Conflictoflaws

Dear CoL Readers,

While we are all deeply concerned about the still growing dimensions of the coronavirus pandemic, we did not want to give up working on the programme of our conference.

Thanks to the HCCH, the Bonn PIL colleagues and our distinguished speakers, there is now a fantastic programme we would like to bring to your attention in this post (see below).

Meanwhile, we will closely follow the instructions of the University of Bonn as well as the German local and federal governments and travel restrictions in other countries to see whether the conference can take place on site. We have not yet given up optimism in this respect. Yet, safety must be first. This is why we are setting up structures for a video conference via zoom in case we need it. We assume that all of you would agree to proceeding via zoom if necessary. We will take a final and corona risk-averse decision on this during July and keep you posted. Please do not hesitate to register with us (sekretariat.weller@jura.uni-bonn.de) if you wish to be updated by email.

Looking forward to seeing you in Bonn in September!

***

Brexit has become reality – one more reason to think about the EU’s Judicial Cooperation with third states:

The largest proportion of EU economic growth in the 21st century is expected to arise in trade with third countries. This is why the EU is building up trade relations with many states and other regional integration communities in all parts of the world. The latest example is the EU-MERCOSUR Association Agreement concluded on 28 June 2019. With the United Kingdom’s exit of the Union on 31 January 2020, extra-EU trade with neighboring countries will further increase in importance. Another challenge for the EU is China’s “Belt and Road Initiative”, a powerful global development strategy that includes overland as well as sea routes in more than 100 states around the globe.

The increasing volume of trade with third states will inevitably lead to a rise in the number and importance of commercial disputes. This makes mechanisms for their orderly and efficient resolution indispensable. China is already setting up infrastructures for commercial dispute resolution alongside its belts and roads. In contrast, there seems to be no elaborate EU strategy on judicial cooperation in civil matters with countries outside of the Union, despite the DG Trade’s realisation that “trade is no longer just about trade”. Especially, there is no coherent plan for establishing mechanisms for the coordination of cross-border dispute resolution and the mutual recognition and enforcement of judgments. This is a glaring gap in the EU’s policy making in external trade relations.

This is why the Bonn group of PIL colleagues – Moritz Brinkmann, Nina Dethloff, Matthias Lehmann, Philipp Reuss, and Matthias Weller – will host a conference on Friday and Saturday, 25 and 26 September 2020, at the University of Bonn that seeks to explore ways in which judicial cooperation in civil matters between the EU and third countries can be improved by the HCCH 2019 Judgments Convention as an important driver, if not game changer, of legal certainty in cross-border commercial relations.

The list of speakers includes internationally leading scholars, practitioners and experts from the Hague Conference on Private International Law (HCCH), the European Commission (DG Trade, DG Justice), and and the German Federal Ministry of Justice and Consumer Protection (Bundesministerium der Justiz und für Verbraucherschutz)

The Conference is co-hosted by the HCCH as one of the first European events for discussing the HCCH 2019 Judgments Convention. The Conference will be further supported by the Zentrum für europäisches Wirtschaftsrecht at the University of Bonn and The International Litigation Exchange (ILEX).

The Organizers will kindly ask participants to contribute with € 100.- to the costs of the event (includes conference dinner).

Dates:

Friday, 25 September 2020, and Saturday, 26 September 2020.

Venue:

Friday:

Universitätsclub Bonn, Konviktstraße 9, D – 53113 Bonn

Saturday:

Main Auditorium (Aula), Hauptgebäude, Am Hof 21, 53113 Bonn

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

Registration Fee: € 100.-

To be transferred to the following account (you will receive confirmation of your registration only after payment was booked on this account):

Bonn Conference 2020

IBAN: DE71 5001 0517 0092 1751 07

BIC:    INGDDEFF (ING-Diba Bank)

Programme

Friday, 25 September 2020

1.30 p.m.     Registration

2 p.m.          Welcome note

Prof Dr Wulf-Henning Roth, University of Bonn, Director of the Zentrum für Europäisches Wirtschaftsrecht (ZEW)

Dr Christophe Bernasconi, Secretary General of the HCCH (video message)

2.10 p.m.      Part 1: Chances and Challenges of the HCCH 2019 Judgments Convention

Chairs of Part 1: Prof Dr Matthias Weller / Prof Dr Matthias Lehmann

Keynote: Hague Conference’s Perspective and Experiences

Hans van Loon, Former Secretary General of the Hague Conference on Private International Law, The Hague

1. Scope of application

Prof Dr Xandra Kramer, Erasmus Universiteit Rotterdam

2. Judgments, Recognition, Enforcement

Prof Dr Wolfgang Hau, Ludwig-Maximilians-Universität Munich

Discussion

3.30 p.m.     Coffee Break

4.00 p.m.      Part II: Chances and Challenges of the HCCH 2019 Judgments Convention

Chairs of Part 2: Prof Dr Nina Dethloff / Prof Dr Moritz Brinkmann

1. Jurisdictional filters

Prof Dr Pietro Franzina, Catholic University of Milan

2. Grounds for refusal

Prof Dr Francisco Garcimartín Alférez, University of Madrid

Discussion

5.30 p.m.     Panel Discussion: Prospects for Judicial Cooperation in Civil Matters between the EU and Third Countries

Chairs of Part 3: Prof Dr Matthias Weller / Prof Dr Matthias Lehmann

Colin Brown, Unit Dispute Settlement and Legal Aspects of Trade Policy, DG Trade (tbc)

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

Dr Jan Teubel, German Federal Ministry of Justice and Consumer Protection

RA Dr Heiko Heppner, Attorney at Law (New York), Barrister and Solicitor Advocate (England and Wales), Chair of ILEX, Head of Dispute Resolution, Partner Dentons, Frankfurt

and perhaps more…

Discussion

7 p.m.          Conference Dinner

Saturday, 26 September 2020

9.00 a.m.      The context of the HCCH 2019 Judgments Convention

Chairs of Part 4: Prof Dr Moritz Brinkmann / Prof Dr Philipp Reuss

1. Lessons from the Genesis of the Judgments Project

Dr Ning Zhao, Senior Legal Officer, HCCH

2. Relation to the HCCH 2005 Convention on Choice of Court Agreements

Prof Paul Beaumont, University of Stirling

3. Relations to the Brussels Regime / Lugano Convention

Prof Marie-Elodie Ancel, Université Paris-Est Créteil

4. Brexit…

Dr Pippa Rogerson, Reader in Private International Law, Faculty of Law, Cambridge

Discussion

11:00 a.m.    Coffee Break

11:30 a.m.    Chairs of Part 5: Prof Dr Nina Dethloff / Prof Dr Matthias Lehmann

1. South European Neighbouring and Candidate Countries

Ass. Prof Dr Ilija Rumenov, Ss. Cyril and Methodius University, Skopje, Macedonia

2. MERCOSUR

Dr Veronica Ruiz Abou-Nigm, Director of Internationalisation, Senior Lecturer in International Private Law, School of Law, University of Edinburgh

3. China (OBOR)

Prof Zheng (Sophia) Tang, University of Newcastle

4. International Commercial Arbitration

Jose Angelo Estrella-Faria, Senior Legal Officer UNCITRAL Secretariat, International Trade Law Division Office of Legal Affairs, United Nations, Former Secretary General of UNIDROIT

Discussion

1.30 p.m.     Closing Remarks

Dr João Ribeiro-Bidaoui, First Secretary, HCCH

By virtue of an ‘Act of Legislative Content’ pursuant to Article 44 Greek Constitution, the Hellenic Republic passed on April 13 a series of urgent measures for the overall protection of the public against the virus. Among the multitude of provisions emanating from various ministries, four articles feature an identical overriding mandatory rule.

In particular, the rule concerns four categories: Cancellation of flights [Article 61]; cancellation of marine transport (carriage of passengers) [Article 65]; package travel and linked travel arrangements [Article 70]; and contracts between tourism industry enterprises [Article 71]. The content of the provisions is common: instead of reimbursement, it offers the option of vouchers by carriers and businesses in the respective branches.

The wording is the following:

Provided that the pertinent rights are regulated by EU law, the above provisions shall additionally apply mandatorily to contracts concluded between the parties, irrespective whether they agreed on the application of Greek or foreign law.

Understandably, the above provisions raise interesting questions of PIL; Matthias Lehmann provided a first glance of the potential problems here.

Written by Elijah Granet

In a recent decision of the Family Division of the English and Welsh High Court—VB v TR (Re RR) [2020] EWFC  28, Mr Justice Mostyn highlighted a lacuna in the protection of children from abduction under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (‘the Convention’).  As a result of what Mr Justice Mostyn (at para 7) refers to  as a ‘colonial anachronism’, unconsented removals of children from the British overseas territory of Bermuda to the UK proper fall outside the remit of either the convention or domestic law.

Facts

VB and TR are parents from Bermuda with a young son, RR.  In 2019, TR removed RR from Bermuda secretly, without the consent of VB, and in violation of Bermudian court orders.  The UK ratified the 1980 Convention on the Civil Aspects of International Child Abduction in 1986 and implemented it domestically by way of the Child Abduction and Custody Act 1985.  Section 28(1)(c) of that Act enables the UK to extend the effect of the Convention to Overseas Territories by means of an Order in Council.  However, Bermuda, which enjoys full internal self-governance (with its own laws, parliament, and courts) instead passed the International Child Abduction Act 1988, which essentially transposed the 1985 Act into Bermudian law.  As a consequence, the UK made an Article 39 Notification  declaring that the Convention applied to Bermuda, which is now listed in the annex of authorities required by Article 18 of the Convention.

Decision

As both Bermuda and the UK are signatories to the Convention, one would expect that arrangements for the return of RR could be easily carried out.  Mr Justice Mostyn notes (at para 12), if TR had gone to the USA (or indeed, any state other than the UK), the Convention would unquestionably applied as Bermuda is listed in the aforementioned annex of authorities.  The problem arises because, for the purposes of the Convention, the UK and Bermuda are a single state party; therefore, because there is no ‘international’ element to child abduction between the UK and Bermuda, the Convention is not considered to apply.  This ‘counterintuitive’   (para 21) state of affairs has caused confusion, including a 2014 ruling which (mistakenly) held that Bermuda is not a party to the Convention.

Of course, there is no inherent problem with the Convention being inapplicable between different British jurisdictions. For example, if a parent who removed a child from  Northern Ireland to England against a court order, the English court would automatically recognize the Northern Irish court order under the Family Law Act 1986, s 25, which provides for mutual enforcement of family court orders across the UK. However, that Act does not apply to Bermuda, because Bermuda is not a part of the United Kingdom (whatever the Convention might say).  A Bermudian court is, for all intents and purposes, a foreign court in the eyes of the law of England and Wales.

Thus, there is a paradoxical and frustrating outcome: for the purposes of the Convention, Bermuda is part of the UK, but, for the purposes of  English and Welsh family law, Bermuda is a foreign country. This is contrary to the intention of both the Bermudian and British Parliaments in implementing the Convention: namely, to prevent the unlawful abduction of children. The result is that Mr Justice Mostyn, rather than beginning with the presumption that RR should be returned (as he would under the Convention) or automatically implementing the Bermudian court’s order (as he would with a court from a ‘domestic’ UK jurisdiction), was forced to essentially ignore the Bermudian court’s order, and to circuitously employ a complex legal test under the Children Act 1989, s 1(1) to determine if it would be in the interests of the welfare of RR for him to be returned to Bermuda. Mr Justice Mostyn ultimately held that it was in the child’s best interests to return to Bermuda, albeit at a time more conducive to international travel than the current pandemic. The only alternative route would be to employ the test for the recognition of foreign custodial orders set out by the Privy Council in C v C (Jersey) [2019] UKPC 40, which focuses on questions of public policy rather than the child’s welfare.

Comment

The lacuna in the UK’s regime for protecting against child abduction is, as Mr Justice Mostyn correctly put it (at para 12), ‘an embarrassment’. The defect in this very important area of the law was so severe that the judge felt it appropriate to state (in the same paragraphs) , bluntly, ‘the law needs to be changed’—either to add Bermuda (and other overseas territories) to the domestic list of recognised Hague Convention authorities,  or to extend the automatic recognition of orders under the Family Law Act to all British Overseas Territories. Either option would be a welcome and necessary respite from the current state of affairs, by which abduction from a territory party to the Convention (Bermuda) to another party (the UK) is not covered by the law.  In a matter as serious as this, it is astonishing that, two decades after Bermuda joined the Convention, there is still no UK framework for ensuring the swift return of abducted children to their homes.

Research demonstrates that the permanent income loss for the Asia-Pacific region, including India, from the impact of COVID-19 to be $620 billion as of March 24, 2020. It is undeniable that the pandemic has not only resulted in the loss of human health and life but has also adversely affected the Indian economy. A United Nations labour report states that the Coronavirus has impacted tens of millions of informal sector workers as of 8th April 2020, and is predicted to put around 2 billion more people at risk. The Indian economy has been severely hit since most of the Indian population consists of daily wage workers. On 24th March 2020, the Prime Minister invoked his powers under Sec.6(2)(i) of the National Disaster Management Act, 2005, to enforce a lockdown for an initial period of 21 days in the country with effect from 25th March 2020. The “total” lockdown has now been extended until 3 May 2020 and, will be treated under force majeure as per the Government order. The current scenario where India is put under what is reported to be the “world’s most stringent lockdown” (also referred to as Lockdown 2.0) has forced millions of persons out of work, with the hardest hit being the poor, including the daily wage earners and migrant workers. Besides, airports, private clinics and most other shops providing daily essentials have shut.

Drawing from the situation in other countries, India reflected on its own capacity to prevent pandemic considering the resources available in the country. This is a country of 1.3 billion people and the healthcare system in place is very fragile. The latest National Health Profile 2019, released in October 2019, shows India’s public expenditure on health has been less than 1.3% of the GDP for many years. The investment in public healthcare is one of the lowest in the world as the country is more driven towards private investment in healthcare. This will result in human cost because the treatment cost, which involves vaccines, tests and medical facilities, will be more than what most of the population will be able to afford. Looking at the lack of accessibility and affordability to medical care the Prime Minister has announced a public charitable trust under the name of ‘Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund’ (PM CARES Fund)’ with the Prime Minister as the Chairman of the trust. In face of such a high-risk situation, the WHO Country Office for India is working closely with the Ministry of Health and Family Welfare (MoHFW) to strengthen surveillance, build the capacity of the health system and optimize the ‘window of opportunity’ created by mandatory physical distancing in India. Even though such rampant measures have been taken, India is still not fully equipped to deal with a full-scale pandemic.

The outbreak and the consequent Government decision have resulted in an overwhelming financial/economic loss to the Indian population. People have been banned from leaving homes and supply to all ‘non-essential’ commodities has been cut-off to prevent a further spread of the deadly virus, which originated in Wuhan, China. The recent times additionally witnessed the Indian Government’s order to blacklist the 960 foreigners who participated in the Tablighi Jamaat Meetings as they became a key source for the spread of Coronavirus in India. These foreigners violated the terms of their tourist visas by attending an Islamic congregation at the Nizamuddin Market in New Delhi in March. The foreigners were found in different states all over the country and as on 2nd April, 245 COVID-19 cases and about 12 deaths in the country were found to have links with the Tablighi Jamaat Meeting.

Recently, citizens of the United States filed a class-action suit filed against the Chinese Government for damages suffered as a result of “incalculable harm” done to the plaintiffs. Whether the near future will see a similar class-action suit by Indian citizens against the Chinese Government and the 960 Tablighi Jamaat foreigners, remains to be seen.

Under India’s conflict of law rules, which remain uncodified, an Indian court can assume jurisdiction by being the place where the cause of action – in this case, the tort occurred. Sections 9 and 86 of the Code of Civil Procedure 1908 empowers the courts in India to try all suits, which result in damage caused by negligence, including those initiated by Indian citizens against foreign entities. At the same time, India lacks any coherent mechanism to identify the applicable law that will govern damages arising from such transnational torts. Rigidly following the common law principles, India continues to hold fast to the traditional principle of ‘double actionability’ – a rule, which has long been discarded by all other common law jurisdictions including Australia and Canada.

Under the present rules, the plaintiff(s) suing before an Indian court will have to prove that the act of the Chinese government in concealing the nature of the virus and failing to take appropriate steps to contain it, was actionable under the Chinese and Indian law – upon which, the suit will be governed concurrently by the Chinese and the Indian law of tort.

Under the Indian law of torts, the plaintiffs will need to prove a breach in a duty of care on the part of the Chinese government and the Tablighi Jamaat attendees who were foreign nationals, which caused the tort of negligence. The Indian law of torts is based on the principles of Common Law as iterated in Rajkot Municipal Corpn. v. Manjulben Jayantilal Nakum (1992 ACJ 792). According to the common law principles as evolved by the House of Lords, negligence signifies failure in executing a degree of care which should have been exercised by the doer. The essentials for establishing negligence under the Indian law may be summarized as follows. Firstly, that the defendant owed a “legal” duty of care towards the plaintiff. Secondly, that there was a breach of this duty; and thirdly, that the plaintiff experienced damage (including economic loss) as a result of such breach by the defendant.

In the international realm, China’s ‘duty of care’ towards India and its citizens may be traced through the relevant provisions of the International Covenant on Economic, Social and Cultural Rights and the International Health Regulations of 2005. Under Article 12(2)(c) of the International Covenant on Economic, Social and Cultural Rights, the Chinese government was under a duty to take measures for the “(t)he prevention, treatment and control of epidemic, endemic, occupational and other diseases” for nationals and non-nationals alike. However, this provision does not extend to economic loss. In particular, China’s duty of care towards non-nationals may be recognised under the International Health Regulations of 2005 as well. As per Article 6 of the IHR, China was required to notify the WHO of the “events which may constitute a public health emergency of international concern within its territory”. Hence, China owed a legal duty of care towards its non-nationals.  This legal duty towards the non-nationals can further be extended to infer as a duty towards other countries and their nationals.

Since China failed to notify the World Health Organisation according to the International Health Regulations of 2005 within sufficient time despite the given indications towards the public health concern, it has negligently breached its duty of care towards the rest of the world.  Dr. Li Wenliang was the first to create awareness and intimate the Chinese Government about the hazardous virus. Instead of adopting effective measures, the Chinese Government reprimanded the scientist. This is depictive of the negligent conduct of the Chinese Government.

On the other hand, the legal duty of care of the 960 foreigners can be established under section 14 of the Foreigners Act, 1946 insofar they had partaken in a religious activity which violates the terms of their tourist visas. Besides, sections 6(2)(i) and 10(2)(l) of the Disaster Management Act, 2005 will also be applicable due to their failure to adhere to social distancing guidelines issued by the government in wake of the COVID-19 outbreak.

At the same time, having regard to the present principles of the Indian conflict of law, no claim before an Indian court for damages in relation to the outbreak will sustain unless the plaintiffs are simultaneously able to prove negligence on the part of the Chinese government and/or under each of the laws of tort of 960 Tablighi Jamaat attendees. Suits initiated in relation to the pandemic in India could, therefore, act as a revolutionary moment for India to ramp-up its conflict of law principles – especially in matters arising from cross-border torts.

That said, the spread of COVID -19 has undoubtedly been one of the most challenging times for the judiciary in all the countries. Countries like the Netherlands and Germany have proven its judiciary to be effective and efficient during the times of crisis by adapting to the digital mode in adjudicating disputes.  In the largest democracy of the world, India, the judiciary has always remained under challenge due to the overwhelming number of litigation matters approaching courts every day.

The humongous load of backlog along with current lockdown had come as a huge blow and stir to the judicial system in India. The Supreme Court has, thus, decided that vital matters before it would be conducting video conferencing.  The digitalisation of the judiciary has been a huge respite especially in the case of granting bails and avoiding overcrowding of the prison to control the spread of the virus. All other smaller courts (including the High Court are shut during the lockdown).

The relationship between the conflict of laws and constitutional law is close in many legal systems, and Australia is no exception. Leading Australian conflict of laws cases, including, for example, John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, which adopted a lex loci delicti rule for intra-Australian torts, are premised on public law concepts essential to our federation. These cases illustrate how the conflict of laws bleeds into other disciplines.

Love v Commonwealth [2020] HCA 3 is a recent decision of the High Court of Australia that highlights the breadth and blurry edges of our discipline. Most legal commentators would characterise the case in terms of constitutional law and migration law. The Court considered a strange question: can an Aboriginal Australian be an ‘alien’?

Australia’s disposition to migration is controversial to say the least. Our government’s migration policies, which often enjoy bi-partisan support, are a source of embarrassment for many Australians. One controversial migration policy involves New Zealanders. Australia and New Zealand enjoy a very close relationship on several fronts, including with respect to private international law: see the Trans-Tasman Proceedings Act 2010 (Cth). New Zealanders often enjoy privileges in Australia that are not afforded to persons of other nationality.

Yet recently, Australia began to deport New Zealanders who had committed crimes in Australia no matter how long they had lived in Australia. In February, New Zealand Prime Minister Jacinda Ardern said that the policy was ‘testing’ our countries’ friendship. Australian Prime Minister Scott Morrison replied, ‘[w]e deport non-citizens who have committed crimes in Australia against our community’. Sections of the Australian community are seeking to change Australia’s policy on point, which is effected by the Migration Act 1958 (Cth).

The Court heard two special cases together. As Kiefel CJ explained: ‘[e]ach of the plaintiffs was born outside Australia – Mr Love in Papua New Guinea and Mr Thoms in New Zealand. They are citizens of those countries. They have both lived in Australia for substantial periods as holders of visas which permitted their residence but which were subject to revocation. They did not seek to become Australian citizens’.

Section 501(3A) of the Migration Act requires the Minister for Home Affairs to a cancel a person’s visa if they have been convicted of an offence for which a sentence of imprisonment of 12 months or more is provided. Each of the plaintiffs committed crimes and had their visas cancelled. The effect of which was that they became ‘unlawful non-citizens’ who could be removed from Australia.

The plaintiffs’ cases turned on s 51(xix) of the Commonwealth Constitution, which provides:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to… naturalization and aliens…

The plaintiffs contended that they were outside the purview of the Migration Act, the Australian Citizenship Act 2007 (Cth) and s 51(xix) because they each had a special status as a ‘non-citizen, non-alien’. ‘They say that they have that status because although they are non-citizens they cannot be aliens because they are Aboriginal persons’: [3]. Each plaintiff arguably satisfied the tripartite test for Aboriginality recognised at common law and considered below. Thoms was even a native title holder.

The High Court was asked to consider whether each plaintiff was an ‘alien’ within the meaning of s 51(xix) of the Constitution. Kiefel CJ clarified that the question is better understood as follows: ‘whether it is open to the Commonwealth Parliament to treat persons having the characteristics of the plaintiffs as non?citizens for the purposes of the Migration Act’: [4].

The High Court’s seven justices departed from usual practice and each offered their own reasons. The majority of four (Bell, Nettle, Gordon and Edelman JJ) answered as follows:

The majority considers that Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1 at 70) are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution. The majority is unable, however, to agree as to whether the plaintiff is an Aboriginal Australian on the facts stated in the special case and, therefore, is unable to answer this question.

Arcioni and Thwaites explain: ‘The majority rested their reasoning on the connection of Aboriginal Australians with Australian land and waters. Aboriginal Australians were a unique, sui generis case, such that Aboriginality may generate a class of constitutional members (non-aliens) who are statutory non-citizens’. The minority of Kiefel CJ, Gageler and Keane JJ dissented for different reasons. A common theme of those reasons was that ‘alien’ is the antonym of ‘citizen’.

The case is about constitutional law. It is also about status. ‘Alienage or citizenship is a status created by law’: [177] per Keane J. One understanding of the difference between the majority and minority is a difference in opinion as to the applicable law to determine status as ‘alien’ in this context.

According to Nettle J, ‘status [as a member of an Australian Aboriginal society] is inconsistent with alienage’: [272]. ‘Aboriginal Australians are not outsiders or foreigners – they are the descendants of the first peoples of this country, the original inhabitants, and they are recognised as such’: [335] per Gordon J. The majority appealed to the common law’s recognition of native title rights underpinned by traditional laws and customs in support of their analyses (see, eg, [339]).

The minority denied that status as Aboriginal could determine whether a person has the status of an ‘alien’ within the meaning of the Constitution.

Nettle J quoted (at [269]) the following passage from the native title case Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, 445 [49] (Gleeson CJ, Gummow and Hayne JJ):

Laws and customs do not exist in a vacuum. They are, in Professor Julius Stone’s words, ‘socially derivative and non-autonomous’. As Professor Honoré has pointed out, it is axiomatic that ‘all laws are laws of a society or group’. Or as was said earlier, in Paton’s Jurisprudence, ‘law is but a result of all the forces that go to make society’. Law and custom arise out of and, in important respects, go to define a particular society. In this context, ‘society’ is to be understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs.

The status of the laws and customs of Australia’s Aboriginal peoples has been the subject of case consideration for decades. In Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 267, for example, Blackburn J said:

The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called “a government of laws, and not of men”, it is that shown in the evidence before me.

Later, in Mabo (No 2), the High Court finally recognised the significance of those laws to recognition of native title. In that case, the Court articulated a tripartite test for whether a person is an Aboriginal Australian: biological descent, self-identification, and recognition by the relevant Aboriginal community (see [291] per Gordon J). As explained further below, satisfaction of this test depends on application of traditional laws and customs. Arguably, satisfaction of the test requires recognition of the positive force of that non-state law.

Against that, Keane J held, ‘[t]he common law’s recognition of customary native title does not entail the recognition of an Aboriginal community’s laws’: [202]. Rather, it goes the other way: Aboriginal laws are necessary for recognition of native title. Kiefel J also explicitly rejected recognition of Aboriginal customary law: ‘[i]t is not the traditional laws and customs which are recognised by the common law. It is native title … which is the subject of recognition by the common law, and to which the common law will give effect. The common law cannot be said by extension to accept or recognise traditional laws and customs as having force or effect in Australia’: [37]. Arguably, this means that there is no choice of law at play in this case: there is just one law at issue, being the law of Australia.

Yet even in transnational cases within the traditional domain of the conflict of laws, Australian courts will only apply foreign laws via application of the lex fori: Pfeiffer, [40]–[41]; Nygh’s Conflict of Laws in Australia, ch 12. For practical purposes, the majority approach does recognise Aboriginal non-state law as capable of application to resolve certain issues of (non-Aboriginal) Australian law.

Nettle J came close to articulation of a new intra-Australian choice of law rule at [271]:

for present purposes, the most significant of the traditional laws and customs of an Aboriginal society are those which allocate authority to elders and other persons to decide questions of membership. Acceptance by persons having that authority, together with descent (an objective criterion long familiar to the common law of status) and self-identification (a protection of individual autonomy), constitutes membership of an Aboriginal society: a status recognised at the “intersection of traditional laws and customs with the common law”.

If there is a choice of law rule in there, its significance might be expressed through this syllogism:

• P1. Whether a person is capable of being deported after committing a serious crime depends on whether they are an ‘alien’.
• P2. Whether a person is an ‘alien’ depends on whether they are ‘Aboriginal’.
• P3. Whether a person is ‘Aboriginal’ depends on whether they satisfy the tripartite test in Mabo [No 2] with respect to a particular Aboriginal society.
• P4. Whether a person satisfies the tripartite test turns on the customary law of the relevant Aboriginal society.

Like questions of foreign law, ‘[w]hether a person is an Aboriginal Australian is a question of fact’: [75] per Bell J. How does one prove the content of the relevant Aboriginal law? Proof of traditional laws and customs often occurs in native title cases. It was considered at [281] per Nettle J:

It was contended by the Commonwealth that it might often prove difficult to establish that an Aboriginal society has maintained continuity in the observance of its traditional laws and customs since the Crown’s acquisition of sovereignty over the Australian territory. No doubt, that is so. But difficulty of proof is not a legitimate basis to hold that a resident member of an Aboriginal society can be regarded as an alien in the ordinary sense of the term. It means only that some persons asserting that status may fail to establish their claims. There is nothing new about disputed questions of fact in claims made by non-citizens that they have an entitlement to remain in this country.

As a dissentient in the minority, Gageler J offered a compelling critique of what I construe to be the choice of law approach of the majority (at [137]):

To concede capacity to decide who is and who is not an alien from the perspective of the body politic of the Commonwealth of Australia to a traditional Aboriginal or Torres Strait Islander society or to a contemporary Aboriginal or Torres Strait Islander community, or to any other discrete segment of the people of Australia, would be to concede to a non?constitutional non?representative non?legally?accountable sub?national group a constitutional capacity greater than that conferred on any State Parliament. Yet that would be the practical effect of acceptance of either of the first and second variations of the plaintiffs’ argument.

The choice of non-state law is arguably made more controversial by the character of those laws’ content. Nettle J explained at [276]: ‘As is now understood, central to the traditional laws and customs of Aboriginal communities was, and is, an essentially spiritual connection with “country”, including a responsibility to live in the tracks of ancestral spirits and to care for land and waters to be handed on to future generations’. Gordon J held at [290], ‘[t]hat connection is spiritual or metaphysical’. Tacit in the majority’s mode of analysis, then, is that a person’s spiritual or religious views can have an impact on their status as an ‘alien’, or otherwise, within the Commonwealth Constitution. (A once-Aboriginal non-citizen who lacks those spiritual views and renounces their membership of their Aboriginal society may still be an ‘alien’ following this case: see [279], [372].) From a secular perspective within an increasingly secular nation, that is a striking proposition.

This is not the first time that the relationship between the conflict of laws and issues affecting indigenous peoples has been considered. More generally, whether non-state law may be the subject of choice of law is a topic that has been considered many times before. One of the factors that makes Love v Commonwealth unique, from an Australian legal perspective, is the majority’s effective choice of Aboriginal customary law to determine an important issue of status without really disturbing the common law proposition that Aboriginal groups lack political sovereignty within the Australian federation (see [37], [102], [199]). COVID-19 may have stalled sought after changes to the Australian Constitution with respect to recognition of indigenous peoples (see (2019) 93 Australian Law Journal 929), yet it remains on the national agenda. In any event, Australia’s very white judiciary may not be the best forum for recognition of the sovereignty of Australian Aboriginal and Torres Strait Islander peoples.

Written by Sophie Hunter

With more than 200 countries affected to date, the current crisis presents far reaching implications for competition law and policy on a global scale. This crisis is affecting developed and developing countries alike, especially by putting young competition authorities under a stress test of the resilience of their competition rules.  As the pandemic of COVID19 spreads to every parts of the world, most recently the African continent, competition authorities are looking at whether relaxing their competition rules to allow for cooperation between key actors of the health sector and other essential economic sectors, like the airline industry. However, full or partial relaxation of competition rules may have adverse effects on industries, business and consumers by resulting in anti-competitive practices such as price fixing, excessive pricing and collusion between competitors.

Competition authorities have responded to this crisis in a piecemeal approach. While the European Commission was quick to a temporary framework[1] and relied on measures implemented during the 2008 financial crisis[2] , in the US, the FTC and DOJ only recently issued a guidance note based on previous emergency situations (Harvey and Irma hurricanes) to allow cooperation of competitors in the health sector, especially in the development of vaccines.[3] The UK has granted temporary exemptions from anti collusion rules to supermarkets. An approach also adopted by the German competition authority to ensure continuity of food supplies. South Africa promptly enacted an overall sector wide block exemption for the health sector.[4] Some countries like France and China have toughened up their price regulations.[5]

With a surge in excessive pricing of health-related products such as masks and hand sanitizers, competition authorities are currently dealing with ongoing investigations in a wide range of jurisdictions, namely the UK, France, Brazil, Russia, Spain and Italy. Some have announced price controls over high demand items. This has already been done in France through a decree regulating the price of hand sanitizers to prevent retailers and pharmacists engaging in abusive price increases.[6] Enforcement of sanctions against anti-competitive conducts toughened up, especially from competition authorities in Kenya and China, which have already heavily put sanctions on retailers engaged in excessive pricing of health-related products.

In times of crisis, governments can allow specific exceptions for joint research projects because they understand the need for collaborative efforts between firms to, for instance, develop a vaccine. Such exceptions have already been granted during other pandemics such as Swine Flu in 2009, MERS in 2015 and influenza in 2019. Those exceptions may be exempted from competition rules. For instance, the European Commission has called for an increase effort in research and development at the European level to develop a vaccine against COVID 19 within an exceptional regulatory framework (as it already did in 2009). [7] In South Korea, similarly, the government encouraged the main pharmaceutical companies to work together on a vaccine through an emergency use authorisation that was established post MERS in 2015.[8]

Apart from exceptions, certain countries granted exemptions from anti collusion rules to businesses in specific economic sectors. The most far reaching measures were taken by South Africa with the COVID-19 Block Exemption for the Healthcare Sector 2020. It established price controls on everyday goods as well as a list which exempts hospitals, medical suppliers, laboratories and pathologists, pharmacies, and healthcare funders from engaging in anti-competitive collaboration.[9]Other temporary exemptions have been granted to the airline industry by Norway, the retail sector in Germany, banking in Australia, the distilled spirit industry in the US, education in Denmark and tourisms in Italy and Kazakhstan.

Competition authorities must enforce strict compliance to competition rules, even during this time of pandemic. Despite this, some leverage and legal leeway enacted by certain competition authorities demonstrates a willingness to allow for a temporary flexibility to mitigate the economic impact. This can be achieved through sector specific block exemptions, strict guidance on collaboration in times of emergency or enhanced legislation on price controls. This time of crisis creates a great opportunity for competition authorities around the world to engage in international cooperation to share best practices. Prompt responses to the crisis in developing countries demonstrates the ambition and dynamism of such agencies (Peru, South Africa, Kenya). Nevertheless, it remains to be seen how competition authorities will cope during the crisis with sustaining investigation, enforcement and compliance with competition rules.

[1] François-Charles Laprévote, Theodora Zagoriti, Giulio Cesare Rizza, The EU Commission adopts a Temporary Framework to support the economy in the context of the COVID-19 outbreak, 19 March 2020, e-Competitions Bulletin Preview, Art. N° 93837

[2] https://www.concurrences.com/fr/bulletin/special-issues/competition-law-covid-19/competition-policy-covid-19-an-overview-of-antitrust-agencies-responses

[3] https://www.competitionpolicyinternational.com/ftc-and-doj-announce-expedited-antitrust-procedure-for-coronavirus-public-health-efforts/

[4] Minister of Trade and Industry of South Africa, ‘Covid-19 Block Exemption for the Health Care Sector, 2020 – South Africa’ (2020) 657 Government Gazette 12.

[5] State Administration of Market Supervision (SAMR) of People’s Republic of China, ‘Urgent Notice of the General Administration of Market Supervision on Severely Cracking down on Price Violations in the Production of Preventive and Control Materials during the Epidemic Prevention and Control Period’ (5 February 2020) <http://www.gov.cn/zhengce/zhengceku/2020-02/06/content_5475223.htm> accessed 22 March 2020.

[6] ‘Encadrement Des Prix Pour Les Gels Hydroalcooliques’ (Economie.gouv.fr, 2020) <https://www.economie.gouv.fr/dgccrf/encadrement-des-prix-pour-les-gels-hydroalcooliques-voir-la-faq> accessed 22 March 2020.

[7] Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – Pandemic (H1N1) 2009’ (15 September 2009) 1 <http://op.europa.eu/en/publication-detail/-/publication/9ec8052e-c269-4b57-9be9-4b40c5101d15/language-en> accessed 22 March 2020.

[8] https://www.reuters.com/article/us-health-coronavirus-testing-specialrep/special-report-how-korea-trounced-u-s-in-race-to-test-people-for-coronavirus-idUSKBN2153BW

[9] South African Government, ‘Guidelines – Coronavirus Covid-19 in South Africa’ (23 March 2020) <https://www.gov.za/coronavirus/guidelines> accessed 23 March 2020.

The latest issue of Journal of Private International Law is out. It features the following articles:

Matthias Lehmann – Regulation, global governance and private international law: squaring the triangle

Abstract
Regulatory rules are omnipresent today. Increasingly, they also influence private rights and obligations, from employment contracts to competition law and data protection. Private international law traditionally treats them with a certain reserve because they do not fit its paradigms of “neutral” and “interchangeable” rules of law. This article argues that it is time to change this attitude. Regulatory rules often protect global public goods, such as the environment, or shield against global bads, such as pandemics. Others serve aims shared between different countries, like the fight against money laundering and tax evasion. For these reasons, administrative authorities around the world cooperate in the enforcement of regulation. Private international law should open up its methodology to this new reality. After exploring the traditional ways in which regulation has been dealt with, this article makes concrete proposals for changes. Besides overcoming the “public law taboo”, these include the more liberal application of foreign public law and foreign overriding mandatory rules, the development of multilateral conflicts rules for areas permeated by regulation, the recognition of foreign administrative decisions, and the development of a global public policy.

Adeline Chong – Moving towards harmonisation in the recognition and enforcement of foreign judgment rules in Asia

Abstract
This paper provides a comparative overview of the laws on the recognition and enforcement of foreign judgments in ASEAN and Australia, China, India, Japan and South Korea. It considers the principles which are shared in common and the significant differences in the laws on foreign judgments in the region. This paper argues that the laws which are canvassed here share many principles, albeit the interpretation on certain aspects may differ. Though differences exist, the differences are becoming less sharp. Further, there is a practical need for harmonisation given the plans for closer economic integration in the region. This paper argues that harmonisation is possible and should be pursued.

Maisie Ooi – Re-enfranchising the investor of intermediated securities

Abstract
Efforts to devise a choice-of-law rule for intermediated securities in the last two decades have almost entirely been centred on issues of property and title. Intermediation of securities does not, however, give rise to issues of property alone, even as they are mostly represented as such. The Court of Appeal’s decision in Secure Capital SA v Credit Suisse AG (hereinafter referred to as “Secure Capital”) signals a possibly larger problem of the disenfranchisement of the investor of intermediated securities. Consideration of Secure Capital and its implications on choice-of-law have however been curiously sparse. This article seeks to bring the debate which still continues for issues of property to the issues of disenfranchisement, and to demonstrate why they are no less problematic, complex and in urgent need of a viable solution.

Mekuria Tsegaye Setegn – Legislative inaction and judicial legislation under the Ethiopian private international law regime: an analysis of selected decisions of the Federal Supreme Court’s Cassation Division

Abstract
The Cassation Division of the Ethiopian Federal Supreme Court has the power to review any court decision containing a basic error of law. The interpretations of the Division reviewing such decisions are binding on all other courts. So far, the Division has rendered a handful of binding precedents pertaining to private international law. Nevertheless, the appropriateness of the Division’s decisions in some private international law cases is questionable, let alone correcting errors committed by other courts. In two employment cases, the Division utterly invalidated choice of law agreements concluded by the parties. In another case, it characterized a dispute involving a foreigner as a purely domestic case. Through a critical analysis of the case laws, this Article strives to answer the question of whether the Division’s decisions are consonant to the foundational principles of private international law such as party autonomy. It also examines the validity of the precedents in light of the doctrine of separation of powers. The absence of a dedicated private international law statute and the bindingness of the Division’s decisions make the second question worthwhile. The Article will argue that the Division’s decisions undermine some generally accepted principles such as party autonomy: the decisions involve a judicial invention of eccentric norms. Hence, they also encroach on the lawmaking power of the Legislature.

Sharon Shakargy – Choice of law for surrogacy agreements: in the in-between of status and contract

Abstract

Surrogacy agreements regulate various matters, including parentage, consent to medical procedures, the performance of a very personal service, and monetary compensation. All these questions, which jointly structure the surrogacy, are bundled up together, separated only by extremely fine lines. Collectively, they comprise the basis upon which local and transnational surrogacies are executed. Legislators world-wide hold different positions on the matter of surrogacy in general and on the regulation of each sub-issue in particular; thus, the enforceability and possible outcomes of the procedure vary, depending on the law governing it. As such, it is crucial for the parties to know which law will apply to the surrogacy they are planning. Application of law is usually made by each country’s choice-of-law rules, which at this time are generally non-existent. This paper suggests guidelines for drafting rules to regulate these special agreements and adequately balance the different interests involved.

Felix M. Wilke – Dimensions of coherence in EU conflict-of-law rules

Abstract
EU conflict-of-law rules are contained mainly in six separate Regulations, with several others flanking them. This complex picture raises the questions of how easy access to this area of law is and to what extent it promotes legal certainty and predictability of results. Both issues link to the idea of coherence. Against this background, this article employs several different perspectives to examine the current level of coherence in EU conflict-of-laws rules analytically, also taking into account the recent Commission Proposal for a further Regulation. The article shows that, in particular, many structural and topical parallels exist, and argues that many remaining inconsistencies can easily (and should) be corrected because they are obvious and in part nearly inexplicable outliers.

Chukwuma Samuel Adesina Okoli – International commercial litigation in English-speaking Africa: a critical review (Review Article)

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

H.-P. Mansel/K. Thorn/R. Wagner: European Conflict of Law 2019: Consolidation and multilateralisation

This article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from January/February 2019 until November 2019. It provides an overview of newly adopted legal instruments and summarizes current projects that are presently making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. Furthermore, the authors look at areas of law where the EU has made use of its external competence. They discuss important decisions of the CJEU. In addition, the article looks at current projects and the latest developments at the Hague Conference of Private International Law.

B. Hess: The Abysmal Depths of the German and European Law of the Service of Documents

The article discusses a judgment of the Higher Regional Court Frankfurt on the plaintiff’s obligations under the European Service Regulation in order to bring about the suspension of the statute of limitations under § 167 of the German Code of Civil Procedure (ZPO). The court held that the plaintiff should first have arranged for service of the German statement of claim in France pursuant to Art. 5 Service Regulation because, pursuant to Art. 8(1) Service Regulation, a translation is not required. However, the article argues that, in order to comply with § 167 ZPO, the translation must not be omitted regularly. The service of the translated lawsuit shall guarantee the defendant’s rights of defense in case he or she does not understand the language of the proceedings.

H. Roth: The international jurisdiction for enforcement concerning the right of access between Art. 8 et seq. Brussel IIbis and §§ 88 et. seq., 99 FamFG

According to § 99 para. 1 s. 1 No. 1 German Act on Procedure in Family Matters and Non-Contentious Matters (FamFG), German courts have international jurisdiction for the enforcement of a German decision on the right of access concerning a German child even if the child’s place of habitual residence lies in another Member State of the Regulation (EC) No. 2201/2003 (EuEheVO) (in this case: Ireland). Regulation (EC) No. 2201/2003 does not take priority according to § 97 para. 1 s. 2 FamFG because it does not regulate the international jurisdiction for enforcement. This applies equivalently to the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (KSÜ).

J. Rapp: Attachment of a share in a Limited Liability Partnership (LLP) by German courts

Attachment of a share in a Limited Liability Partnership (LLP) by German courts: Despite Brexit, the LLP still enjoys great popularity in Germany, especially among international law and consulting firms. Besides its high acceptance in international business transactions, it is also a preferred legal structure due to the (alleged) flexibility of English company law. In a recent judgement, the Federal Court of Justice (Bundesgerichtshof) had the opportunity to examine the LLP’s legal nature in connection with the attachment of a share in a Limited Liability Partnership. The court decided that German courts have jurisdiction for an attachment order if the company has a branch and its members have a residence in Germany. By applying § 859 Code of Civil Procedure, it furthermore ruled that not the membership as such but the share of a partner in the company’s assets is liable to attachment.

U. Spellenberg: How to ascertain foreign law – Unaccompanied minors from Guinea

The Federal Court’s decision of 20 December 2017 is the first of four practically identical ones on the age of majority in Guinean law. It is contested between several Courts of Appeal whether that is 18 or 21 years. As of now, there are nine published decisions by the Court of Appeal at Hamm/Westf. and five by other Courts of Appeal. For some years now, young men from Guinea have been arriving in considerable numbers unaccompanied by parents or relatives. On arrival, these young men are assigned guardians ex officio until they come of age. In the cases mentioned above, the guardians or young men themselves seized the court to ascertain that the age of majority had not yet been reached. The Federal Court follows its unlucky theory that it must not state the foreign law itself but may verify the methods and ways by which the inferior courts ascertained what the foreign law is. Thus, the Federal court quashed the decisions of the CA Hamm inter alia for not having ordered an expert opinion on the Guinean law. The CA justified, especially in later judgments, that an expert would not have had access to more information. With regards to the rest of the judgment, the Federal Court’s arguments concerning German jurisdiction are not satisfying. However, one may approve its arguments and criticism of the CA on the questions of choice of law.

D. Martiny: Information and right to information in German-Austrian reimbursement proceedings concerning maintenance obligations of children towards their parents

A German public entity sought information regarding the income of the Austrian son-in-law of a woman living in a German home for the elderly, the entity having initially made a claim for information against the woman’s daughter under German family law (§ 1605 Civil Code; § 94 para. 1 Social Security Act [Sozialgesetzbuch] XII). German law was applicable to the reimbursement claim pursuant to Article 10 of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations. Pursuant to § 102 of the Austrian Act on Non-Contentious Proceedings (Außerstreitverfahrensgesetz), and in accord with the inquisitorial principle, third persons like a son-in-law are also obligated to give information. The court applied this procedural rule and declared possible restrictions under Austrian or German substantive law inapplicable.

In the reverse case of an Austrian recovery claim filed in Germany, the outcome would be doubtful. While true that under German law an adjustment (Anpassung) might allow the establishment of an otherwise non-existing duty to inform, restrictions on the duty to disclose information pursuant to Austrian and German law make it difficult to justify such a claim.

M. Gernert: Effects of the Helms-Burton Act and the EU Blocking Regulation on European proceedings

For more than 20 years, each US president had made use of the possibility of suspending the application of the extraterritorial sanctions of the Helms-Burton Act, thus preventing American plaintiffs from bringing actions against foreigners before American courts for the „trafficking“ of property expropriated to Cuba. This changed as President Trump tightened economic sanctions against the Caribbean state. The first effects of this decision are instantly noticeable, but it also has an indirect influence on European court proceedings. In this article, the first proceeding of this kind will be presented, focusing on international aspects in relation to the Helms-Burton Act and the EU-Blocking-Regulation.

K. Thorn/M. Cremer: Recourse actions among third-party vehicle insurance companies and limited liability in cases of joint and several liability from a conflict of laws perspective

In two recent cases, the OGH had to engage in a conflict of laws analysis regarding recourse actions among third-party vehicle insurance companies concerning harm suffered in traffic accidents which involved multiple parties from different countries. The ECJ addressed this problem in its ERGO decision in 2016, but the solution remains far from clear. The situation is further complicated because Austria, like many European states, has ratified the Hague Convention on the Law Applicable to Traffic Accidents. This causes considerable differences in how the law applicable to civil non-contractual liability arising from traffic accidents is determined.

In the first decision discussed, the OGH endorsed the decision of the ECJ without presenting its own reasoning. The authors criticizes this lack of reasoning and outline the basic conflict of laws principles for the recourse actions among third-party vehicle insurance companies. The second decision discussed provides a rare example for limited liability in the case of joint and several liability. However, given that the accident in question occurred almost 20 years ago, the OGH was able to solve the problem applying merely the Convention and autonomous Austrian conflict of laws rules. The authors examine how the problem would have been solved under the Rome II Regulation.

A. Hiller: Reform of exequatur in the United Arab Emirates

In the United Arab Emirates, an extensive reform of the Code of Civil Procedure entered into force on 2 February 2019. The reform covers half of the Code’s provisions, among them the law regulating the enforcement of foreign judgments, arbitral awards and official deeds. This article provides an overview of the amendments made on the enforcement of foreign decisions and puts them into the context of the existing law. The article also sheds light on the procedure applying to appeals against decisions on the enforcement. The reform does away with the requirement of an action to declare the foreign decision enforceable. Instead, a simple ex parte application is sufficient, putting the creditor at a strategic advantage. However, with a view to arbitral awards in particular, important issues remain unadressed due to the somewhat inconsistent application of the New York Convention by Emirati courts.

The second 2020 issue of RabelsZ is now available online. It features two essays as well as the contributions to a Symposium on career paths into legal academia held at the Max Institute in June 2019:

Lord Hodge, The Scope of Judicial Law-Making in the Common Law Tradition, pp. 211 et seq

Judge-made law is an independent source of law in common law systems. To jurists brought up in legal systemswhich have codified law, this is one of the striking features of the common law tradition. Instead of interpreting a code to develop the law, common law judges develop the law which their predecessors have made. While statute law nowimpinges on many areas of private law, large tracts of our private law remain predominantly the product of judicialdecisions. [In this contribution] I wish to discuss some of the areas of private law which have been and remainpredominantly judge-made and the limits in the common law tradition on judicial law-making.

Markus G. Puder, Law and Language in Action. Transformative Experiences Associated with Translating the Louisiana Civil Code into German, pp. 228 et seq

In the course of translating the Louisiana Civil Code into German I had to overcome the unique challenges posed bythe source text and the receptor text. Beyond the translation issues stemming from its own bilingual origins, theLouisiana Civil Code codifies mixed law in unprecedented ways. Different but no less challenging conditionssurrounded the destination text, as distinct species of legal German exist. In addition to the legal German of Germany, these include the legal German of Austria and Switzerland. Resolving these challenges required tailored translationapproaches within the spectrum of source text and receptor text orientation. My article discusses the challenges I encountered and the decisions taken in response. It concludes with final thoughts on my experiences as legal translator and legal comparativist.

SYMPOSIUM: Career Paths into Legal Academia

Reinhard Zimmermann, Akademische Karrierewege für Juristen im Vergleich. Einführung in das Symposium (Career Paths into Legal Academia Compared. Introduction to the Symposium), pp. 264 et seq.

By highlighting characteristic aspects of an academic career in the United States, the present contribution attempts toprovide an interesting contrast to the career paths into legal academia available in the countries on which thesymposium, held in the Hamburg Max Planck Institute in June 2019, focuses. The countries considered in thesymposium are Germany and Austria, France, Italy, England and Scotland, and Japan. Here, too, we find considerable differences which both shape different legal cultures and are shaped by them.

Walter Doralt, Akademische Karrierewege für Juristen in Deutschland und Österreich (Career Paths into Legal Academia in Germany and Austria), pp. 268 et seq.

Seen from a distance, it is often presumed that career paths in law and legal education in Austria and Germany arevery similar. This assumption is also widely held in Germany (with regards to Austria). Some similarities do indeedexist. However, many aspects during the university education are surprisingly different in both countries. Equally, thisis true for subsequent career stages in academia. This article analyses the common points and differences.

Dorothée Perrouin-Verbe & Samuel Fulli-Lemaire, Career Paths into Legal Academia in France, pp. 299 et seq.

It is likely that a description of the way university careers unfold in France, at least as far as law is concerned, will surprise even seasoned observers of the academic world. Not everything, naturally, will appear outlandish: that the single most important precondition is having a PhD thesis is perhaps to be expected for a civilian jurisdiction; that the overall system is centralized will not astonish those that have come into even superficial contact with the country. But the extent of that centralization, the sheer number of unwritten rules, the relative lack of importance attributed to publications and the specificities of the agrégation, the competitive exam which serves as the main point of entry into the body of law professors, as well as the acceleration it is designed to provide to young academics’ careers, may surprise some readers.

Francesco Paolo Patti, Career Paths into Legal Academia in Italy, pp. 324-350 (27)

The present contribution aims to explain the relevant steps in the Italian academic career path and its most relevant traits. It is divided in three parts. The first contains a brief outline of the Italian legal framework on universityrecruitment and its evolution over the last forty years. The various structures are presented in a synthesised and simplified way, with the purpose of indicating the rationales underlying the different reforms. After having sketched out the playing field, the article describes a typical Italian academic career and points out the unique aspects of each stepon the long path of academia, from university graduation to the call as full professor. Finally, the paper outlinesfundamental features of the Italian academic social environment, which are essential to understand how the rules on university recruitment actually work in practice. Needless to say, the last part is the most important one. In addressingthe subject matter, it is not possible to limit the treatment to a description of the rules and their rationales as there areseveral non-written rules belonging to the Italian academic tradition that need to be presented in order to understanduniversity recruitment in actual practice. Aspects discussed in the present contribution concern especially the field of private law.

Andrew Sweeney. Career Paths into Legal Academia in Scotland, pp. 351 et seq.

This contribution deals with the smallest country represented at the symposium. Its size, however, is not the solefeature that distinguishes Scotland from the others. As a legal system, Scotland sits exactly neither with theContinental systems (represented here by Germany, France and Italy), nor with England. It is, instead, often describedas a mixed legal system, sharing features with both Civilian and Common-law systems. […] This [contribution] focusesprimarily on the position in Scotland. But much of what is discussed will be equally applicable to an English academic, and it is easy to overstate the differences between the two jurisdictions. Where interesting differences exist betweenthe two jurisdictions, an attempt has been made to point them out. […] Space constraints restrict the assessment to a select few of the myriad of subjects which the topic of academic career paths could include, and some of thoseselected are permitted only a cursory glance. Particular focus is given to a career in private law, and it must be bornein mind that differences – sometimes significant ones – exist in other areas such as criminology, legal theory and legal history.

Harald Baum, Akademische Karrierewege für Juristen in Japan (Career Paths into Legal Academia in Japan), pp. 374 et seq.

The landscape for an academic legal career in Japan shows some striking differences from its German counterpart. While in Germany a large number of qualified young academics struggle to secure a university posting, Japanese lawfaculties presently face difficulties in filling free positions. A second major difference is the way in which an academiccareer is achieved. In Japan, in-house, tenure-track careers are the norm whereas, at least up until now, they are a rare exception in Germany, where it is highly unusual to be appointed by the university where one has obtained his orher academic qualification. Accordingly, a change of universities in the course of an academic career is rare in Japan while in Germany the opposite is true. Japanese law faculties are entirely free to determine the qualificationsnecessary for an academic promotion. A second monograph, like the German »Habilitation«, is unknown in Japan. A PhD thesis, however, is increasingly common. The typical academic career starts after four years of undergraduatestudies, followed by a two-year period of study at graduate level or, alternatively, two years of training at a law school. Thereafter, a three-year doctoral programme has nowadays become the norm. This is followed by employment as an assistant, and in the event that the candidate’s qualifications are seen as sufficient, by a promotion to the position of associate professor. The latter is a member of the faculty and employment is no longerlimited in terms of duration. The final step is promotion to full professorship at the average age of 36 to 40.

Access to justice in times of corona

When COVID-19 makes the case for greater digitalisation of justice

Written by Emma van Gelder, Xandra Kramer and Erlis Themeli, with thanks to Georgia Antonopoulou, Alexandre Biard and Betül Kas (Erasmus University Rotterdam, ERC-Co project ‘Building EU civil justice: challenges of procedural innovations – bridging access to justice’)

The disruption of society has naturally also affected our justice system. While there is no total lockdown in The Netherlands, as of 16 March people working in non-vital sectors are required to stay at home, schools and universities are closed, and events and social gatherings are forbidden. These measures also meant that courts in the Netherlands had to restrict their daily activities. All courts were closed on 17 March and will stay closed in any case until 28 April 2020. This means that most court proceedings are postponed for the time being. To proceed with continuing obligations and proceedings, thereby ensuring ongoing access to justice, judiciaries around the world are increasingly adopting various forms of technology in their court procedures.

This blogpost sets out the Dutch approach of the judiciary to the COVID-19 crisis, and highlights some global examples of other approaches.

COVID-19’s disrupting effect to the functioning of the court system

COVID-19 caused a sudden lockdown of courts. Court hearings are delayed, resulting in complaints that the backlog in the judiciary will grow, and attorneys have urged for more cases to be processed. Against the background of the health safety measures by the RIVM (National Institute for Public Health and the Environment), the public is temporarily no longer allowed to attend the few court hearings that still do take place. The lockdown of courts and offices emphasises the need for remote access to courts and better communication between courts and their constituents.

The adoption of a General Regulation during the COVID-19 crisis

The Dutch Judiciary has taken steps to respond to these problems by adopting a general regulation on case-handling by the Judiciary during the COVID-19 period. This general regulation was the result of the proposal for temporary emergency COVID-19 legislation (spoedwetgeving COVID-19 Justitie en Veiligheid ), proposed by the Minister of Legal Protection, Sander Dekker, and by the Minister of Justice and Security, Ferdinand Grapperhaus. This proposal for legislation allows communication that normally is prescribed to take place physically, to take place through electronic means, such as audio or video livestream. Moreover, it enables annual general meetings to be held online or a testament by a notary to be signed online.

The Dutch Judiciary has created general rules on case-handling by the Judiciary during the COVID-19 period. The starting point of this regulation is that the courts will continue to deal with urgent cases, which are divided into serious urgent cases and other urgent cases. Urgent cases include certain hearings in criminal cases, insolvency cases, and family cases, particularly those concerning child protection. Judges work with digital files and have secured remote access from home. Law firms are also expected to have their staff working from home whenever possible, though not all law firms are closed.

The General Regulation deals among others with the attendance of courtroom hearings (Para. 1, sub 1.1 General Regulation), the use of secure email (Para. 1, sub 1.2 General Regulation) and closed hearings (Para. 1, sub 1.3 General Regulation). In principle oral hearings with the physical attendance of the parties will not take place during the COVID-19 period, unless the judge decides otherwise. Both serious and other urgent cases will take place as much as possible in writing or through telephone (video) connection. If the judge decides that an oral hearing with physical presence of the parties should take place, the guidelines of the RIVM are taken into account. Where possible, livestreaming will be used. Procedural guidelines that allow documents and messages to be sent through post or fax, can be sent via a safe email channel of the Judiciary.

Positive side-effects

Often, radical innovations are dictated by crisis. A positive side effect of the current health crisis is that it may boost the digitisation of the judiciary that has been severely hampered in the Netherlands (see our blogpost on EUCP; more extensively: Xandra Kramer, Erlis Themeli and Emma van Gelder, e-Justice in the Netherlands: The Rocky Road to Digitised Justice, 2018). To enable the functioning of the General Regulation, the IT department of the judiciary has extended the facilities for a telephone and video connection between the judiciary and external parties. Another side-effect boosting digitisation in the Dutch Judiciary regards the introduction of secure email to be used by parties and for filing procedural documents and communicating messages as of 9 April 2020. Several safeguards are required for the use of email, regarding the subject of the email and the capacity of the attachments to the email. Regarding signatures, no digital signature is prescribed, but a ‘wet’ signature scanned and uploaded through PDF (see para. 1.2.4 under 6 of the General Ruling). The moment of receipt of the e-mail within the secured email system of the Judiciary counts as the time of receipt (see para. 1.2.5 of the General Regulation).

Perhaps the most important side effect of this crisis would be the experience with these implemented facilities. Using remote access to courts, secure emails, video conferencing and other electronic means for a protracted period will provide the Ministry of Justice and Security important lessons on how to better utilize these. Video conferencing is of course not new in the Netherlands, but it is not used at a wide scale, particularly not in civil cases.

Challenges

While these side-effects must be praised, in reality there are a number of challenges caused by this ‘sudden’ shift towards digitisation that cannot be neglected. The lack of face-to-face contact results in an absence or lesser extent of non-verbal cues such as body language, tone of voice, facial expression. Especially in family law cases – often involving emotional discussions – this may prove a challenge and can risk miscommunication. Another challenge relates to the identification of parties; if e-mail is used, it can be difficult to ensure that the documents are also received by the correct person. In the Netherlands, judicial officers play an important role in securing the correct service of documents. Another challenge – although less relevant in the Dutch context – relates to vulnerable users having no or limited access to the internet or having minimum skills with digital technology. The absence of an offline channel forms a challenge for access to justice in certain cases.

The exclusion of public attendance during a court hearing, challenges the principles of a public hearing and transparency. To counter these challenges, attendance of maximum of three journalists is still allowed, and more decisions are published on the website of the judiciary (rechtspraak.nl). For example, the website of the administrative law department (Afdeling Bestuursrechstpraak) of the Council of State, states that decisions are temporarily published online and posted on their internal website and rechtspraak.nl.

Also, across the Dutch borders, examples of challenges are found. For example, small criminal cases in France – such as ‘immediate appearances’ (comparution immédiate), rarely allow for online hearings or other forms of digitalisation.

In Germany, since 2013 § 128a ZPO (German Civil Procedure Code) gives the possibility of using video-conferences for the oral negotiation and the hearing of evidence in civil litigation. Although all German states have equipped their judiciaries with the necessary technology, they are not widely used in practice. The current approach to face the corona crisis consists rather of the postponement of non-urgent proceedings. However, first signs towards a stronger move of the digitization of justice appears to be driven by the judiciary of Nord-Rhine-Westphalia.

Other global developments

Similar approaches to the COVID-19 crisis can be seen around the globe.

For instance, the UK has adopted the Coronavirus Act 2020 (hereinafter: Act). Regarding provisions on digitisation, Point 53 and 54 of the Act enshrine the expansion of the availability of live links in criminal proceedings and in other criminal hearings. Furthermore, point 55 and 56 of the Act rule that public participation in proceedings will be conducted by video or audio, and live links are used in magistrates’ court appeals for requirements or restrictions imposed on a potentially infectious person. The Economist, quotes in a paper of 4 April 2020, that before the COVID-19 crisis, about 200 cases a day were being heard at least partially via conference-call and video link in the UK. By March 31st this number had increased to around 1800 cases.

Richard Susskind, launched a new website at the outset of the corona crisis, in order to create a platform to share experiences of ‘remote’ alternatives to traditional court hearings. The website provides an overview of interesting developments on a global level. In any event, Susskind can be delighted as he has noted a sudden spike of sales of his recent book ‘Online courts and the future of justice’.

In Italy, the Court of Cassation uses video technology to decide appeal cases. It required an adaption of the procedural rules to allow video connection for the judges unable to travel due to the COVID-19 crisis.

In Canada, some courts are encouraging counsel and the public to use alternative dispute resolution forms in order to reduce delays now that many court hearings are postponed for the time being. The use of technology in out-of-court dispute resolution is more widespread and accepted, resulting in various forms of online dispute resolution (ODR). For example, in the COVID-19 period, ODR procedures offer benefits of virtual hearings centralizing disputes regardless of geographical distances between parties, paperless processes, flexibility and convenience enabling parties to participate from their own home computer. Positive side-effects are cost and time reductions as online procedures eliminate inter alia travel costs. In any case, the Covid-19 crisis may lead to a ‘wake-up’ call among lawyers and parties to consider the ability of ODR/ADR as a viable option of dispute resolution.

In Colombia, on 19 March new procedural rules were enacted to allow for virtual conferences and videoconferencing in Colombian Courts.

In Brazil, Brazilian courts work with the Cisco system enabling videoconference for court proceedings.

Also in Kenya, digitalisation is welcomed, as a Kenyan Judge has used Zoom for remote hearings and is now planning to oversee more than 20 court hearings over video link, including verdicts, rulings on appeals as well as applications.

Conclusion

It remains to be seen if the rapid uptake of digitisation will continue after the COVID-19 crisis comes to an end. In any case, the present health crisis shows the ability to implement emergency legislation and of the judiciary to amend a vast array of procedures in a short period of time.

Yesterday, the High Court of London decided two preliminary issues in a large group action, certified as a Group Litigation Order (sub no. 105), brought by about 91,000 owners or lessees of VW, Audi, Skoda and SEAT cars. The claim is brought, against the manufacturers of the affected vehicles (VW, Audi, Skoda, and SEAT), against the relevant VW financial services arm and against a variety of authorised UK based VW dealers. Article 8 no. 1 of the Brussels Ibis Regulation will have been of relevance to the foreign ones amongst the defendants. No express explanations are offered how claimants eligible for the UK group litigation are determined – presumably it depends on where the car was bought.

The precise personal/territorial scope of the respective mass litigations would have been interesting, since the proceedings in the UK are just some of many by disaffected VW owners around the world, and the outcomes for the claimants seem to differ quite substantially. As early as in 2015, a class-action similar to the UK one was commenced against VW in the Federal Court of Australia, on behalf of around 100,000 VW owners, which was settled for up to AusD 87 million. The total amount may go up to AusD 127 million, depending on the ultimate number of claimants. On 1 April 2020, the Federal Court of Australia approved the settlement of the Australian class actions. The settlement was approved on the basis of a Settlement Scheme developed by the solicitors for the applicants and made public here, that sets out the process by which claims can be registered, assessed and paid, and the Deed of Release and Settlement that was agreed between the parties, made publicly available by those solicitors here. In Germany, proceedings under the (quite restrictive) collective redress mechanism of the “Musterfeststellungsklage” were settled recently as well, in this case for up to € 830 Million in total in relation to around 400.000 claimants. These claimants still need to accept individually the offered sums until 20 April 2020 after receiving offers from VW based on the remaining value of their cars these days. Individual litigations outside the Musterfeststellungsklage about the influence of the amount of kilometres that the respective car has already run (amongst other issues) are reaching the German Federal Court of Justice these days (the hearings will take place on 5 May 2020). In addition, the Court of Justice of the European Union is dealing with other aspects of the VW case, see on CoL here.

The claim in the UK proceedings alleges a variety of causes of action against the Defendants, including fraudulent misrepresentation in relation to the sale of the affected vehicles. A number of those causes of action proceed upon the basis that the software function of the Engine amounts to a “defeat device” within the particular meaning of Article 3 (10) of EU Parliament and Council Regulation 715/2007 dated 20 June 2007. If so, then one consequence is that its use in the engine and thus, the sale of the affected vehicles, was unlawful, being prohibited by Article 5 (2) of the Regulation.

Thus, the question arose whether Brexit altered anything in this respect. This question is easy to answer at the moment, see para. 12: “Brexit makes no difference here because EU Law (including the jurisdiction of the CJEU) will continue to have effect as if the UK was still a Member State until the end of the transition period which is 31 December 2020”.

A further issue relates to the Claimants’ reliance on formal letters to VW, issued by the “competent authority” in Germany for these purposes, being its Federal Motor Transport Authority, the German “Kraftfahrtbundesamt” (“the KBA”) dated 15 October, 20 November, and 11 December 2015 (“the KBA Letters”). The Claimants contended that these letters constitute decisions that the software function is a defeat device, that those decisions bind the courts in Germany as a matter of German law, that they also bind other authorities in other Member States, including English courts, either as a matter of EU law or as a matter of German law and by reason of EU and/or English law, there is a conflicts rule to the effect that the question as to whether they bind the UK court must be decided by reference to their binding effect or otherwise under German Law, being the law of the seat of the KBA.

For a number of reasons, including analogies to competition law, the Court decided that the KBA’s finding binds all Member States (including their courts) as a matter of EU law. This is why the Court abstained from taking a decision on the alternative grounds advanced by the Claimants.

At the same time and independently from the binding effects of the KBA’s finding, the Court found on its own account that the affected vehicles did contain defeat devices. Another bad day for VW.

The full text of the judgment is available here.

from Raphael de Barros Fritz, Hamburg

The assessment of a court’s jurisdiction based on Art. 7 (2) of the Brussels Ibis Regulation in cases involving exclusively financial damages has been a continuous challenge (cf., e.g., ECJ, 12.09.2018, Case C-304/17 (Löber); ECJ, 16.06.2016, Case C-12/15 (Universal); ECJ, 28.01.2015, Case C-375/13 (Kolassa)). Against this background, the Advocate General’s opinion in the Volkswagen emissions scandal case (Campos Sánchez-Bordona, Opinion of Advocate General delivered on 02.04.2020, Case C-343/19 (Volkswagen)) sets forth some important guidelines when determining a court’s jurisdiction pursuant to Art. 7 (2) of the Brussels Ibis Regulation.

In the Volkswagen case, an Austrian consumer organization is pursuing claims for damages assigned by 574 purchasers of vehicles as well as a declaration establishing the liability of Volkswagen for as yet unquantifiable future damages. The assignors have all purchased their vehicles in Austria not directly from Volkswagen itself, but from either a commercial dealer or a private seller. The question is whether this gives the Austrian court called upon to decide the case jurisdiction under Art. 7(2) of the Brussels Ibis Regulation.

Assignees as direct victims

Before discussing the main question presented by the Austrian court, the Advocate General addresses two important preliminary issues. The first is whether the assignees are direct or merely indirect victims of Volkswagen’s tortious behavior. It is well-settled in the ECJ’s case-law that the place where the damages arose includes only the place where initial damages sustained by a direct victim ensued. Thus, the damages being claimed cannot be merely the consequence of damages arising elsewhere (cf. ECJ, 19.09.1995, C-364/93 (Marinari), paragraphs 14 and 15; ECJ, 29.07.2019, Case C-451/18 (Tibor-Trans), paragraph 27). Since none of the assignees in the Volkswagen case have purchased vehicles directly from Volkswagen, one could argue that the assignees are only indirect victims of Volkswagen’s tortious behavior (i.e., manipulation of the cars’ engines) for their damages are only the consequence of the damages incurred by the commercial dealers and private sellers from whom they purchased theirs cars.

Yet the fact alone that a claimant has not established contractual relations with the tortfeasor does not necessarily makes him an indirect victim of the latter’s behavior (ECJ, 29.07.2019, Case C-451/18 (Tibor-Trans)). In accordance with this ruling, the Advocate General also concludes that the lack of contractual relations between Volkswagen and the assignees does not necessarily precludes them from claiming damages as direct victims. He argues instead that the loss of value of the vehicles did not become a reality until the manipulation of the engines was made public. Therefore, neither the commercial dealers nor the private sellers who owned the cars before the assignees experienced any loss. As a result, the damages suffered by the assignees cannot be deemed as a mere consequence of the commercial dealers’/private sellers’ damages and the ones among them who retained the vehicles as part of their assets at the time the defect has been made public are to be considered as the direct victims of Volkswagen’s tortious actions (points 40 et seq., 81).

The place where the damages arise

A second issue the Advocate General had to resolve was whether the place where the damages arose amounts to the place where the vehicles were physically located. He answers this in the negative (points 72 and 73). The location of the vehicles is – from the defendant’s perspective – unforeseeable and does not establish a proximity between the court and the dispute. Thus, the place where the damages arose is the place where the act pursuant to which the vehicles became part of the purchasers’ assets took place, i.e., the place where the transactions occurred (point 74). It is interesting to note that the Advocate General is referring here to a noticeable action (the transaction entered into by the parties) in order to physically allocate damages which per se (because purely financial) are actually non-physical (point 53). Furthermore, it is no coincidence that the Advocate General briefly mentions bank accounts in his reasoning. For his line of argument in the Volkswagen case resembles to a great extent the ECJ’s ruling in the Universal case, where the Court held that the place where the damages arose was the place where a settlement had been executed between the parties and not the place where the bank account was located from which the obligations arising out of the settlement had been paid (i.e., the place where – like the place where the purchased cars where located in the Volkswagen case – the loss had materialized) (ECJ, 16.06.2016, Case C-12/15 (Universal), paragraphs 31 and 32).

In addition to the ECJ’s ruling in the Universal case, a comparison may be drawn between the Advocate General’s reasoning in the Volkswagen case and Advocate General Bobek’s opinion in the Löber case. There, Advocate General Bobek submitted that a person incurs damages at the place where he or she enters into a legally binding and enforceable obligation to dispose of his or her assets in a detrimental manner and not at the place where the pecuniary loss becomes apparent (Bobek, Opinion of Advocate General delivered on 08.05.2018, Case C-304/17 (Löber), points 73, 82). Applied to the Volkswagen case, this reasoning means that the place where the damages arose cannot be allocated to the place where the cars were physically located and thus where the pecuniary losses became perceptible, but rather to the place where the assignees entered into a legally binding and enforceable obligation to pay the purchase price. This reasoning is also sound if one (as the Advocate General in the Volkswagen case) considers the damages incurred by the purchasers to be the (negative) difference between the price paid and the value of the tangible goods received in return (points 36 and 37). For if the parties, for example, enter into a contract to sell (i.e., a bilateral promise of sale) or a sales contract (i.e., a contract of sale) under a legal system like the German one, where a sales contract by itself does not transfer ownership in the subject-matter of the contract, the financial damages occurring due to the (negative) difference between the price paid and the value of the tangible goods received in return take place already at the moment in which the purchaser enters into the contract to sell or the contract of sale: from this moment on, the obligation to pay the purchase price is part of his assets and it is not compensated by his claim against the seller, creating thereby a (negative) balance in his estate.   .    

General principles for determining jurisdiction under Art. 7 (2) of the Brussels Ibis Regulation

With these issues out of the way, the Advocate General deals with the concrete question posed by the Austrian court.

He begins his analysis by throwing some light upon the reasoning of the ECJ in some of its previous rulings regarding the construction of Art. 7 (2) of the Brussels Ibis Regulation in cases involving pure financial damages. He suggests that what the ECJ was doing in reality in the cases Löber, Universal and Kolassa was to develop a two-prong approach for assessing a court’s jurisdiction at the place where the damages arose: on the first step, a court called upon to decide a case must determine whether the damage arose at the place it sits. Once this has been done, the court must take into consideration the “other specific circumstances” of the case at hand in order to ascertain whether the rationale underlying Art. 7(2) of the Brussels Ibis Regulation supports its jurisdiction (points 56, 59).

It is, however, not possible to conclude with exactitude after reading the Advocate General’s opinion whether he proposes to use this two-prong approach in every case involving financial damages or only in those cases where the fact pattern resembles the facts in the Löber, Universal and Kolassa cases. Two passages of the Advocate General’s opinion suggest the latter. On point 59 he states that the second step of the approach proposed may be required for purely financial damages and on points 70 and 71 he seems to try to fit the facts of the Volkswagen case into the facts of the Löber, Universal and Kolassa cases in order to justify the application of the two-prong approach to the case at hand.

In addition to carving out the different steps a court must undertake in order to determine its jurisdiction under Art. 7 (2) of the Brussels Ibis Regulation, the Advocate General also clarifies some ambiguities in previous rulings of the ECJ pertaining to the second step of the forum court’s analysis  (cf., for example, ECJ, 16.06.2016, Case C-12/15 (Universal), paragraph 27; ECJ, 28.01.2015, Case C-375/13 (Kolassa), paragraph 47; ECJ, 16.01.2014, Case C-45/13 (Kainz), paragraph 24). He reasons that this second step does not authorizes the court of the forum to ascertain whether it is best placed,  in terms of proximity and foreseeability, to decide the matter as compared to the court of the place of the event giving rise to the damage (points 60-66, 80). Instead, the sole purpose of the examination of the “other specific circumstances” of the case is to confirm (or reject) the jurisdiction of the court of the place where the damage occurred based on the proximity of the court to the dispute (or the lack thereof) (point 80). For the court of the forum cannot disrupt the abstract ex-ante balancing of interests carried out by the legislator in Art. 7 (2) of the Brussels Ibis Regulation. The legislator, however, has deemed both the courts of the place where the event giving rise to the damages and the courts of the place where the damages have arisen as being equally suited for hearing a tortious case. Consequently, a national court cannot undermine this legislative intent by engaging in a comparison between the courts of these two places.   

Conclusion

To sum up, the Advocate General’s opinion touches on different issues of pivotal importance when assessing a court’s jurisdiction under Art. 7 (2) of the Brussels Ibis Regulation. Besides laying down the two-prong approach to be followed by national courts in (at least some) of the cases involving purely financial losses when determining their jurisdiction pursuant to Art. 7 (2) of the Brussels Ibis Regulation, the Advocate General also discusses the question of whether a purchaser who acquired some goods without directly transacting with the tortfeasor can still be deemed as a direct victim of the latter’s tortious behavior and how to precisely determine where a financial damage has arisen.

The A-G’s opinion is here.

Dear CoL Readers,

You will have experienced a few irregularities during the last week: Some posts had disappeared for a few days and were then re-posted and, as such, sent out again. This was due to the transfer of CoL to our new server which is now completed. In this process, we also worked over the mailing list and removed some old email addresses that appeared to us as defunct. Now everything should be fine. Nevertheless, please take a few seconds to check whether you still get our daily email with the latest blog entries. If not, just register anew for our newsletter, if you like, or contact us.

We will keep you posted on the most intriguing matters of the Conflict of Laws from all over the world …

Happy reading! Thalia and Matthias

A free webinar to hear experts of MK Family Law (Washington) and Grotius Chambers (The Hague) discuss pertinent issues relating to international child abduction in times of COVID-19. 

Date: 8 April 2020
Time: 3 pm (CET Amsterdam)

COVID-19 has a significant impact on all aspects of our lives. Since the WHO declared the outbreak a pandemic, numerous States have implemented travel bans in an attempt to contain its spread. Moreover, States have closed courts and adjourned or even cancelled hearings.

Such restrictions cause direct impacts on transnational families. They may hinder, in particular, the prompt return of children in cases of international child abduction. Parents may encounter difficulties in commencing proceedings before the competent authorities, as well as complying with an agreement or return order.

Melissa Kucinski of MK Family Law and Janaina Albuquerque Azevedo Gomes, Expert in international Child Abduction law, will consider what the current situation may mean for parents. A particular focus will be the prompt return of children under the 1980 HCCH Child Abduction Convention.

Registrations are now open and the Eventbrite Registration Form can be found here.

Registration is required to receive the webinar login credentials. For further information, please contact info@grotiuschambers.com. 

Art. 17 of the Rome II Regulation, which transposes an element of US conflicts theory (the concept of local data) into a European choice-of-law instrument, is certainly one of the more controversial provisions of the Regulation. It stipulates that

[i]n assessing the conduct of the person claimed to be liable, account shall be taken, as a matter of fact and in so far as is appropriate, of the rules of safety and conduct which were in force at the place and time of the event giving rise to the liability.

In a highly illustrative decision of 27 March 2020 (1 U 95/19), the Higher Regional Court of Cologne (upholding a decision from the Regional Court of Bonn) has provided a textbook example of its application in practice.

The case involved two German citizens who had collided while paragliding/hang gliding in Italy. While one had remained unharmed, the other one had sustained several injuries and, upon returning home, decided to sue for damages.

As both parties were habitually resident in the same Member State – in fact, they lived less than 50 km away from each other, in Cologne and Bonn, respectively – the Court naturally applied German law pursuant to Art. 4(2) Rome II. Under the applicable tort statute, the fact that both parties had engaged in aerial activities meant that the degree to which the defendant would be liable depended on the respective dangerousness of each party’s activity as well as on whether or not one party had behaved negligently.

While the first factor already put the claimant on the back foot with the Court deeming his hang glider significantly more dangerous than the defendant’s paraglider, the Court went on to apply two Italian presidential decrees as well as the general regulations approved by the Italian Civil Aviation Authority (Ente Nazionale per l’Aviazione Civile, ENAC) on the basis of Art. 17 Rome II in order to establish that the claimant had negligently violated the applicable aviation rules. Accordingly, his claim failed in its entirety.

In this case, a Czech passenger entered into a package travel contract with a Czech travel agency on a flight from Prague to Keflavik in Iceland and on accommodation there. The flight was operated by the Danish air carrier Primera Air Scandinavia. The flight was delayed by four hours. This is why the passenger brought an action for compensation of EUR 400 against the airline under the Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights. The proceedings were instituted before a District Court in Prague.

In the case of the provision of services, Art. 5 no. 1 lit. b second indent Brussels I Regulation provides for jurisdiction at the place in a Member State where, under the contract, the services were provided or should have been provided. In respect of air carriage, these include, at the passenger’s choice, the courts of the place of departure (as well as the place of arrival) of the flight, see ECJ, judgment of 9 July 2009, Case C-204/08 – Peter Rehder v Air Baltic Corporation.

Nevertheless, the Court held that, first, that the concept of an operating air carrier subject to the Passenger Rights Regulation includes not only the air carrier which operates or has the intention of operating a flight under a contract with a passenger but also the carrier which operates or intends to operate a flight on behalf of a third party which has concluded a contract with that passenger. Therefore, the passenger may rely on the regulation on the rights of air passengers against the carrier, even in the absence of a contract between the passenger and the carrier.

The Court further observed that even though the conclusion of a contract is not a requirement for the application of the special provisions on matters relating to a contract of the Article 5 no. 1 Brussels I Regulation, reliance on those provisions presupposes the existence of a voluntary commitment by one party to another, not necessarily vis-à-vis the claimant, as opposed to Articles 15 et seq. (see para. 58).

Thus, the Court concludes, an operating air carrier that did not enter into a contract with the passenger but is liable to that passenger on behalf of a travel agency in respect of the obligations arising from the Passenger Rights Regulation must be regarded as fulfilling the freely assumed obligations vis-à-vis that agency. Therefore, the passenger may bring an action for compensation against the carrier before the courts of the place of departure of the flight.

The Court had already decided similarly before: Those previous (joined) cases involved compensation for long delays in flights provided by an operating air carrier which had not entered into contracts with the passengers concerned, since they had bought their airline tickets from other airlines before bringing an action against the carrier that operated the segment of the connecting flight that included that delay at issue, see ECJ, judgment of 7 March 2018, joined cases C?274/16, C?447/16 and C?448/16 – flightright and Others.

The judgment is available, currently only in French, German and other languages, but not [yet] in English here.

A book edited by Catherine Kessedjian & Humberto Cantú Rivera and titled “Private International Law Aspects of Corporate Social Responsibility” has just been released electronically and in hard copy. As said in the abstract of the book, “This book addresses one of the core challenges in the corporate social responsibility (or business and human rights) debate: how to ensure adequate access to remedy for victims of corporate abuses that infringe upon their human rights. However, ensuring access to remedy depends on a series of normative and judicial elements that become highly complex when disputes are transnational. In such cases, courts need to consider and apply different laws that relate to company governance, to determine the competent forum, to define which bodies of law to apply, and to ensure the adequate execution of judgments. The book also discusses how alternative methods of dispute settlement can relate to this topic, and the important role that private international law plays in access to remedy for corporate-related human rights abuses…”

Readers of this blog might be interested in having one to be stored for your own use. If this is the case, please visit the homepage of this book to know more:https://www.springer.com/gp/book/9783030351861?wt_mc=Internal.Event.1.SEM.ChapterAuthorCongrat

Many thanks for your attention and take care in this globally difficult time!

It is undeniable that there is an increasing interaction between human rights and private international law (and other areas of law). This of course adds an additional layer of complexity in private international law cases, whether we like it or not. Indeed, States can be sanctioned if they do not fulfill specific criteria specified by the European Court of Human Rights (ECtHR). Importantly, the European Convention on Human Rights has been considered to be an instrument of European public order (ordre public), to which 47 States are currently parties.

I have recently published an article entitled “The controversial role of the ECtHR in the interpretation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, with special reference to Neulinger and Shuruk v. Switzerland and X v. Latvia” (in Spanish only but with abstracts in English and Portuguese in the Anuario Colombiano de Derecho Internacional). To view it, click on “Ver artículo” and then click on “Descargar el archivo PDF”, currently pre-print version, published online in March 2020.

Below I include briefly a few highlights and comments.

As its name suggests, this article explores the controversial role of the ECtHR in the interpretation of the HCCH Child Abduction Convention. It analyses two judgments rendered by the Grand Chamber: Neulinger and Shuruk v. Switzerland (Application no. 41615/07) and X v. Latvia (Application no. 27853/09). And then it goes on to analyse three more recent judgments and in particular, whether or not they are in line with X v Latvia.

The article seeks to clarify the applicable standard that should be applied in child abduction cases as there has been some confusion as to the extent to which Neulinger applies and the impact of X v. Latvia. Indeed Neulinger seemed to suggest that courts should conduct a full examination of the best interests of the child during child abduction proceedings, which is blatantly wrong. X v. Latvia clarifies Neulinger and provides a detailed and thoughtful standard to avoid conducting “an in-depth examination of the entire family situation and of a whole series of factors…” but at the same time upholds the human rights of the persons involved and strikes, in my view and as noted by the Court, a fair balance between the competing interests at stake – those of the child, of the two parents, and of public order.

The article then examines three recent judgments rendered by several chambers of the ECtHR (not the Grand Chamber): K.J. v. Poland (Application no. 30813/14), Vladimir Ushakov v. Russia (Application no. 15122/17), and M.K. v. Grèce (Requête n° 51312/16). M.K. v. Grèce, which was rendered in 2018, has put the ECtHR in the spotlight again. Surprisingly, this precedent has ignored the standard established in X v. Latvia and has followed only Neulinger. The precedents of the Grand Chamber of the ECtHR are binding on the chambers so it is stupefying that this could happen. Nevertheless, I have concluded that the outcome of the case is correct.

By way of conclusion, the legal community seems to be divided as to whether or not X v Latvia sets a good precedent. Human rights lawyers seem to regard this precedent favourably, whereas private international law lawyers seem to be more cautious. This article concludes that X v. Latvia was correctly decided for several reasons based on Article 13(1)(b), Article 3 of the HCCH Child Abduction Convention and the need to provide for measures of protection. Both human rights and private international law can interact harmoniously and complement each other. The efforts of the human rights community to understand the Child Abduction Convention are evident in the change of direction in X v. Latvia. Both human rights lawyers and private international law lawyers should make an effort to understand each other as we have a common goal and objective: the protection of the rights of the child.

While the Corona Crisis is still alarmingly growing globally, first movers are apparently preparing for mass litigation of ski tourists from all over Europe and beyond against the Austrian Federal State of Tyrol and local businesses. The Austrian Consumer Protection Association (Österreichischer Verbraucherschutzverein, VSV, https://www.verbraucherschutzverein.at/) is inviting tourists damaged from infections with the Corona virus after passing their ski holidays in Tyrol, in particular in and around the Corona super-hotspot of Bad Ischgl, to enrol for collective redress against Tyrol, its Governor, local authorities as well as against private operators of ski lifts, hotels, bars etc., see https://www.verbraucherschutzverein.at/Corona-Virus-Tirol/.

In Austria, no real “class action” is available. Rather, the individual claimants need to assign their claims to a lead claimant, often a special purpose vehicle (in this case the Association) which then institutes joint proceedings for all the claims. For foreign claimants who consider assigning their claims to the Association, the Rome I Regulation will be of relevance.

According to Article 14 (1) Rome I Regulation the relationship between assignor and assignee shall be governed by the law that applies to the contract between the assignor and assignee under the Regulation. So far, however, there seem to be only pre-contractual relationships between the Austrian Association inviting “European Citizens only” (see website) to register for updates by newsletters. These pre-contractual relationships will be governed by Article 12 (1) Rome II Regulation. “[T]he contract” in the sense of that provision will be the one between the Association and the claimant on the latter’s participation in the collective action which may, but does not necessarily, include the contract on the assignment of the claim and its modalities. It is the Association that is the “service provider” in the sense of Article 4 (1) lit. b Rome I Regulation. Its habitual residence is obviously in Austria, therefore the prospective contract as well as the pre-contractual relations to this contract will be governed (all but surprisingly) by Austrian law. Art. 6 does not come into play, since the service is to be supplied to the consumer exclusively in Austria, Article 6 (4) lit. a Rome I Regulation.

According to Article 14 (2) Rome I Regulation, the law governing the assigned claim shall determine its assignability, the relationship between the assignee and the debtor, the conditions under which the assignment can be invoked against the debtor and whether the debtor’s obligations have been discharged. As far as the Rome II Regulation is applicable ratione materiae, i.e. for claims against the businesses, its Article 4 will select (again all but surprisingly) Austrian law – no “distance delict” as the potentially delictual act and its harmful effects on the claimant’s health both took place in Austria. Follow-up damages in other states are irrelevant for the law-selecting process.

In respect to delictual claims against Tyrol and its public entities and authorities, Recital 9 of the Rome II Regulation reminds us that, with a view to Article 1 (1) Sentence 2 of the Regulation (no applicability to “acta iure imperii”), “[c]laims arising out of acta iure imperii should include claims against officials who act on behalf of the State and liability for acts of public authorities, including liability of publicly appointed office-holders. Therefore, these matters should be excluded from the scope of this Regulation.” Rather, an autonomous rule of choice of law for liability of Austrian public entities will apply, and this rule will certainly select Austrian law.

There are certain advantages in bundling a multitude of claims in the “Austrian” way: First, the high amount of damages from the collection of claims allows seeking third-party funding. Second, costs for both the court and the lawyers are structured on a diminishing scale. While the collective proceedings are pending, prescription periods do not proceed in respect to claims participating in the joint action. And of course, the “class” of these active claimants has much more weight for negiations than an individual would have.

On the other hand, the jurisdiction at the consumer’s domicile under Art. 18 Brussels Ibis Regulation will no longer be available, once the consumer has assigned his or her claim to another, e.g. a lead claimant. However, this is only relevant in respect to the contractual claims of consumers and only as long as the conditions for directing one’s business at the consumer’s domicile under Article 17 (1) lit. c Brussels Ibis Regulation are fulfilled. The claims in question here mainly ground in non-contractual claims against public entities and private businesses, and they seem to be envisaged as independent civil follow-on proceeding after successful criminal proceedings – if these should ever result in convictions.

The allegation is that the respective public agencies and officers did not shut down the area immediately despite having gained knowledge about first Corona infections in the region, in order to let the tourism businesses go on undisturbed. These allegations are extended to local businesses such as ski lifts, hotels and bars etc., once they gained knowledge about the Corona risk. It will be an interesting question (of the applicable Austrian law of public and private liability for torts) amongst many others (such as those on causality) in this setting to what extent there is a responsibility of the tourist to independently react adequately to the risk, of course depending on the time of getting him/herself knowledge about the Corona risk. If there is such responsibility on the part of the damaged, the next question will be whether this could affect or reduce any tortious liability on the part of the potential defendants. Overall, all of that appears to be an uphill battle for the claimants.

Speaking of responsibilities, a more pressing concern these days is certainly how the European states, in particular the EU Member States and the EU itself, might organise a more effective mutual support and solidarity for those regions and states that are most strongly affected by the Corona Pandemic, in particular in Italy, Spain and France, these days. Humanitarian and moral reasons compel us to help, both medically and financially. Some EU Member States have started taking over patients from neighbouring countries while they are still disposing of capacities in their hospitals, but there could perhaps be more support (and there could have perhaps been quicker support). The EU has a number of tools and has already taken some measures such as the Pandemic Epidemic Purchase Programme (PEPP) by the European Central Bank (ECB). The European Stability Mechanism (ESM) could make (better?) use of its precautionary financial assistance via a Precautionary Conditioned Credit Line (PCCL) or via an Enhanced Conditions Credit Line (ECCL). Further, the means of Article 122 TFEU should be explored, likewise the possibilities for ad hoc-funds under Article 175 (3) TFEU. The European Commission should think about loosening restrictions for state aids.

All of these considerations go beyond Conflict of Laws, and this is why they are not mine but were kindly provided (all mistakes and misunderstandings remain my own) in a quick email by my colleague and expert on European monetary law, Associate Professor Dr. René Repasi, Erasmus University of Rotterdam, https://www.eur.nl/people/rene-repasi (thanks!).

However, cross-border solidarity is a concern for all of us, perhaps in particular for CoL experts and readers. Otherwise, a “European Union” does not make sense and will have no future.

The Hague Academy has canceled its summer courses for 2020 and will hold them in the summer of 2021. The announcement, including a video message from the Secretary-General, is here. Moving the program online was rejected because students would not get the special experience of being in the Hague. The promise of other videos to posted on a new website will be only insufficient comfort.

The only prior time that the courses were canceled was World War II. It is sad news for countless students who were looking forward to the courses, for the (excellent) scholars who have prepared their courses, and for the discipline of private international law, which benefits from this regular event. The decision against bringing together students from all the world to one physical space seems eminently rational, and has been made with enough time for participants to adapt plans. The decision against holding the courses online may raise more mixed responses.