Conflictoflaws

In the context of its investigation on the issues surrounding the Autonomous v. Nationalistic Interpretation of the 1958 New York Convention, and as a follow up to the first Seminar it organized in this framework, on 25 January 2021 the NYU Center for Transnational Litigation, Arbitration, and Commercial Law will host a second Seminar.

The event will feature internationally renowned scholars who will address core issues such as:  ‘Incapacity’ (Francesca Ragno); ‘Deviations from the agreed procedure’ (Friedrich Rosenfeld); ‘Public policy’ (Giuditta Cordero-Moss); ‘Procedure to enforce and arbitral award’ (Lucas Siyang Lim).

More information on this event is available here.

From the publisher’ site:

 

About Climate Change Litigation This book investigates and discusses the respective issues arising in the current discourse on climate protection from different legal perspectives (including international law, European law and national public and civil law). In particular, it addresses the issue of “climate protection by courts”.

It gives an overview of important jurisdictions in the field of climate change litigation, including the US, Canada, Australia, the UK, France, the Netherlands, Italy, Brazil and Germany.

The handbook provides answers and ideas both to scholars and practitioners in the field. Furthermore, it is guaranteed to provide an overview of the latest news in cases and progress in the field of climate change litigation.

Table Of Contents Summary of Contents
INTRODUCTION
CLIMATE CHANGE AS A CHALLENGE FOR GLOBAL GOVERNANCE, COURTS AND HUMAN RIGHTS (Voigt)
PART 1
FUNDAMENTAL QUESTIONS
A. Liability for climate damages, sustainability and environmental justice (Kloepfer/Neugärtner)
B. Climate damages and the ‘Polluter Pays’ Principle (Rehbinder)
C. The role of courts in climate protection and the separation of powers (Payandeh)
D. Climate change and duties to protect with regard to fundamental rights (Gross)

PART 2
PROCEDURAL ISSUES AND CONFLICT OF LAWS
E. Arbitration proceedings (Lennarz)
F. Conflicts of jurisdiction and the applicable law in domestic courts’ proceedings (Kieninger)

PART 3
STATE LIABILITY UNDER INTERNATIONAL AND EUROPEAN LAW
G. Environmental liability in international law (Wolfrum)
H. The international law and policy implications of climate change litigation: sustainable developments in international investment law and policy related to renewable energy, climate change mitigation and adaptation (Cordonier Segger/Arvan/Byron/Srinivas)
I. The Paris Climate Agreement and liability issues (Franzius/Kling)
J. Liability of EU Member States under EU law (Purnhagen/Saurer)

PART 4
CLIMATE CHANGE LITIGATION – NATIONAL REPORTS
K. Climate change litigation in the United States (Farber)
L. Climate change litigation in Canada (Jodoin/McGinn)
M. Climate change litigation in Brazil (Wedy)
N. Climate change litigation in Australia (Bell-James)
O. Climate change litigation in the United Kingdom (Ohdedar/McNab)
P. Climate change litigation in Italy (Butti)
Q. Climate change litigation in France (Epstein/Deckert)
R. Climate change litigation in the Netherlands – the Urgenda case and beyond (Van der Veen/De Graaf)
S. Climate change litigation in Germany (Weller/Nasse/Nasse)

PART 5
LIABILITY FOR CLIMATE DAMAGES – GERMANY AS AN INTERNATIONAL PIONEER?
T. Liability for climate damages under the German law of torts (Wagner/Arntz)
U. Liability for climate change damages under the German Environmental Liability Act (Nitsch)
V. Climate protection and compliance in German corporate law (Habersack/Ehrl)
W. Investor-led action for climate and business sustainability (Duve/Hamama)
X. Liability for climate damages under the Environmental Damage Act (Kahl/Stürmlinger)
Y. The role of non-governmental organizations for climate change litigation (Verheyen/Pabsch)
PART 6
CONCLUSIONS
LIABILITY FOR CLIMATE DAMAGES –
SYNTHESIS AND FUTURE PROSPECTS (Kahl/Weller)

 

 

The New York Convention of 1958 owes much of its success to being an international convention setting forth uniform rules. Its uniform enforcement regime not only lowers the parties’ transaction costs of identifying under which circumstances an award will be recognized and enforced across jurisdictions; it also ensures that States cannot justify the failure to comply with their obligations under the New York Convention by reference to domestic law. Still, the courts of different contracting States apply the Convention differently. Oftentimes, this is due to the erroneous understanding of concepts employed by the drafters of the Convention.

To shed the light on this complex matter, on 21 January 2021 the NYU Center for Transnational Litigation, Arbitration, and Commercial Law will host a conference on Autonomous v. Nationalistic Interpretation of the 1958 New York Convention. In this context, a group of internationally renowned scholars will address core issues such as: ‘Autonomous Interpretation of the New York Convention’ (Franco Ferrari); ‘The notion of an arbitral award’ (Burkhard Hess); ‘Arbitration agreement – Scope issues’ (Dennis Solomon); and ‘Arbitrability’ (Winnie Ma).

More information on this event is available here.

 

The new issue of the AJ Contrat (12/2020) Dalloz contains a special dossier to mark the 40th Anniversary of the United Nations Convention on Contracts for the International Sale of Goods (CISG), prepared by Gustavo Cerqueira, full professor at the University of Nîmes, France (in French).

The dossier foreword reads as follows (English translation): “The international sale of goods supports a peace project between Nations. Ninety-four of them share today the same body of substantive rules largely governing the formation and the performance of contracts for the sale of goods as diverse as wine and children’s toys. This uniform law is supported by the United Nations Convention concluded in Vienna on April 11, 1980 (the CISG), which celebrates in 2020 its forty years. This anniversary could not go unnoticed. Few are the instruments on international harmonization that are coming at the age of maturity with such unparalleled authority and vitality. In addition to the constant expansion of its geographical scope of application through the increasing number of accessions, its influence on modernization of certain domestic contract laws, such as the recent legislative reform passed in France, attests to its importance. This can also be measured by the always fascinating questions that arise regarding its existence, its content and its application. Some of them will deserve a sharp analysis, sometimes renewed by those who are participating in this commemorative dossier. Thus, crucial to the success of the Convention – the uniform interpretation remains a challenge, while European Union law recognizes an unexpected importance to the Convention. Also, the CISG’s application still seems to be threatened by the silence of the contractors, while the Convention has dangerous liaisons with the French action directe. The links are no less complex between the foreclosure period and the deadline prescription period, while interest rates reveal unresolved issues. Last but not least, poignant current events call for a reinterpretation of the notion of impediment to perform”.

The dossier contains the following articles (titles have been translated into English):

The challenge of uniform interpretation, by Claude Witz (Saarland University)

The CISG’s articulation with the European Union Law, by Cyril Nourissat (University of Lyon 3)

Back on the parties’ silence about the CISG’s application, by Gustavo Cerqueira (University of Nîmes) and Nicolas Nord (University of Strasbourg)

The Vienna Convention and the action directe:  back on dangerous liaisons, by Etienne Farnoux (University of Strasbourg)

The links between the foreclosure period and the deadline prescription period (about CISG’s Article 39), by Marc Mignot (University of Strasbourg)

The issue of interest rates on arrears, by Franco Ferrari (New York University)

For a reinterpretation of the concept of impediment to perform, by Ludovic Pailler (University of Lyon 3)

The full table of contents is available here (in French).

He Qisheng, Professor of International Law, Peking University Law School, and Chairman at the Peking University International Economical Law Institute, has published the 7th Survey on Chinese Practice in Private International Law.

This survey contains materials reflecting the practice of Chinese private international law in 2019. First, this paper describes the judiciary’s caseload: Chinese courts decided some 17,000 foreign-related civil and commercial cases, 16,000 maritime cases and 9,648 requests for judicial assistance in 2019. Regarding changes in the statutory framework of private international law, four legislative acts, one set of Regulations and six Supreme People’s Court (SPC) Judicial Interpretations were adopted or amended in 2019 on investment contracts, action preservation in intellectual property, punitive damages, etc. Second, eight typical cases on jurisdictional issues are selected, including jurisdiction clauses, parallel proceedings, and res judicata. Third, seven new representative cases on choice of law relating, in particular, to international transport, force majeure, gambling debts and public order, are examined. Fourth, five cases on the recognition and enforcement of foreign judgments and one SPC Opinion in favour of presumed reciprocity are briefly examined. Finally, this paper also covers seven key cases which reflect the latest development in Chinese private international law on other procedural issues, such as service of process abroad and authentication, and three cases on international arbitration (including the first decision rendered by the China International Commercial Court).

Here are the links to the article:

·         Abstract:
https://academic.oup.com/chinesejil/advance-article-abstract/doi/10.1093/chinesejil/jmaa032/6032845

·         Article (free access):
https://academic.oup.com/chinesejil/advance-article/doi/10.1093/chinesejil/jmaa032/6032845?guestAccessKey=02dcf09b-8bd6-4af4-bc02-9bf523212c37

The European Association of Private International (EAPIL) will host its Second Virtual Seminar on 27 January 2021, 5 to 7 pm (MET). Devoted to the digital teaching of Private International Law and its challenges in Corona times, the Seminar will present tools that may help to improve the digital teaching of our discipline and discuss pervasive problems from the perspective of both professors/lecturers and students.

The Seminar will be structured into two parts. The first part will focus on the perspective of professors/lecturers and the challenges of teaching Private International Law in digital formats. Speakers will be Morten Midtgaard Fogt (University of Aarhus) and Marion Ho-Dac (Polytechnic University of Hauts-de-France, Valenciennes). The second part will take the students’ perspective and discuss different digital teaching tools. Speakers will include Susanne Lilian Gössl (University of Kiel), María-Asunción Cebrián Salvat, Isabel Lorente Martínez and Javier Carrascosa González (all three University of Murcia).

The Seminar will be held via Zoom. If you wish to join, please register here by 25 January 2021 at noon. Registered participants will receive the details to join the Seminar on 26 January 2021.

For more information regarding the Second EAPIL (Virtual) Seminar, please write an e-mail to Susanne Gössl at sgoessl@law.uni-kiel.de.

For information regarding the EAPIL Seminar Series as such please get in touch with the EAPIL Secretary General, Giesela Rühl, at secretary.general@eapil.org.

Background:

The EAPIL (Virtual) Seminar Series seeks to contribute to the study and development of (European) Private International Law through English-language seminars on topical issues. It will provide an easily accessible and informal platform for the exchange of ideas – outside the bi-annual EAPIL conferences. At the same time, it will serve as a means for EAPIL members to connect with other EAPIL members and non-members.

Issue 1/2021 of RabelsZ is now available online! It contains the following articles:

 

Reinhard Zimmermann (Hamburg): Zwingender Angehörigenschutz im Erbrecht ­- Entwicklungslinien jenseits der westeuropäischen Kodifikationen (Mandatory Family Protection in the Law of Succession), RabelsZ 85 (2021) 1–75 – DOI: 10.1628/rabelsz-2020-0092

Following on from an earlier contribution devoted to the development of the notions of forced heirship and compulsory portion, this contribution pursues the development of mandatory family protection for legal systems beyond the West European codifications: in postsocialist countries of Central and Eastern Europe, in Nordic states, in South and Central American codifications, and in countries without a code of private law, i.e. England and the legal systems originally based on English law. An interesting panorama of different solutions thus presents itself, in particular legal systems operating with fixed shares in the estate, those making available a fixed share only in cases of need, those awarding asum substituting for maintenance claims, or those turning the claim of the closest relatives into a discretionary remedy. Overall, an observation made in the previous essay is confirmed: a tendency towards achieving greater flexibility in legal systems traditionally operating with fixedshares. The concept of family provision originating in New Zealand, while providing a maximum degree of flexibility, cannot however serve as a model to be followed. The question thus arises whether maintenance needs are the criterion balancing legal certainty and individual justice in the comparatively best manner.

  

Florian Eichel (Bern): Der „funktionsarme Aufenthalt“ und die internationale Zuständigkeit für Erbscheinverfahren (International Jurisdiction in Simple Succession Cases with an “Habitual Residence of Minor Significance”), RabelsZ 85 (2021) 76–105 – DOI: 10.1628/rabelsz-2020-0093

In order to prevent inefficient parallel proceedings in international succession cases, the EU Succession Regulation concentrates jurisdiction in a single Member State. In the Oberle case (C-20/17), the ECJ decided that this jurisdiction also extends to non-contentious proceedingsregarding the issuance of certificates of succession. In cases in which the deceased had moved abroad late in life, this could lead to a “remotejustice”, as the certificate of succession would have to be issued there, even when the heirs and the assets are located in another MemberState. This concerns in particular non-contentious succession cases which are of a simple nature, but such cases were not in the focus of lawmakers. The article shows that the Succession Regulation crafts solutions so as to avoid “artificial jurisdictions”. Whereas a flexibledetermination of the habitual residence is not a viable solution, there is room to allow proceedings in the Member State whose law isapplicable by way of exception and thus to establish jurisdiction in that state. In the cases WB (C-658/17) and EE (C-80/19), the ECJ hasshown another way of dealing with these cases and thereby enabling a citizen-friendly way of treating international succession cases.

  

Leonhard Hübner (Heidelberg): Die Integration der primärrechtlichen Anerkennungsmethode in das IPR (The Primary Law Recognition Method and Its Integration into Private International Law), RabelsZ 85 (2021) 106–145 – DOI: 10.1628/rabelsz-2020-0094

Since Savigny, private international law (PIL) has been chiefly shaped by the referral method. More recently, EU primary law has appeared on the scene as a rival that threatens to override the traditional system as a result of the influence that the fundamental freedoms and the freedom of movement have on PIL. This can be observed in the case law of the ECJ dealing with the incorporation of companies and names as personal status rights. The ECJ has determined certain results based on EU primary law without touching upon the (national) conflict rules. This “second track” of determining the applicable law was already labelled as the recognition method almost twenty years ago. According to previous interpretations of case law, it is limited to the two areas of law mentioned above. In particular, controversial topics in the culturallysensitive area of international family law, such as the recognition of same-sex marriages, are according to the prevailing opinion not coveredby the recognition method. However, various developments, such as the ECJ’s Coman decision and the discussion on underage marriage in German PIL, raise doubts as to whether this purported limitation is in line with the integration concept of EU primary law. The questiontherefore arises as to how a meaningful dovetailing of conflict-of-law rules and EU primary law can be achieved in PIL doctrine.

  

Christiane von Bary / Marie-Therese Ziereis (München): Rückwirkung in grenzüberschreitenden Sachverhalten: Zwischen Statutenwechsel und ordre public (Retroactive Effect in International Matters, Change of the Applicable Law, and Public Policy), RabelsZ 85 (2021) 146–171 – DOI: 10.1628/rabelsz-2020-0095

While German law does provide for a detailed differentiation as regards retroactive effect in the domestic context (II.), retroactivity has rarelybeen discussed in transnational cases relating to civil matters. The national solutions cannot generally be transferred to the international level; instead, it is crucial to rely on the methods of private international law – in particular rules dealing with a change of the applicable law and withpublic policy. German private international law largely prevents retroactive effects from occurring through the methodology developed for dealing with a change of the applicable law (III.). Distinguishing between completed situations, ongoing transactions and divisible as well as indivisible long-term legal relationships, it is possible to ensure adherence to the principle of lex temporis actus. If the retroactive effect iscaused by foreign law, it may violate public policy, which allows and calls for an adjustment (IV.). When determining whether a breach of publicpolicy occurred in a case of retroactivity, it is necessary to consider the overall result of the application of foreign law rather than just the decision as to which foreign law is applicable. For guidance on whether such a result violates public policy, one has to look at the national principles dealing with retroactive effect.

 

This Thursday, Advocate General Campos Sánchez-Bordona presented his Opinion in the case CNP, C-913/19. In this case, a Polish court asks the Court of Justice to interpret the special jurisdictional rules in matters relating to insurance contained in Section 3 of Chapter II of the Brussels I bis Regulation, in conjunction with Article 7(2) and (5) of that Regulation.

At the request of the Court, the Opinion focuses on the interpretation of the notion of “branch, agency or other establishment” within the meaning of Article 7(5) of the Regulation. However, as it results from point 3 of the Opinion, the future judgment of the Court will supplement its case-law pertaining to the aforementioned Section 3, complementing in particular the judgment in Hofsoe.

Context of the request for a preliminary ruling

In the judgment in Hofsoe, the Court of Justice answered the question of a Polish referring court by stating, in essence, that Articles 11 and 13(2) of the Brussels I bis Regulation cannot be relied on by a natural person, whose professional activity consists, inter alia, in recovering claims for damages from insurers and who relies on a contract for the assignment of a claim concluded with the victim of a road accident, to bring before a court of the Member State in which the injured party is domiciled a civil liability action against the insurer of the person responsible for that accident.

The judgment in Hofsoe clarified the issue of great relevance (not only) for Polish legal practice and scholars. In Poland, at least since 2011, in the wake of the Supreme Court case-law, the number of disputes pertaining to the recovery of an amount corresponding to the rental payment for a replacement vehicle from the insurer covering the civil liability of the person responsible for a road accident has been increasing. This case-law clarified, in essence, that the insurance coverage provided under a compulsory motor insurance policy covers purposeful and economically justified expenses pertaining to the rental of a replacement vehicle.

The market reacted. In practice, the owner of a damaged vehicle who rented a replacement vehicle for the duration of the vehicle repair period could quite commonly, instead of making the rental payment, assign a claim against the insurer of the person responsible for the accident to a professional (automobile repair workshop, vehicle rental company or professional whose activity consists in recovering claims for damages from insurers etc.). The professional would claim an amount corresponding to the rental payment from the insurer and the owner could use the replacement vehicle without having to make any payment.

In the European Single Insurance Market it was only a question of time before the national courts had to settle similar disputes in cross-border context. In fact, the request for a preliminary ruling in the case Hofsoe originated from one of such disputes. Here, the preliminary question resulted from the fact the Section 3 (“Jurisdiction in matters relating to insurance”) aims to guarantee more protection to the weaker party (policyholder, insured, beneficiary and –  where a direct action is permitted – injured party) than the general rules of jurisdiction provide for. It was, thus, necessary to establish whether an assignee being a professional in the insurance sector can be considered as a weaker party.

Unsurprisingly, the case CNP, C-913/19 also derives from proceedings before a Polish court, where the applicant relies on a contract for the assignment to bring an action against the insurer of the person responsible for a road accident.

Facts in the main proceedings

A vehicle owned by an individual is damaged in a road accident provoked by another person insured against civil liability in respect of the use of motors vehicles under a contract concluded with an insurer established in Denmark. As we learn from point 17 of the Opinion, the road accident occurs in Poland.

For the duration of the vehicle repair period, its owner concludes a contract with an automobile repair workshop under which a replacement vehicle is rented in return for payment. Instead of making the rental payment, the owner assigns to the automobile repair workshop the future claim against the aforementioned insurer.

Subsequently, the automobile repair workshop assigns that claim to CNP, a liability limited company established in Poland.

CNP sends a request for payment of the rental amount to a limited liability company (“Polins”) established in Zychlin, Poland, which represents the interests of the Danish insurer as a foreign insurance undertaking in Poland. The adjustment of the insurance claims is supposed to be dealt with by another Polish limited liability company (“Crawford Polska”), acting on behalf of the insurer. Crawford Polska informs CNP that an action against the Danish insurer can be brought “either pursuant to provisions on general jurisdiction or before a court competent for the place of residence or seat of the policyholder, insured party, beneficiary or another person entitled under the insurance contract”.

Failing to obtain full payment of the rental amount, CNP brings an action against the Danish insurer before a Polish court. It argues that this court has jurisdiction to hear the case because, according to the information made public by the insurer, its main representative in Poland (Polins) has its seat in Zychlin.

The insurer argues that the claim should be rejected due to the lack of jurisdiction of the Polish court. This court decides to refer three question for a preliminary ruling.

Considerations of the referring court on the preliminary questions Distinguishing the present case from the case Hofsoe

The referring court indicates that some factual elements distinguish its request for a preliminary ruling from that previously referred in the case Hofsoe. It notes that, in the present case, the defendant engages in insurance activity in Poland, while the case Hofsoe concerned a German insurance undertaking which was liable for the damage caused by a German national, and the road traffic incident in question occurred in Germany. It does not explicitly state how these differences should affect the interpretation of the Brussels I bis Regulation.

Regardless, in the case Hofsoe, the owner of the damaged vehicle seemingly assigned the claim against the insurer directly to the applicant in the main proceedings, who the Court characterised as “professional in the insurance sector” (see points 42 and 43 of the judgment in Hofsoe). In the present case, the claim was first assigned to the repair workshop and then by this repair workshop to CNP. Against this background, it stems from the request for a preliminary ruling that the applicant argues that the refusal to recognise jurisdiction of the Polish courts will result in automobile repair workshops refusing to carry out repairs or in customers having to cover the costs themselves. It seems that this argument is based on the assumption that “repair” costs cover also the expenses pertaining to the rental of a replacement vehicle and that the assignment of insurance-related claims offers additional protection to the persons considered as weaker parties in matters relating to insurance. However, in the wording of the preliminary questions, this twofold assignment is not explicitly mentioned – the first question concerns “a [professional] having acquired [a claim] from an injured party”.

In its request for a preliminary ruling, the referring court also points out that while Denmark did not take part in the adoption of the Brussels I bis Regulation, it notified its decision to apply the content of the Regulation.

Interplay between first and second question

As mentioned above, in his Opinion, AG Campos Sánchez-Bordona addresses the second preliminary question pertaining to the interpretation of Article 7(5) of the Brussels I bis Regulation.

The referring court considers that the second question should be analysed only if the first question is answered in the affirmative.

By its first question, the referring court is asking, in essence, whether – taking into account Articles 10 and 13(2) of the Brussels I bis Regulation – the applicant in the main proceedings is not barred from relying on Article 7(2) and Article 7(5) of the Regulation.

It seems that, by this question, the referring court seeks to establish whether an action can, as to its substance, fall within the scope of the Section 3 (“matters relating to insurance”), yet the applicant bringing that action and being a professional could be barred from relying on the rules on jurisdiction provided for in Articles 10 and 13(2) of that Section (as he is not a “weaker party”) and also from relying on the rules on jurisdiction of the Section 2 (because an action in matters relating to insurance is covered exclusively by the Section 3).

In fact, while the referring court seems not to entertain that interpretation, it notes that wording of Article 10 of the Brussels I bis Regulation could support it (“in matters relating to insurance, jurisdiction shall be determined by the Section 3, without prejudice to Article 6 and aforementioned Article 7(5)”). This reference could be read in the light of the terms of Article 13(2), according to which Article 10 shall apply to actions brought (only) by the “injured party” directly against the insurer.

The referring court notes that its doubts are also inspired by Article 12 of the Regulation (“In respect of liability insurance or insurance of immovable property, the insurer may in addition be sued in the courts for the place where the harmful event occurred”). This court wonders whether this provision would not be superfluous if Section 2 and its Article 7(2) were applied in parallel with it.

Opinion of AG

By the second question, addressed by AG at the request of the Court, the referring court is asking whether a company operating in a Member State which adjusts losses under compulsory insurance against civil liability in respect of the use of motor vehicles pursuant to a contract with an insurer established in another Member State is this insurer’s “branch, agency or other establishment” within the meaning of Article 7(5) of the Brussels I bis Regulation.

At the outset is it worth observing that, regardless of the applicant’s position, the referring court seems to consider that Crawford Polska (and not Polins) is the relevant entity for the purposes of Article 7(5) of the Regulation. At points 53 – 58 of his Opinion, AG clarifies the issue and proceeds on that premise.

Next, at points 59 – 68, AG analyses whether the criteria established by the Court in its case-law and required to consider that the relevant entity is a “branch, agency or other establishment” are met.

Finally, at points 69 – 112, AG delves into the relation between Article 7(5) of the Regulation, on the one hand, and the Directive 2009/138/EC on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II), on the other hand.

Ultimately, at point 113, AG proposes to answer the second question by considering:

“Article 7(5) of [the Brussels I bis Regulation] must be interpreted as meaning that a commercial company established in a Member State which operates under a contract with an insurance undertaking established in another Member State may be classified as a ‘branch, agency or other establishment’ of that undertaking if, cumulatively:

it operates in a Member State by providing compensation for material damage on the basis of insurance against civil liability arising from the use of motor vehicles the risks connected with which are covered by the insurance undertaking;

it has the appearance of an extension of the insurance undertaking; and

it has a management body and material facilities such as to enable it to transact business with third parties, so that the latter, although knowing that there will if necessary be a legal link with the insurance undertaking, do not have to deal directly with that undertaking.”

Instead of presenting an extensive synthesis of the Opinion, it is best to recommend giving it an attentive lecture. As it stems from 36 of the Opinion, it provides guidance not only in the insurance-related contexts, but also in other instances where the application of Article 7(5) of the Brussels I bis Regulation comes into question.

This report has been prepared by Priyanka Jain, a researcher at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law, and Ph.D. candidate at the University of Luxembourg.

 

Introduction:

 

On 9-11 December 2020, ERA – the Academy of European Law – organized an online seminar on “Privacy and Data Protection: Recent ECtHR & CJEU Case Law”.  The core of the seminar was to provide an update on the case law developed by the European Court of Human Rights (ECtHR) and by the Court of Justice of the European Union (CJEU) with relevance for privacy and data protection law since 2019. The key issues discussed were the distinction between the right to privacy and data protection in the jurisprudence of the ECtHR and CJEU, the impact of the jurisprudence on international data transfers, notions of ‘essence of fundamental rights’ ‘personal data processing’, ‘valid consent’ and so on.

 

 

Day 1: Personal Data Protection and right to privacy

 

Gloria González Fuster (Research Professor, Vrije Universiteit Brussel (VUB), Brussels) presented on the essence of the fundamental rights to privacy and data protection in the existing legal framework with a specific focus on the European Convention on Human Rights (Art. 8 of ECHR) and the Charter of Fundamental Rights of the EU (Art. 7, Art. 8)

 

Article 8 of the Convention (ECHR) guarantees the right to respect private and family life. In contrast, Art 52(1) EU Charter recognizes the respect for the essence of the rights and freedoms guaranteed by the Charter. Both are similar, but not identical. This can be validated from the following points:

• As per Art 8 (2) ECHR – there shall be no interference with the exercise of this right except such as in accordance with the law, whereas Art 52 (1) states that any limitation to the exercise of right and freedoms recognized by the Charter must be provided for by law.
• The Art 8 (2) ECHR stresses the necessity in a democratic society to exercise such an interference, whereas Art 52(1) of the EU Charter is subject to the principle of proportionality.
• Respect for the essence of rights and freedoms is mentioned in Art 52 (1) but not mentioned in Art 8 (2).
• Also, Art 8 (2) states that the interference to the right must be only allowed in the interests of national security, public safety, or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or the protection of the rights and freedoms of others. At the same time, Article 52 (1) states that any limitations to rights must meet objectives of general interest recognized by the Union or the need to protect others’ rights and freedoms.

 

In the Joined Cases C?293/12 and C?594/12, Digital Rights Ireland; the Court addressed the interferences to the rights guaranteed under Articles 7 and 8 caused by the Data Retention Directive. An assessment was carried out as to whether the interferences to the Charter rights were justified as per Article 52(1) of the Charter. In order to be justified, three conditions under Article 52(1) must be fulfilled. The interference must be provided for by law, and there must be respect for the essence of the rights, and it must be subject to the principle of proportionality. Certain limitations to the exercise of such interference/ infringement must be genuinely necessary to meet objectives of general interest. The Directive does not permit the acquisition of data and requires the Member States to ensure that ‘appropriate technical and organizational measures are adopted against accidental or unlawful destruction, accidental loss or alteration of data’ and thus, respects the essence of the right to privacy and data protection. The Directive also satisfied the objective of general interest as the main aim of the Directive was to fight against serious crime, and it was also proportional to its aim of need for data retention to fight against serious crimes. However, even though the Directive satisfied these three criteria, it did not set out clear safeguards for protecting the retained data, and therefore it was held to be invalid.

 

It is pertinent to note here that the ECHR does not contain any express requirement to protect the ‘essence’ of fundamental rights, whereas the Charter does. However, with regard to Art 8 of the ECHR, it aims to prohibit interference or destruction of any rights or freedoms with respect for private and family life. This can be possibly interpreted so as to protect the essence of the fundamental right of private and family life. This is because a prohibition of the destruction of any right would mean affecting the core of the right or compromising the essence of the right.

 

Gloria, also examined Article 7 of the Charter, which guarantees a right to respect for private and family life, home and communications, and Article 8, which not only distinguishes data protection from privacy but also lays down some specific guarantees in paragraphs 2 and 3, namely that personal data must be processed fairly for specified purposes. She analyzed these Charter provisions concerning the Regulation (EU) 2016/679 (GDPR). GDPR creates three-fold provisions by imposing obligations on the data controllers, providing rights to data subjects, and creating provision for supervision by data protection authorities.

 

She also addressed the balance between the right to privacy and the processing of personal data of an individual on one hand and the right to information of the public on the other. Concerning this, she highlighted the interesting decision in C-131/12, Google Spain, wherein it was stated that an interference with a right guaranteed under Article 7 and 8 of the Charter could be justified depending on the nature and sensitivity of the information at issue and with regard to the potential interest of the internet users in having access to that information. A fair balance must be sought between the two rights. This may also depend on the role played by the data subject in public.

It was also discussed in the judgments C-507/17, Google v CNIL; and Case C-136/17 that a data subject should have a “right to be forgotten” where the retention of such data infringes the Directive 95/46 and the GDPR. However, the further retention of the personal data shall only be lawful where it is necessary for exercising the right of freedom of expression and information. The ruling was on the geographical reach of a right to be forgotten. It was held that it is not applicable beyond the EU, meaning that Google or other search engine operators are not under an obligation to apply the ‘right to be forgotten’ globally.

In the next half of the day, Roland Klages, Legal Secretary, Chambers of First Advocate General Szpunar, Court of Justice of the European Union, Luxembourg, presented on the topic: “The concept of consent to the processing of personal data”. He started with a brief introduction of GDPR and stated that there is no judgment on GDPR alone as it has been introduced and implemented recently, but there are judgments based on the interpretation of Directive 95/46 and the GDPR simultaneously.  He commented on the composition of the ECJ, which sits in the panel of 3,5, 15 (Grand Chamber), or 27 (Plenum) judges. The Grand Chamber comprises a President, vice-president, 3 presidents of a 5th chamber, rapporteur, another 9 judges, appointed based on re-established lists (see Article 27 ECJ RP).

 

He discussed the following cases in detail:

 

C – 673/17 (Planet49): Article 6(1) (a) GDPR states that the processing of data is lawful only if the data subject has given consent to the processing of personal data for one or more specific purposes. “Consent” of the data subject means any freely given, specific, informed, and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by clear affirmative action, signifies agreement to the processing of personal data relating to him or her.[1] This clearly indicates that consent is valid only if it comes from the active behavior of the user as it indicates the wishes of the data subjects. A consent given in the form of a pre-selected checkbox on a website does not amount to active behavior. It also does not fulfill the requirement of unambiguity. Another important aspect of the ruling was that it does not matter if the information stored or retrieved consists of personal data or not. Article 5(3) of Directive 2002/58/ EC (Directive on privacy and electronic communications)protects the user from interference with their private sphere, regardless of whether or not that interference involves personal or other data. Hence, in this case, the storage of cookies at issue amounts to the processing of personal data. Further, it is also important that the user is able to determine the consequence of the consent given and is well informed. However, in this case, the question of whether consent is deemed to be freely given if it is agreed to sell data as consideration for participation in a lottery is left unanswered.

 

Similarly, in case C -61/19 (Orange Romania), it was held that a data subject must, by active behavior, give his or her consent to the processing of his or her personal data, and it is upto the data controller, i.e., Orange România to prove this. The case concerns contracts containing a clause stating that the data subject has been informed about the collection and storage of a copy of his or her identification document with the identification function and has consented thereto. He also discussed other cases such as case C-496/17, Deutsche Post, and C- 507/17, Google (discussed earlier), demonstrating that consent is a central concept to GDPR.

 

 

Day 2: “Retention of personal data for law enforcement purposes.”

 

On the next day, Kirill Belogubets, Magister Juris (Oxford University), case lawyer at the Registry of the European Court of Human Rights (ECtHR), started with a presentation on the topic:

 

“Retention of personal data for combating crime.”

 

Kirill Belogubets discussed the case of PN v. Germany. No. 74440/17 regarding the processing of personal identification of data in the context of criminal proceedings. In this case, a German citizen was suspected of buying a stolen bicycle. Authorities collected an extensive amount of data such as photographs, fingerprints, palm prints, and suspect descriptions. It must be noted here that with regard to the right to respect for private life under Article 8 of the ECHR, the interference must be justified and fulfill the test of proportionality, legitimacy, and necessity. The authorities expounded on the likelihood that the offender may offend again. Therefore, in the interest of national security, public security, and prevention of disorder and criminal offenses, it is essential to collect and store data to enable tracing of future offenses and protect the rights of future potential victims. Thus, the collection and storage of data in the present case struck a fair balance between the competing public and private interests and therefore fell within the respondent State’s margin of appreciation.

 

With respect to margin of appreciation, the case of Gaughran v. The United Kingdom, no. 45245/15was also discussed. This case pertains to the period of retention of DNA profiles, fingerprints, and photographs for use in pending proceedings. The Court considered storing important data such as DNA samples only of those convicted of recordable offences, namely an offense that is punishable by a term of imprisonment. Having said that, there was a need for the State to ensure that certain safeguards were present and effective, especially in the nature of judicial review for the convicted person whose biometric data and photographs were retained indefinitely.

 

However, it has been highlighted that the legal framework on the retention of DNA material was not very precise. It does not specifically relate to data regarding DNA profiles and there is no specific time limit for the retention of DNA data. Similarly, the applicant has no avenue to seek deletion because of the absence of continued necessity, age, personality, or time elapsed. This has been laid down in the case of Trajkovski and Chipovski v. North Macedonia, nos. 53205/13 and 63320/13.

 

Mass Collection and Retention of Communications data

In the next half, Anna Buchta, Head of Unit “Policy & Consultation”, European Data Protection Supervisor, Brussels brought the discussion on Article 7 and 8 of the Charter and Article 8 of the Convention along with the concept of ‘essence’ of fundamental rights, back to the table. With regard to this discussion, she described the case C-362/14 Maximilian Schrems v DPC, which highlights that ‘any legislation permitting the public authorities to have access on a generalized basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life, as guaranteed by Article 7 of the Charter.’ In this context, EU member states must recognize the confidentiality of communication as a distinct legal right. In this case, it was the first time where a Directive was invalidated due to non-confirmation with the ECHR. It was laid down that the safe harbor principles issued under the Commission Decision 2000/520, pursuant to Directive 95/46/EC  does not comply with its Article 25(6), which ensures a level of protection of fundamental rights essentially equivalent to that guaranteed in the EU legal order. The Decision 2000/520 does not state that the United States, infact, ‘ensures’ an adequate level of protection by reason of its domestic law or its international commitments.

 

Traffic and Location data

She also commented on the indefinite retention of data, which might lead to a feeling of constant surveillance leading to interference with freedom of expression in light of CJEU cases C-203/15 and C-698/15 Sverige and Watson. In these cases, the Court agreed that under Article 15(1) of the Directive 2002/58 / EC, data retention could be justified to combat serious crime, national security, protecting the constitutional, social, economic, or political situation of the country and preventing terrorism. However, this must only be done if it is limited to what is strictly necessary, regarding categories of data, means of communication affected, persons concerned, and retention period. Traffic data relating to subscribers and users processed and stored by the provider of a public communications network or publicly available electronic communications service must be erased or made anonymous when it is no longer needed for the transmission of a communication without prejudice to paragraphs 2, 3, and 5 of this Article 6 and Article 15(1) of the Directive. This was reiterated in C-623/17 Privacy International. It must be noted here that these data can be retained only if there is evidence that these data constitute an identifiable link, at least an indirect one, to criminal activities. Data with regard to the geographical location again requires objective factors. It must be retained if there exists a risk of criminal activities in such areas. These locations may correspond to places that are vulnerable to the commission of serious offenses, for instance, areas that receive a large number of people, such as airports, train stations, toll-booth areas, etc.

 

The Court differentiated between generalized and targeted retention of data. Real-time collection and indeterminate storage of electronic communications surveillance involving traffic and location data of specific individuals constitute targeted retention. In this context, the case of C?511/18, C?512/18 and C?520/18, La Quadrature du Net and Others were also relied upon, with a focus on the following findings:

Targeted real-time collection of traffic and location data by electronic communication providers that concerns exclusively one or more persons constitutes a serious interference that is allowed where:

• Real-time collection of traffic and location data is limited to persons in respect of whom there is a valid reason to suspect that they are directly or indirectly involved in terrorist activities. With regard to persons falling outside of that category, they may only be the subject of non-real-time access.
• A court or an administrative authority must pass an order after prior review, allowing such real-time collection. This must be authorized only within the limits of what is strictly necessary. In cases of duly justified urgency, the review must take place within a short time.
• A decision authorizing the real-time collection of traffic and location data must be based on objective criteria provided for in the national legislation, which must clearly define the circumstances and conditions under which such collection may be authorized.
• The competent national authorities undertaking real-time collection of traffic and location data must notify the persons concerned, in accordance with the applicable national procedures.

 

 

Last but not least, the EU Commission as well as the CJEU have started looking at the national laws of data retention and specifically inclined to define national security in manner so as to increase their own role in the area. However, data retention schemes are divergent across the Member States. It is essential to create clearer and more precise rules at the European level to enable the Courts to develop the best ways to strike a balance between the interactions of privacy rights with the need to tackle serious crime. The different legal rules in the area of data retention restricted cooperation between competent authorities in cross-border cases and affected law enforcement efforts. For instance, some Member States have specified retention periods, whereas some do not, a fact from which conflict-of-laws problems may arise. While some Member States for example Luxembourg precisely define ‘access to data’, there are Member States, which do not. This was pointed out by the EU Council in the conclusion of the data retention reflection process in May 2019, wherein it was emphasized that there is a need for a harmonised framework for data retention at EU level to remedy the fragmentation of national data retention practices.

 

Day 3: Data Protection in the Global Data Economy

 

The discussion of the third day started with a presentation by Professor Herwig Hofmann, Professor of European and Transnational Public Law, the University of Luxembourg on the well-known Schremscases namely, C-362/14, Schrems I; C-498/16, Schrems vs Facebook; and C-311/18, Schrems II;which involves transatlantic data transfer and violation of Article 7 and 8 of the Charter. In the clash between the right to privacy of the EU and surveillance of the US, the CJEU was convinced that any privacy agreements could not keep the personal data of EU citizens safe from surveillance in the US, so long as it is processed in the US under the country’s current laws. The guidelines in the US for mass surveillance did not fit in the EU. Therefore, privacy shield could not be maintained.

He also highlighted that international trade in today’s times involves the operation of standard contractual terms created to transfer data from one point to another. Every company uses a cloud service for the storage of data, which amounts to its processing. It is inevitable to ensure transparency from cloud services. The companies using cloud services must require transparency from cloud services and confirm how the cloud service will use the data, where would the data be stored or transferred.

 

In the last panel of the seminar Jörg Wimmers, Partner at TaylorWessing, Hamburg, spoke about the balance between Data protection and copyright.

The case discussed in detail was C-264/19 Constantin Film Verleih GmbH, which was about the prosecution of the user who unlawfully uploaded a film on YouTube, i.e., without the copyright holder’s permission. In this regard, it was held that the operator of the website is bound only to provide information about the postal address of the infringer and not the IP address, email addresses, and telephone numbers. The usual meaning of the term ‘address’ under the Directive 2004/48 (Directive on the enforcement of Intellectual Property rights) refers only to the postal address, i.e., the place of a given person’s permanent address or habitual residence. In this context, he also commented on the extent of the right to information guaranteed under Article 8 of the said Directive 2004/48. This was done by highlighting various cases, namely, C-580/13, Coty and C-516/17, Spiegel Online, noting that Article 8 does not refer to that user’s email address and phone number, or to the IP address used for uploading those files or that used when the user last accessed his account. However, Article 8 seeks to reconcile the right to information of the rightholder/ intellectual property holder and the user’s right to privacy.

 

Conclusion:

 

To conclude, the online seminar was a total package with regard to providing a compilation of recent cases of the ECtHR and CJEU on data protection and the right to privacy. A plethora of subjects, such as the balance between data protection and intellectual property rights, privacy and data retention, and respect for the essence of fundamental rights to privacy, were discussed in detail. The data retention provision established by the new Directive on Privacy and Electronic Communications may be an exception to the general rule of data protection, but in the current world of Internet Service providers and telecommunication companies, it may not be easy to ensure that these companies store all data of their subscribers. Also, it is important to ensure that data retained for the purpose of crime prevention does not fall into the hands of cybercriminals, thereby making their jobs easier.

 

[1] Article 4 No.11 GDPR

Geert van Calster has just published the third edition of the book titled “European Private International Law: Commercial Litigation in the EU” with Hart.

The blurb reads as follows:

This classic textbook provides a thorough overview of European private international law. It is essential reading for private international law students who need to study the European perspective in order to fully get to grips the subject.
Opening with foundational questions, it clearly explains the subject’s central tenets: the Brussels I, Rome I and Rome II Regulations (jurisdiction, applicable law for contracts and tort). Additional chapters explore the Succession Regulation, private international law and insolvency, freedom of establishment, and the impact of PIL on corporate social responsibility. The new edition includes a new chapter on the Hague instruments and an opening discussion on the impact of Brexit.
Drawing on the author’s rich experience, the new edition retains the book’s hallmarks of insight and clarity of expression ensuring it maintains its position as the leading textbook in the field.

 

The purpose of the book is to serve as an introductory text for students interested in EU Private International Law. The book can also be appreciated by non-EU students interested in EU Private International Law since it serves as an introductory text. It contains seven core chapters including the introduction. The full table of contents and introduction are provided free to readers and can be accessed respectively here and here

From what I have read so far in the introduction, this book is highly recommended. It brings the subject of EU Private International Law to the doorstep of the uninitiated and refreshes the knowledge of any expert on Private International Law (“PIL”). Though the core foundation of the book is on EU PIL, it contains some comparisons to other systems of PIL especially in the common law, in order to illustrate. Importantly, the introduction ends with the implications of Brexit for EU PIL and some interesting speculations.

More information on the book can be found here

The third issue of the Journal of Private International Law for 2020 features the following articles:

M Teo, “Public law adjudication, international uniformity and the foreign act of state doctrine”

Should courts, when applying foreign law, assess the validity or legality of foreign legislative or executive acts therein? The foreign act of state doctrine answers that question in the negative, but is often criticised as lacking a sound theoretical basis. This article argues, however, that the doctrine remains defensible if reconceptualised as a rule of private international law, which furthers the modest goal of international uniformity within the choice-of-law process. Assessing the validity or legality of foreign legislative and executive acts necessarily requires courts to address questions of foreign public law. Given the fact-specific and flexible nature of public law adjudication, courts cannot answer these questions, and thus cannot carry out such assessments, in a manner that loyally applies foreign law. The doctrine, then, makes the best of a bad situation, by sidestepping that problem with a clear rule of refusal which, if consistently applied, furthers international uniformity.

G Laganière, “Local polluters, foreign land and climate change: the myth of the local action rule in Canada”

This article addresses the jurisdiction of Canadian courts over transboundary pollution. It argues that a tort lawsuit brought by foreign victims of climate change against local greenhouse gas emitters could overcome jurisdictional obstacles, notably the local action rule, and proceed in Canada. The local action rule provides that Canadian courts have no jurisdiction to hear a claim involving foreign land, even when the claim lies solely in tort. It is thought to be a significant jurisdictional obstacle in transboundary environmental disputes involving foreign land. This assumption is misleading. A growing corpus of soft law instruments supports the notion of equal access to the courts of the state of origin for all victims of transboundary pollution. The courts of Canadian provinces have jurisdiction over pollution originating in the province, and the case law is more divided than generally assumed over the effect of the local action rule in tort litigation. The conclusions of this article have important implications for transboundary environmental disputes in Canada and other top greenhouse gas-producing countries. They also highlight a modest but potentially meaningful role for private international law in our global response to climate change.

S Khanderia, “Practice does not make perfect: Rethinking the doctrine of “the proper law of the contract” – A case for the Indian courts”

An international contract calls for the identification of the law that would govern the transaction in the event of a dispute on the matter between the parties. Indian private international law adopts the doctrine of “the proper law of contract” to identify the legal system that will regulate an international contract. In the absence of any codification, the interpretation of the doctrine has been left to the courts. The judiciary adopts the common law tripartite hierarchy, viz., the “express choice”, “implied choice” and “the closest and most real connection” test to determine the proper law. However, the existing case law demonstrates the diverse interpretations given to each of these factors in India in the post-colonial era. The paper examines the manner in which the blind adoption of the decisions of the English courts has considerably hindered the development of Indian private international law. In this regard, the author suggests some plausible solutions to render India more amenable to international trade and commerce – such as the adoption of mechanisms similar to those formulated by its continental counterpart.

KD Voulgarakis, “Reflections on the scope of “EU res judicata” in the context of Regulation 1215/2012”

It is now established in the case law of the Court of Justice of the European Union (CJEU) that the law pursuant to which the effects of a recognised judgment are determined is that of the Member State where the judgment was rendered. In Case C-456/11 (Gothaer), however, the CJEU deviated from this rule and developed an autonomous (EU) concept of res judicata. The potential for this concept to extend to other jurisdictional determinations by Member State courts has therefore created additional layers of complexity in the area of recognition of judgments. This article seeks to shed light on this topic by drawing conclusions from the Court’s rationale in Gothaer and considering whether a more broadly applicable autonomous concept of res judicata can be consistent with the general system of Regulation 1215/2012 and the CJEU’s previous case law.

K Tan, “All that glisters is not gold? Deconstructing Rubin v Eurofinance SA and its impact on the recognition and enforcement of foreign insolvency judgments at common law”

It was Lord Hoffmann who once spoke of a “golden thread” of modified universalism running throughout English Insolvency Law since the eighteenth century. However, after the UK Supreme Court’s decision in Rubin v Eurofinance SA, that golden thread seems to have lost its lustre. This paper critiques the main premise of the Rubin decision by questioning whether the Supreme Court was correct in holding that there can be no separate sui generis rule for recognising and enforcing foreign insolvency judgments. This article also explores the possible solutions, either through statute or the common law, that could be used to remedy the post-Rubin legal lacuna for recognising and enforcing foreign insolvency judgments.

B Alghanim, “The enforcement of foreign judgments in Kuwait”

This article provides an overview of the rules in Kuwait regarding the enforcement of foreign judgments. This issue is significant due to the fact that foreign litigants still experience significant challenges in successfully enforcing foreign judgments – particularly as such parties have a limited understanding of the manner in which the Kuwaiti courts will interpret the conditions required to enforce such judgments.

An analysis of case law in this area highlights that the reciprocity condition is usually the most significant hurdle for applicants when seeking the enforcement of foreign judgments. Such difficulties have catalysed the Kuwaiti Parliament to introduce an exception to the general rule regarding the reciprocity condition; reform which this article heavily criticises.

PN Okoli, “The fragmentation of (mutual) trust in Commonwealth Africa – a foreign judgments perspective”

Mutual trust plays an important role in facilitating the recognition and enforcement of foreign judgments. The 2019 Convention on the Recognition and Enforcement of Foreign Judgments also reflects some degree of mutual trust, although not explicitly. Commonwealth African countries seem to be influenced by mutual trust but have not yet adopted any coherent approach in the conflict of laws. This incoherence has impeded the recognition and enforcement of foreign judgments especially in Africa. This article seeks to understand the principle of mutual trust in its EU context and then compare it with the subtle application of mutual trust in the recognition and enforcement of foreign judgments in Commonwealth Africa. The article illustrates this subtle and rather unarticulated application of mutual trust primarily through decided cases and relevant statutory provisions in the Commonwealth African jurisdictions considered. The article then considers how the subtle application of mutual trust has sometimes resulted in parallel efforts to promote the recognition and enforcement of foreign judgments and how a proliferation of legal regimes can undermine legal clarity, certainty and predictability. A progressive application of mutual trust will help to ensure African countries maximise the benefits of a global framework on foreign judgments.

A Moran & A Kennedy, “When considering whether to recognise and enforce a foreign money judgment, why should the domestic court accord the foreign court international jurisdiction on the basis that the judgment debtor was domiciled there? An analysis of the approach taken by courts in the Republic of South Africa”

The Roman-Dutch common law of the Republic of South Africa states that a foreign judgment is not directly enforceable there. In order to have a foreign money judgment recognised and enforced, the judgment creditor must, inter alia, demonstrate that the foreign court had jurisdiction to adjudicate the matter (ie that it had “international jurisdiction”). South African courts have held that the judgment debtor’s being domiciled, at the time of commencement of the proceedings, within the territory of the foreign court confers the said international jurisdiction on that foreign court. This position has been criticised. This paper assesses the validity of that criticism.

RF Oppong, “The dawn of the free and fair movement of foreign judgments in Africa?”

A new book on foreign judgment enforcement in Nigeria and South Africa seeks to ground their foreign judgment enforcement regimes – and perhaps other African countries – on a new theoretical foundation and inform judicial decisions in new directions. In a quest to promote the free movement of judgments, judges are urged to presumptively enforce foreign judgments subject to narrowly defined exceptions. This review article examines the new theory of qualified obligation and some selected issues arising from the discussion, recommendations, and findings of the book.

 

On a personal note, it is a delight to see three articles on the subject of Private International law in Africa published in this issue!

Iacyr de Aguilar Vieira, Gustavo Cerqueira (Eds.), The Vienna Convention in America. 40th anniversary of the United Nation Convention on Contracts for the International Sale of Goods / La Convention de Vienne en Amérique. 40eanniversaire de la Convention des Nations Unies sur les contrats de vente internationale des marchandises, Paris : Société de législation comparée, 2020, 408 p. (available in hard copy and e-book)

To celebrate the 40th anniversary of the Vienna Convention on Contracts for the International Sale of Goods, the Latin American section of the Société de législation comparée has published this book to present the Convention’s current state of application in different American countries, as well as to evaluate its influence on domestic sales laws.

This book seeks to provide a better understanding of how the Convention is being applied in American countries and by doing so, supports the efforts towards its uniform application. Concerning the more specifics private international law issues, the numerous analyses relating to the applicability of the Convention and to the subsidiary application of national law offer very interesting insights into the conflict of laws systems of Contracting States in this part of the world. A comparative approach concludes the volume.

This book offers the perfect opportunity to compare the Vienna Convention’s implementation in American States and to benefit from the view of American scholars on this universal instrument for the uniformization of sales of goods.

Among the contributors are Maria Blanca Noodt Taquela, Alejandro Garro, Franco Ferrari, Lauro Gama Jr., Jose Antonio Moreno Rodríguez, Cecilia Fresnedo de Aguirre, Ana Elizabeth Villalta Vizcarra and Claudia Madrid Martínez.

This publication is meant for both scholars and lawyers in the field of international trade.

 

 

On 27 January 2021 ERA (Academy of European Law) will host an online seminar to discuss practical implications of using digital technology in family law cases that often involve vulnerable parties and will therefore need special attention within the digitalisation of justice.

Among the key topics addressed in this event are:

• Legal Tech in family law – and how it affects the lawyer’s work
• Digitalisation of family courts, paperless systems and remote hearings
• Online divorce and ODR
• e-codex and the digitalisation of justice systems
• Artificial intelligence in family matters
• Experiences abroad

Additional information about this event is available here.

Maria Campo Comba just published a book titled: “The Law Applicable to Cross-border Contracts involving Weaker Parties in EU Private International Law” with Springer.  The abstract reads as follows:

This book provides answers to the following questions: how do traditional principles of private international law relate to the requirements of the internal market for the realisation of the EU’s objectives regarding the protection of weaker parties such as consumers and employees? When and how should private international law ensure the applicability of EU directives concerning the protection of weaker parties? Are the EU’s current private international law, rules on conflict of laws, and private international law approach sufficient to ensure the realisation of its objectives regarding weaker contracting parties, or is a different approach to private international law called for? The book concludes with several proposed amendments, mainly regarding the Rome I Regulation on the law applicable to contractual obligations, as well as suggestions on the EU’s current approach to private international law. 

This book is primarily intended for an academic audience and to help achieve better regulation in the future. It also seeks to dispel certain lingering doubts regarding the current practice of EU private international law.

 

More information on the book can be found here

The right of children to receive adequate information in civil proceedings involving them represents a cornerstone of child participation, as well as a fundamental right of the child. The contact of children with the judicial system represents one of the most delicate situations where the child’s best interests and wellbeing should be of special attention. In particular, the child should receive information before, during and after the judicial proceedings, in order to have a better understanding of the situation and to be prepared either for his or her audition by the judicial authority, or for the final decision that will be taken. This aspect – as an important component of the child’s fundamental rights – should acquire (and is acquiring) importance also within the European Union, more and more oriented towards the creation of a child-friendly justice. It is a current reality that the implementation of the fundamental rights of the child influences the correct application of the EU instruments in the field of judicial cooperation in civil matters.

However, the transposition of the principles and standards set at the international and regional level are not always easy to implement at the local level: despite the acknowledgement that the availability and accessibility of information is the crucial starting point for a child-friendly justice, more efforts are still to be done to effectively grant this right. International standards need to find their way into policies, legislation and daily practice.

The MiRI project (co-funded by the European Union Justice Programme 2014-2020, JUST-JCOO-AG-2018 JUST 83160) is undertaking a research on seven member States on children’s right to information in cross-border civil proceedings. The project consortium wishes to invite researchers in the field of private international family law to submit abstracts for an upcoming edited volume on the topic.

The abstract should focus on one or more of the following topics:

• The right of the child to receive adequate information in civil proceedings (such as parental responsibility, international child abduction, maintenance, etc.) as an autonomous and fundamental right: the reconstruction of rules, principles and standards of international law.
• The fundamental rights of the child in the European Union: the autonomous relevance of the right of the child to be informed in civil proceedings concerning him or her and its relevance for the creation of a EU child-friendly justice.
• The relevance of children’s right to information for the EU instruments in the field of judicial cooperation in civil matters (such as Regulation EC No. 2201/2003 and its recast Regulation EU No. 2019/1111, with reference to parental responsibility and international child abduction; Regulation EC No. 4/2009): how international human rights standards should influence the correct application of the aforementioned instruments? Are there common best practices in this regard among EU member States? What should be done in order to build those common best practices?
• Rules, case law and practices currently existing in EU member States as concerns the fundamental right of the child to be informed in civil proceedings.

Abstracts should be no longer than 500 words and should be submitted by 15th March 2021 to francesca.maoli@edu.unige.it

The selection criteria will be based 1) on the relevance of the analysis in the field of EU judicial cooperation in civil matters, 2) quality of the contribution and 3) its originality. Those whose abstract will be accepted, will be notified by 30th March 2021 and will be asked to submit the full draft of the chapter (approx. between 8000-12000 words) by 30th June 2021.

Contributions will be subject to blind peer-review prior publishing. Selected authors will also be invited to present their findings during the final conference of the MiRI project in June-July 2021. More information about this event will be distributed after acceptance of the abstract.

Written by Catherine Shen, Project Manager, Asian Business Law Institute

 

1. The ConflictofLaws.net previously published a short update on the Asian Principles for the Recognition and Enforcement of Foreign Judgments (Adeline Chong ed, Asian Business Law Institute, 2020) which was released in September 2020.
2. Starting in November 2020, ABLI has been following up that publication with a series of concise handbooks written in no-frills languages called “Where in Asia” to address practical questions such as where in Asia judgments from a particular jurisdiction are entitled to be, have been and cannot be, recognised and enforced in other jurisdictions. The jurisdictions considered are Australia, Brunei, Cambodia, China, India, Japan, Lao, Malaysia, Myanmar, the Philippines, Singapore, South Korea, Thailand and Vietnam, which corresponds to those discussed in the two flagship ABLI publications on judgments recognition and enforcement: Recognition and Enforcement of Foreign Judgments in Asia (Adeline Chong ed, Asian Business Law Institute, 2017) and the Asian Principles.
3. For example, included in this “Where in Asia” series is a Quantitative Analysis of the Enforcement of Foreign Judgments in China (as of December 2020) which is based on a list on China’s cases on recognition of foreign judgments (List) being maintained by China Justice Observer (CJO).
4. While CJO’s List looks at both applications to recognise and enforce foreign judgments in China as well as those to recognise and enforce Chinese judgments in foreign jurisdictions, ABLI’s analysis focuses specifically on the former category of applications.
5. Based on the List, ABLI identified an uptick in the number of such applications from 2015 to 2020, compared to the previous two decades, with Europe being the region that has exported the most judgments to China.
6. Further, there are two routes for the recognition and enforcement of foreign judgments in China: either pursuant to a bilateral agreement (or “treaty”) between China and the country of the foreign court for the reciprocal enforcement of each other’s judgments, or under China’s domestic Civil Procedure Law (CPL) in the absence of such an agreement or treaty. Through its analysis, ABLI found that almost three in every five applications to enforce foreign judgments in China were unsuccessful, which is hardly surprising considering that more than half of all applications were made under the CPL route where applicants are required to demonstrate reciprocity. Under Chinese law currently, de facto reciprocity is required ie it has to be established that the foreign court whose judgment is before the Chinese court had previously enforced a Chinese judgment.
7. Other key insights revealed by the analysis include the percentage of applications that failed due to lack of reciprocity, the percentage of applications that were unsuccessful on procedural grounds, the percentage of applications that came from Belt and Road countries, etc.
8. The other handbooks available in the “Where in Asia” series include where in Asia can judgments from Australia, China, India, Indonesia, Malaysia, Singapore, Thailand and Vietnam be enforced in the Asia Pacific. Of particular interest may be the position in relation to Indonesian and Thai judgments. Since these two countries generally do not allow the recognition and enforcement of any foreign judgment, how is this stance affecting the exportation of their own judgments abroad? For example, the Indonesia handbook specifically discusses the case of Paulus Tannos v Heince Tombak Simanjuntak ([2020] SGCA 85, [2020] 2 SLR 1061) where the Singapore Court of Appeal overturned the High Court’s decision last year and refused to recognise Indonesian bankruptcy orders on the ground of breach of natural justice.
9. The “Where in Asia” series is available here. ABLI is delighted to offer readers of ConflictofLaws.net an exclusive discount off its entire judgments book collection. Please write to catherine_shen@abli.asia for more information and your unique coupon code.

Since the summer, the Hamburg Max Planck Institute has hosted monthly virtual workshops on current research in private international law. That series, so far held in German, has proven very successful, with sometimes more than 1oo participants.

Starting in January, the format will be expanded. In order to broaden the scope of potential participants, the series will alternate between English and German presentations. The first English language speaker promises to be a highlight: Attorney-General Maciej Szpunar, author of the opinions in the landmark cases Google v CNIL (C-507/17) and Glawischnig-Pieschzek v Facebook Ireland Limited (C-18/18), as well as numerous other conflict-of-laws cases, most recently X v Kuoni (C-578/19). Szpunar will speak about questions of (extra-)territoriality, a topic of much interest for private international lawyers and EU lawyers since long ago, and of special interest for UK lawyers post-Brexit.

AG Maciej Szpunar
“New challenges to the Territoriality of EU Law”
Wednesday (!), 13 January 2021, 11:00-12:30 (Zoom)

As usual, the presentation will be followed by open discussion. All are welcome.

More information and sign-up here.

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

JM Scherpe and E Bargelli have just published an edited book titled: “The Interaction between Family Law, Succession Law and Private International Law” with Intersentia.

The publisher’s blurb reads as follows:

There can be no doubt that both substantive family and succession law engage in significant interaction with private international law, and, in particular, the European Union instruments in the field. While it is to be expected that substantive law heavily influences private international law instruments, it is increasingly evident that this influence can also be exerted in the reverse direction. Given that the European Union has no legislative competence in the fields of family and succession law beyond cross-border issues, this influence is indirect and, as a consequence of this indirect nature, difficult to trace.

This book brings together a range of views on the reciprocal influences of substantive and private international law in the fields of family and succession law. It outlines some key elements of this interplay in selected jurisdictions and provides a basis for discussion and future work on the reciprocal influences of domestic and European law. It is essential that the choices for and within certain European instruments are made consciously and knowingly. This book therefore aims to raise awareness that these reciprocal influences exist, to stimulate academic debate and to facilitate a more open debate between European Institutions and national stakeholders.

 

More information can be found here

Written by Andrew Dickinson (Fellow, St Catherine’s College and Professor of Law, University of Oxford)

The belated conclusion of the UK-EU Trade and Cooperation Agreement did not dampen the impact of the UK’s departure from the European Union on judicial co-operation in civil matters between the UK’s three legal systems and those of the 27 remaining Members of the Union. At the turn of the year, the doors to the UK’s participation in the Recast Brussels I Regulation and the 2007 Lugano Convention closed. With no signal that the EU-27 will support the UK’s swift readmission to the latter, a new era for private international law in England and Wales, Scotland and Northern Ireland beckons.

The path that the United Kingdom has chosen to take allows it, and its constituent legal systems, to shape conflict of laws rules to serve the interests that they consider important and to form new international relationships, unfettered by the EU’s legislative and treaty making competences. This liberty will need to be exercised wisely if the UK’s legal systems are to maintain their positions in the global market for international dispute resolution, or at least mitigate any adverse impacts of the EU exit and the odour of uncertainty in the years following the 2016 referendum vote.

As the guidance recently issued by the Ministry of Justice makes clear, the UK’s detachment from the Brussels-Lugano regime will magnify the significance of the rules of jurisdiction formerly applied in cases falling under Art 4 of the Regulation (Art 2 of the Convention), as well as the common law rules that apply to the recognition and enforcement of judgments in the absence of a treaty relationship. This is a cause for concern, as those rules are untidy and ill-suited for the 21st century.

If the UK’s legal systems are to prosper, it is vital that they should not erase the institutional memory of the three decades spent within the EU’s area of justice. They should seek to capture and bottle that experience: to see the advantages of close international co-operation in promoting the effective resolution of disputes, and to identify and, where possible, replicate successful features of the EU’s private international law framework, in particular under the Brussels-Lugano regime.

With these considerations in mind, I began the New Year by suggesting on my Twitter account (@Ruritanian) ten desirable steps towards establishing a more effective set of conflict of laws rules in England and Wales for civil and commercial matters. Ralf Michaels (@MichaelsRalf) invited me to write this up for ConflictofLaws.Net. What follows is an edited version of the original thread, with some further explanation and clarification of a kind not possible within the limits of the Twitter platform. This post does not specifically address the law of Scotland or of Northern Ireland, although many of the points made here take a broader, UK-wide view.

First, a stand-alone, freshly formulated set of rules of jurisdiction replacing the antiquated service based model. That model (Civil Procedure Rules 1998, rr 6.36-6.37 (CPR) to be read with Practice Direction 6B) dates back to the mid-19th century and has only been lightly patched up, albeit with significant ad hoc extensions, since then. The new rules should demand a significant connection between the parties or the subject matter of the claim and the forum of a kind that warrants the exercise of adjudicatory jurisdiction. In this regard, the Brussels-Lugano regime and the rules applied by the Scots courts (Civil Jurisdiction and Judgments Act 1982, Sch 8) provide more suitable starting points than the grounds currently set out in the Practice Direction.

Taking this step would allow the rules on service to focus on the procedural function of ensuring that the recipient of a claim form or other document is adequately informed of the matters raised against it. It would enable the cumbersome requirement to obtain permission to serve a claim form outside England and Wales to be abolished, and with it the complex and costly requirement that the claimant show that England and Wales is the ‘proper place’ (ie clearly the appropriate forum) for the trial of the action. Instead, the claimant would need to certify that the court has jurisdiction under the new set of rules (as has been the practice when the rules of the Brussels-Lugano apply) and the defendant would need to make an application under CPR, Part 11 if it considers that the English court does not have or should not exercise jurisdiction. The claimant would bear the burden of establishing jurisdiction, but the defendant would bear the burden of persuading the court that it should not be exercised. This brings us to the second point.

Secondly, stronger judicial (or legislative) control of the expensive and resource eating Goffian forum conveniens model. Senior judges have repeatedly noted the excesses of the Spiliada regime, in terms of the time, expense and judicial resource spent in litigating questions about the appropriate forum (see, most recently, Lord Briggs in Vedanta Resources Plc v Lungowe [2019] UKSC 20, [6]-[14]), yet they and the rule makers have done little or nothing about it. In many ways, the model is itself to blame with its wide ranging evaluative enquiry and micro-focus on the shape of the trial. Shifting the onus to the defendant in all cases (see above) and an emphasis on the requirement that another forum be ‘clearly [ie manifestly] more appropriate’ than England would be useful first steps to address the excesses, alongside more pro-active case management through (eg) strict costs capping, a limit in the number of pages of evidence and submissions for each side and a greater willingness to require the losing party to pay costs on an indemnity basis.

Thirdly, a clipping of the overly active and invasive wings of the anti-suit injunction. English judges have become too willing to see the anti-suit injunction, once a rare beast, as a routine part of the judicial arsenal. They have succumbed to what I have termed the ‘interference paradox’ ((2020) 136 Law Quarterly Review 569): a willingness to grant anti-suit injunctions to counter interferences with their own exercise of jurisdiction coupled with an overly relaxed attitude to the interferences that their own orders wreak upon foreign legal systems and the exercise of constitutional rights within those systems. Moreover, the grounds for granting anti-suit injunctions are ill defined and confusing – in this regard, the law has travelled backwards rather than forwards in the past century (another Goffian project). Much to be done here.

Fourthly, steps to accede to the Hague Judgments Convention and to persuade others to accede to the Hague Choice of Court Convention. Although the gains from acceding to the Judgments Convention may be small, at least in the short term, it would send a strong signal as to the UK’s wish to return to centre stage at the Hague Conference, and in the international community more generally, and may strengthen its hand in discussions for a future Judgments Convention. By contrast, the success of the Hague Choice of Court Convention is of fundamental importance for the UK, given that it wishes to encourage parties to choose its courts as the venue for dispute resolution and to have judgments given by those courts recognised and enforced elsewhere.

Fifthly, a review of the common law rules for the recognition and enforcement of judgments, which are in places both too broad and too narrow. These rules have been little changed since the end of the 19th century. They allow the enforcement of foreign default judgments based only on the defendant’s temporary presence in the foreign jurisdiction at the time of service, while treating as irrelevant much more substantial factors such as the place of performance of a contractual obligation or place of commission of a tort (even in personal injury cases). Parliamentary intervention is likely to be needed here if a satisfactory set of rules is to emerge.

Sixthly, engagement with the EU’s reviews of the Rome I and II Regulations to test if our choice of law rules require adjustment. The UK has wisely carried forward the rules of applicable law contained in the Rome Regulations. Although not perfect, those rules are a significant improvement on the local rules that they replaced. The EU’s own reviews of the Regulations (Rome II currently underway) will provide a useful trigger for the UK to re-assess its own rules with a view to making appropriate changes, whether keeping in step with or departing from the EU model.

Seventhly, statutory rules governing the law applicable to assignments (outside Rome I) and interests in securities. The UK had already chosen not to participate in the upcoming Regulation on the third party effects of assignments, but will need to keep a close eye on the outcome of discussions and on any future EU initiatives with respect to the law applicable to securities and should consider legislation to introduce a clear and workable set of choice of law rules with respect to these species of intangible property. These matters are too important to be left to the piecemeal solutions of the common law.

Eighthly, a measured response to the challenges presented by new technology, recognising that the existing (choice of law) toolkit is fit for purpose. In December 2020, the UK Law Commission launched a consultation on Smart Contracts with a specific section (ch 7) on conflict of laws issues. This is a welcome development. It is hoped that the Law Commission will seek to build upon existing solutions for offline and online contracts, rather than seeking to draw a sharp distinction between ‘smart’ and ‘backward’ contracts.

Ninthly, changes to the CPR to reduce the cost and inconvenience of introducing and ascertaining foreign law. The English civil procedure model treats foreign law with suspicion, and places a number of obstacles in the way of its effective deployment in legal proceedings. The parties and their legal teams are left in control of the presentation of the case, with little or no judicial oversight. This approach can lead to uncertainty at the time of trial, and to the taking of opportunistic points of pleading or evidence. A shift in approach towards more active judicial case management is needed, with a move away from (expensive and often unreliable) expert evidence towards allowing points of foreign law to be dealt with by submissions in the same way as points of English law, especially in less complex cases.

Tenthly, measures to enhance judicial co-operation between the UK’s (separate) legal systems, creating a common judicial area. It is a notable feature of the Acts of Union that the UK’s constituent legal systems stand apart. In some areas (notably, the recognition and enforcement of judgments – Civil Jurisdiction and Judgments Act 1982, Sch 6 and 7), the rules operate in a way that allows the recognition of a single judicial area in which barriers to cross-border litigation have been removed. In other respects, however (for example, the service of documents, the taking of evidence and the ascertainment of foreign law), the UK’s legal systems lack the tools that would facilitate closer co-operation and the more effective resolution of disputes. The UK’s legal systems should consider what has worked for the EU, with its diverse range of legal systems, and for Commonwealth federal States such as Australia and work together to adopt comprehensive legislation on a Single UK Judicial Area.

Symeon Symeonides, without doubt the doyen of US conflict of laws, just published what he says is the last of his annual surveys of American Choice of Law. (The series will be continued by John F. Coyle, William S. Dodge, Aaron D. Simowitz, and Melissa L.Tatum, suggesting it takes four of our most eminent scholars to replace Symeonides.)

As everyone in our discipline knows, reliably, at the end of the year, Symeon has posted his survey of conflict-of-laws decisions rendered over the year, according to Westlaw. He would assemble the most important decisions (of which he finds a lot), organize them around themes, and comment on them, always with (sometimes admirable) restraint from criticism. Anyone who has ever tried to survey the case law of an entire year in a jurisdiction knows how much work that is. (We at Max Planck, with IPRspr, certainly do.)

The service rendered to the discipline is invaluable. Conflict-of-laws opinions are hard to track, not least because courts themselves do not always announce them as such, and because they cover all areas of the law. Moreover, conflict of laws in the United States remains disorganized, with different states following different methods. (Symeon helpfully provides a table listing each state’s methodological approach.) Of course, Symeonides also compiled his superb knowledge of the case law in his Hague Lectures on the past, present, and future of the Choice-of-Law Revolution (republished as a book) and his book on (US) choice of law in the series of Oxford Commentaries.

Incredibly, this is Symeon’s 30th survey in 34 years. In this one, he uses the occasion to ruminate about what the 30 years have taught him: reading all the cases, and not missing the forest for the trees, enabled him (and thereby us) to gain a truer view of the conflicts landscape.( Of course, Symeonides also compiled his superb knowledge of the case law in his Hague Lectures on the past, present, and future of the Choice-of-Law Revolution (republished as a book) and his book on (US) choice of law in the series of Oxford Commentaries.) Such surveying shows that some of our assumptions are dated, as he showed in two special surveys on product liability and more generally cross-border torts. And it shows, as he beautifully puts it, that judges are not stupid, just busy.  Which is one of the reasons why the practice of conflicts owes such an amount of gratitude for these surveys.

Our discipline has seen a theoretical revival over the last ten or so years. A discipline once viewed as overly technical, doctrinal and untheoretical (a “dismal swamp”, in Dean Prosser’s much-cited words) is now being analyzed with newly-found theoretical and interdisciplinary interest – from economic analyses to political theory, philosophy, and even gender theory. The risk of such work is always to disentangle from the actual practice of the discipline, and thereby to lose what is arguably one of conflicts’ greatest assets: the concrete case. Symeonides (himself no enemy to methodological and sometimes theoretical discussions) has, with his annual surveys, made sure that such theories could always remain tied to the actual practice. For this, he deserves gratitude not only from practice but also from theory of private international law. His oeuvre is, of course, much much richer than the surveys. But even if he had written nothing beyond the surveys (and truth be told, it is not fully clear how he ever managed to write so much beyond them), his stature would have been earned.

The last twenty of Symeonides’ surveys have been compiled in a three volume edition published by Brill, a flyer allows for a 25% discount. While you wait for delivery (or maybe for approval of the loan you need to afford the books), you may want to download his lates survey, read Symeonides’ own thirty-year retrospective in the beginning, and marvel.