on the basis of information provided in the application form, which subsequently turned out to be inaccurate, where the jurisdiction of the seised court depends on such inaccurate information.

In his Opinion, the AG begins by noting that Article 20(2) is to be interpreted restrictively. It allows for review only “where the order for payment was clearly wrongly issued”. Thus, only false or inaccurate information which could not be detected by the defendant before the expiry of the time limit for opposition may be considered to amount to “exceptional circumstances” for the purposes of the provision in question. By contrast, if it is established that the defendant could have reacted to those false or inaccurate information by lodging a timely statement of opposition, he should not be allowed to avail himself of Article 20(2).

According to the AG, this conclusion equally applies to cases where the seised court asserted its jurisdiction based on false or inaccurate information provided by the applicant. In this connection, he reminded that, according to Recital 16, the court should examine the application, including the issue of jurisdiction, “on the basis of the information provided in the application form”.

Since the court is merely required to determine if jurisdiction is “plausible” pursuant to the Brussels I Regulation, and the defendant is informed that the order “has been issued solely on the basis of the information provided by the claimant and not verified by the court”, the defendant – once the order has been served on him – must be deemed to be aware that the applicant did not inform the court about the existence of a choice-of-court agreement.

The AG goes on to recall that the parties may always waive their choice-of-court agreement and concludes that, in circumstances like those of the case at hand, the fact for the applicant of referring to the place of performance of the relevant contractual obligation as a basis for jurisdiction does not amount to providing “false information” for the purposes of Article 20 of Regulation No 1896/2006.

The mere presence of a choice-of-court clause in the contract, he adds, leaves the issue open of whether the clause is vlid, or not. Assessing the validity of such a clause requires, in fact, a broader examination than that provided under Article 8 of Regulation No 1896/2006, regardless of whether the judge is aware of the existence of the clause itself. If the applicant has a doubt as to the validity of the choice-of-court agreement, he is not required to mention that clause in the application form, since similar issues cannot be discussed in the framework of this kind of proceedings.

In conclusion, according to the AG, the ECJ should state that, under Article 20(2) of Regulation No 1896/2006, read in conjunction with Recital 25, the “exceptional circumstances” that entitle the defendant to apply for a review of the order for payment cannot be said to already exist for the mere fact that the order for payment, effectively served on the defendant, is based on “false or inaccurate information”, even if the jurisdiction of the court depends on such information.

This does not preclude the defendant from relying on Article 20 when he can show that he could discover such falsity or inaccuracy only after the expiry of the time limit for opposition.

The second issue of 2015 of the Dutch journal on Private International Law, Nederlands Internationaal Privaatrecht, includes the following contributions:

• Xandra Kramer, ‘Editorial: Empirical legal studies in private international law’ , p. 195-196.

• S.H. Barten and B.J. van het Kaar, ‘‘Grensverleggend’ derdenbeslag: over de reikwijdte van een Nederlands beslagverlof onder de Herschikking Brussel I’, p. 197-204.

This article deals with the new opportunities that the revised Brussels Regulation (‘Recast’) may offer to claimants who wish to obtain a Dutch pre-judgment garnishee order against garnishees located in other Member States. Under the former Brussels Regulation, the recognition and enforcement of ‘ex parte’ provisional measures in another Member State than that of the courts ordering the measures fell outside the scope of Chapter III Brussels Regulation in accordance with the case law from the European Court of Justice (Denilauler/Couchet). The Recast, in contrast, allows the enforcement of ‘ex parte’ garnishee orders in other Member States, provided the court issuing the order has jurisdiction as to the subject-matter of the proceedings. However, the enforcement of a Dutch ex parte garnishee order in other Member States may give rise to practical difficulties. The Recast requires the ex parte judgment to be served upon the debtor before the enforcement (garnishment) takes place. It may therefore prove to be difficult for claimants to ensure that garnishment will take place only shortly after the garnishee order was served on the debtor in order to prevent the dispersal of funds by the debtor. It is argued that these problems may be solved by good coordination between the competent enforcement authorities of the Member States. However, in all likelihood, successful coordination by the creditor is only possible in the event of a limited number of garnishees involved.
In light of this abolition of impediments at the European level, the article considers whether Dutch national procedural law may restrict courts in the Netherlands from issuing extraterritorial garnishee orders against garnishees who do not have their domicile in the Netherlands. Based on the current guidelines and case law it is to be expected that the Dutch courts will exercise restraint when dealing with a request for an extraterritorial order. It is argued that, although Dutch law does require a certain connection with Dutch territory, the said connection may also be established if the creditor can make a reasonable case that one of the anticipated garnishees has its domicile within the Netherlands and that there are clear indications that the funds will be dispersed. This could, for instance, succeed if the debtor and garnishee are in a close relationship to one another (e.g. a parent company and its subsidiary).
It remains to be seen whether the Dutch courts are willing to issue orders against garnishees outside the Netherlands. If they are, this jurisdiction may soon offer a solution for creditors of Dutch parent companies having claims against their subsidiaries in other Member States. In the Netherlands it is relatively easy to obtain a prejudgment garnishee order. Under the Recast, even EU jurisdictions not familiar with a pre-judgment garnishee order will have to recognize and enforce a Dutch order.

• Miriam Kullmann, ‘Tijdelijke grensoverschrijdende detachering en
  gewoonlijk werkland: over de verhouding tussen de Rome I-Verordening en de Detacheringsrichtlijn en de rol van de Handhavingsrichtlijn’, p. 205-216.

The cross-border posting of workers involves the applicability of two EU laws: the Posting of Workers Directive 96/71/EC and the Rome I Regulation. In neither of these legal regulations are the terms ‘temporariness’ and the ‘country in/from which the employee habitually carries out his work’ concretised. This contribution aims at clarifying the meaning of these two terms in both legal regulations in the context of the temporary cross-border posting of workers. Moreover, it assesses the role of the Enforcement Directive, adopted in May 2014, supplementing the Posting of Workers Directive. The new Directive introduces a provision containing criteria by which to identify a ‘genuine posting’. In practice it seemed that often no country where the work was being habitually carried out could be identified. The question then was whether the Posting of Workers Directive would be applicable and what role Articles 8 and 9 Rome I Regulation would play in identifying the applicable law. In addition, the unclear relationship between the Posting of Workers Directive and the Rome I Regulation is analysed.

• Steven Stuij, ‘De wetsontduiking in het ipr: de opleving van een leerstuk?’, p. 217-225.

Recital 26 of the preamble to the EU Regulation (650/2012) on Succession and Wills allows national authorities to suppress evasions of the law by using the doctrine of fraude à la loi. The referral to this doctrine is an interesting development, since the Regulation is the first in a series of EU Regulations in the field of private international law to expressly mention fraude à la loi as a potential corrective mechanism. Besides, this doctrine is rather underdeveloped in Dutch private international law. It will therefore be interesting to analyse this doctrine and to assess its added value in contemporary (EU) private international law. First, several aspects of fraude à la loi will be scrutinised, as well as its acceptance in both Dutch and European private international law. Furthermore, the aforementioned point 26 of the preamble and its rationale will be focused upon. Finally, the relevance of fraude à la loi for contemporary private international law will be observed, with a special emphasis on the Dutch situation.

• E.C.C. Punselie, ‘Verordening wederzijdse erkenning van Beschermingsmaatregelen in burgerlijke zaken’, p. 226-228 (overview article)

In this article an overview is given of Regulation (EU) No. 606/2013 of the European Parliament and of the Council of 12 June 2013 on the mutual recognition of protection measures in civil matters and the way this regulation is implemented in the Netherlands. The Regulation provides for a mechanism by which a person at risk of violence can also rely on a protection measure issued against the person causing this risk in his or her home country – a member state of the European Union – when he or she travels or moves to another member state. For that purpose the protected person can achieve a certificate in the issuing member state with which the protection measure is recognised in another member state without any special procedure being required.

• Pauline Kruiniger, ‘Book presentation: Pauline Kruiniger, Islamic Divorces in Europe: Bridging the Gap between European and Islamic Legal Orders, Eleven International Publishing, The Hague 2015’, p. 229-230.

A Dutch-Moroccan woman has been repudiated in Morocco. She remarries a Moroccan man. Then she moves from the Netherlands to Belgium. Although the preceding repudiation had been recognized in the Netherlands, the Belgian authorities refuse to recognize that repudiation. Consequently she is still seen as being married to her former husband in Belgium and cannot bring her latest husband from Morocco to Belgium. There is discontinuity concerning her personal status and thus a limping legal relationship emerges.