Conflictoflaws

In cooperation with the Asian Academy of International Law, the Hague Academy of International Law will hold its first edition of its Advanced Courses in Hong Kong from 7 to 11 December 2020.  The topic will be: “Current Trends on International Commercial Dispute Settlement“.

For this special programme, the Secretary-General of The Hague Academy of International Law has invited leading academics and practitioners from Paris (Professor Diego P. Fernández Arroyo), New York (Professor Franco Ferrari), Bonn (Professor Matthias Weller), Singapore (Ms Natalie Morris-Sharma), and Beijing (Judge Zhang Yongjian) to present expert lectures on the United Nations Convention on International Settlement Agreements Resulting from Mediation, Investor-State Dispute Settlement, international commercial arbitration, settlement of international commercial disputes before domestic courts, and the developments of the International Commercial Court. Registered participants will have pre-course access to an e-learning platform that provides reading documents prepared by the lecturers. At the end of the course, a certificate of attendance will be awarded.

For more information see here.

For the flyer see here.

In Ivanishvili, Bidzina v Credit Suisse Trust Ltd [2020] SGCA 62, the Singapore Court of Appeal considered a number of issues: (1) whether a plaintiff could amend its Statement of Claim at the appellate stage to tilt the balance of connecting factors towards Singapore; (2) whether a clause in the trust deed identifying Singapore as the “forum of administration” of the trust was a jurisdiction clause, and if so; (3) whether the clause covered hostile litigation in relation to the trust; and depending on the answers to the previous questions, (4) whether the Singapore proceedings ought to be stayed.

The case concerned Mr Ivanishvili, the former Georgian prime minister, who was a French and Georgian dual national. Mr Ivanishvili had set up the Mandalay Trust which was domiciled in Singapore. The trustee of the Mandalay Trust was Credit Suisse Trust Ltd, a Singapore trust company (“the Trustee”). The trustee’s asset management powers were delegated to the Geneva branch of Credit Suisse AG (“the Bank”). The Mandalay Trust suffered losses purportedly due to the actions of one the Bank’s employees (Mr Lescaudron) who was the portfolio manager of the Mandalay Trust. Mr Lescaudron was convicted in Swiss criminal proceedings for various forms of misconduct in relation to the Mandalay Trust. At first instance, Mr Ivanishvili and his wife and children, who were the beneficiaries of the Mandalay Trust, sued both the Trustee and the Bank alleging, inter alia, breaches of duties of care and skill and misrepresentation. A stay was granted by the court below on the grounds that Switzerland was a more appropriate forum for the action. At the Court of Appeal, Mr Ivanishvili et al strategically chose to discontinue proceedings against the Bank to strengthen their argument that Singapore was the appropriate forum for trial of the action and sought to amend their Statement of Claim to this effect. This also entailed reformulating some of the claims against the Trustee to remove references to the Bank. This was allowed by the Court of Appeal on the basis that absent bad faith, the appellants had the freedom of choice to choose its cause of action and to sue the party it wishes to sue.

On the second issue, the relevant clause provided that:

“2. (a) This Declaration is established under the laws of the Republic of Singapore and subject to any change in the Proper Law duly made according to the powers and provisions hereinafter declared the Proper Law shall be the law of the said Republic of Singapore and the Courts of the Republic of Singapore shall be the forum for the administration hereof.”

Clause 2(b) granted the Trustee the power to change the proper law and provided that if so, the courts of the jurisdiction of the new proper law would become the “forum for the administration” of the trust. Contrasting clause 2 with the equivalent clause in Crociani v Crociani (17 ITELR 624) where the relevant clauses referred to a country being the “forum for the administration”, the Court of Appeal noted that the references to “forum for the administration” in clause 2 was tied up with a reference to the courts. It therefore held that clause 2(a) was a jurisdiction clause. As a point of interest, it should be noted that it is immaterial whether clause 2(a) is an exclusive or non-exclusive jurisdiction clause after the Court of Appeal’s decision in Shanghai Turbo v Liu Ming [2019] 1 SLR 779 (previously noted here); as Singapore is a named forum, the “strong cause” test would apply to cases falling within the scope of the jurisdiction clause.

The question which had to be considered next was whether clause 2(a) covered hostile litigation concerning breach of trust issues (such as in the present case) or was confined to litigation over administrative matters. On this, the Court engaged in an extensive review of case law in other off-shore trust jurisdictions. While tentatively observing that “there is no legal rule limiting the meaning of the phrase ‘forum for [the] administration’ to an administration action in the traditional sense”(at [75]), the Court ultimately followed the reasoning of the Privy Council in Crociani and held that that the phrase “is intended to refer to the court or jurisdiction which would settle questions arising in the day to day administration of the trust, and to denote the supervisory and authorising court for actions the trustee might need to take which were not specifically by the trust deed or where its terms were ambiguous”(at [76]). Such clauses did not cover hostile litigation between trustees and beneficiaries. The Court observed that: “The trust deed is not a contract between two parties with obligations on both sides – rather, it is a unilateral undertaking by the trustee, and in our view this difference must play a part when we consider whether the intention of the drafters was to impose a mandatory jurisdiction clause for the resolution of contentious disputes regarding allegations of breach of trust”(at [78]).

That meant that whether a stay ought to be granted was to be determined under the Spiliada test on forum non conveniens rather than the “strong cause” test. On this point, the Court split. A majority of the Court (Menon CJ and Prakash JA), held that the balance of connecting factors pointed towards Singapore and allowed the appeal against the stay. The appellants argued that with the amended claim, the focus was on the Trustee’s breaches of trust, all of which occurred in Singapore. The Court was unconvinced of the respondents’ argument that most of the relevant witnesses, such as Mr Lescaudron, were located in Switzerland and not compellable to appear before the Singapore court. The location of witnesses was but a weak factor pointing in favour of Switzerland being forum conveniens relative to Singapore. The respondents had also argued that Swiss banking secrecy laws meant that disclosure of certain documents could only be ordered by the Swiss court but the Court gave little weight to this, holding that it was not clear that the Trustee could not obtain the requisite documents from the Bank itself. In contrast, the shape of litigation post the re-framing of the actions by the appellants meant that the trust relationship, rather than the banking relationship, was at the forefront of the claims. This pointed towards Singapore being the centre of gravity of the action. Further, Singapore law was the governing law of the Mandalay Trust and the rights of all parties under the Trust Deed: “There is no doubt that the Singapore courts are the most well-placed to decide issues of Singapore trust law, and the Swiss courts, operating in a civil law jurisdiction with no substantive doctrine of trusts, would be far less familiar with these issues”(at [110]). This comment may be to understate the competence of the Swiss courts in this regard, as internal Swiss trusts which are governed by a foreign law are not an uncommon wealth management tool in Switzerland. The Court was also not persuaded by the Trustee’s argument that there was a risk of conflicting findings of fact due to related proceedings elsewhere, holding that this was not a “sufficiently real possibility” (at [114]). Thus, a majority of the Court held that, on an overall assessment of the connecting factors, Singapore would be the more appropriate forum vis-à-vis Switzerland.

There was a strong dissent by Chao SJ on the application of the Spiliada test. His Honour was of the view that whether the Trustee would be prejudiced by having to defend itself in Singapore formed the crux of the stay issue. In relation to this, His Honour observed that Mr Ivanishvili was a hands-on investor who corresponded directly with the Bank officers. The Trustee was not always copied into Mr Ivanishvili’s instructions to the Bank. The alleged losses occurred in Switzerland and the acts and omissions of the Bank and its officers and the role of Mr Ivanishvili himself remained relevant in determining the Trustee’s liability. In contrast, the Trustee played a passive role and the operative events in Singapore were merely secondary in nature (at [153]). This belied the appellants’ insistence that the Bank’s alleged wrongdoing was no longer relevant in the Singapore proceedings given the amended claim. His Honour was concerned about the respondents’ ability to defend itself properly in Singapore given that the evidence and witnesses central to defending the claims were mainly located in Switzerland. Chao SJ was therefore of the view that the action had a greater connection with Switzerland than with Singapore “by a significant margin”(at [154]). His Honour went on to say that if he was wrong on stage one of the Spiliada test, stage two would also point towards Switzerland. On stage two, Chao SJ agreed with the High Court that the ends of justice would best be met by the Swiss court applying Singapore trust law. This is as the trustee’s conduct may only be properly understood against the backdrop of Mr Ivanishvili’s relationship with the Bank and the Bank’s conduct in relation to its asset management duties (at [154]).

A pdf of the judgment can be downloaded here.

The second issue of 2020 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:

Fernando Gascón Inchausti, Professor at Universidad Complutense de Madrid, Does EU Law Ensure an Adequate Protection of Debtors in Cross-Border Enforcement? (in English)

• From a general perspective, cross-border enforcement of judicial decisions – and of authentic instruments – entails the need to coordinate different procedural systems, interacting with each other. From a practical point of view, however, cross-border enforcement is also a context of dialectic between opposing parties, typical of any judicial process. Its regulation, therefore, must be developed and interpreted taking into account the rights and powers attributed to the creditor and to the debtor, so that the promotion of efficiency – favourable to the creditor – is not detrimental to the debtor’s right of defense. This article assesses the extent to which the civil procedural law of the European Union adequately protects the debtor in cross-border enforcement and, where appropriate, what could be the most reasonable measures to improve it without unduly harming the right of the creditor to a prompt satisfaction of his right. Special attention shall be given in this framework to the legal position of consumers, due to their vulnerability and their special legal status according to EU protective law.

Maria Caterina Baruffi, Professor at the University of Verona, Gli effetti della maternità surrogata al vaglio della Corte di Cassazione italiana e di altre corti (‘Effects of Surrogacy in the Jurisprudence of the Italian Corte di Cassazione? and Other Courts’, in Italian)

• This paper examines the decision by means of which the Italian Supreme Court, in plenary session, on 8 May 2019 dealt with the issue of surrogacy, with particular regard to the notion of international public policy. The Court concluded that the ban on surrogacy constitutes a principle of public order aimed at protecting fundamental values, such as the surrogate mother’s human dignity. This decision is consistent with the advisory opinion given in April 2019 by the European Court of Human Rights, that, upon request of the French Supreme Court in the context of the Mennesson case, ruled that each State can discretionarily determine the modalities by which it guarantees the recognition of the parent-child relationship, including the possibility to adopt. Nonetheless, the difficulties in the application of public policy are apparent and the situations that may arise as a result of such application are equally complex, for instance as a result of genetic ties being established with different persons. Therefore, this paper puts forth new proposals, also in the light of the most recent French case law.

The following comment is also featured:

Roberto Ruoppo, Doctor in Law, Lo status giuridico di Taiwan e i suoi riflessi sul piano internazionalprivatistico (‘Taiwan’s Legal Status and Its Consequences from a Private International Law Perspective’, in Italian)

• This paper focuses on the consequences brought in the field of private international law by the lack of recognition of a State. In particular, the paper aims to understand if it is possible that actors of the international community give effect to the acts and decisions adopted by the authorities of an entity not recognized as a State. Notably, this work addresses the case of Taiwan which, despite the lack of recognition from the others States, owns all the factual requirements to be considered as an autonomous subject in accordance with international law. Relying to the principle of effectiveness and the analysis of precedent case-law – such as those involving the Soviet Union and the German Democratic Republic – this paper aims to demonstrate that the response to this question should be premised on the consideration of the interests involved in the specific case. The conclusion reached is that the acts of an entity which lacks recognition should be given effects in the other States when this is more consistent with the principle of legal certainty and the legitimate expectations of the individuals involved.

In addition to the foregoing, this issue features the following book review by Roberta Clerici, Professor at the University of Milan: J. von Hein, E.-M. Kieninger, G. Rühl (eds.), How European is European Private International Law? Sources, Court Practice, Academic Discourse, Intersentia, Cambridge, 2019, pp. XXVI-373.

 

Nicole Grohmann, a doctoral candidate at the Institute for Comparative and Private International Law, Dept. III, at the University of Freiburg, has kindly provided us with the following report on a recent speech by Lord Jonathan Mance.

On Wednesday, 15 July 2020, the former Deputy President of the Supreme Court of the United Kingdom (UKSC), Lord Jonathan Mance, presented his views on the future relationship between the United Kingdom and Europe after Brexit in an online event hosted by the Juristische Studiengesellschaft Karlsruhe. This venerable legal society was founded in 1951; its members are drawn from Germany’s Federal Constitutional Court, the Federal Supreme Court, the office of the German Federal Prosecutor, from lawyers admitted to the Federal Supreme Court as well as judges of the Court of Appeals in Karlsruhe and the Administrative Court of Appeals in Mannheim. In addition, the law faculties of the state of Baden-Württemberg (Heidelberg, Freiburg, Tübingen, Mannheim, Konstanz) are corporate members. Due to Corona-induced restrictions, the event took place in the form of a videoconference attended by more than eighty participants.

After a warm welcome by the President of the Juristische Studiengesellschaft, Dr. Bettina Brückner (Federal Supreme Court), Lord Mance shared his assessment of Brexit, drawing on his experience as a highly renowned British and internationally active judge and arbitrator. In the virtual presence of judges from the highest German courts as well as numerous German law professors and scholars, Lord Mance elaborated – in impeccable German – on the past and continuing difficulties of English courts dealing with judgments of the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR) and the future legal struggles caused by the end of the transition period on the withdrawal of the United Kingdom from the European Union on 31 December 2020. Lord Mance’s speech was followed by an open discussion regarding the most uncertain political and legal aspects of Brexit.

In his speech, Lord Mance highlighted the legal difficulties involved in the withdrawal of his country from the European Union. Since Lord Mance himself tends to picture the British as being traditional and generally pragmatic, he named Brexit as a rare example of a rather unpragmatic choice. Especially with regard to the role of the United Kingdom as a global and former naval power, Lord Mance considered Brexit a step backwards. Besides the strong English individualism, which has evolved over the past centuries, the United Kingdom did not only act as an essential balancing factor between the global players in the world, but also within the European Union. Insofar, the upcoming Brexit is a resignation of the United Kingdom from the latter position.

Subsequently, Lord Mance focussed on the role of the European courts, the European Court of Justice and the European Court of Human Rights and their judgments in the discussions leading to Brexit. Both European courts gained strong importance and influence in the UK within the first fifteen years of the 21st century. Especially, the ECtHR is of particular importance for the British legal system since the Human Rights Act 1998 incorporated the European Convention on Human Rights into British law. Lord Mance described the Human Rights Act 1998 as a novelty to the British legal system, which lacks a formal constitution and a designated constitutional court. Apart from the Magna Charta of 1215 and the Bill of Rights of 1689, the British constitutional law is mainly shaped by informal constitutional conventions instead of a written constitution such as the German Basic Law. Following the Human Rights Act 1998 and its fixed catalogue of human rights, the British courts suddenly exercised a stricter control over the British executive, which initially gave rise to criticism. Even though the British courts are not bound by the decisions of the ECtHR following the Human Rights Act 1998, the British participation in the Council of Europe soon started a dialogue between the British courts and the ECtHR on matters of subsidiary and the ECtHR’s margin of appreciation. The UK did not regard the growing caseload of the ECtHR favourably. Simultaneously, the amount of law created by the institutions of the European Union increased. Lord Mance stressed the fact that in 1973, when the United Kingdom joined the European Economic Community, the impact of the ECJ’s decision of 5 February 1963 in Van Gend & Loos, C-26/62, was not taken into account. Only in the 1990s, British lawyers discovered the full extent and the ramifications of the direct application of European Union law. The binding nature of the ECJ’s decisions substantiating said EU law made critics shift their attention from Strasbourg to Luxembourg.

In line with this development, Lord Mance assessed the lack of a constitutional court and a written constitution as the main factor for the British hesitance to accept the activist judicial approach of the ECJ, while pointing out that Brexit would not have been necessary in order to solve these contradictions. The EU’s alleged extensive competences, the ECJ’s legal activism and the inconsistency of the judgments soon became the primary legal arguments of the Brexiteers for the withdrawal from the EU. Especially the ECJ’s teleological approach of reasoning and the political impact of the judgments were mentioned as conflicting with the British cornerstone principles of parliamentary sovereignty and due process. Lord Mance stressed that the so-called Miller decisions of the Supreme Court in R (Miller) v Secretary of State [2017] UKSC 5 and R (Miller) v The Prime Minister, Cherry v Advocate General for Scotland (Miller II) [2019] UKSC 41, dealing with the parliamentary procedure of the withdrawal from the EU, are extraordinary regarding the degree of judicial activism from a British point of view. In general, Lord Mance views British courts to be much more reluctant compared to the German Federal Constitutional Court in making a controversial decision and challenging the competences of the European Union. As a rare exception, Lord Mance named the decision in R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3, in which the UKSC defended the British constitutional instruments from being abrogated by European law. Indeed, Lord Mance also expressed scepticism towards the jurisprudential approach of the ECJ, because inconsistences and the need of political compromise could endanger the foreseeability and practicability of its decisions. Especially with regard to the recent decision of the German Constitutional Court of 5 May 2020 on the European Central Bank and the Court’s approach to ultra vires, Lord Mance would have welcomed developing a closer cooperation between the national courts and the ECJ regarding a stricter control of the European institutions. Yet this important decision came too late to change Brexiteers’ minds and to have a practical impact on the UK.

Finally, Lord Mance turned to the legal challenges resulting from the upcoming end of the transition period regarding Brexit. The European Union (Withdrawal) Acts 2018 and 2020 lay down the most important rules regarding the application of EU instruments after the exit day on 31 December 2020. In general, most instruments, such as the Rome Regulations, will be transposed into English domestic law. Yet, Lord Mance detected several discrepancies and uncertainties regarding the scope of application of the interim rules, which he described as excellent bait for lawyers. Especially two aspects mentioned by Lord Mance will be of great importance, even for the remaining Member States: Firstly, the British courts will have the competence to interpret European law, which continues to exist as English domestic law, without the obligation to ask the ECJ for a preliminary ruling according to Art. 267 TFEU. In this regard, Lord Mance pointed out the prospective opportunity to compare the parallel development and interpretation of EU law by the ECJ and the UKSC. Secondly, Lord Mance named the loss of reciprocity guaranteed between the Member States as a significant obstacle to overcome. Today, the United Kingdom has to face the allegation of ‘cherry picking’ when it comes to the implementation of existing EU instruments and the ratification of new instruments in order to replace EU law, which will no longer be applied due to Brexit. Especially with regard to the judicial cooperation in civil and commercial matters and the recast of the Brussels I Regulation, the United Kingdom is at the verge of forfeiting the benefit of the harmonized recognition and enforcement of the decisions by its courts in other Member States. In this regard, Lord Mance pointed out the drawbacks of the current suggestion for the United Kingdom to join the Lugano Convention, mainly because it offers no protection against so-called torpedo claims, which had been effectively disarmed by the recast of the Brussels I Regulation – a benefit particularly cherished by the UK. Instead, Lord Mance highlighted the option to sign the Hague Convention of 30 June 2005 on Choice of Court Agreements which would allow the simplified enforcement of British decisions in the European Union in the case of a choice of court agreement. Alternatively, Lord Mance proposed the ratification of the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments. So far, only Uruguay and Ukraine have ratified this new convention. Nevertheless, Lord Mance considers it as a valuable option for the United Kingdom as well, not only due to the alphabetical proximity to the other signatories.

Following his speech, the event concluded with a lively discussion about the problematic legal areas and consequences of Brexit, which shall be summarised briefly. Firstly, the President of the German Supreme Court Bettina Limperg joined Lord Mance in his assessment regarding the problem of jurisprudential inconsistency of the ECJ’s decisions. However, like Lord Mance she concluded that the Brexit could not be justified with this argument. Lord Mance pointed out that in his view the ECJ was used as a pawn in the discussions surrounding the referendum, since the Brexiteers were unable to find any real proof of an overarching competence of the European Union. Secondly, elaborating on the issue of enforceability, Lord Mance added that he considers the need for an alternative to the recast of the Brussels I Regulation for an internationally prominent British court, such as the London Commercial Court, not utterly urgent. From his practical experience, London is chosen as a forum mainly for its legal expertise, as in most cases enforceable assets are either located in London directly or in a third state not governed by EU law. Hence, Brexit does not affect the issue of enforceability either way. Finally, questions from a constitutional perspective were raised regarding the future role of the UKSC and its approach concerning cases touching on former EU law. Lord Mance was certain that the UKSC’s role would stay the same regarding its own methodological approach of legal reasoning. Due to the long-standing legal relationship, Lord Mance anticipated that the legal exchange between the European courts, UK courts and other national courts would still be essential and take place in the future.

In sum, the event showed that even though Brexit will legally separate the United Kingdom from the European Union, both will still be closely linked for economic and historical reasons. As Lord Mance emphasized, the UK will continue to work with the remaining EU countries in the Council of Europe, the Hague Conference on PIL and other institutions. Further, the discrepancies in the Withdrawal Acts will occupy lawyers, judges and scholars from all European countries, irrespective of their membership in the European Union. Lastly, the event proved what Lord Mance was hoping to expect: The long-lasting cooperation and friendship between practitioners and academics in the UK and in other Member States, such as Germany, is strong and will not cease after Brexit.

Anita Durakovic, Associate Professor at the University Dzemal Bijedic Mostar, and Jasmina Alihodzic, Professor at the University of Tuzla, co-authored a monograph titled International Surrogate Motherhood – Account of the Legislation in Bosnia and Herzegovina (in the original: Medunarodno surogat materinstvo – osvrt na zakonodavstvo u Bosni i Hercegovini). The book was published earlier in 2020 by the Faculty of Law of the University Dzemal Bijedic in Mostar.

The book’s first pages are devoted to interdisciplinary approaches to the surrogacy phenomenon followed by the comparative perspective over substantive laws. The central part of the book is focused on the legislation in Bosnia and Herzegovina, where particularly interesting for the readers of this blog are the sections devoted to recognition of cross-border surrogacy arrangements there at three distinct levels: within the proceedings on the merits before the competent authorities in Bosnia and Herzegovina, as part of the recognition of the status certified by the foreign authentic document, and as part of the recognition of the foreign judgment in which the decision is made concerning the personal status. In evaluating the difficulties which incoming intended parents would be faced with in Bosnia and Herzegovina, especially against the background of the prohibition of surrogate motherhood in force in one of the territorial units there, the authors differentiate between situations where surrogate parents request issuing of the travel documents in order to enter Bosnia and Herzegovina with the child, and where subsequent to entering the country they attempt to regulate the child’s civil status. Further chapters are glancing through human rights aspects of the surrogate arrangements and efforts on international level to regulate these matters, particularly within the Hague Conference on Private International Law. The conclusion favours recognition of foreign authentic documents and judgments concerning the legal parenthood deriving from a surrogate arrangement as opposed to the long and costly family law proceedings to obtain decisions establishing fatherhood and adoption on the part of the mother. The authors also stress that the competent authorities need to take account of the best interest of the child when deciding in recognition proceedings and assessing whether to apply the public policy clause.

While this book offers some discussion on theoretical level, it is primarily intended to serve as a reference point for the competent authorities and potential intended parents as well as to advise legislator or the need to adjust legal framework. It would have been much more convincing if the actual cases rated to the Bosnia and Herzegovina could have been discussed. However, according to the authors, there are no official cases although it is known to have happened in practice. Perhaps this book will contribute to raising awareness not only among legal professionals but also in the local community about important interests at stake in surrogate parenting arrangements, especially that of the child.

On 17 July 2020, the Depositary (i.e. the Ministry of Foreign Affairs of the Netherlands) notified that Austria ratified the HCCH Service Convention, which will enter into force for Austria on 12 September 2020. With this ratification, the HCCH Service Convention continues to attest itself as an important instrument of judicial co-operation given that all EU Member States are now a party to it.

The ratification of Austria was made pursuant to Council Decision (EU) 2016/414 of 10 March 2016 authorising the Republic of Austria to sign and ratify, and Malta to accede to, the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, in the interest of the European Union. As indicated in a previous post, this decision required that such ratification be made by 31 December 2017 so it was long overdue.

Among the declarations/reservations made by Austria features an important reservation on service upon the Republic of Austria, which reads as follows: “The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 15 November 1965 shall not apply to the service of documents addressed to the Republic of Austria, including its political subdivisions, its authorities and persons acting on its behalf; such service shall be effected through diplomatic channels.” Although this reservation is not so common among the Contracting States to the HCCH Service Convention, and by the way it’s not contemplated explicitly in this treaty (but see art. 9(2)), it dispels any doubt as to the procedure to follow when suing a State.

All the declarations/reservations of Austria are available here.

The HCCH news item is available here.

Written by Jonathan Fitchen, University of Aberdeen

Introduction

The EEO Regulation (805/2004) was mooted in the mid-1990’s to combat perceived failings of the Brussels Convention that were feared to obstruct or prevent ‘good’ judgment creditors from enforcing ‘uncontested’ (i.e. undisputable) debts as cross-border debt judgments within what is now the EU. The characterisations ‘good’ and ‘bad’ are not employed facetiously; the unreasonable obstruction of a creditor who was assumed to pursue a meritorious debt claim was and remains a central plank of the EEO project: hence the Regulation offers an alternative exequatur and public policy free procedure for the cross-border enforcement of such uncontested monetary civil and commercial claims that, until 2002, fell under the quite different enforcement procedures of the Brussels Convention. The 2004 EEO Regulation covers money enforcement titles (judgments, settlements and authentic instruments) that are already enforceable in the Member State of origin and hence are offered an alternative route to cross-border enforcement in the Member State addressed via the successors to the Brussels Convention, first the Brussels I Regulation and now the Brussels Ia Regulation, on an expedited basis due to omitting both an exequatur stage and the ability of the Member State addressed to refuse enforcement because of public policy infringements.

As the EEO Regulation was introduced some years after the cross-border enforcement provisions of the Brussels Convention had been replaced by those of the Brussels I Regulation, many of the EEO’s ‘innovations’ to remedy ‘unnecessary’ or abusive delays, caused by either a ‘bad’ debtor or by an overly cautious enforcement venue, had already been mitigated three years before it came into force in 2005. This fact and other issues (e.g. a preference among lawyers for the familiar and now streamlined Brussels I Regulation enforcement procedure, the issue of ignorance of the EEO procedures, and a greater than expected willingness for creditors to litigate debt claims directly in foreign venues) contributed to a lower than expected take up of the EEO Regulation in the context of contentious legal proceedings.

Anecdotal evidence of low use of the EEO in contentious matters has led to a view that the EEO Regulation is somewhat redundant. The coming into force of the exequatur-free Brussels Ia Regulation and the surveys connected with the IC²BE project  have re-enforced this view of its redundancy. An expected recasting for the 2004 Regulation did not however occur in 2012 as the Commission withdrew it. The same year the Commission had received a less than complimentary report from RAND Europe concerning the Regulation (with which it disagreed and continues to disagree). It may be speculated that having lost the argument on restricting or deleting public policy in the course of the re-casting of the Brussels I Regulation, the Commission may have feared that the re-casting of the EEO might tend towards its de factodeletion if the Member States were permitted to consider its reliance on control in the Member State of origin and the lack of a public policy exception given examples of national case law that were already suggestive of structural difficulties with the Regulation and its underlying drafting assumptions (e.g. see G Cuniberti’s comment on French Cour de cassation chambre civile 2, 6 janvier 2012 N° de pourvoi: 10-23518).

As matters stand, the EEO Regulation continues to apply and continues to cause particular difficulties for debtors (and also creditors, enforcement authorities and the CJEU), whether in the Member State of origin or in the Member State addressed. This assertion is supported by two litigation notes, of which this is the first (and most extraordinary): indeed, it is suggested that the difficulties that arose in the litigation discussed below are at least as significant for European private international law as the infamous case C-7/98 Krombach v Bamberski; Krombach and Lee each indicate the need for the inclusion of an overt public policy exception for those cases in which domestic civil procedure and the norms of European and international civil procedure have malfunctioned to such an extent that EU PIL is in danger of being ‘understood’ to force the Member State of enforcement to grant cross-border legal effect to a judgment granted improperly in flagrant breach of European and domestic human rights standards.

Facts

In January 2014 the civil judgment enforcement officials of the English High Court received a European Enforcement Order (EEO) application from a Spanish gentleman’s lawyers requesting the actual enforcement of the Spanish judgment and costs recorded by the EEO certificate for €923,000. The enforcement target – who had been contacted officially by a letter from the applicant’s lawyers for the first time in the proceedings shortly before this application and given 14 days to pay – was the well-known actor Christopher Lee, who was domiciled in the UK and resident in London where he had lived for many years.

Thus began the enforcement stage of a cross-border saga in which the judgment creditor and judgment debtor sought respectively to enforce or resist the enforcement of an EEO certificate that was incomplete (hence defective on its face) and unquestionably should never have been granted because it related to a Spanish judgment that should never have been delivered (or declared enforceable) concerning a debt, that had not been properly established according to Spanish procedural law, and relating to an at best contestable (and at worst fanciful) legal liability alleged to somehow fall upon an actor in a film concerning a subsequent unauthorised use by the DVD distributor of that film of the claimant artist’s copyrighted artwork from that film in connection with the European DVD release of that film. The claim under Spanish copyright law was based on proceedings dating from June 2007 commenced before the Burgos Commercial court that unquestionably were never at any time (whether as a process, a summons or a judgment) in the following seven years served properly on the famous and foreign-domiciled defendant in accordance with the service provisions of the EU Service Regulation.

The original claim named three parties: 1) a production company (The Quaid Project Ltd); 2) Mr. Juan Aneiros (who was alleged to have signed a contract pertaining to the artwork for the film with the claimant artist in 2004 and who was the son-in-law of Christopher Lee and who seemingly ran Mr Lee’s website) and 3) Christopher Lee himself. The proceedings attempted in Spain however encountered an initial problem of how to serve these ‘persons’ in or from Spain. The solution selected as far as Lee was concerned did not use the Service Regulation nor did it anticipate the later reasoning of the CJEU in Case C 292/10 G v de Visser ECLI:EU:C:2012:142. After not finding Lee resident in Spain, the hopeless fiction of service by pinning the originating process to the noticeboard of the Burgos Commercial Court for a period of time was employed: it was then claimed that this properly effected service in circumstances where it was claimed to be impossible to find or serve a world renowned and famous English actor (or the actor’s agent) in Spain (where he did not live).

Such modes of service where the defendant is likely to be domiciled in another state have been condemned as insufficient by the ECJ in cases such as: Case 166/80 Peter Klomps v Karl Michel [1981] ECR 1593; Case C-300/14 Imtech Marine Belgium NV v Radio Hellenic SA ECLI:EU:C:2015:825; Case C-289/17 Collect Inkasso OU v Aint 2018 EU:C:2018. These defects in serving Lee as intended defendant, and then as an enforcement target, proved fatal in February 2020 when, after roughly six years of challenges by Lee (and from mid 2015 by his Widow), the Spanish Constitutional Court decided that the consequences flowing from the service violations were sufficiently serious to remit the Spanish proceedings back to square one for noncompliance with Article 24 of the Spanish Constitution by the Spanish civil courts.

Significant aspects of the claim are unclear, in particular, why Lee was regarded as potentially liable for the claim. The various law reports make clear that the claim concerned compensation sought under Spanish copyright law by an artist whose contracted artwork for a film called ‘Jinnah’ (in which Christopher Lee had starred) had later been used without his permission for the subsequent European DVD release of that film. Though Spanish law permits such a contractual claim by the artist against the relevant party who uses his artwork, it is unclear from the various English and Spanish law reports how, in connection with the DVD release, this party was Christopher Lee. It is stated at para 11 of [2017] EWHC 634 (Ch) that Lee’s lawyers told the English court that their client (who was not a producer or seemingly a funder of the original film) did not sign any contract with the claimant. It is hence not clear that Lee made (or could make) any decisions concerning the artwork for the film and still less concerning its later use for the European DVD release to breach the claimant’s copyright. Such decisions appear to have been made by other natural and legal persons, without any link to Lee capable of making him liable for the compensation claimed.

Though it is doubtful that the issue will ever be resolved, a few statements in the Spanish press (El Pais, 22 March 2010) suggest both that the claimant regarded Lee as having been amongst those who had ‘authorised’ his original appointment to the film as its artist/illustrator but also, and confusingly, that the artist had not been able to speak to Lee about the issue and did not, subject to what the court might hold, consider him responsible for the misuse. Though it is speculation, it may be that a connection was supposed by the claimant (or his lawyers) analogous to a form of partnership liability between Lee and some of the other defendants who might have been presumed to have been involved in the original decision to employ the artist at the time of the film and hence might possibly have later been involved in the decision to re-use the same artwork (this time without the artist’s consent) for the European DVD release. Neither the matter nor the nature of Lee’s potential liability is though clear.

Further uncertainty arises from the issue of quantum. Spanish law allows an aggrieved artist to bring a claim for contractual compensation to seek sums representing those revenues that would have accrued to him had there been a reasonable contractual agreement to use his artwork in this manner. One function of the Spanish court in such a claim is to determine the correct quantum of this sum by considering representations from each party to the claim: this process could not occur properly in the present case as the service defects meant that only the views of the claimant were ever presented. Why was €710,000 the correct sum? Why not €720,000, €700,000 or €10,000? Trusting the artist’s own estimation seems optimistic given that the sum claimed was large and the matter concerned the European DVD release of a film that was many orders of magnitude less well-budgeted or commercially successful than other films in which Christopher Lee had starred (e.g. Star Wars and the Lord of the Rings). Equally, did the artist really have all the data in his possession to allow him to demonstrate unilaterally the proper quantum in a forensic manner?

Despite these uncertainties the suggested liability and quantum were asserted for the purposes of formulating the Spanish claim that led to the in absentia judgment granted in March 2009 which, by May 2009, (in default of any appeal by the officially uncontacted Lee) was declared final. In October 2009 the judgment was declared enforceable by yet another notice from the same Burgos court that was again pointlessly fixed to the notice board of the court in default of employing any effective mode of service that should have been used in this context.

The matter was reported (inaccurately) in the UK press and media in 2010, possibly based on not quite understood Spanish newspaper reports, without however securing any comment from Lee. It is unclear if Lee ever did know unofficially of the Spanish proceedings, but it seems likely that he did as his son-in-law was involved in these. Such unofficial knowledge does not, of course, excuse successive service failures. One point that the UK media did record accurately in 2010 was that no defendant had appeared in the earlier Spanish proceedings.

In 2011, at the request of the claimant, the Burgos court issued him with an EEO certificate. It was seriously incomplete, omitting ticks for the boxes found at: 11.1 (that service had been as per the Service Regulation); 12.1 (ditto the summons); 13.1 (that service of the judgment had been as per the Regulation); 13.3 (that the defendant had a chance to challenge the judgment); and, 13.4 (that the defendant had not so challenged). The judgment on which the EEO certificate was based was claimed in the certificate to be one dated 26 April 2010 (seemingly never produced in the later London enforcement proceedings) while the certificate wrongly gave as Lee’s London address as the address of his son-in-law and misspelled Lee’s middle name.

In October 2013 the claimant applied to the Spanish courts for the rectification of the 2011 EEO certificate: such rectification was however confined only to correct the misspelled name and to add over €200,000 to the original ‘debt’ as costs due in part, it may be supposed from the comments of the Constitutional Court, to unsuccessful attempts to pursue the Spanish property of Lee’s Spanish son-in-law. Seemingly no rectification was sought for the other serious omissions.  The October 2013 EEO certificate was presented in January 2014 in London to Lee and to the English court. Lee’s correct address had now been ascertained by the claimant’s lawyers instructed to seek the cross-border enforcement of the EEO certificate concerning the ‘uncontested’ sums apparently due in Spain via its expedited and public policy free procedures.

On finally learning officially of the existence of the earlier Spanish in absentia proceedings when met with a lawyer’s letter to his address demanding payment of the entire alleged debt within 14 days, Lee instructed his English lawyers and appointed Spanish lawyers to commence challenges to the earlier Spanish proceedings and to secure stays of enforcement in Spain and in the UK (the latter being via Art 23(c) EEO). By reason of a good-faith error, Lee’s English lawyers ‘jumped-the-gun’ and represented to the English court that the Spanish challenge proceedings had already commenced – in fact at that point the Spanish lawyers had only been instructed to bring a challenge – and secured the English Art.23(c) stay some 17 days ahead of the actual commencement of the Spanish challenge proceedings. The creditor, via his lawyers, objected (correctly) to the premature grant and also to the continuation of the stay under Art.23(c) which first required the commencement of the Spanish challenges: this objection led to a Pyric victory when the English court dispensed with the erroneous stay but replaced it, seamlessly, with another stay granted as part of its inherent jurisdiction (rather than via any provision of the EEO Regulation) which it justified as appropriate given the presentation of a manifestly defective and incomplete EEO certificate. The stay was to endure for the duration of the Spanish appeals and all Spanish challenges to enforcement. Lee’s death in mid 2015 saw the stay endure for the benefit of his widow.

While the stay proceedings were ongoing in England, the attempts by Lee’s lawyers to challenge the earlier Spanish proceedings before the Spanish civil courts and appeal courts went from bad to worse. The said courts all took the astonishing view (summarised in paras 23 – 30 of [2017] EWHC 634 (Ch) (03 April 2017)) that there had been sufficient service and that Lee was now out-of-time to raise objections by civil appeal. All Spanish stay applications were rejected; even the Constitutional Court rejected such a stay application (on an earlier appeal prior to the 2020 case), finding the earlier conclusions of the civil courts that there was no demonstrable irreparable harm for Lee without the stay to be in accordance with the Constitution. Appeal attempts before the civil courts to object to the frankly ridiculous triple failure of service of process, summons and judgment, or to the existence of a viable claim, or to the lack of the quantification stage required by Spanish procedural law, all fell on deaf ears in these courts.

In this sense, because the Spanish civil courts all demonstrated their unwillingness to remedy the successive misapplication of EU laws, the private international law and procedural law of the EU all failed in this case in the Member State of origin. That this failure did not result in immediate actual enforcement against Lee’s estate in the Member State addressed was due only to the extemporisation by an English court of an inherent jurisdiction stay in response to an incomplete certificate supporting the application. Without this extemporised stay the enforcement would have proceeded in the UK without any possibility of Lee requesting corrective intervention by English authorities to invoke a missing public policy exception. The English court was clear that had the empty boxes been ticked, there would have been no basis for the stay and enforcement would have been compelled. So much for the Recital 11 assurances of the EEO Regulation:

“This Regulation seeks to promote the fundamental rights and takes into account the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure full respect for the right to a fair trial as recognised in Article 47 of the Charter.”

These events left Lee’s lawyers with only one remaining challenge possibility in Spain, viz. arguing that the Spanish civil courts had violated the Spanish Constitution. These challenges were brought to the Spanish Constitutional Court by lawyers acting first for Lee and then, after his death, acting for his widow. The decision of the Constitutional Court was delivered on 20 February 2020 (see comment by M Requejo Isidro) and found that there had indeed been a significant domestic breach of the Spanish Constitution, specifically, Section 24 para 1 which (in English) reads

“All persons have the right to obtain effective protection from the judges and the courts in the exercise of their rights and legitimate interests, and in no case may there be a lack of defense.”

The Constitutional Court – which necessarily is restricted to a consideration of the matters that go directly to the operation of the Spanish Constitution and hence has no further general appellate competence over the actions of the civil courts – concluded that the initial failure to serve a non-domiciled person, whose address was claimed to be unknown, but would have been very simple to discover, in accordance with the provisions of the relevant EU Service Regulation meant that Christopher Lee, and later his widow, were not adequately protected by the Spanish courts as required by Section 24 of the Spanish Constitution and hence had been deprived impermissibly of the defence that had to be provided. The order of the Constitutional Court annulled the earlier Spanish proceedings and sent the contingency-fee-funded claimant back to square one to recommence any subsequent proceedings properly and with due service concerning his alleged claim against whatever parts of the estate of the late Christopher Lee might now still be located within the UK or the EU.

Reflections on some of the wider issues

Though this litigation was compared above with the cause-celebre that was Krombach, it can be argued to represent a greater Member State of origin catastrophe than the earlier case: at least Herr Krombach was officially notified, served, summoned to the proceedings and then notified of the judgment. Krombach and Lee do both however illustrate why a public policy exception in the Member State addressed is essential. Unfortunately, in Lee this illustration is set against the absence of that exception. Thus, Lee demonstrates the grim prospects facing the ‘debtor of an uncontested sum’ (who only has this status due to blatant and successive breaches of service and private international law procedures) in cross-border enforcement procedures if the ‘emergency brake’ of public policy has been removed by drafters keen to prevent its unnecessary application to facilitate faster ‘forward-travel’ in circumstances in which the application of the said brake would not be necessary.

Had not the presented EEO certificate been so deficient, the English courts would not have been willing to extemporise a stay and the whole sum would have been enforced against Lee in London long before the civil and constitutional proceedings – all of which Lee also had to fund – concluded in Spain. Few ordinary people could have effectively defended the enforcement across two venues for six years when facing a claimant pursuing a speculative claim via a conditional fee arrangement (with its clear significance for the likely recovery of defence costs and a resulting impact upon the need to fund your own lawyers in each jurisdiction). It must be presumed that, despite manifest breaches of EU law and human rights standards, most ordinary persons would simply have had to pay-up. Whether this has already occurred, or occurs regularly, are each difficult to ascertain; what can though be said is that the design and rationale of the EEO Regulation facilitate each possibility.

Lee was fortunate indeed to face an incomplete EEO certificate and to find English judges who, successively, were favourably disposed towards his applications despite a Regulation drafted to dismiss them. Though some may be disposed to regard the judiciary of that ex-Member State as ‘constitutionally’ predisposed to effect such interpretative developments, this would be a mistake, particularly in the present context of applications to the Masters in question (members of the judiciary who deal with incoming foreign enforcement applications). In any case, judicial willingness to extemporise a solution when faced with a defective EEO certificate to avert an immediate cross-border injustice seems a slender thread indeed from which to hang the conformity of the operation of the EEO Regulation with the basic human rights that should have been, but were not, associated with the treatment of Lee throughout these proceedings.

It is suggested that the circumstances of Lee demonstrate the failure of both the EEO Regulation, and of EU PIL in general, to protect the rights of an unserved and officially unnotified defendant to object to a cross-border enforcement despite the grossest of failings in the Member State of origin that, given the existence of Article 24 of the Spanish Constitution, proved astonishingly unsusceptible to Spanish appeal procedures. Had the judgment creditor been compelled to proceed to enforcement under the Brussels I Regulation (or later under the Recast of that Regulation) the service defects would probably have been more evident whether in the assumption of jurisdiction and / or at the point of enforcement outside Spain: the judgment debtor would also have had the option to raise the public policy exception to defend the enforcement proceedings plus better stay options in the enforcement venue.

Further it is suggested that Lee indicates that the EEO Regulation is no longer fit for purpose and should be recast or repealed. Lee, like Krombach, illustrates the danger of relying on the Member State of origin when drafting cross-border procedures of a non-neutral nature, i.e. reflecting assumptions that certified claims sent abroad by the ‘creditor’ will be ‘good’. It is not always correct that all will remain ‘fixable’ in the Member State of origin such that objections to enforcement in the Member State addressed and a public policy exception are unnecessary. Krombach and Lee may be exceptional cases, but it is for such cases that we require the equally exceptional use of a public policy exception in the enforcement venue.

 

 

As announced earlier, Erasmus School of Law is recruiting five researchers for a project on Affordable Access to Civil Justice in Europe, financed by the Dutch Research Council. The deadline for application has been extended till 27 July 2020. See our previous post.

The EU Regulations on the Property Regimes of International Couples – A Commentary has been published by Edward Elgar in its “Elgar Commentaries in Private International Law” series.

The publisher’s abstract reads: This article-by-article Commentary on EU Regulations 2016/1103 and 2016/1104 critically examines the uniform rules adopted by the EU to deal with the property relations of international couples, both married and in registered partnerships. Written by experts from a variety of European countries, it offers a comprehensive side-by-side discussion of the two Regulations to provide context and a deeper understanding of the issues of jurisdiction, applicable law and recognition of judgements covered.

Edited by Ilaria Viarengo and Pietro Franzina, this commentary features contributions by Giacomo Biagioni, Andrea Bonomi, Beatriz Campuzano Díaz, Janeen Carruthers, Sabine Corneloup, Gilles Cuniberti, Elena D’Alessandro, Pietro Franzina, Martin Gebauer, Christian Kohler, Silvia Marino, Cristina M. Mariottini, Dieter Martiny, Csongor I. Nagy, Jacopo Re, Carola Ricci, Andres Rodríguez Benot, Lidia Sandrini, Ilaria Viarengo and Patrick Wautelet.

Further info here

Back in February we reported on the Opinion presented by Advocate General Tanchev in case C-249/19, JE. Today the Court of Justice rendered its Judgment in which it confirms the interpretation provided in the Opinion.

As a reminder, the question referred to the Court of Justice originated in the proceedings pending before the Romanian courts dealing with a petition for divorce. The parties to these proceedings are Romanian nationals, habitually resident in Italy.

In these circumstances, under Article 8(a) of the Rome III Regulation, it is a priori Italian law that governs the grounds of divorce. According to Italian law, the dissolution of marriage can be pronounced only where there had been a legal separation of the spouses and at least three years have passed between this separation and the time at which the court have been seized by the applicant.

Seized of a petition for divorce, the first instance court considered that since no provision is made for legal separation proceedings under Romanian law, such proceedings must be conducted before the Italian courts and therefore any application to that effect made before the Romanian courts is inadmissible.

Yet, seized of an appeal lodged by the applicant, the second instance court focused on Article 10 of the Regulation that states, inter alia, ‘[w]here the law applicable […]  makes no provision for divorce […], the law of the forum shall apply’. That court referred a request for a preliminary ruling to the Court asking, in essence, whether Italian law could be disapplied under Article 10.

In his Opinion presented this February, AG Tanchev held that Article 10 of the Rome III Regulation calls for a strict interpretation. The expression ‘where the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce’ relates only to situations in which the applicable foreign law does not recognize the institution of divorce. Italian law should therefore be applied by the Romanian courts. Despite the lack of procedural rules in relation to legal separation, these courts have to verify whether the requirement relating to separation was met.

The Judgment is in line with the Opinion: it confirms that a foreign law can be disapplied on the basis of Article 10 only when that law does not provide for any form of divorce.

As discussed in the initial post, at points 64 to 66, the Opinion seems to qualify the requirement provided for in the Italian law as a ‘procedural condition’. That qualification does not appear explicitly in the Judgment. At paragraph 43, the Judgment convincingly confines itself to stating that the substantive requirement at issue consists on a three years’ separation of the spouses and that the lack of procedural rules in relation to legal separation cannot prevent the Romanian court from verifying whether that requirement is met.

Against this background, at paragraph 40, the Judgment makes a point in the context of effectiveness of the Rome III Regulation. If the application of the requirement provided for in Italian law leads to the situation where the petitions for divorce are being rejected without their examination, the practical effectiveness of the uniform conflict of laws rules on divorce is undermined. I deem the references to the effectiveness/effet utile to be highly interesting. See paragraph 20 of the Judgment in Bier for one of the earliest occurrences of such reference. The Judgment in JE is yet another example: it presents a noteworthy take on the interaction between effet utile and conflict of laws rules. It will be interesting to see whether and how that specific line of argument will be developed in the future.

This Call for Paper is for an edited volume, the working title of which is: Public International Law and Private International Law: Charting a blurry boundary – towards convergence or still divergence?

The editors, Dr Poomintr Sooksripaisarnkit (of the University of Tasmania) and Dharmita Prasad (of Jindal Global Law School), are in negotiation with Springer Nature Pte Ltd for this edited volume.

Both editors would like to invite you to contribute a chapter in this edited volume focusing on addressing intersectionality between public international law and private international law. Further details are provided in the concept note below.

 

Tentative Timeline:

• 5 August 2020 – A proposed title of your paper along with a 300-word abstract are to be sent to editors – sooksripaisarnkit@utas.edu.au; dprasad@jgu.edu.in
• 10 August 2020 – Editors will be in touch with selected authors advising each of them of the decision that their proposed paper is accepted for this edited volume.
• 31 August 2020 – Editors will finalise their proposal to Springer Pte Ltd
• 17 July 2021 – First draft of the chapter to be sent to editors
• August 2021 – Editors review all drafts and provide comments / request respective authors to review their chapter
• September 2021 – Editors are to submit manuscript to Springer
• December 2021 / January 2022 – Tentative release of the book

 

Editors:

Dr Poomintr Sooksripaisarnkit – Lecturer in Maritime Law, Australian Maritime College, University of Tasmania, E-mail: poomintr.sooksripaisarnkit@utas.edu.au

Dharmita Prasad – Lecturer, Jindal Global Law School, E-mail: dprasad@jgu.edu.in

Concept Note

International law has a long history which can be traced back to over thousands of years ago with developments of modern international law took their starting point from the consequence of the Peace of Westphalia in 1648 whereby the concept of nation state emerged. Along with the rise of legal positivism, international law became perceived as the body of law dealing with external aspects of States or, in other words, with relationships between States. Private disputes with foreign elements were gradually taken out of the scope of international law and students of private international law subject have since been taught of it as a domestic private law dealing with cases or disputes involving foreign elements. Public international law and private international law seemingly diverge.

Still, relationships and interactions between public international law and private international law have led to endless debates. Courts in considering what seemingly private international law cases from time to time have to touch on public international law issues. For example, the Court of Final Appeal of the Hong Kong Special Administrative Region in Democratic Republic of Congo and Others v FG Hemisphere Associates LLC [2011] HKCFA 41; (2011) HKCFAR 95 had to deal with the concept of sovereign immunity in a case which was essentially an enforcement of foreign arbitral awards. Likewise, the issue of sovereign immunity is likely to come up again in a class action lawsuit brought against the People’s Republic of China by thousands of American citizens claiming damages following the COVID-19 outbreak. Relevant to the COVID-19 outbreak, different countries have adopted different measures in an attempt to contain the virus, including closing borders, travel bans, compulsory quarantine, etc. Applying some or all of these measures will bring further complication in terms of potential issues or arguments involving possible frustration of international contracts. Within the scope of the United Nations Convention on Contracts for the International Sale of Goods (CISG), this involves the consideration of the scope of the force majeure and hardship provision in Article 79. Indeed, international instruments like the CISG present examples of attempts at avoiding private international law issues via public international law instruments. European experiences in negotiating instruments such as the Brussels Regime or wider international experiences in negotiating instruments under the auspices of international organisations such as the Hague Conference on Private International Law only point to the turning of conflict of law matters into international relations. These are some of the issues which highlight the blurry line between public international law and private international law.

This book seeks to contribute to existing debates by focusing its study on the boundary / intersectionality between pubic international law and private international law. In doing so, it seeks contribution for any work which falls within one of the following themes:

• Historical and Theoretical consideration of the boundary between public international law and private international law
• Harmonisation of private international law by public international law instruments – evaluation of process, problems, and effectiveness
• Practical consideration / Case Study of public international law consideration in private international law cases
• Future trends on relationships and interactions between public international law and private international law: towards convergence or still divergence?

Nearly a year ago I reported on a Greek judgment refusing execution of two English orders issued on the basis of a High Court judgment which granted declaratory relief to the applicants. This came as a result of proceedings initiated in Greece, in breach of the settlement agreements and the exclusive jurisdiction clauses in favor of English courts. A recent judgment rendered by the same court confirmed the incidental recognition of the same High Court judgment, which resulted in the dismissal of the claim filed before Greek courts due to lack of jurisdiction.

Piraeus Court of Appeal Nr. 89/31.01.2020

THE FACTS

The facts of the case are clearly presented in the case Starlight Shipping Co v Allianz Marine & Aviation Versicherungs AG [2014] EWHC 3068 (Comm) (26 September 2014. The UK defendants invoked before the Piraeus first instance court the judgment aforementioned, and requested incidental recognition in Greece. The Piraeus court granted recognition, and dismissed the claim. The plaintiffs appealed, seeking reversal on two grounds: Lack of res iudicata and violation of Article 34 (1) Brussels I Regulation.

THE RULING

The Piraeus CoA founded its ruling on point 39 of the English judgment:

39. So far as the Hellenic settlement agreement is concerned, clause 2 expressly provides that the payment of U.S.$4.8 million is “in full and final settlement of all and any claims they may have under the Policy in relation to the loss of [the vessel] against the Underwriters and/or against any of its servants and/or agents..” As with the CMI and LMI settlement agreements, that wording settles claims under the policy in relation to the loss of the vessel. Accordingly, by application of the reasoning of Longmore LJ in the Court of Appeal, as set out at [32] to [35] above, the claims against Hellenic in Greece are within the settlement and indemnity provisions in the Hellenic settlement agreement and in breach of the exclusive jurisdiction clause in the Hellenic settlement agreement and the arbitration clause in the underlying Policy…

Res iudicata and public policy

The Piraeus court had no difficult task in establishing the finality of the English judgment: It simply referred to the certificate issued by the English court.

The public policy defence was also considered as unfounded, by reference to Article 35 (2 and 3) Brussels I Regulation.

No anti-suit injunction order

It then stressed out that the foreign judgment solidifies the exclusive international jurisdiction of English courts, without ordering the claimants/appellants to refrain from filing an action or moving ahead with the proceedings before Greek courts, by imposing any measures for this purpose. Hence, the court continues, the foreign judgment in question fulfils the criteria under Article 32 Brussels I Regulation, and therefore it is not considered as an anti-suit injunction, because it does not hinder the Greek court to examine their jurisdiction. For the above reasons, the English judgment may be incidentally recognized, which means that the Greek court is bound by its findings on the international jurisdiction issue. Finally, it should be underlined that no reference to the Gothaer  ruling of the CJEU was made by the Piraeus court.

Clarifications

Finally, the Piraeus court explained the reasons which led to a different outcome from that of the judgment issued by the same court a year ago. First of all, the court was not bound by the res iudicata of the 2019 judgment, because the defendants were not the same. Secondly, the 2019 judgment examined an application for the enforcement of the English orders, whereas in the present case the subject matter was the existence or non-existence of the choice of court clause.

For all the above reasons, the appeal was dismissed.

SHORT COMMENT

Following the case law of the CJEU on anti-suit injunctions, and the non-recognition of the orders, which were labelled by the 2019 judgment as ‘quasi’ anti-suit injunctions, the defendants used the seemingly sole remaining tool for avoiding a re-examination of international jurisdiction on the merits by the Greek courts; the outcome proves them right. The question however remains the same: Are declaratory orders stating that English courts have exclusive jurisdiction and that proceedings in other Member States are in breach of an English exclusive jurisdiction agreement in line with the mutual trust principle? In his thesis [pp. 146 et seq.], Mukarrum Ahmed  argues that those orders are at odds with the above principle.

The Greek Supreme will have the final word.

Of course, a preliminary request remains a possibility.

A comprehensive and innovative volume by Tobias Lutzi was recently released providing a dedicated analysis of the EU private international law framework as it applies to online activities and to the civil liability arising therefrom. The volume is a welcome addition to Oxford University Press’s already thriving ‘Oxford Private International Law Series’.

Linking the question of the role of private international law in addressing the challenges brought forth by the Internet to the broader debate about the potential of private international law in conflicts regulation and resolution, the Author identifies in the Internet’s independence from State border and in the prevalence of private ordering the two key challenges for private international law vis-à-vis civil liability arising from online activities.

Selecting, as core areas for his analysis, the protection of personality rights, the protection of intellectual property rights, the prevention of unfair competition, the regulation of agreements, and the protection of weaker contract parties, the Author expounds on the potential of private international law as a tool for regulation. In doing so, he provides a comprehensive overview and critical analysis of the current private international law framework for Internet activities in the European Union, extending his analysis to comparisons with the U.S. legal framework, where desirable.

Against this background, the Author puts forth a proposition for an alternative approach, which aims to bring into balance the interests of the different stakeholders and regulators and the legitimate expectations of the parties to a legal relationship. Notably, he advocates for a new EU instrument providing specific rules of jurisdiction and applicable law that combine a country-of-origin default rule with a targeting-based exception for the structurally weaker parties.

Overall, Tobias Lutzi’s book successfully combines complex theoretical analysis with concrete propositions in a multifaceted and developing area of the law. It exemplifies the contribution of private international law in addressing the challenges arising in information services: in doing so, it illustrates how policies and political aims may be promoted via private international law. As such, his book is an essential and highly recommended reading for academics, regulators, and practitioners.

Tobias LUTZI, Private International Law Online. Internet Regulation and Civil Liability in the EU, pp. vii-223 (Oxford University Press, 2020), available for purchase at global.opu.com.

by Jie (Jeanne) Huang, Associate Professor of the University of Sydney Law School, Jeanne.huang@sydney.edu.au

Recently, in Australian Information Commission v Facebook Inc ([2020] FCA 531), the Federal Court of Australia (‘FCA’) addresses substituted service and the Hague Service Convention in the contexts of the COVID-19 pandemic. This case is important on whether defendants located outside of Australia in a Hague Convention state can be served by substituted service instead of following the Convention.

1. Facts:

Facebook Inc is a company incorporated in the US (‘Facebook US’), while Facebook Ireland is in Ireland. Due to the Cambridge Analytica scandal, Facebook was fined in the US and the UK. The office of the Australian Information Commission has also investigated Facebook over the scandal since April 2018 and hauled Facebook into the FCA on 9 March 2020.[1] The Commission alleged that Facebook Inc and Facebook Ireland breached s 13 G of the Privacy Act (Cth) from 12 March 2014 to 1 May 2015.

Both defendants appointed King & Wood Mallesons (‘KWM’) to respond to the Commission’s inquiries before the FCA proceeding was initiated. On 6 March 2020, the Australian Government Solicitor (‘AGS’) asked KWM whether it had instructions to accept the service of originating process. KWM replied that it acted for the respondents but was not instructed to accept the service on their behalf. They also indicated that it had instructions to discuss the substantive issues raised in the proceeding.

Consequently, the Commission sought orders under Federal Court Rules (‘FCR’) 2011 rr 10.42 and 10.43(2) for leave to serve Facebook US and Facebook Ireland (1) through the central authorities according to Article 5 of the Hague Convention and (2) by substituted service under r 10.24. With respect to the latter, the proposed substituted service was to serve the respondents by emailing the judicial documents to the named persons at KWM and the Head of Data Protection and Privacy and Associate General Counsel at Facebook Ireland.

2. Ruling

On 22 April 2020, the FCA rendered a judgment favourable to the Commission granting both leave to serve outside Australia and the order for substituted service.

Leave to serve outside Australia was granted pursuant to FCR 2011 rr 10.42, 10.43(2) and (4). The rationale for this was manifold. First, the court held that, vested by the Parliament under of the Privacy Act (Cth), it had original jurisdiction in the proceeding. Second, as the proceeding was related to the construction, effect or enforcement of the Privacy Act, it fell into pigeonhole 14 of r 10.42. Third, the Commission established a prima facie case for the reliefs claimed in the proceeding. Moreover, the proposed method of service via the central authorities in the US and Ireland complied with Article 5 of the Hague Convention. Therefore, the court granted leave for service outside Australia.

Regarding substituted service, the court invoked FCR 2011 r 10.24 in agreeance with the Commission and granted the order for substituted service for two reasons.

First, in circumstances where the pandemic was declared by the World Health Organisation and is directly affecting the US, it is not presently practicable to effect service on Facebook US pursuant to Article 5 of the Hague Convention. ABC Legal is the contractor for the US Department of Justice, Civil Division, and the Office of International Judicial Assistance. It is in charge of serving foreign processes on private individuals and companies in the US under the Hague Convention. However, due to the COVID-19 pandemic, ABC Legal has ‘suspended service of process nationwide’ across the US according to its website. Consequently, the FCA considered that it was substantially difficult for the Commission to effect service on Facebook US pursuant to Article 5 of the Hague Convention. On the other hand, despite the pandemic also affecting Ireland, the court acknowledged that Ireland’s High Court and postal services remained operative.[2] Nevertheless, the court held that ‘it is impracticable to do so in the rapidly changing and evolving environment caused by the current pandemic; the present situation may have changed by the time service in the relevant way would be sought to be effected’.[3]

Second, the proposed method of substituted service by email was likely to bring the proceeding to the attention of the respondents. This was because the respondents are aware of this proceeding. Moreover, in representing the respondents, the named individuals at KWM in Sydney and the Facebook Head of Data Protection and Privacy and the Associate General Counsel in Ireland replied to the Commissioner’s inquiries which led to this proceeding. Therefore, substituted service was ordered and the Commission was allowed to email judicial documents to these individuals.

3. Comments:

Regarding substituted service, the Facebook judgment provides that[4]

‘[t]his Court has held, in circumstances analogous to the present, that an order for substituted service may be made under either r 10.24 or r 10.49 : Commissioner of Taxation v Zeitouni (2013) 306 ALR 603 at [60] (Katzmann J); see also: Australian Competition and Consumer Commission v Kokos International Pty Ltd [2007] FCA 2035 at [18] (French J); Commissioner of Taxation v Oswal [2012] FCA 1507 at [32] (Gilmour J). Even if that position is incorrect, I would have ordered substituted service under r 10.49, with a dispensation from the implicit requirement to attempt service under r 1.34, for equivalent reasons to those for which I will order substituted service under r 10.24, explained next.’

Here, the court’s reasoning is dubious in three respects.

First, all the three cases cited above are not factually analogous to Facebook. Whilst the service of process in Facebook was subject to the Hague Convention, the cases of Zeitouni, Kokos, and Oswal were not. Specifically, this was because Zeitouni[5] and Kokos[6] were instances where the defendants’ addresses were unknown; in Oswal, the court noted that it was unaware of who might be present at the address to accept service on behalf of the defendant.[7] Article 1 of the Hague Convention explicitly indicates that these are circumstances where the Convention is not applicable.[8] Therefore, these three cases can be distinguished from Facebook. This differentiation is insurmountable due to the crucial application of the Hague Convention’s ‘non-mandatory but exclusive’ nature that informs service.[9] That is, service in Convention states must be conducted in a method permitted by the Convention. When the Convention is applicable, as in Facebook, the attempt requirement of r 10.49 should not be lightly dispensed with unless the rare instance under r 1.34 is satisfied.

Second, in Facebook, it is unclear what warrants the court to invoke the rare instance of r 1.34 in disregarding the usual attempt requirement contemplated in r 10.49 – namely, that service according to the Hague Convention should be attempted first and when it had not been successful, substituted service may be applied. There is a long-standing legal doctrine holding that substituted service should not be used to extend the court’s jurisdiction in the absence of any other power to do so. In Laurie v Carroll, the High Court of Australia held that substituted service should not be used to replace personal service if the defendant was out of the jurisdiction when a writ was issued. In Facebook, there is no real urgency for service because the claim centered on the defendants’ conducts in 2014 and 2015. Cambridge Analytica is bankrupt. The Commission did not produce any evidence substantiating that Facebook US and Facebook Ireland are currently continuing their violation of the Privacy Act (Cth) in Australia. There is also no evidence showing that the two defendants may move their assets outside of Australia or that any third party should be joined swiftly. Although COVID-19 may lead to uncertain proceeding delays, this reason alone is unlikely to justify the substitution of the Hague Convention. This is because Australia has a treaty obligation to serve foreign defendants in a Convention state according to the ‘non-mandatory but exclusive’ nature of the Convention. This obligation cannot be dispensed with in a proceeding that is not time-sensitive. Moreover, a delay of proceeding is distinct from the urgency of proceeding contemplated in r 1.34, as per Swan Brewery Co Ltd v Atlee. In this case, the defendant was in the Philippines, where service through diplomatic channels could take six months or considerably more. Evidence also demonstrated that ‘the authorities in the Philippines [would] not assist with service via the diplomatic channel’. In contrast, private service could be affected within 48 hours. The plaintiff applied for an order to serve a sequestration order by post, which was rejected by the court; while the utilisation of the diplomatic channel was impractical, it was not established on the evidence that personal service was not impractical. Similarly, in Facebook, although the ABC Legal Service in the US was not functioning, there was no evidence showing that the US postal service was not operational. The COVID-19 pandemic’s effect in delaying the proceedings cannot justify the dispense of the attempt requirement in r 10.49 alone.

Third, more evidence is necessary to demonstrate that rr 10.24 and 10.45 are satisfied in Facebook. Where Ireland’s High Court and postal services remain operative even during COVID-19 pandemic, it is still possible to serve Facebook Ireland in accordance with Hague Convention. The Facebook judgment does not specify what evidence should be provided by the plaintiff in order to prove that it is not sensible or realistic to effect service according to the Convention in Ireland. The court described how the environment is ‘rapidly changing and evolving’ due to the pandemic.[10] Yet, it seems that the court deemed that the environment would be worse off and even further aggravate service, as the court considered that the current service provided by the High Court and the post in Ireland might be changed. However, the court’s view may be inaccurate with regards to the trend of the pandemic in Ireland where the curve of confirmed COVID-19 cases has flattened, thereby indicating a realistic possibility that the environment may recover, not worsen. Further, whether the court considered the ‘rapidly changing and evolving’ environment of the pandemic is doubtful. This is a significant line of inquiry as the question of ‘being not practical’ should be determined by ‘whether at the date on which the application regarding service is made, the applicant, using reasonable effort, [was] unable to serve the respondent personally (emphasis added)’[11] Last but not least, the mere fact that Facebook was aware of the proceeding cannot suffice to satisfy the requirement of ‘not practicable’ in r 10.24.[12] Therefore, the court’s reasoning that it is not practical to serve Facebook Ireland by forecasting the future change does not seem persuasive.

In conclusion, substituted service in Facebook is granted too lightly.

 

[1] The dispute centered on the ‘This is your digital life’ App (hereinafter ‘APP’). It was a personality quiz designed by Dr Aleksandr Kogan who later established the Global Science Research Limited (GSR). The Graph API V1 developed by the respondents allowed the App to request information from the Facebook accounts of 305,000 Facebook Users globally who installed the APP, of which approximately 53 were Australian. The Graph API also allowed the App to request the personal information of approximately 86,3000,000 Facebook Users globally (approximately 311,074 of whom were Australian Facebook Users) who were friends of the installers (that is, they did not install the App themselves). Dr. Kogan and/or the GSR further disclosed the personal information it obtained from the Respondents to third parties, including the Cambridge Analytica Ltd, and/or its parent company, for profit.

[2] The Hague Service Convention website page relating to Ireland describes the prescribed methods as ‘[p]ersonal or by post.’ Ireland permits service of the court documents on individuals and entities in Ireland (e.g. Facebook Ireland) by post under the Hague Convention.

[3] Facebook [71].

[4] Facebook, [66].

[5] Zeitouni, [65]. There was no dispute that the Commissioner did not know the address(es) of the defendants. Though presumably in a position to provide information on the whereabouts of the defendants, their lawyers refrained from doing so. The Australian Federal Police had been looking for one brother who was in Indonesia for six months without success. For the other brother, the Commissioner only knew he was not in Australia but did not know where he went.

[6] Australian Competition & Consumer Commission v Kokos International Pty Ltd [2007] FCA 2035, [18]. Although ACCC knew that the defendant was likely in Japan, it had been unable to obtain an address at which he could be served. Neither the defendant nor his solicitors would provide an address for service. The Department of Foreign Affairs and Trade and Australia Embassy in Japan were unable to make inquiries on the ACCC’s behalf. Therefore, the plaintiff could not make an attempt to serve the defendant in Japan. The court held that service was not practical, and a substitute service was granted under ord 7 r 9 of FCR 1979.

[7] Oswal, [35]–[36]. Mrs. Oswal was not in Australia. Her last known address was in the UAE, but she is also an Indian national and has business interests in Singapore. Consequently, it is not possible to know with certainty her whereabouts to effect personal service.

[8] Hague Service Convention art 1.

[9] Hague Conference on Private International Law, Practical Handbook on the Operation of the Service Convention, ed Christophe Bernasconia and Laurence Thébault (Wilson & Lafleur, 2006) [24]-[41].

[10] Facebook [66].

[11] Foxe v Brown [1984] HCA 69, [547] as applied in O’Neil v Acott (1988) 59 NTR 1, 2.

[12] Morris v McConaghy Australia (No 4), [2018] FCA 1516, [16]. The second defendant MC2 was in the Cayman Islands. There was no dispute that MC2 was aware of the originating process and had notice of the relevant court documents. However, the court required that the service must be conducted under the Hague Convention because the mere fact that the document has been brought to the attention of the party being served cannot suffice to satisfy r 48(a) (i.e. the requirement of ‘not practical’).

Following successful events in Bonn and Würzburg, the third iteration of the conference for young German-speaking scholars in private international law will take place – hopefully as one of the first events post-Corona – on 18 and 19 March 2021 at the Max Planck Institute for Comparative and International Private Law in Hamburg. The conference will focus on the theme of PIL for a better world: Vision – Reality – Aberration?; it will include a keynote by Angelika Nußberger, former judge at the European Court of Human Rights, and a panel discussion between Roxana Banu, Hans van Loon, and Ralf Michaels.

The organisers are inviting contributions that explore any aspect of the conference theme, which can be submitted until 20 September 2020. The call for papers and further information can be found on the conference website.

By Anubhav Das (National University of Advanced Legal Studies, Kochi) and Aditi Jaiswal (Ram Manohar Lohia National Law University, Lucknow)

The internet brought significant changes in society, leading to a massive collection of data which necessitated legislation to regulate such data collection. The European Union enacted the General Data Protection Regulation, 2016(Hereafter GDPR), replacing the Data Protection Directive, 1995. Meanwhile, India, which currently lacks a separate data protection legislation, is in the process of enacting the Personal Data Protection Bill, 2019 (Hereafter PDP). The PDP has been introduced in the Indian parliament and is currently under the scrutiny of a parliamentary committee. The primary purpose of these legislations is the protection of informational privacy.

Even though GDPR and PDP follow the same set of data protection principles, but, there exists an inevitable conflict between the two. This conflict determines the applicability of the legislation on the data subject. The territorial scope of GDPR and the PDP makes it clear that both overlap each other and this overlap can be used by companies involved in data processing or collection, to circumvent the civil liability arising under the laws. This post analyses the conflict between both the laws and in conclusion, it will suggest a way to overcome such an issue.

Territorial Scope: GDPR and PDP   

Article 3 of the GDPR provides for the territorial applicability of the law. The Regulation applies to the processing of personal data by a controller or a processer. According to Article 3(1), any controller or processer that is established in the member state (European Union) shall fall under the scope of the GDPR. In other words, any company which has an office in the European Union shall come within the purview of the GDPR. Article 3(2) states that even if any processer or controller is not established in the European Union, but if they are offering goods or services irrespective of payment or monitoring behaviour in the European Union, then they will also fall under the scope of GDPR.

On the other hand, the PDP provides for the territorial applicability under Section 2. It applies to the processing of personal data by data fiduciary (similar to the controller under GDPR) and data processer (similar to processer under GDPR). Section 2(A) (a) states that if personal data is collected, disclosed, shared or otherwise processed within the territory of India, then it shall fall under the PDP. Section 2(A) (b), makes it applicable to the State, any Indian company, any citizen of India or any person or body of persons incorporated or created under Indian law. Section 2 (A) (c) makes it applicable to data fiduciary or data processor which are not in India but are processing in connection with any business carried on in India, or any systematic activity of offering goods or services to data principals within the territory of India or any activity concerning the profiling of data principle.

The Overlap of Jurisdiction

The internet has provided a way for companies to operate anywhere without the existence of an entity in a particular country. This also includes those companies which deal with data. In the context of Europe and India, a company doesn’t need to have an entity in Europe or India to operate and do business. Thus, an Indian company can easily do business related to data in Europe without any real existence in Europe and vice versa. Consequently, the problem that arises concerning data protection laws is complicated. An Indian company will fall under the purview of the PDP as per Section 2(A) (b) but at the same time if this Indian company also deals with ‘personal data for offering goods or services’ in the European Union, then it will also be regulated by the provisions of the GDPR.

Similarly, a European company ‘collecting data in India’ will fall under the scope of both PDP and GDPR. It is a matter of fact that judicial courts do not have jurisdiction over foreign land. Hence, no monetary damages can be imposed on companies which operate from Europe by using PDP or companies operating from India by using GDPR.

A European company or an Indian company can also claim that there is proper compliance with GDPR or PDP, respectively. In the context of Europe and India, a company only needs to follow the data protection law of the land from where it operates even though such an act violates data protection law of the other jurisdiction. This is possible as GDPR and PDP differ from each other on every key and essential aspect such as the very meaning of personal data.

The Difference and its Implications

The primary purpose of GDPR and PDP is the protection of personal data. But, the definition of personal data differs when GDPR is compared with PDP. The reason why such a description is essential is that a substantial part of both laws is based on the processing of personal data. This includes fair consent, purpose limitation, storage limitation, rights of data principle etc. Such aspects, when read with the territorial scope of both the laws, outlines the applicability of its provisions. The table below shows the difference in the definition of personal data.

 

 

GDPR PDP   Personal data means any information relating to an identified or identifiable natural person (‘data subject’).

An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; Personal data is data about or relating to a natural person who is directly or indirectly identifiable, having regard to any characteristic, trait, attribute or any other feature of the identity of such natural person, whether online or offline, or any combination of such features with any additional information, and shall include any inference drawn from such data for profiling.

 

Note – Underlined are the parts which show that it is not present in the other law.

Both GDPR and PDP refer to personal data as information/data relating to identified/identifiable natural person. At the same time, the nuances of what constitutes an identifiable natural person differ significantly as both use different terminology which creates a diversion in the meaning of the personal data.

Deviation 1 – PDP provides for words such as ‘any other feature of identity, a combination of such feature with other information, any inference drawn for profiling’, in the meaning of an identifiable natural person. These terms can be interpreted more liberally and will probably be explained by courts in India and shall have an evolving meaning. GDPR, on the other hand, provides for specific terms like ‘physical, physiological, genetic, mental, economic, cultural, social identity’. Hence, European Courts will have to interpret personal data by mandatorily considering such terms, making it’s scope narrower when compared to PDP in this context.

Deviation 2 – Terms such as ‘identification number’ and ‘location data’ is mentioned explicitly in GDPR and not in PDP, making PDP narrower in scope here.

This above discussion can be easily understood with the help of the following figure –

Deviation 1 – The green circle represents inference in PDP. The blue circle represents inference in GDPR. The green stripe represents personal data which is covered in PDP and not covered in GDPR.

Deviation 2 – The yellow circle represents personal data in GDPR. The red circle represents personal data in PDP. The yellow stripe represents personal data which is covered in GDPR and not covered in PDP.

In the figure above, in Deviation 1, the green strip represents that personal data, which when processed by a company shall not fall under the scope of GDPR even though it shall be under the scope of the PDP. Such a difference implies that companies falling under the territorial ambit of both the laws, can follow one and circumvent the other.

A European company can process personal data represented in the green strip from India, and for that, it doesn’t need to comply with GDPR as that data is not personal data under GDPR. Now even though, there is a violation of the provisions under PDP the company can escape liability as Indian courts do not have jurisdiction in Europe, and European Courts cannot adjudge the matter as it falls outside the material scope of GDPR. The vice versa will happen if the case of deviation two is considered.

The consequence of such inconsistencies will be faced by data subjects who won’t be able to claim damages provided under their respective data protection law. One of the ways to ensure that damages can be claimed is by harmonising the data protection laws which can only be done by international cooperation.

The Need For International Cooperation in Data Protection

The existence of such issues in the framework of GDPR and PDP is not because of the extraterritorial application. Advocating against the extraterritorial application to resolve the problem of overlap in the jurisdiction of data protection laws would only give rise to more infringement of informational privacy of data subjects by foreign companies. This, in turn, will be detrimental for the very purpose for which data protection legislation is enacted.

The requirement at present is to harmonise the key definitions such as personal data in the data protection legislation. This will ensure that a right of action lies in both GDPR and PDP. Even if a foreign company cannot be dragged to the national court, harmonisation will at least ensure that a data subject has a right to seek damages in the international court.

The aspect discussed in this article is regarding two jurisdictions. However, consider, for instance,  the complications that could arise when more than two jurisdictions are involved. To illustrate, an Indian Company having an office in Canada and that office is doing business in data from the European Union. In such cases, the best way to ensure data protection rights is by harmonisation, and this can only be achieved with the help of international cooperation. Thus, data protection in the age of internet needs multilateral international agreements.

Conclusion

The international regime of data protection is complicated in today’s world. There is no proper international agreement which governs the data protection legislation across the globe, which resulted in a difference in the critical terms of data protection when GDPR and PDP are compared. This, in – turn can be used by corporates to get away with liability. So, the aim must be not to let anyone violate the data protection principles by using this inconsistency and get away with it. To deal with this and safeguard the privacy of data subject, international cooperation in data protection is essential.

 

 

 

written by Michael Wells-Greco

(Note: publication of this book was announced earlier.)

 

La gestación por sustitución en el derecho internacional privado y comparado

Instituto de Investigaciones Jurídicas UNAM – Centro de Investigación y Docencia Económicas (CIDE)

México, 2020

 

This highly informative and timely book edited by María Mercedes Albornoz addresses the pressing challenges presented by surrogacy arrangements. With contributions from Nuria González Martín, Verónica Esparza, Ximena Medellín Urquiaga, Isabel Fulda, Rebeca Ramos, Regina Tamés, Mónica Velarde, Federico Notrica, Cristina González Beilfuss, Rosa Elvira Vargas, María Virginia Aguilar, Francisco López González, María Mercedes Albornoz and Nieve Rubaja, and a thought provoking preface by Eleonora Lamm,  this collection contains a remarkable wealth of comparative Ibero-America legal materials on surrogacy. While comparisons are made with the diverse national surrogacy approaches in other parts of the world, much of the comparative discussion centres on the experience of surrogacy in the Americas (in Mexico and Argentina, in particular). The careful analysis demonstrates the challenges for many states arising from surrogacy arrangements.

The book contains a number of contributions that provide international perspectives on surrogacy. These include, for example, a careful consideration of the impact and relevance of the case law of the European Court of Human Rights (the discussion begs the question whether the Inter-American Court of Human Rights will be seised to consider surrogacy in ways similar to its European cousin) and two reflective discussions on the work and aims of international surrogacy projects. The current situation in the Americas highlights ever more starkly the need for the international community to come together to consider whether a multilateral framework might be agreed upon which enable states to work together to uphold the human rights of all concerned. Only a holistic analysis by the global community can begin to determine whether international frameworks can achieve these aims.

Yet there are limitations with possible international approaches. There are also limits to what is considered to be morally acceptable. It is rightly posited that it is for each state to consider its national approach to surrogacy (which may include prohibition) but public policy is not an empty vessel and it cannot be deployed as a blanket defence when legal parent-child relationships are established abroad. There is an acceptance that surrogacy is not going to go away, so consideration ought to be given to the more complex and important human rights considerations it raises, which means focusing on the interests of children, as well as those of the surrogate (who in the volume is intentionally not referred to as the surrogate mother) herself.

The book returns, as it were, to Mexico and concludes with a proposed model of regulation in Mexico of cross-border surrogacy arrangements through a private international law lens.

The book is a fascinating read – it would interest anyone from lay readers with an interest in surrogacy to academics, lawyers and other professionals.

Dr. Michael Wells-Greco

In lieu of its originally scheduled programme, the Hague Academy of International Law recently announced its first online programme, the invitation to which reads as follows:

The Hague Academy of International Law is pleased to announce the launch of its very first online programme: an entirely online session of its Centre for Studies and Research. This session will take place between September 1st, 2020, and June 1st, 2021, on the theme of Epidemics and International Law.  The working language will be English.

The Directors of Research, Professor Shinya Murase (Sophia University, Tokyo) & Ms. Suzanne Zhou (McCabe Centre for Law and Cancer, Melbourne) invite applications from researchers including students in the final phase of their doctoral studies, holders of advanced degrees in law, political science, or other related disciplines, early-stage professors and legal practitioners.

Selected participants will each write an article on a sub-topic related to the overall theme of Epidemics and International Law. The research work will start in September 2020 and, following a very strict planning, the articles should be finalized in April/May 2021. Interested applicants must therefore be available to conduct their research and write their contribution in the coming months. The best articles will be included in a book to be published in August 2021 approximately.

Applications can be sent in between July 1st and September 1st, 2020. As the Academy expects to receive a large number of applications, the application deadline might already close on August 1st, 2020. Interested candidates are therefore encouraged to apply as soon as possible using the appropriate online form.

For more information on this programme, please consult the poster, as well as the web pages related to the Centre for Study and Research – Online.

German version here.  English version here.

This post introduces my case note titled ‘A Dangerous Chimera: Anti-Suit Injunctions Based on a “Right to be Sued” at the Place of Domicile under the Brussels Ia Regulation?’ which appeared in the July 2020 issue of the Law Quarterly Review at page 379. An open access version of the case note is available here.

In Gray v Hurley [2019] EWCA Civ 2222, the Court of Appeal (Patten LJ, Hickinbottom LJ and Peter Jackson LJ), handed down the judgment on the claimant’s appeal in Gray v Hurley [2019] EWHC 1972 (QB). The appellant appealed against the refusal of an anti-suit injunction.

The appellant (Ms Gray) and respondent (Mr Hurley) had been in a relationship. They acquired property in various jurisdictions using the appellant’s money, but held it in either the respondent’s name or in corporate names. The relationship ended and a dispute commenced over ownership of some of the assets and properties. The appellant was domiciled in England; the respondent lived in New Zealand after the relationship ended and was no longer domiciled in England. He initiated proceedings there for a division of the property acquired by the couple during the relationship. The appellant issued proceedings in England seeking a declaration that she was entitled absolutely to the assets. She also applied for an anti-suit injunction to restrain the defendant from continuing with proceedings in the courts of New Zealand. Lavender J held that England was the appropriate forum for the trial of the appellant’s claims but that the respondent’s New Zealand claim could not be determined in England. He rejected her argument that Article 4(1) of the Brussels Ia Regulation obliged him to grant an anti-suit injunction to prevent the respondent from litigating against her in a non-EU state.

The appellant argued that Samengo-Turner v J&H Marsh & McLennan (Services) Ltd [2007] EWCA Civ 723, [2007] 2 All E.R. (Comm) 813 and Petter v EMC Europe Ltd [2015] EWCA Civ 828, [2015] C.P. Rep. 47 were binding authority that Article 4(1) provided her with a right not to be sued outside England, where she was domiciled, obliging the court to give effect to that right by granting an anti-suit injunction.

The Court of Appeal considered that the issue was not acte claire and sent a preliminary reference to the CJEU (pursuant to Article 267 TFEU) asking whether Article 4(1) of the Brussels Ia Regulation provided someone domiciled in England with a right not to be sued outside England so as to oblige the courts to give effect to that right by granting an anti-suit injunction.

The case note examines the Court of Appeal’s decision in Gray v Hurley [2019] EWCA Civ 2222. It offers a pervasive critique of the argument that the general rule of jurisdiction under the Brussels Ia Regulation gives rise to a substantive right to be sued only in England and that this right is capable of enforcement by an anti-suit injunction. It is argued that the previous decisions of the Court of Appeal in Samengo-Turner v J&H Marsh & McLennan (Services) Ltd [2007] EWCA Civ 723 and Petter v EMC Europe Ltd [2015] EWCA Civ 828 were themselves wrongly decided. In light of this, it will be even more difficult to justify the broader application of a similar result in the present case.

Indeed, the law would take a wrong turn if the present case is allowed to build on the aberrational foundations of the developing law on anti-suit injunctions based on rights derived from the Brussels Ia Regulation. Essentially, a chimerical remedy based on a fictitious right would not only infringe comity but would also deny the respondent access to justice in the only available forum. The note also anticipates the CJEU’s potential findings in this case.

An open access version of the case note is available here.