Conflictoflaws

The Internationaal Juridisch Instituut in The Hague, an institute providing legal opinions on private international law and foreign law,  is recruiting a senior legal counsel. The candidate will work in the fields of international family law and international succession law. They must be fluent in Dutch and English, and have a good working knowledge of German; additional language skills appreciated).

On 2 and 3 March 2022, the INSOL Europe Academic Forum’s (IEAF) annual conference takes place in Dublin (Ireland). The IEAF is looking forward to meet again in person for the first time in two years. The overall theme of the academic conference will be: “The Emerging New Landscape of European Restructuring and Insolvency”.

The legal development have not stopped with the pandemic, in fact it has set in motion many new developments. The programme will touch upon this by discussing among others:

1. Current developments in corporate preventive restructuring,
2. Fresh start and other topics related to individual debtors,
3. Design issues in restructuring and insolvency law, and
4. Cross-border and EU law restructuring and insolvency.

Programme and registration details

For an overview of the speakers and further details on the programme, please find the conference brochure here.

To conference will be in person in Dublin on 2 and 3 March 2022. To register for this academic conference, please click here: https://www.insol-europe.org/academic-forum-events

The EU Commission’s Proposal of 1 December 2021 outlines, in its introductory Recitals:

“Efficient cross-border judicial cooperation requires secure, reliable and time-efficient communication between courts and competent authorities. Moreover, this cooperation should be carried out in a way that does not create a disproportionate administrative burden and is resilient to force majeure circumstances. These considerations are equally important for individuals and legal entities, as getting effective access to justice in a reasonable time is a crucial aspect of the right to a fair trial, as enshrined in Article 47 of the EU Charter of Fundamental Rights of the European Union (the Charter).

To protect their rights, both individuals and legal entities should be able to rely on effective remedies. Mere access to judicial authorities does not automatically constitute effective access to justice. For this reason, it is important to find ways to facilitate the conduct of procedures and reduce practical difficulties as much as possible. Individuals and legal entities should be able to exercise their rights and comply with their obligations in a swift, cost-efficient and transparent way.

At EU level, there exists a comprehensive set of instruments designed to enhance judicial cooperation and access to justice in cross-border civil, commercial and criminal cases. Many of these govern the communication between authorities, including in certain cases with the EU Justice and Home Affairs (JHA) agencies and bodies, and between authorities and individuals or legal entities. However, most instruments do not provide for engaging in such communication through digital means. Even where they do, other gaps may exist, such as a lack of secure and reliable digital communication channels or non?recognition of electronic documents, signatures and seals. This deprives judicial cooperation and access to justice of using the most efficient, secure and reliable channels of communication available.

In addition, the COVID-19 pandemic has shown that force majeure events may severely affect the normal functioning of Member States’ justice systems. During the crisis, in many cases national courts have been unable to maintain normal operations due to the spread of the virus. Member States were forced to take a number of measures ranging from full lockdowns to treating certain priority cases only. At the same time, the use of digital technologies (e.g. email, videoconference, etc.) helped to limit disruption. However, many of the technical solutions employed were developed in an ad hoc manner, and did not necessarily satisfy security and fundamental rights standards to the full. Judicial cooperation and access to justice in EU cross-border cases have been similarly affected, and the COVID-19 pandemic has underlined the need to ensure the resilience of communication.

Against this background, the rules on digitalisation set out in this proposal aim at improving access to justice and the efficiency and resilience of the communication flows inherent to the cooperation between judicial and other competent authorities in EU cross-border cases.”

The Commission further summarises its important Proposal as follows (copied from here):

“1. Digitalisation of cross-border judicial cooperation

What are the main elements of the proposal?

This initiative aims to modernise EU cross-border judicial cooperation:

• It proposes digitalising communication between judicial and other authorities in cross-border judicial cooperation procedures in civil (including family), commercial and criminal matters.
• In addition, it gives individuals and businesses the option to communicate with judicial and other authorities through electronic means in cross-border cases.
• It will ensure electronic communication from individuals, businesses and legal practitioners are accepted, and have legal certainty – namely through the compulsory recognition of electronic signatures and seals and the legal admissibility of electronic documents.
• In cross-border cases, the proposal will make it possible to conduct oral hearings in civil and criminal procedures through videoconferencing.
• Parties to civil and commercial cases with cross-border implications will be able to pay court fees electronically.

How will this initiative improve the way in which authorities communicate?

The proposal establishes a dedicated and secure decentralised IT system. This system will be composed of the IT systems of the Member States and of Justice and Home Affairs (JHA) agencies and bodies, which will be interconnected through interoperable access points (based on the e-CODEX system). Where Member States do not have existing national IT systems, they will have the choice to use, free of charge, a Commission-developed reference implementation solution.

Alternative means of communication between authorities will be allowed only in case of disruption of the system, or in other specific circumstances where the use of the decentralised IT system is not appropriate.

How will the proposal benefit individuals and businesses involved in EU cross-border judicial procedures?

To ensure smooth access to courts or other judicial authorities, individuals, businesses and legal practitioners will be able to use electronic means of communication to file claims and otherwise communicate with the authorities in EU cross-border civil law cases (for instance, under the European Small Claims procedure).

Where national IT portals for electronic communication in EU civil law matters exist, they can continue to be used. In parallel, the Commission will develop a European access point hosted on the European e-justice Portal. Each person will be able to log in, create an account and file all types of submissions, claims, requests, and standardised forms, both to national judicial authorities and to those of other Member States. The use of the European access point will be free of charge.

Individuals, businesses and legal practitioners will not be obliged to use electronic means of communication with courts and authorities, and may continue to use paper or other types of traditional communication.

What will the cost for Member States for implementing the IT systems be?

Member States will have to bear the cost related to the decentralised IT system. The Commission will provide funding opportunities to support Member States in setting up the necessary infrastructure, if needed.

The Commission expects that the “access points” of the decentralised IT system will be based on e-CODEX that can be used free of charge. However, national IT systems need to be developed so that they may be connected through e-CODEX.

The Commission will finance creation, maintenance and future development of a software, which Member States may decide to use instead of developing national IT systems.

How will personal data be protected?

The digitalisation of existing data exchanges will not introduce any new personal data categories compared to what is already exchanged today, nor will it affect the existing data processing arrangements.

The security of personal data processing is essential to protect data subjects. e-CODEX was designed specifically for the justice area, and uses encryption to ensure security. Using e-CODEX for cross-border exchanges will increase security and thereby mitigate the risk of security breaches. e-CODEX is therefore clearly an improvement compared to present exchanges using paper or unsecure e-mails.

2. Digital information in cross-border terrorism cases

In the aftermath of the terrorist attacks on the Bataclan concert hall in Paris 2015, the necessity to identify links between and coordinate cross-border terrorist investigations and prosecutions early on became evident. Learning from this experience, Eurojust established the European Judicial Counter-Terrorism Register to reinforce the judicial response in Member States to terrorist threats and to improve security for citizens.

However, the data processing environment at Eurojust is outdated and exchange of information with national competent authorities is not structurally digitalised. This makes information exchange cumbersome, leading to suboptimal results in the exchange of information.

What are the main elements of the proposal?

• It will modernise Eurojust‘s information system. It will integrate in it the European Judicial Counter Terrorism Register and its functionalities, in order to improve the capacities of link identification.
• It will set-up secure digital communication channels between national authorities and Eurojust.
• It will introduce a digital communication tool to facilitate digital exchange of structured data and to automate processes.
• It will introduce a clear legal basis in the Eurojust Regulation for cooperation with non-EU liaison prosecutors.

What exactly is the European Judicial Counter-Terrorism Register?

The European Judicial Counter-Terrorism Register is a unique EU-wide database for judicial proceedings relating to terrorist offences. The authorities of the Member States provide information on these cases to Eurojust where it is cross-checked with information on other cases relating to terrorism, but also relating to other cases of serious crime.

Once a potential link – such as the same or similar name of a suspect – is established, the National Members at Eurojust follow up to see if this potential link can be validated. Once it is clear that a link exists, Eurojust informs the national authorities involved in the case. Eurojust also provides further support to such investigations.

How will the proposal improve the European Judicial Counter-Terrorism Register?

Digitalising data exchange will enable national authorities to send more information to Eurojust. It will be quick and secure. At Eurojust, the new information management system will identify many links automatically and require much less manual intervention to identify links.

Thereby Eurojust will be able to give faster and better feedback to national authorities and support them in the follow-up. This will enable the national authorities to have a better understanding of the full extent of the criminal activities, to prosecute terrorist offences and serious cross-border crimes more efficiently and not stop the investigations at their own Member State’s borders.

How will the proposal benefit the general public?

The European Judicial Counter-Terrorism Register and the follow-up through judicial cooperation in criminal matters is essential to effectively combat terrorism and thus ensure security of citizens across the EU. The European Judicial Counter-Terrorism Register may also contribute to respecting fundamental rights; the communication and cooperation of national judicial authorities may reveal links between cases and therefore prevent multiple prosecutions and convictions of transnational crimes. Thus, it will ensure the right not to be tried or punished twice in criminal proceedings for the same criminal offence (Article 50 Charter of Fundamental Rights of the European Union).

3. Joint Investigation Teams (JITs) collaboration platform

Joint Investigation Teams (JITs) are set up by two or more States for specific criminal investigations with a cross border impact and for a limited period of time. This framework allows the competent judicial and law enforcement authorities involved to organise and coordinate their actions jointly and investigate efficiently even in very complex cases such as organised crime activities not bound by any borders.

Although JITs have proven to be one of the most successful tools for cross-border investigations and prosecutions in the EU, practice shows they have been facing several technical difficulties preventing them from gaining the highest possible efficiency. The main difficulties concern secure electronic exchange of information and evidence (including large files), secure electronic communication with other JIT members and JIT participants, such as Eurojust, Europol and the European Anti-Fraud Office (OLAF), as well as a joint daily management of a JIT.

The JIT collaboration platform will solve these problems and deliver the technical support that has been missing so far.

What are the main elements of the proposal?

• Establish a Joint Investigation Teams collaboration platform – The platform will be a highly secure online collaboration tool aiming to facilitate exchanges and cooperation within JITs throughout their duration.
• Provide technological support to those involved in JITs to increase the efficiency and effectiveness of cross-border investigations and prosecutions conducted by them.
• Ensure that those involved in JITs can more easily share information and evidence collected in the course of the JIT activities, by enabling them to more easily and more safely communicate with each other, and by facilitating the joint daily management of a JIT.

What will the key functionalities of the platform be?

• Allow secure non-traceable communication to be stored locally on the devices of the users, including a communication tool offering an instant messaging system, a chat feature, audio/video-conferencing and a functionality replacing regular emails.
• Allow the exchange of operational information and evidence, including large files, through an upload/download system designed to store the data centrally only for a limited period of time necessary for a technical transfer of the data. As soon as all addresses downloaded the data, the data will be automatically deleted from the platform.
• Allow evidence traceability – an advanced logging mechanism allowing to keep a trace of who did what and when regarding all evidence exchanged through the platform, and, consequently, supporting the need to ensure admissibility of evidence in front of a court.

What will the cost of the platform be?

The Regulation establishing the platform is envisaged to incur the following costs:

• Development of the platform – the one-off cost incurred for eu-LISA – around €10 million.
• Technical maintenance and operation of the platform – the recurring cost incurred for eu-LISA – around €3 million per year.

For Member States, no technical costs are considered because the centralised component of the platform is web-based. It will not require any adaptions of the national technical infrastructure. The same pertains to the communication software, which will simply need to be downloaded on each device of the JIT platform’s users. Access to the platform for the competent Union bodies, offices and agencies, such as Eurojust, Europol the EPPO and OLAF, will be driven by the same principles and will not incur any costs.

How will personal data be protected?

The platform itself will not change nor will the underlying legal frameworks for conducting a JIT and as such the already existing obligation of Member States to comply with data protection rules for the exchange of personal data. The platform is a secure and reliable technical addition to allow for a better, swifter and safer way of conducting these communications and exchanges. Additionally, the JIT collaboration platform will fully comply with the EU data legislation.”

Under the title IPR für eine bessere Welt: Vision – Realität – Irrweg?, the volume published by Mohr Siebeck contains the contributions to the Third German-Speaking Conference for Young Scholars in PIL, which took place virtually on 18 and 19 March 2021 at the Max Planck Institute for Comparative and International Private Law in Hamburg.

Angelika Nussberger’s keynote paper on the role of the European Convention on Human Rights vis-à-vis Private International Law is followed by up by nine contributions (one of which in English) by younger scholars engaging with different aspects of the conference theme, such as the extraterritoriality of data protection law, corporate liability for human-rights violations, the potential of uniform law fo further sustainability or the unilateralist approach of EU PIL to cases involving non-EU member states. The volume also includes the papers from, and a transcript of, the (English) panel discussion between Ralf Michaels, Roxana Banu, and Hans van Loon.

The table of contents is available on the publisher’s website.

Today, in the case of OE ./. VY, C-522/20 (no Opinion was delivered in these proceedings), the ECJ decided on a fundamental point: whether nationality as a (supplemental) connecting factor for jurisdiction according to Article 3 lit. a indent 6 of the Brussels IIbis Regulation (2201/2003) concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility is in conformity with the principal prohibition of discrimination against nationality in the primary law of the European Union (Art. 18 TFEU).

Article 18 TFEU reads: “Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited. …”.

Art. 3 lit. a Brussels IIbis Regulation reads: “In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with with the courts of the Member State:”; indent 5 reads: “in whose territory the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or”, according to indent 6: “the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question …”.

The case emerged from a request in proceedings between OE and his wife, VY, concerning an application for dissolution of their marriage brought before the Austrian courts (paras. 9 et seq.):

“On 9 November 2011, OE, an Italian national, and VY, a German national, were married in Dublin (Ireland). According to the information provided by the referring court, OE left the habitual residence the couple shared in Ireland in May 2018 and has lived in Austria since August 2019. On 28 February 2020, that is, after residing in Austria for more than six months, OE applied to the Bezirksgericht Döbling (District Court, Döbling, Austria) for the dissolution of his marriage with VY. OE submits that a national of a Member State other than the State of the forum is entitled to invoke the jurisdiction of the courts of that latter State under the sixth indent of Article 3(1)(a) of Regulation No 2201/2003, on the basis of observance of the principle of non-discrimination on grounds of nationality, after having resided in the territory of that latter State for only six months immediately before making the application for divorce, which is tantamount to disregarding the application of the fifth indent of that provision, which requires a period of residence of at least a year immediately before the application for divorce is made. By order of 20 April 2020, the Bezirksgericht Döbling (District Court, Döbling) dismissed OE’s application, taking the view that it lacked jurisdiction to hear it. According to that court, the distinction made on the basis of nationality in the fifth and sixth indents of Article 3(1)(a) of Regulation No 2201/2003 is intended to prevent the applicant from forum shopping. By order of 29 June 2020, the Landesgericht für Zivilrechtssachen Wien (Regional Court for Civil Matters, Vienna, Austria), hearing the case on appeal, upheld the order of the Bezirksgericht Döbling (District Court, Döbling). OE brought an appeal on a point of law against that order before the referring court, the Oberster Gerichtshof (Supreme Court, Austria).”

The Court reiterated, inter alia, that (paras. 18 et seq.) the principle of non-discrimination and equal treatment require that comparable situations must not be treated differently and different situations must not be treated in the same way, “unless such treatment is objectively justified”, further that the comparability of different situations must be assessed having regard to all the elements which characterise them, and thirdly that the (EU) legislature has a broad discretion in this respect. “Thus, only if a measure adopted in this field is manifestly inappropriate in relation to the objectives which the competent institutions are seeking to pursue can the lawfulness of such a measure be affected”.

Against this background the Court held (paras 25 et seq.) that, first, Article 3 meets “the need for rules that address the specific requirements of conflicts relating to the dissolution of matrimonial ties”, secondly that while the first to fourth indents of Article 3(1)(a) of Regulation expressly refer to the habitual residence of the spouses and of the respondent as criteria, the fifth and sixth indents of Article 3(1)(a) permit the application of the jurisdiction rules of the forum actoris, and thirdly that “it is apparent from the Court’s case-law that the rules on jurisdiction laid down in Article 3 of Regulation No 2201/2003, including those laid down in the fifth and sixth indents of paragraph 1(a) of that article, seek to ensure a balance between, on the one hand, the mobility of individuals within the European Union, in particular by protecting the rights of the spouse who, after the marriage has broken down, has left the Member State where the couple had their shared residence and, on the other hand, legal certainty, in particular that of the other spouse, by ensuring that there is a real link between the applicant and the Member State whose courts have jurisdiction to give a ruling on the dissolution of the matrimonial ties concerned (see, to that effect, judgments of 13 October 2016, Mikolajczyk, C-294/15, EU:C:2016:772, paragraphs 33, 49 and 50, and of 25 November 2021, IB (Habitual residence of a spouse – Divorce), C-289/20, EU:C:2021:955, paragraphs 35, 44 and 56).“ And the fact that typically there is such a real link if there is nationality sufficed to justify distinguishing between indent 5 and indent 6, all the more as this cannot be a surprise to the other spouse.

Therefore the Court came to the conclusion:

“The principle of non-discrimination on grounds of nationality, enshrined in Article 18 TFEU, must be interpreted as not precluding a situation in which the jurisdiction of the courts of the Member State in the territory of which the habitual residence of the applicant is located, as provided for in the sixth indent of Article 3(1)(a) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, is subject to the applicant being resident for a minimum period immediately before making his or her application which is six months shorter than that provided for in the fifth indent of Article 3(1)(a) of that regulation on the ground that the person concerned is a national of that Member State.”

The most important take away seems to be that PIL legislation using nationality as a supplemental connnecting factor is still in conformity with Article 18 TFEU as long as it appears “not manifestly inappropriate” (para. 36). Therefore, and reconnecting to older case law (para. 39), legislation is still valid “with regard to a criterion based on the nationality of the person concerned, … although in borderline cases occasional problems must arise from the introduction of any general and abstract system of rules” so that “there are no grounds for taking exception to the fact that the EU legislature has resorted to categorisation, provided that it is not in essence discriminatory having regard to the objective which it pursues (see, by analogy, judgments of 16 October 1980, Hochstrass v Court of Justice, 147/79, EU:C:1980:238, paragraph 14, and of 15 April 2010, Gualtieri v Commission, C-485/08 P, EU:C:2010:188, paragraph 81).”

 

by José Antonio Briceño Laborí, Professor of Private International Law at the Universidad Central de Venezuela and Universidad Católica Andrés Bello

To celebrate the 25th anniversary of its launching, the Master’s Program in Private International Law and Comparative Law is inviting all authors that would like to publish a paper in the fourth edition of its Yearbook.

The central topic of this edition is “Private International Law in Action” (“Derecho Internacional Privado en Acción”). Therefore, all papers should focus on the analysis or commentary of the practice of Private International Law, both in judicial and arbitral venues.

All those interested must send their papers to the following email address: cmadridmartinez@yahoo.es. The deadline for receiving the papers is March 30, 2022. All papers must comply with our editorial and publishing guidelines, which are available on our website: https://bit.ly/30cqnvl.

Finally, we invite all those interested in the developments of Private International Law in Venezuela to follow us on our social networks: Instagram, Twitter, Facebook and Linkedin, as well as to visit our YouTube channel where we have available more than 20 conferences from our “Master Classes” and “Jurisprudential Dialogue” cycles.

 

Impartiality is key to any kind of production of justice and probably one of the very few principles of “justice” recognized universally, see e.g. Amartya Sen, The Idea of Justice, Chapter 5: “Impartiality and Objectivity”, pp. 114 et seq. with references also to non-Western traditions, see also e.g. Leviticus 19:15 (New International Version): “Do not pervert justice; do not show partiality to the poor or favoritism to the great, but judge your neighbor fairly.”; see also e.g. IBA Rules of Ethics, rule 1: “Arbitrators shall … remain free from bias”. Thus, there cannot be put enough emphasis and thought on how to implement this command, for acting arbitrators as well as parties and reviewing state courts, when they ask themselves in countless greyish constellations how to behave or judge in order to avoid even the slightest perception of bias but also to abstain from unproductive “due process paranoia”. The PhD thesis by Angoura, supervised by Burkhard Hess and published in the Luxembourg Max Planck Institute’s series “Successful Dispute Resolution”, offers solid information and thorough analysis on a comparative basis – highly recommended.

In December 2021, the European Commission launched a public consultation on the cross-border protection of vulnerable adults. Feedback obtained will be used to assess the need for a legislative initiative in the area, as well as to inform possible EU measures.

As a result of the combined effects of an ageing population and the mobility of citizens, more and more vulnerable adults find themselves in cross-border situations. The existence of different rules between EU Member States, as well as judicial, administrative and language barriers may affect the continuity and effectiveness of their legal protection.

All interested parties (citizens, judges, court staff, legal practitioners, academic, officials, medical staff, social workers, etc.) are invited to submit responses by 29 March 2022 (midnight Brussels time). The short questionnaire is available in all EU languages at the following link: Civil judicial cooperation – EU-wide protection for vulnerable adults (europa.eu).

A call for evidence to share relevant experience in the area of cross-border protection of vulnerable adults is also open, with the same deadline of 29 March 2022 (midnight Brussels time). The call for evidence is available here: Civil judicial cooperation – EU-wide protection for vulnerable adults (europa.eu).

Are you looking for an academic stay in Germany’s sunniest and most eco-friendly city? At the Institute for Comparative and Private International Law of the University of Freiburg (Germany), a vacancy has to be filled at the chair for civil law, private international law and comparative law (Prof. Dr. Jan von Hein), from April 1st, 2022 with

 

a legal research assistant (salary scale E 13 TV-L, personnel quota 25%).

 

The assistant is supposed to support the organizational and educational work of the chairholder, to participate in research projects of the chair as well as to teach their own courses (students’ exercise). Applicants are offered the opportunity to obtain a doctorate.

 

The applicant is expected to be interested in the chair’s main areas of research. They should possess an above-average German First State Examination (vollbefriedigend) or an equivalent foreign degree. A thorough knowledge of civil law and the German language is a necessity. Severely handicapped persons will be preferred if their qualification is equal.

 

Please send your application (Curriculum Vitae, certificates and, if available, further proofs of talent) to Prof. Dr. Jan von Hein, Albert-Ludwigs-Universität Freiburg, Institut für Ausländisches und Internationales Privatrecht, Abteilung III, Niemensstraße 10 (Peterhof), D?79098 Freiburg (Germany), no later than February 18th, 2022.

 

As the application documents will not be returned, we kindly request you to submit only unauthenticated copies. Alternatively, the documents may be sent as a pdf file via e-mail to ipr3@jura.uni-freiburg.de.

Giovanni Zarra (Federico II University of Naples) has recently published a book titled ‘Imperativeness in Private International Law. A View from Europe’ (Asser – Springer, 2022).

The book is devoted to a study of the ways and forms through which imperativeness, to be intended as the sum of the various peremptory norms expressing the identity of a legal system, works today in private international law and argues that imperative norms today not only function as a bar to the application of foreign laws and free movement of decisions, but may also positively promote interests and values at the basis of any legal system. Moreover, the book carries out an in-depth analysis of how the concept of imperativeness is influenced by international and EU law, arguing that – in particular in the field of human rights – a minimum content of imperativeness, shared by EU countries, is emerging. In addition, the research, combining theoretical and practical approaches and methodologies, addresses, among others, the question concerning the extent to which the evolution of the concepts of overriding mandatory provisions and public policy has affected the traditional doctrinal views conceptualizing private international law as a neutral subject; in this regard, through the analysis of the category of imperativeness, the book demonstrates that this subject has, in realty, significant (and today not negligible) implications over individual rights. For this reason, the author highlights the crucial role of adjudicators and the importance of the employment of interpretative techniques, such as balancing of principles and rights, in the application of imperative norms.

More in detail, Chapter 1 proposes an historical analysis relating to the development of private international law during time and it focuses on how imperativeness has evolved during the various phases of the evolution of the subject, with particular attention on how and why the distinction between public policy and overriding mandatory rules emerged.

Chapter 2 addresses the various theories relating to the foundation of the distinction between public policy and lois d’application immédiate, exploring in particular the actual margin of discretion courts have in the identification of an overriding mandatory rule, and arrives at arguing that the category of overriding mandatory rules shall today be strictly interpreted in order to comply with the openness characterizing modern systems of private international law. Lois d’application immediate may, therefore, exist only in the cases where there is a clear legislative intention to overcome the functioning of the conflict of laws mechanism.

Chapter 3 tests the findings of the previous investigation in light of the regulations issued by the European Union. The analysis shows, also in light of the practice of EU organs, a tension between the necessity to reduce the recourse to imperativeness in intra-EU relationships and the States’ persisting need to ensure the protection of the principles and rules expressing the identity of their legal systems.

Chapter 4 focuses on the interaction between imperativeness in private international law and substantive obligations arising from international and EU law to assess the existence of “truly international” and EU imperative norms. This Chapter also discusses the (rare) cases of conflicts between imperative norms deriving from supranational law and domestic fundamental principles and offers significant food for thought on how to manage these conflicts.

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on 10 February 2022 at 5:00 pm (Mexico City time – CDT), 8:00 pm (Montevideo time). The purpose of this webinar is to present the book entitled Text and Context of the Private International Law Act No 19.920, which will be presented by Dra. Cecilia Fresnedo de Aguirre and Dr. Gonzalo Lorenzo (in Spanish).

Uruguay’s Private International Law Act No 19.920 may be consulted by clicking here. We have previously reported on this new legislation here.

The details of the webinar are:

Link: https://us02web.zoom.us/j/82518817186?pwd=bGw0UjZ4RTBFS3dSaWZ6WXJxZjVLZz09

Meeting ID: 825 1881 7186

Password: AMEDIPBMA

Participation is free of charge.

This event will also be streamed live: https://www.facebook.com/AmedipMX

The Société de législation comparée is organising, in partnership with the French Conseil supérieur du Notariat, the universities of Nîmes, Strasbourg and Lyon and with the Institut des Usages (Montpellier), an international symposium dedicated to the Certificat de coutume.

The importance of the subject is major. Statement or written certificate on the content of a foreign law rule, the Certificat de coutume is subject to a heterogeneous practice both in terms of its establishment and its processing.

Ignored by many jurists, its reliability is often called into question due to a double insufficiency that it may conceal: with regard to the law attested when it is issued by a public authority, with regard to the impartiality when it is issued by a private person.

However, these criticisms are not insurmountable. In addition to the combination with other means of establishing the content of the foreign law rule in question, the Certificat de coutume does not avoid obliterate any contradictory discussion and the freedom of interpretation of the authority before which it is produced. The liabilities associated with the Certificat de coutume, whether that of the drafter, the counsel of the parties or the notary using such a certificate, constitute a formidable safeguard against tendentious approaches.

Above all, we must not ignore the virtues of empiricism, which could – in these times of debates regarding a future codification of French private international law – reveal important and good practices to be considered de lege ferenda.

The real added value of this project therefore lies in the desire to lift the veil on the Certificat de coutume, which currently constitutes a blind spot in private international law. Its name is certainly known to all, but its legal system still appears to be embryonic. The ambition of the symposium is to do constructive work and to offer concrete proposals, fruit of a collective reflection, bringing together the essential players in this field.

The symposium will be held in French on 12 April 2022 at the Amphitheater of the French Higher Council of Notaries (60 boulevard de la Tour-Maubourg – Paris, 7th).

Prior registration is required before April 7, 2022 by sending an email to: emmanuelle.bouvier@legiscompare.com

Conference validated as continuing education for lawyers.

Programme and description in French: https://www.legiscompare.fr/web/Certificat-de-coutume-Pratiques-en-droit-des-affaires-internationales-12-avril

The Programme is as follows:

CERTIFICAT DE COUTUME

Practices in international business law

Scientific direction

Gustavo Cerqueira, professor at the University of Nîmes

Nicolas Nord,  Secretary General of the International Commission on Civil Status

Cyril Nourissat, professor at Jean Moulin University – Lyon 3

Opening / 8:45 a.m.

Me David Ambrosiano, president of the Conseil supérieur du notariat        

Me Pierre-Jean Meyssan, 2nd vice-president of the CSN, in charge of legal affairs

 

Introduction / 9:00 a.m.

Certificat de coutume: historical and functional aspects

Bertrand Ancel, professor emeritus at the University of Paris II Panthéon Assas

 

I. Establishment of the certificat de coutume / 9:30 a.m.

under the chairmanship of Bernard Haftel, professor at the Sorbonne Paris Nord Univ.

9:30 a.m. The purpose of the certificate

Determination of the purpose of the certificate

Gilles Vercken, lawyer at the Paris Bar

 

Attestation of uses

Pierre Mousseron, professor at the University of Montpellier

Kevin Magnier-Merran, lecturer at the University of Lorraine

 

Articulation of the sources of foreign law

Gustavo Cerqueira, professor at the University of Nîmes

 

Coffee break

10:50 a.m. The writer of the certificate

The plurality of actors

Nicolas Nord, Secretary General of the ICCS

 

The challenges of choosing an editor

Karlo Fonseca Tinoco, lawyer at the São Paulo Bar

 

11:30 a.m. The certificate method

Developing the certificate – comparative approaches

Alejandro Garro, professor at Columbia University, NY

 

Editor’s discretion

Cyril Nourissat, professor at Lyon 3 University

 

II. The processing of the certificat de coutume / 2:00 p.m.

under the chairmanship of Laurence Usunier, professor at CY Cergy Paris Univ.

2:00 p.m. The interest of the certificate for the parties

Jacques-Alexandre Genet, lawyer at the Paris Bar

 

2:20 p.m. The value of the certificate for the authorities

Jean-Luc Vallens, honorary magistrate, former Pr. assoc. at Unistra

Louis Degos, arbitrator, managing partner KL Gates LLP – Paris

Pierre Tarrade, notary, rapp. general of the 115th congress of notaries of France

 

3:20 p.m. Certificate distortion control

Sylvaine Poillot-Peruzzetto, SE Advisor at the Court of Cassation

 

Coffee break

III. Certificat de coutume Responsibilities / 4:00 p.m.

under the chairmanship of Etienne Farnoux, professor at Unistra

4:00 p.m. The editor’s responsibility

Thibault de Ravel d’Esclapon, lecturer at Unistra

 

4:20 p.m.  The responsibility of the council of the parties

Olivier Berg, lawyer at the Paris Bar

 

4:40 p.m. The liability of the notary using a certificate

Marc Cagniart, first vice-president of the Chamber of Notaries of Paris

 

Conclusion: Perspectives de lege ferenda / 5:00 p.m.

Pascal de Vareilles-Sommières, professor at the University of Paris I

 

 

 

 

 

 

 

 

Introduction

The case arises from a a long-running family dispute of the parties over the distribution of assets left by their late brother in the USA.  Z. is the sister, and M. the brother of the deceased. Over the course of several years, the parties entered into a series of agreements with an eye towards efficiently dividing the assets and providing for the effective management of the properties and businesses included in the estate. All attempts to settle the dispute amicably failed. Eventually, the case was decided in favour of Z. by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The efforts of M. to vacate the award failed. As a next step, Z. sought recognition and enforcement of the US award in Greece. First and second instance courts decided in favour of Z. Upon second appeal (cassation) of M., the Supreme Court ruled that the Athens Court of Appeal failed to examine two grounds of appeal raised by M. The case was sent back to the appellate court [Supreme Court nr. 635/20.5.2021]

Stage 1: USA

The parties entered into an agreement known as the “U.S. Agreement,” which set out a process for: (1) an accounting of the affairs of the . . . [U.S. Companies] during the relevant time period leading to a report detailing [an] auditor’s findings; (2) . . . [setting] a period in which the Parties would ‘confer amicably and in good faith to agree on the amount of any distributions or payments that should be made in order to’ realize the objective of equal distribution of the assets or their proceeds and of the earnings of the assets in the relevant period; (3) [and making] a determination as a result of this process as to ‘the extent to which [either Party] has received a disproportionate share of prior income or other distributions in respect of [the U.S. Companies] and the amount of such excess benefit.

The U.S. Agreement further provided that, if the parties failed to agree on the amount of the Party Distribution by way of the auditor’s report, “the amount of the D. Distribution, the P. Distribution, the T. D. and/or the Party Distribution as applicable shall be determined by an arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules,” subject to confirmation by any court having appropriate jurisdiction.

The audit contemplated in the U.S. Agreement was never completed, and the parties were unable to come to reach an agreement on the amount of the Party Distribution. After several years of litigation in both federal and state courts, Z. instituted the subject arbitration in 2009. The arbitration panel issued its Final Award on March 20, 2014, finding in favor of Z. in the amount of approximately $10.8 million, inclusive of approximately $4.8 million of prejudgment interest.

1. filed a petition to vacate the Final Award on June 16, 2014, and on August 29, 2014, he filed the instant motion in support of that petition. The Petitioner’s Arguments for Vacatur were the following:
2. a) Failure to Determine the U.S. Company Distributions.
3. b) Manifest Disregard of the Law and Agreement – “Redefining” the Term “Received”.
4. c) Award of Prejudgment Interest as Exceeding Authority.

The Southern District Of New York decided that the Petitioner’s motion to vacate the arbitration panel’s Final Award is denied and Respondent’s cross-motion to confirm the award is granted.

Stage 2: Greece

The application to recognize and enforce the US award was granted by the Athens Court of 1st Instance [nr. 443/2018, published in: Epitheorissi Politikis Dikonomias (Civil Procedure Law Review) 2017, 643 et seq, note Kastanidis]. The appeal against the first instance court was dismissed [Athens Court of Appeal 5625/2018, unreported]. The final appeal was successful. The Supreme Court ruled that the appellate court did not examine two cassation grounds:

1. No reference is made in the judgment of the Athens CoA in regards to the lack of an arbitration agreement, as evidenced by points 1-9 of the US Agreement, which refer to an arbitral determination, not an award.
2. No reference is made in the judgment of the Athens CoA in regards to the excess of authority by the arbitrators.

As a result, the Supreme Court reversed the judgment of the Athens CoA, and ordered Z. to pay the costs of the proceedings.

Comments

An issue that was not examined by the Supreme Court was the conduct of M. during the arbitral proceedings, and the grounds invoked for vacating the AAA award. There is no evidence that M. challenged the authority of the arbitration panel to issue an award. In addition, the arguments for vacatur do not challenge the panel’s authority, save the award of Prejudgment Interest under (c), which was dismissed by the Greek instance courts as contrary to the principle of non-revision on the merits.

The question has been addresses by legal scholarship as follows:

One issue that is not dealt with in the Convention is what happens if a party to an arbitration is aware of a defect in the arbitration procedure but does not object in the course of the arbitration. The same issue arises in connection with jurisdictional objections that are raised at the enforcement stage for the first time. The general principle of good faith (also sometimes referred to as waiver or estoppel), that applies to procedural as well as to substantive matters, should prevent parties from keeping points up their sleeves [ICCA Guide to the NYC, 2011, p. 81].

The Federal Arbitrazh (Commercial) Court for the Northwestern District in the Russian Federation considered that an objection of lack of arbitral jurisdiction that had not been raised in the arbitration could not be raised for the first time in the enforcement proceedings; The Spanish Supreme Court said that it could not understand that the respondent “now rejects the arbitration agreement on grounds it could have raised in the arbitration” [ICCA Guide to the NYC, 2011, p. 82]

It is generally accepted that the party resisting enforcement of the award may, under certain circumstances, be barred from raising a defense under Article V(1)(c) in the exequatur proceedings. Preclusion may, in particular, occur if the party resisting enforcement has taken part in the arbitral proceedings without objecting to the jurisdiction or competence of the arbitral tribunal when it had the opportunity to do so [Wolff/(Borris/Hennecke), New York Convention, Second Edition, 2019, p. 340 nr. 257].

Conclusion

It is not entirely clear whether the judgment of the Athens Court of Appeal did in fact fail to take into account the grounds aforementioned. As mentioned above, the judgment has not been published in the legal press. However, the extracts reproduced in the ruling of the Supreme Court allow the reader to have some doubts. In any event, the case will be re-examined by the Court of Appeal, and most probably, will end up again before the Supreme Court…

From 7 to 13 February 2022, Università degli Studi, Milan and the European Court of Arbitration organize, in cooperation with Comitato Italiano dell’Arbitrato, the Milan-based international law firms Bonelli Erede and DLA Piper, with the support of the Centre of Research on Domestic, European and Transnational Dispute Settlement, the Milan Arbitration Week which, through various events, deals with domestic arbitration, international commercial arbitration and arbitration in the field of international investment.

All the information is available at this link: https://www.transnational-dispute-management.com/news/20220207.pdf

Brill launched a new Journal, The Italian Review of International and Comparative Law, which is managed by a group of professors from the University of Naples and the Scuola Superiore Sant’Anna in Pisa. The aim of the Journal is to publish contributions on International law, private International law, EU law and comparative law. In this regard, see the recently launched a call for papers on “The European Union and International Arbitration”.

The 35th Annual Survey of Choice of Law in the American Courts (2021) has been posted to SSRN. The authors of this year’s survey owe an enormous debt to Symeon Symeonides who has, over the past three decades, provided an extraordinary service by authoring the previous thirty annual surveys. Having now finished our first survey, we are all the more impressed with his work. Thank you Symeon — and thank you all for reading.

John Coyle (University of North Carolina School of Law)
William Dodge (University of California, Davis School of Law)
Aaron Simowitz (Willamette University College of Law)

The second issue of 2021 of Giustizia Consensuale (published by Editoriale Scientifica) has just been released and it features:

Silvia Barona Vilar (Professor at the University of València) Sfide e pericoli delle ADR nella società digitale e algoritmica del secolo XXI (Challenges and Pitfalls of ADR in the Digital and Algorithmic Society of the XXI Century; in Italian)

In the XX century, dispute resolution was characterized by the leading role played by State courts: however, this situation has begun to change. With modernity and globalization has come the search of ways to ensure the ‘deconflictualisation’ of social and economic relations and solve conflicts arising out of them. In this context, ADR – and now ODR – have had a decisive impulse in the last decades and are now enshrined in the digital society of the XXI century. ADR mechanisms are, in fact, approached as means to ensure access to justice, favouring at the same time social peace and citizens’ satisfaction. Nevertheless, some uncertainties remain and may affect ADR’s impulse and future consolidation: among such uncertainties are the to-date scarce negotiation culture for conflict resolution, the need for training in negotiation tools, the need for State involvement in these new scenarios, as well as the attentive look at artificial intelligence, both in its ‘soft’ version (welfare) and its ‘hard’ version (replacement of human beings with machine intelligence).

Amy J. Schmitz (Professor at the Ohio State University), Lola Akin Ojelabi (Associate Professor at La Trobe University, Melbourne) and John Zeleznikow (Professor at La Trobe University, Melbourne), Researching Online Dispute Resolution to Expand Access to Justice

In this paper, the authors argue that Online Dispute Resolution (ODR) may expand Access to Justice (A2J) if properly designed, implemented, and continually improved. The article sets the stage for this argument by providing background on ODR research, as well as theory, to date. However, the authors note how the empirical research has been lacking and argue for more robust and expansion of studies. Moreover, they propose that research must include consideration of culture, as well as measures to address the needs of self-represented litigants and the most vulnerable. It is one thing to argue that ODR should be accessible, appropriate, equitable, efficient, and effective. However, ongoing research is necessary to ensure that these ideals remain core to ODR design and implementation.

Marco Gradi (Associate Professor at the University of Messina), Teoria dell’accertamento consensuale: storia di un’incomprensione (The Doctrine of ‘Negotiation of Ascertainment’: Story of a Misunderstanding; in Italian)

This article examines the Italian doctrine of ‘negotiation of ascertainment’ (negozio di accertamento), by means of which the parties put an end to a legal dispute by determining the content of their relationship by mutual consent. Notably, by characterizing legal ascertainment as a binding judgment vis-à-vis the parties’ pre-existing legal relationship, the author contributes to overcoming the misunderstandings that have always denoted the debate in legal scholarship, thus laying down the foundations towards a complete theory on consensual ascertainment.

Cristina M. Mariottini (Senior Research Fellow at the Max Planck Institute Luxembourg for Procedural Law), The Singapore Convention on International Mediated Settlement Agreements: A New Status for Party Autonomy in the Non-Adjudicative Process

The United Nations Convention on International Settlement Agreements Resulting from Mediation (the ‘Singapore Convention’), adopted in 2018 and entered into force in 2020, is designed to facilitate cross-border trade and commerce, in particular by enabling disputing parties to enforce and invoke settlement agreements in the cross-border setting without going through the cumbersome and potentially uncertain conversion of the settlement into a court judgment or an arbitral award. Against this background, the Convention frames a new status for mediated settlements: namely, on the one hand it converts agreements that would otherwise amount to a private contractual act into an instrument eligible for cross-border circulation in Contracting States and, on the other hand, it sets up an international, legally binding and partly harmonized system for such circulation. After providing an overview of the defining features of this new international treaty, this article contextualizes the Singapore Convention in the realm of international consent-based dispute resolution mechanisms.

 

Observatory on Legislation and Regulations

Ivan Cardillo (Senior Lecturer at the Zhongnan University of Economics and Law in Wuhan), Recenti sviluppi della mediazione in Cina (Recent developments in mediation in China; in Italian)

This article examines the most recent developments on mediation in China. The analysis revolves around, in particular, two prominent documents: namely, the ‘14th Five-Year Plan for National Economic and Social Development and Long-Range Objectives for 2035’ and the ‘Guiding Opinions of the Supreme People’s Court on Accelerating Steps to Motivate the Mediation Platforms of the People’s Courts to Enter Villages, Residential Communities and Community Grids.’ In particular, the so-called ‘Fengqiao experience’ ? which developed as of the 1960s in the Fengqiao community and has become a model of proximity justice ? remains the benchmark practice for the development of a model based on the three principles of self-government, government by law, and government by virtue. In this framework, mediation is increasingly identified as the main echanism for dispute resolution and social management: in this respect, the increasing use of technology proves to be crucial for the development of mediation platforms and the efficiency of the entire judicial system. Against this background, the complex relationship becomes apparent between popular and judicial mediation, their coordination and their importance for governance and social stability: arguably, such a relationship will carry with it in the future the need to balance the swift dispute resolution with the protection of fundamental rights.

Angela D’Errico (Fellow at the University of Macerata), Le Alternative Dispute Resolution nelle controversie pubblicistiche: verso una minore indisponibilità degli interessi legittimi? (Alternative Dispute Resolution in Public Sector Disputes: Towards an Abridged Non-Availability of Legitimate Interests?; in Italian)

This work analyzes the theme of ADR in publicity disputes and, in particular, it’s understood to deepen the concepts of the availability of administrative power and legitimate interests that hinder the current applicability of ADRs in public matters. After having taken into consideration the different types of ADR in the Italian legal system with related peculiarities and criticalities, it’s understood, in the final part of the work, to propose a new opening to the recognition of these alternative instruments to litigation for a better optimization of justice.

 

Observatory on Jurisprudence

Domenico Dalfino (Professor at the University ‘Aldo Moro’ in Bari), Mediazione e opposizione a decreto ingiuntivo, tra vizi di fondo e ipocrisia del legislatore (Mediation and Opposition to an Injunction: Between Underlying Flaws and Hypocrisy of the Legislator; in Italian)

In 2020, the plenary session of the Italian Court of Cassation, deciding a question of particular significance, ruled that the burden of initiating the mandatory mediation procedure in proceedings opposing an injunction lies with the creditor. This principle sheds the light on further pending questions surrounding mandatory mediation.

 

Observatory on Practices

Andrea Marighetto (Visiting Lecturer at the Federal University of Rio Grande do Sul) and Luca Dal Pubel (Lecturer at the San Diego State University), Consumer Protection and Online Dispute Resolution in Brazil

With the advent of the 4th Industrial Revolution (4IR), Information and Communication Technology (ICT) including the internet, computers, digital technology, and electronic services have become absolute protagonists of our lives, without which even the exercise of basic rights can be harmed. The Covid-19 pandemic has increased and further emphasized the demand to boost the use of ICT to ensure access to basic services including access to justice. Specifically, at a time when consumer relations represent the majority of mass legal relations, the demand for a system of speedy access to justice has become necessary. Since the early ’90s, Brazil has been at the forefront of consumer protection. In the last decade, it has taken additional steps to enhance consumer protection by adopting Consumidor.gov, a public Online Dispute Resolution (ODR) platform for consumer disputes. This article looks at consumer protection in Brazil in the context of the 4IR and examines the role that ODR and specifically the Consumidor.gov platform play in improving consumer protection and providing consumers with an additional instrument to access justice.

In addition to the foregoing, this issue features the following book review by Maria Rosaria Ferrarese (Professor at the University of Cagliari): Antoine Garapon and Jean Lassègue, Giustizia digitale. Determinismo tecnologico e libertà (Italian version, edited by M.R. Ferrarese), Bologna, Il Mulino, 2021, 1-264.

The most recent issue of the German Journal of Comparative Law (Zeitschrift für Vergleichende Rechtswissenschaft) features the following articles on private international and comparative law:

 

Jürgen Samtleben: Internationales Privatrecht in Guatemala

Guatemala’s rules on private international law of Guatemala are found in the Law of Judicial Organization of 1989. But conflict-of-law questions are also regulated in other laws. All these legislative texts are based on older laws, since Guatemala has a rich legal tradition on this subject. It is only against the background of this tradition that one can understand the meaning of the laws actually in force. The article discusses the different aspects of Guatemalan private international law, which today is generally based on the principle of domicile. The law of 1989 introduces two innovations which are worth emphasizing: the application of foreign law ex officio and the principle of party autonomy for international contracts.

 

Christoph Wendelstein: Eigenes und Fremdes im Kollisionsrecht

The article sheds light on the relationship between the conflict of laws and the substantive laws (potentially) called upon to apply. In doing so, the question is addressed whether the substantive law influences the conflict of laws. The focus is on the question of characterisation, which traditionally represents a kind of crystallization point between conflict of laws and substantive law. If the conflict of laws rules apply to foreign substantive law, the question may arise as to whether this completely displaces the own domestic substantive law or whether it is still relevant in some way. This refers to the ordre public and the overriding mandatory provisions (Eingriffsnormen), which are also object of the study. The focus lies on their functioning.

 

Jean Mohamed: Die aktienrechtliche actio pro socio im globalen Kontext – Zur Abgrenzung von materiellem Recht und Verfahrensrecht im anglo-amerikanischen Rechtskreis am Beispiel der derivative action in New York

The German procedure for the admission of corporate claims (derivative claims), a special institution based on stock corporation law for the so-called actio pro socio, has taken a long journey all the way to New York at present. In keeping with the verse by Frank Sinatra: “If I can make it here, I’ll make it anywhere”, the subject is whether an international movement of the shareholder action – i. e. claims of the corporation asserted in the shareholder’s own name – may be imminent. In the New York proceeding Zahava Rosenfeld, derivatively as a shareholder of Deutsche Bank AG and on behalf of Deutsche Bank AG v. Paul Achleitner et al., the conflict of laws matches the German system known in § 148 of the German Stock Corporation Act with the New York’s (and the US) concept of the related derivative suit, also known as derivative action or derivative claim. Given the potential risks involved, it seems highly relevant from a legal, academic, and political point of view to discuss and model this quite complex but so far barely studied issue. In the following, the global procedural rules of derivative actions will therefore be discussed.

 

David B. Adler: Extraterritoriale US-Discovery für Schieds- und Gerichtsverfahren im Ausland

For decades, 28 U.S.C. § 1782(a) has offered a powerful tool for parties to obtain discovery through U.S. courts for use in foreign proceedings. Referring to the statute’s twin goals to provide “efficient assistance to participants in international litigation and encourag[e] foreign countries by example to provide similar assistance to our courts”, U.S. courts have time and again demonstrated that they are willing to readily grant respective discovery requests from foreign applicants. While the U.S. Supreme Court has answered various questions regarding the applicability and scope of § 1782(a) in its Intel Corp. v. Advanced Micro Devices, Inc. decision, two key issues remained undecided. The first issue U.S. courts have been grappling with, and which has been an ongoing topic of interest among international arbitration practitioners and scholars for several decades, is whether the statute allows parties of foreign private arbitration proceedings to seek discovery via § 1782(a), or if § 1782(a) is limited to parties that seek support for a foreign court or administrative proceedings. The second issue concerns the extraterritorial reach of § 1782(a). Courts have issued diverging rulings on whether Section 1782 allows an applicant to seek the production of documents that are located outside the U.S. and on whether § 1782(a) contains a per se bar to its extraterritorial application. This article analyzes the recent appellate decisions of the United States Court of Appeals for the Second, Fourth and Sixth Circuit – which are the first appellate rulings since Intel to weigh in on these issues in detail. This article further discusses whether there should be a per se bar to the extraterritorial application of Section 1782 and explains the broad implications that the recent appellate courts’ decisions on both issues have for foreign litigants and entities that are subject to the United States’ jurisdiction.

Dr Johannes Ungerer (Lecturer, University of Oxford)

Cross-border disputes are particularly complex due to the challenges involved in understanding and deciding on the applicable law and international jurisdiction. Contrary to this reality, it is commonly assumed that all private parties are capable of rational choices in pursuit of efficiency, which however disregards the fact that humans are not always guided by rationality but can be affected by psychological biases. Acknowledging ‘bounded rationality’ in cross-border cases calls for reconsidering the way private international law determines which law shall apply and which court may hear the case. In particular, it requires analysing connecting factors from this new perspective, thus appreciating the significance of how bounded rationality affects private parties in choosing a law or court or abstaining from choice.

In an English paper published in RabelsZ volume 1/2022 of mine, such a new approach is pursued based on the insights of behavioural economics, which have been neglected in private international law to date. Looking at the existing EU instruments, the paper investigates how the connecting factors of the Rome and Brussels Regulations are designed to ‘nudge’ private parties towards a particular jurisdiction, both with regard to subjective and objective connecting factors. Special consideration is given to the requirements of nudging to justify its libertarian paternalism. Particularly illustrative is the application of behavioural insights to the paradigmatic area of consumer protection.

The paper finds that, amending the traditional economic analysis and its assumption of rational decision-making in pursuit of efficiency, behavioural economics contributes a more realistic understanding of private international law and its connecting factors. Objective connecting factors in the Rome and Brussels Regulations, such as the habitual residence or domicile of a particular party to the case in addition to more specific factors, are relied upon in the absence of a valid choice of law or court by the parties. These objective connecting factors can be understood as the lawmaker’s nudges towards a predetermined jurisdiction for the benefit of the parties, and not merely for the sake of individual efficiency. Behavioural economics appreciates that objective connecting factors are majoritarian default rules, but unlike the traditional economic understanding of this term and its hypothetical consensus explanation, the new perspective can openly acknowledge that default rules are set by the lawmaker, who is legitimised by the majority, as a form of libertarian paternalism. Yet, because of their characteristic as a safety net, which still allows the parties to make deviating arrangements, the objective connecting factors are defaults which serve as both choice-preserving and debiasing decisions without being coercive.

Subjective connecting factors, which enable and regulate party autonomy with regard to choice of law and court, are to be conceived as choice architecture from the perspective of behavioural economics. This understanding is to be preferred to previous explanations which draw on a naturalist or positivist reasoning in analogy to substantive private autonomy or which solely proclaim individualist freedom striving for efficiency. By ensuring a choice-preserving design which complements the default rules, the lawmaker can be understood to pursue nudging by providing for a suitable and legitimised choice architecture that steers the choice of law and court. From this perspective, the regulation and limitations of party autonomy are to be seen as measures of libertarian paternalism which intend to protect private parties from their own fallibility and from exploitation by others when making choices.

In response to existing criticism against nudging as a form of libertarian paternalism, the requirements of transparency and a choice-preserving design have proved particularly important. They are met by providing for specific and general defaults (sector-specific and residual objective connecting factors) alongside a choice architecture with clear validity

Carlos Santaló Goris, Research Fellow at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law and Ph.D. candidate at the University of Luxembourg, offers an analysis on the recently approved reform of the French Manual on Tax Procedures (“Livre des procédures fiscales”) influenced by Regulation No 655/2014, establishing a European Account Preservation Order (“EAPO Regulation”). The EAPO Regulation and other EU civil procedural instruments are the object of study in the ongoing EFFORTS project, with the financial support of the European Commission. 

FICOBA (“Fichier national des comptes bancaires et assimilés”) is the French national register containing information about all the bank accounts in France. French bailiffs (“huissiers”) can rely on FICOBA to to facilitate the enforcement of an enforceable title or upon a request for information in the context of an EAPO proceeding (Article L151 A of the French Manual on Tax Procedures). In January 2021, the Paris Court of Appeal found discriminatory the fact that creditors could obtain FICOBA information in the context of an EAPO proceeding but not in the context of the equivalent French domestic provisional attachment order, the “saisie conservatoire” (for a more extended analysis of the judgment, see here). While an enforceable title is not a necessary precondition to access FICOBA in the context of an EAPO, under French domestic law it is. Against this background, the French court found that creditors who could apply for an EAPO were in a more advantageous position than those who could not. Consequently, it decided to extend access to FICOBA to creditors without an enforceable title who apply for a saisie conservatoire.

In December 2021, the judgment rendered by the Paris Court of Appeals was transposed into French law. In fact, the French legislator introduced an amendment to the French Manual on Tax Procedures, allowing bailiffs to collect information about the debtors’ bank accounts from FICOBA based on a saisie conservatoire (Art. 58 LOI n° 2021-1729 du 22 décembre 2021 pour la confiance dans l’institution judiciaire).

In is nevertheless noteworthy that the judgment of the Paris Court of Appeal that inspired such reform is based on a misinterpretation of the EAPO Regulation. Access to the EAPO Regulation’s information mechanism is limited to creditors with a title (either enforceable or not enforceable). Creditors without a title are barred from accessing the EAPO’s information mechanism. From the reasoning of the Paris Court of Appeal, it appears that the Court interpreted the EAPO Regulation as granting access to the EAPO’s information mechanism to all creditors, even to those without a title. Such an interpretation would have been in accordance with the EAPO Commission Proposal, which gave all creditors access to the information mechanism regardless of whether they had a title or not. However, the Commission’s open approach was received with scepticism by the Council and some Member States. Notably, France was the most vocal advocate of limiting the possibilities of relying on the EAPO information mechanism. It considered that only creditors with an enforceable title should have access to it. In particular, the French delegation argued that, under French law, only creditors with an enforceable title could access such sensitive data about the debtor. Eventually the European legislator decided to adopt a mid-way solution between the French position and the EAPO Commission Proposal: namely, in accordance with the Regulation creditors are required to have a title, though this does not have to be enforceable.

The following is an interesting paradox. Whereas France tried to adjust the EAPO’s information mechanism to the standards of French law, it was ultimately French law that was amended due to the influence of the EAPO Regulation. An additional paradox is that the imbalance between creditors who can access the EAPO Regulation and those who cannot (as emphasized and criticised by the Paris Court of Appeal) will continue to exist but with the order reversed. Once the French reform enters into force, creditors without a title who apply for a French saisie conservatoire of a bank account will be given access to FICOBA. Conversely, creditors who apply for an EAPO will continue to be required to have a title in order to access FICOBA. Only an amendment of the EAPO Regulation can change this.

The moment for considering a reform of the EAPO Regulation is approaching. In accordance with Article 53 of the EAPO Regulation, the European Commission should have sent to the European Parliament and the European Economic and Social Committee “a report on the application of this Regulation” by 18 January 2022. These reports should serve as a foundation to decide whether amendments to the EAPO Regulation are desirable. Perhaps, as a result of the experience offered with the judgment of the Paris Court of Appeal, the European legislator may consider extending the EAPO’s information mechanism beyond creditors with a title.