Conflictoflaws

The publication of Hannah L. Buxbaum‘s (Professor of Law and John E. Schiller Chair at Indiana University) 2013 lecture at The Hague Academy of International Law on “Public Regulation and Private Enforcement in a Global Economy: Strategies for Managing Conflict“ has finally come out as part of Volume 399 of the Collected Courses of the Academy (Recueil des cours).

Here is an overview kindly provided by the author:

The global regulatory environment has become increasingly dense. It features multiple forms of regulation, including multilateral treaties, administrative rulemaking, self-regulation, and private enforcement in domestic courts. Regulatory institutions operate on national, regional, and international scales—and in an increasing range of substantive fields. Unsurprisingly, this environment engenders frequent conflict among regulatory regimes. These conflicts involve more than just collisions of substantive legal norms. They also involve concerns about the “who” and “how” of regulation. The entity seeking to enforce a particular norm might be a public agency or a private litigant; a particular proceeding might unfold within an international treaty framework or outside it. Such factors affect the degree of resulting conflict quite significantly. Understanding that conflict, and assessing the efficacy of the tools used to resolve it, therefore requires an analysis that accounts for those factors.

The objective of these lectures is to develop a framework for examining conflicts in cross-border economic regulation, and to use it in assessing various regulatory mechanisms. The analysis employs a trans-substantive approach, providing examples from diverse areas including competition regulation, securities regulation, and data privacy. However, instead of organizing the discussion by subject matter, it classifies different categories of conflict—substantive, procedural, and political—and examines each in turn. This approach permits a nuanced analysis of cross-border regulation as it is practiced by different institutions. In particular, it uncovers the layering of different forms of conflict that makes particular modes of regulation especially problematic.

The analysis draws most heavily on the experience in the United States, which permits a special focus on one specific question of regulatory design: the role of private enforcement in transnational regulation. Historically, the United States has been an outlier in its reliance on private civil litigation as a regulatory instrument. Today, though, many other legal systems are engaged in procedural reform intended to support more robust private enforcement. That development has the potential to increase significantly the resources devoted to economic regulation. However, it also risks exacerbating conflict in cross-border cases. Accordingly, one goal of the following analysis is to use the analytical framework developed here to consider possibilities for integrating private enforcement most effectively into the transnational regulatory environment.

More information can be found here.

By Nicolás Zambrana-Tévar LLM(LSE), PhD(Navarra), KIMEP University

On 2 September, the First Instance Court number 24 of Palma de Mallorca (Spain) issued an auto (interlocutory decision) staying proceedings commenced against Meliá Hotels International S.A., one of the biggest Spanish hotel chains, on grounds of immunity from jurisdiction, act of state doctrine and lack of international jurisdiction.

The claimant was Central Santa Lucía L.C., a US company which considers itself the successor of two Cuban corporations: Santa Lucía Company S.A. and Sánchez Hermanos. These two legal entities owned a sugar plantation and other pieces of land in Cuba. Following the revolution of 1959 in this country, those properties were expropriated by Law 890 of 1960. The expropriated land under discussion – known as Playa Esmeralda – is now owned by Gaviota S.A. a corporation of the Cuban State. The Cuban Government authorized Meliá to manage and exploit the land for touristic purposes and Meliá now owns two hotels on that landplot. The claimants contended that Meliá was conscious of the illegitimacy of the expropriation but had nevertheless sought to profit from it. This is apparently the first such claim in Europe and the decision staying the proceedings can still be appealed.

The claim was based on the argument that, since what the claimant describes as “confiscation” had been contrary to international law, it was null and void and the US company – as successor of the original Cuban proprietors – should still be considered the rightful owner of the land. Meliá was now in possession of the land and was profiting from it in bad faith, conscious of the illegitimacy of the property title of the Cuban state. The claimant contended that under article 455 of the Spanish Civil Code, possessors in bad faith must hand over not only the profits of their illegitimate exploitation but any other fruits that the legitimate possessor could have obtained.

This claim filed by the US company was against a legal entity domiciled in Spain. Therefore and under normal circumstances, the Spanish court would have had jurisdiction. However, the Spanish court understood that it did not. First of all, article 21 of the Spanish Judiciary Law (Ley Orgánica del Poder Judicial) and article 4 of Organic Law 16/2015 on immunities of foreign states establish that Spanish courts shall not have jurisdiction against individuals, entities and assets which enjoy immunity from jurisdiction, as provided by Spanish law and Public International Law. The Cuban State and the property owned by its company – Gaviota – were therefore and in principle protected by the rules on immunity but the Cuban State had actually not been named as a respondent in the claim and its object was not the expropriated property itself but the profits from its exploitation. The decision does not explain why the property of a commercial corporation owned by the Cuban State – as opposed to the State itself – also enjoys immunity.

The decision goes on to say that Spain subscribes to a limited understanding of immunity from jurisdiction (articles 9 to 16 of Organic Law 16/2015), so that claims arising from the commercial relations between Gaviota and Meliá for the touristic development of the land – acta iure gestionis – might not be covered by immunity. Nevertheless, the Spanish court understood that the true basis for the claim were not the relations between Gaviota and Meliá – commercial or otherwise – but the alleged illegitimacy of the expropriation – acta iure imperii –, the property title that Cuba now has over the land and any responsibility incurred by Meliá for illegitimately profiting from the situation. Santa Lucía could only have a right to the illegitimate profits if it was considered the rightful owner and this entailed a discussion about a truly sovereign act: the expropriation.

Therefore, it can be said that the court’s rationale is actually more akin to the act of state doctrine of English and US law, whereby courts should refuse to hear cases where they are called to question the conduct of foreign governments or acts of any sovereign entity within their own territory. For a finding that Meliá had illegitimately profited from Santa Lucía’s disgrace, not only the knowledge of the expropriation by the Spanish company but the illegality of the expropriation itself would have had to be discussed before the Mallorca court.

Additionally, the court explains that Spanish courts do not have jurisdiction to hear claims concerning property rights – ownership or possession, in this case – over immovable assets located outside Spain. The court wrongly considers that EU Regulation 1215/2012 is applicable to this case. However, the immovable property under discussion is located outside the EU, so the Regulation actually does not apply. Similarly and as indicated above, the court considers that article 455 of the Spanish Civil Code is applicable, notwithstanding the fact that article 10.1 of the same norm establishes that the law applicable to property rights will be the law of the place where they are located.

This decision and this claim by Cubans “exiled” in the US arrives after the US announced the end of the suspension of Title III of the 1996 Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996 (aka Helms–Burton Act), which effectively opens the door to lawsuits in the US by providing a right of action for all US nationals (i.e. including naturalized Cubans and their descendants) whose property was taken by the Cuban Government after the revolution. Such claims can be directed against anybody – regardless of nationality – who “profits” from, “traffics” with or otherwise has an “interest” in such property.

European Union officials have recently voiced their concern for these potential lawsuits against European investors in Cuba and have reminded that some countermeasures were already foreseen when the law was passed in 1996. Several members of the European Commission have also warned the US Government that the EU may launch a case before the WTO and that it already has in place a “blocking statute” which bans the recognition and enforcement of any of the resulting US judgements against European companies and that also allows them to recover in EU courts any losses caused by claims under Title III, against assets that US claimants may have in the EU. The Spanish Government has also set up a special committee to study these risks, given the important commercial interests of Spanish companies in the Caribbean island. In this regard, Miami lawyers confirm that many families of Cuban origin are now requesting legal advice. The swift way in which the Spanish case here discussed has been decided may be an incentive for those families to claim in the US – and not in Europe – under the newly activated Helms-Burton act.

The second issue of 2019 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released and it features:

Adrian Briggs, Professor at Oxford University, Brexit and Private International Law: An English Perspective (in English)

The effect of Brexit on private international law in England will depend on the precise terms on which the separation is made. However, if no comprehensive withdrawal agreement is concluded and adopted, the result will be that private international law in the United Kingdom will revert to its original common law structure. This will make the law and practice of dispute resolution more effective in some respects, and more problematic in others. While it is regrettable that so much time and labour has to be spent on planning for a future which the politicians are incapable of defining, it does allow the distinctions between common law legal thinking, and European legal principles, in the field of private international law to be compared and understood more clearly than they have been for many years.

Burkhard Hess, Director of the Max Planck Institute Luxembourg for Procedural Law, Protecting Privacy by Cross-Border Injunction (in English)

Injunctive relief is of paramount importance in the protection of privacy, especially in the context of the Internet. In the cross-border setting, injunctions entail specific problems: on the one hand, jurisdiction may lie with many courts – often worldwide due to the ubiquity of the Internet. On the other hand, injunctions operate with an extraterritorial effect, ordering or prohibiting conduct outside of the State where the court issuing the order is located. Cross-border injunctive relief does not only raise issues of jurisdiction and territorial scope: in fact, additional problems relate to its enforcement. Furthermore, the need may arise to adapt the injunction to an equivalent measure in the State of enforcement. This paper addresses the problems of cross-border injunctive relief from the perspectives of jurisdiction and territorial scope, as well as of recognition and enforcement. While actions for damages and for injunctive relief are regulated in similar ways, the Author of this paper demonstrates that the specific circumstances and necessities that characterize injunctive relief warrant additional and specific solutions.

Chiara E. Tuo, Associate Professor at the University of Genoa, The Consequences of Brexit for Recognition and Enforcement of Judgments in Civil and Commercial Matters: Some Remarks (in English)

This article aims at addressing some questions regarding the impact of Brexit on recognition and enforcement of judgments in civil and commercial matters with a view to investigating the rules applicable, first, in the case that Brexit occurs without any withdrawal agreement (“hard Brexit”) and, second, regardless of whether such an agreement will be actually entered into, in the context of a future and renewed judicial cooperation relationship between the EU and UK. To this end and in relation to the first part of the analysis, the relevant passages of both the EU Commission’s guidelines and UK statutory instruments dealing with the issue of recognition and enforcement of judgments are taken into exam and compared the ones with the others in order to assess the different extent to which they provide for the continuous post-Brexit application of the existing EU instruments. On the other hand, and in relation to the second part of the article, the options currently available for a future EU-UK cooperation are considered with the purpose of shedding some light on their respective main advantages and disadvantages.

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

Cinzia Peraro, Post-Doctoral Fellow at the University of Verona, L’istituto della kafala quale presupposto per il ricongiungimento familiar con il cittadino europeo: la sentenza della Corte di giustizia nel caso S.M. c. Entry Clearance Officer (Kafala as a Prerequisite for Family Reunification with a European Citizen: The Judgment of the Court of Justice in S.M. v. Entry Clearance Officer; in Italian)

The family reunification of a European citizen and a foreign minor entrusted to him by kafala has been addressed by a recent judgment of the Grand Chamber of the Court of Justice on the notion of direct descendant pursuant to Directive 2004/38 concerning the free movement of Union citizens and their family members. The Italian judges have also dealt with the issue of the recognition of this institute, widespread in most Islamic countries, in a variety of situations, where the best interests of the child and the European courts’ decisions have been considered. Domestic jurisprudence appears to be in line with the interpretation given by the judges of Luxembourg, which nevertheless leaves the question of the unequal treatment between Italian citizens and third country nationals unresolved.

Mariangela La Manna, Post-Doctoral Fellow at the Università Cattolica del Sacro Cuore, The ECHR Grand Chamber’s Judgment in the Naït-Liman Case: An Unnecessary Clarification of the Reach of Forum Necessitatis Juridsdiction? (in English)

The Grand Chamber judgment in the Naït-Liman v. Switzerland case is certainly a much anticipated one. Its outcome had, however, long been foreshadowed by commentators and practitioners alike. The decision confirmed the 2016 Chamber’s judgment by holding that the Swiss Federal Tribunal’s decline of jurisdiction in a civil case involving reparation for torture committed outside the territory of Switzerland by foreign authorities against a foreign national did not amount to a violation of Article 6(1) ECHR. However, the Court’s reasoning in the case under review is susceptible of being criticized in more than one respect. The compatibility of the conduct of the Swiss judiciary with Article 6(1) ECHR is dubious to say the least, even more so since the Federal Tribunal’s restrictive interpretation of the requirements for the application of forum necessitatis jurisdiction, and especially of the “sufficient connection” requirement, managed to produce a fully-fledged denial of justice. Should such a trend gain consistency, the effectiveness of the right of access to a court may be put at risk.

The Department of Law of Loyola University Andalusia will be hosting an International Conference on 20-21 January 2020 in Seville, Spain, to discuss the impact of digitalization.

The Conference which will revolve around five major thematic areas from a multi-disciplinary approach, will also include panels on digitalization and Private International Law. 

This International Conference will be a unique opportunity to discuss the new technological and digital challenges with an outstanding group of experts from different fields and a great venue to create and consolidate scientific and collaborative networks. Some of the experts who have already confirmed their participation include professors from Cornell, Harvard and other universities worldwide, officials from the United Nations, UNIDROIT, judges, members of the EU Commission expert groups, lawyers and ICT professionals.

Senior and junior scholars (including Ph.D. students) and professionals at all stages of their careers are invited to submit abstracts on some of the following, fairly broad, topics or any other related issues of novel and ground-breaking character: Ability of the basic principles of private international law to adapt to the immateriality of the digital space and new approaches to the theory of private international law in the digital context.

SUBMISSION PROCEDURE AND TIMELINE

• We invite authors to submit extended abstracts of a minimum of 800 words with the author’s name, affiliation and an updated CV including contact details to the conference directors, in the item “Documents” on the website: www.ict2020.es. All submissions may be written in either English or Spanish.
• The submitted abstracts will be assessed and selected by the Conference’s international scientific committee. In addition to the quality of the proposals, special consideration will be given to gender balance and the representation of professionals, associations and social partners in the different panels.
• The deadline for submitting proposals is 15 October 2019.
• Authors of selected abstracts for the Conference will be notified by 15 November 2019.
• The deadline for submitting the final draft paper (3,000-5,000 words) is 10 January 2020. A ‘no paper – no podium’ strict policy applies.
• The Conference will be held at the Dos Hermanas campus of Loyola University Andalusia, in Seville, on 20-21 January 2020.
• Authors of accepted abstracts are expected to bear the costs of their own travel and accommodation.
• The Conference directors are planning to publish the most relevant papers presented in the conference.
• The deadline for submitting the final version of the selected papers (6,000-8,000 words) will be 21 February 2020. Further information about the publication process will be conveyed to selected proposal authors in due course.

VENUE

The Conference will be held at the Sevilla-Ciudad del Conocimiento campus of Loyola University Andalusia in Dos Hermanas, Seville.  Seville’s Old Town contains three UNESCO World Heritage Sites: the Real Alcazar palace complex, the Gothic Cathedral and the General Archive of the Indies. Other important sites are the Golden Tower (Torre del Oro), the Maria Luisa’s Park & Plaza de España and the ruins of the Roman City “Itálica”, used as location for some scenes of the television series Games of Thrones.

For more information, visit the official Conference website.

Scientific Committee

• Tine Sommer (Professor of Law, Advisory Board Member of CREDI, Center for Law and Digitalization, University of Aarhus, Denmark);
• Víctor Luis Gutiérrez Castillo (Associate Professor of Public International Law, University of Jaén);
• Fernando Miró Llinares (Professor of Criminal Law and Criminology, Miguel Hernandez University, CRIMINA Research Center);
• Alberto Elisavetski (Professor Law, Untref University of Buenos Aires, Director of On Line Dispute Resolution Latinamerica);
• Michael D. Green (Professor of Law, Wake Forest University, North Carolina, USA);
• Marie-Cécile Escande-Varniol (Professor of Law, Universidad Lumière Lyon 2)

Co-directors

• Manuel Paniagua Zurera (Professor of Commercial Law, Loyola University Andalusia);
• Gloria Fernández- Pacheco Alises (Assistant Professor of Criminology, Loyola University Andalusia);
• Maria Lubomira Kubica (Assistant Professor of Civil and Comparative Law, Loyola University Andalusia);
• Jonatan Cruz Ángeles (Assistant Professor of Public International Law, Loyola University Andalusia);
• Rafael Aguilera Gordillo (Part-time Lecturer of Criminal Compliance and International Security, Loyola University Andalusia);
• Ana Mercedes López Rodríguez (Associate Professor of Private International Law, Head of the Law Department, Loyola University Andalusia)

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

E. Jayme: On the Legal Status of Indigenous Peoples in German Cultural Property Proceedings

The Nama Traditional Leaders Association asked the Constitutional Court of the federal state Baden-Wurttemberg to issue an interim order to prevent its government from returning certain pieces of cultural property to the Republic of Namibia. These cultural goods had been taken by Germans during the colonial period and have been displayed in the Linden-Museum in Stuttgart since 1902. The Nama Association relied on the argument that these goods belonged to the Witbooi family and were part of the Nama cultural heritage. The Constitutional Court dismissed the action on procedural grounds. According to the Court, an interim order required a main action which lacked in that case. In addition, the Court remarked that the litigation was such to be better handled within Namibia. The restitution of colonial goods from European museums to the territories of their origin has been discussed widely since President Macron, in 2017, gave a speech in Ouagadougou (Burkina Faso) asking for the return of colonial goods to African countries. This idea throws up many questions of law and particularly of conflict of laws, as is evident in the Nama-case, which centres around the legal status of indigenous people in German court proceedings concerning cultural goods. The author also discusses problems of private international law, such as the law applicable to the question of property regarding such colonial goods.

M. Drehsen: Service of judicial documents within the context of the EuMahnVO

The intersection of the Regulation (EC) No 1896/2006 and the Regulation (EC) No 1393/2007 is the service of the European order for payment. Even if Art. 12 (5), 13 to 15 Regulation (EC) No 1896/2006 contain provisions on the service of the same, these are not complete upon closer examination, so that according to the decision of the ECJ of 6.9.2018 worthy of approval, recourse may be had to the Regulation (EC) No 1393/2007 and in particular to Art. 8 Regulation (EC) No 1393/2007 and the case-law of the ECJ issued in this regard. Even if the same legal consequences as for the absence of a corresponding translation are to apply to the non-addition of the form under Annex II of the Regulation (EC) No 1393/2007, the period for statement of opposition under Art. 16 (2) Regulation (EC) No 1896/2006 can begin differenthy for these two service defects to be distinguished.

S. Arnold/T. Garber: A Pyrrhic victory for Greece: International Procedure and the limits of state sovereignty

In 2012, Greek government bonds were restructured which caused enormous losses to private investors. Many of them sued the Hellenic Republic, especially in German and Austrian courts. Following a referral of the Austrian Supreme Court (OGH) the ECJ decided that actions brought by private investors against the Hellenic Republic are not covered by the scope of application of the Brussels Ibis Regulation. After the ECJ’s decision, the OGH even denied international jurisdiction of Austrian courts according to the national (Austrian) rules of civil procedure. Both decisions are flawed as regards their outcomes and their reasonings. The following lines will explore these flaws and shed some light on the decisions’ consequences.

Q.C. Lobach: International jurisdiction of the courts at the place of performance of a contract of carriage for air passengers’ claims under the Flight Compensation Reg. against a third-party operating carrier

In the Rehder/Air Baltic case, the CJEU held that the places of performance of a contract of carriage pursuant to art. 7 (1) (b) second indent Brussels I Recast Reg. are both the place of departure as well as the place of arrival of a flight. Consequently, air passengers’ claims for compensation on the basis of the Flight Compensation Reg. can be pursued before a court at either place at the election of the claimant. However, divergent opinions existed on whether these principles were accordingly applicable in cases in which a journey by air consists of various legs, while the contracting air carrier on the basis of code sharing has engaged an operating air carrier for one of the legs. In such a situation, the question is whether merely the courts at the places of departure and arrival of that particular leg or rather the courts at these places of the air travel in its totality are competent to hear the passenger’s claims against the operating air carrier. In the case at hand, the CJEU answers these as well as various other questions on international jurisdiction in relation to air passengers’ compensation claims under the Flight Compensation Reg.

H. Roth: Agreement of jurisdiction according to Art. 25 Brussels Ia Reg. and ex officio review by national courts

According to German Civil Procedure law, jurisdiction is always reviewed ex officio. Hereby, the Brussels Ia Reg. leaves room for the application of the respective national civil procedure law. According to German Civil Procedure law, the plaintiff has to conclusively present the relevant facts of the case, which are sufficient to establish the international jurisdiction of the court seized. In case of an effective objection by the defendant, the court has to take evidence. The same is true in case of an international trade custom (Art. 25 par. 1 s. 3 lit. c Brussels Ia Reg.). The German Federal Supreme Court’s decision is therefore persuasive not only by its legal outcome but also by its legal reasoning.

V. Lipp: Applicable law to child support when child changes habitual residence

The ECJ case KP./. LO is its very first case on the interpretation of the “Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations”. This “Protocol”, in fact an international convention drafted by the Hague Conference on Private International Law, contains the rules on applicable law to maintenance obligations for all member states of the European Union except Denmark and the UK. The ECJ thus first clarifies the status of the Protocol as secondary law of the EU and its competence to interpret it. It then deals with Art. 4 para. 2 of the Protocol when a child changes its habitual residence and now claims support from a parent for the period before that change took place. The following article discusses these issues in the context of the new regime for international maintenance, both within the EU and outside of it.

J. Antomo: International child abduction or homecoming: HCA caught between the best interests of the child and general prevention

In cases of child abduction, the HCA intends to restore the status quo ante by requiring the return of the child to be ordered forthwith. Judicial authorities in the state where the child is located must order the child’s return, and can only refuse to do so in strictly limited exceptional situations. This principle is based on the assumption that, as a general matter, returning the child to his or her familiar environment is in the child’s best interest. In addition, establishing an expectation that return orders will swiftly issue aims to minimize any incentives for abducting children across borders. However, in cases where the child’s habitual residence frequently changes, it is doubtful whether a return order actually serves the child’s best interests. Nevertheless, the Higher Regional Court of Stuttgart recently ordered the return of two children to Slovakia in a case where the children had only spent six months there, then moved back to their former home country Germany together with their mother. This article evaluates whether in such cases of removal to the former home country the interest of the individual child should take priority over the general preventive objectives of the Convention. The author shows that the stress that HCA procedures impose on children could particularly be reduced by promoting mediation and amicable settlements.

B. Hess: Not a simple footnote: 9/11 litigation in the civil courts of Luxembourg

On 27/3/2019, the Tribunal d’Arrondissement de Luxembourg refused to recognise two default judgments rendered by the U.S. District Court for the Southern District of New York amounting to 2.1 billion USD.2 These judgments had been given in favour of 92 victims of the 9/11 terrorist attacks. The 16 defendants included inter alia the Islamic Republic of Iran, its former heads of state and of government as well as several governmental entities and state enterprises. In a 160 pages judgment, the Luxemburg court held that recognition of the American judgment against the state defendants would amount to a violation of state immunity under customary international law. Referring to the 2012 ICJ’s judgment on state immunity3 the Luxemburg court expressly stated that neither a “terrorists exception” nor a non-commercial tort exception from immunity were applicable to the case at hand. Therefore, state immunity barred the recognition of the judgment. Besides, the court declined recognition with regard to the non-state defendants because their rights of defence had not been sufficiently respected in the original proceedings as (substantial) amendments of the lawsuit had not been served on the defendants. The judgment carefully assesses the current developments of state immunity under customary international law. It is also important for the private international law of the Grand Duchy.

I. Schneider: EIR: The reach of the lex fori concursus in lease agreements for companies with real estate property

In its decision in case 1 Ob 24/18p (21 March 2018) the Supreme Court of Austria dealt with various questions regarding the European Insolvency Regulation (EIR). Unfortunately, the court did not make a final statement on these questions since it was not essential to decide the case. The article attempts to reach a solution for the issues raised in the judgement which still remain unsolved by applying the EIR. That is the interpretation of the term “immoveable property” in Art. 11 para. 1 EIR, the relevance of the choice of law and the scope of the public policy-clause in Art. 33 EIR.

P.A. Nielsen: EU PIL and Denmark 2019

The author explains the reasons for Denmark’s reservation from 1992 towards EU cooperation in civil and commercial matters and its “opt-out” nature as well as the failed attempt in 2015 to change it to an opt-in mechanism identical to the British and Irish reservations. Furthermore, the author examines the existing parallel agreements from 2005 between the EU and Denmark in respect of originally the Brussels I Regulation and the Service Regulation and gives an account of which EU instruments Denmark is bound by.

A. Wohlgemuth: On the International Family Law of Indonesia

Indonesia, domestically equipped with a diversity of laws, that needs internal law allocation, nearly a century after independence, has not yet even codified its Private International Law, the last project of which dates from 2015. Concerning conflict of laws Indonesia is still relying on a handful of rules mostly inherited from the Dutch colonial period. These provisions, for their part, are rooted in the French Civil Code of 1804. International family law, especially on mixed marriages, is covered by the Marriage Law No. 1/1974. The following is a review of the scarce published case law of Indonesian courts and the more comprehensive legal Indonesian literature on the matter.

American Society of International Law’s Dispute Resolution Interest Group will be presenting its 2018-2019 U.S. Supreme Court “International Law” Year in Review. This panel discussion will review decisions from the U.S. Supreme Court’s 2018-2019 term involving issues relating to international law and/or international relations. The discussion will include an in-depth look at the reasoning behind the decisions Republic of Sudan v. Harrison and Jam v. International Finance Corp., and will look at the prospects for several Foreign Sovereign Immunities Act cases granted or pending certiorari for the upcoming 2019-2020 term, among others. Our panelists, comprising some of the leading experts on international law issues, will also explore what these decisions tell us about the current Supreme Court’s views on matters of international interest, as well as the influence the newly appointed Justice Kavanaugh has had on these issues.

Please join us for a lively and interactive discussion and debate.

DETAILS:

Thursday, September 12
6-8pm
ASIL Tillar House, Washington DC

Registration is available here

PANELISTS

Lori Damrosch, Hamilton Fish Professor of International Law and Diplomacy, Columbia Law School

Matthew McGill, Partner, Gibson Dunn LLP

David Stewart, Professor of Law, Georgetown University Law Center

Moderated by

Caroline Edsall Littleton, Jones Day

Jennifer Permesly, Skadden Arps Slate Meagher & Flom LLP

On January 4, 2020, the Conflict of Laws Section of the American Association of Law Schools (AALS) will host a panel at the AALS Annual Meeting in Washington, DC.   Registration is available here.

Sessions Information
January 4, 2020

10:30 am – 12:15 pm

Room: Maryland Suite B
Floor: Lobby Level
Hotel: Washington Marriott Wardman Park Hotel

Description: The biggest development in conflict of laws in the last 100 years is the move to party autonomy. The panel will discuss issues relating to the interpretation and enforcement of choice-of-law clauses, forum selection clauses, and arbitration clauses. It will also discuss the reasons why parties may choose to arbitrate or litigate future disputes at the time of contracting.

Speakers

Moderator: John F. Coyle, University of North Carolina School of Law

Speaker: Pamela Bookman, Fordham Law School

Speaker: Christopher R. Drahozal, University of Kansas School of Law

Speaker: Laura E. Little, Temple University, James E. Beasley School of Law

Speaker: Julian Nyarko, Stanford Law School

In its session in The Hague on 31 August 2019, the Institut de Droit International/Institute of International Law passed two highly relevant resolutions:

Firstly, the resolution on “Internet and the Infringement of Privacy” adopted by the 8th Commission (Rapporteurs: Erik Jayme and Symeon Symeonides) focuses on numerous yet unresolved issues of jurisdiction, applicable law and the enforcement of foreign judgments. For example, the Commission rejects a ‘mosaic’ approach for internet-related tortious claims. Instead, it proposes a “holistic principle” that would allow a person to seek redress for injuries in a single state even if the injuries have occurred or may occur in another state. Moreover, the resolution puts forward a rather sophisticated choice of law rule:

In the absence of a choice-of-law agreement valid under Article 8, the applicable law shall be determined as follows:

1. If the court’s jurisdiction is based on paragraph 1(a) of Article 5, the applicable law shall be the internal law of the forum State.

2. If the court’s jurisdiction is based on paragraph 1(b) of Article 5, the applicable law shall be the internal law of the forum State. However, if, at the time of the injury, the defendant’s home is located in another state, the applicable law shall be the internal law of the state that, considering all the circumstances, has the closest and most significant connection.

3. If the court’s jurisdiction is based on paragraph 1(c) of Article 5, the applicable law shall be the internal law of the forum State. However, if the aggrieved person proves that the critical conduct of the person claimed to be liable occurred in another State, the internal law of the latter State shall govern all substantive issues, provided that the aggrieved person formally requests the application of that law and, upon request by the court, establishes the content of that law.

4. If the court’s jurisdiction is based on paragraph 1(d) of Article 5, the applicable law shall be the internal law of the forum State. However, if the person claimed to be liable proves that the most extensive injurious effects occurred in another State, the internal law of the latter State shall govern all substantive issues, provided that that person formally requests the application of that law and, upon request by the court, establishes the content of that law.

5. If the court’s jurisdiction is based on a valid choice-of-court agreement and that court is located in a State referred to in Article 5, the applicable law is determined as provided in paragraphs 1–4 of Article 7, whichever is applicable. If the court is located in a State other than the States referred to in Article 5, the applicable law shall be the law of the State which, considering all circumstances, has the closest and most significant connection.

Finally, the recognition and enforcement of judgments in line with the resolution’s standards shall be subject to conditions identical to the ones introduced in the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.

Secondly, the 18th Commission’s (Rapporteur: Campbell McLachlan) resolution on “Equality of Parties before International Investment Tribunals” deals with one of the most fundamental elements of the rule of law that ensures a fair system of adjudication. The first part of the resolution tackles issues of party equality at the stage of the establishment of the arbitral tribunal (such as access to a tribunal, the indispensable requirement of impartiality, and the tribunal’s composition), the second part is devoted to equality during the proceedings (e.g., the treatment of multiple claims and counterclaims, rules on pleading and evidence, and costs).

The resolutions can be accessed here.

Arthur Eyffinger, legal historian and former Head Librarian of the International Court of Justice, recently published T.M.C. Asser (1838–1913): In Quest of Liberty, Justice, and Peace (Brill 2019). As the name suggests, the two-volume biography retraces the life of Tobias Asser, who famously won the Nobel Peace Prize in 1911 for his contributions to the field of private international law, including the establishment of the Hague Conference on Private International Law, the initiative to found the Institut de Droit International, and his role in the subsequent creation of the Hague Academy of International Law.

A copy of the book was presented to the great-grandson of Tobias Asser, Professor Daan Asser, yesterday in the context of a mini-symposium co-hosted by the Royal Netherlands Society of International Law (KNVIR) and the Institut de Droit International, which is currently holding its 79th session in the Peace Palace in the Hague. The symposium featured contributions by Marta Pertegás Sender, Janne Nijman, Jean Salmon, Hans van Loon, and the author, Arthur Eyffinger, himself.

Given that the UK Supreme Court has given permission to hear a third appeal concerning collective actions – two of which have direct cross-border relevance (Merricks v MasterCard Inc [2019] EWCA Civ 674; Okpabi and others v Royal Dutch Shell Plc and Shell Petroleum Development Company of Nigeria Ltd [2018] EWCA Civ 191; and Wm Morrisons Supermarkets Plc v Various Claimants [2018] EWCA Civ 2339) – it may be timely to also reflect on the development of border-crossing collective actions considered in a European context.

To this end, Csongor István Nagy (of University of Szeged’s Faculty of Law) has just published an interesting open access monograph with Springer on collective actions in Europe. It is called Collective Actions in Europe – A Comparative, Economic and Transsystemic Analysis and is available at https://ssrn.com/abstract=3440551 .

For those of you who are interested in the case Monasky v. Taglieri currently before the US Supreme Court, please note that an extremely useful amicus curiae brief was filed this week by Reunite International Child Abduction Centre (as stated on its website Reunite is the “leading UK charity specialising in parental child abduction and the movement of children across international borders”).  This brief will certainly help put things into perspective with regard to the weight that should be given to parental intent when determining the habitual residence of the child under the Hague Child Abduction Convention (but it only answers the second question presented).

Other amicus curiae briefs have also been filed this week (incl. the one for the United States, which addresses accurately, in my view, the first question presented with regard to the standard of review of the district court’s determination of habitual residence; such determinations should be reviewed on appeal for clear error – and not de novo, which is more burdensome-). This reasoning is in line with the Balev case of the Canadian Supreme Court (2018 SCC 16, 20 April 2018).

For more information on this case, see my previous post here.

I include some excerpts of the brief of Reunite below (p. 18):

“It can therefore be seen that, while still important, parental intention is not necessarily given greater weight in English and Welsh law than any other factor when determining a child’s habitual residence. Further, the court evaluates parental intention in relation to the nature of the child’s stay in the country in question (by way of example, whether it was for a holiday, or some other temporary purpose, or whether it was intended to be for a longer duration).

“In that way, parental intention is treated as one factor within a broad factual enquiry, rather than as separate and, perhaps, determinative enquiry that precedes or is separate from an evaluation of the child’s circumstances. Within such an enquiry, the factors that are relevant to the habitual residence determination will vary in terms of the weight that they are given depending on the circumstances of the case. Lord Wilson’s judgment in Re B provides an example of how those facts might be weighed up against each other.”

Ms Ana Koprivica Harvey (Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law) recently posted a new paper in the MPILux Research Paper Series, titled Non-Party Access to Court Documents and the Open Justice Principle: The UK Supreme Court Judgment in Cape Intermediate Holdings Ltd v Dring.

Below is an overview provided by the Author:

This article analyses the eagerly awaited the UK Supreme Court judgment in Cape Intermediate Holdings Ltd v Dring, unanimously delivered on 29th July 2019. Broadly speaking, the case concerned the scope and operation of the constitutional principle of open justice. More precisely, the questions before the Supreme Court were how much of the written material placed before a court in a civil action should be accessible to persons other than the parties to the proceedings, and how such access should be facilitated.

Case Background

The documents to which access was sought related to a lengthy trial in product liability proceedings against Cape Intermediate Holdings, a company involved in the manufacture and supply of asbestos. Following the settlement of the proceedings, the Asbestos Victims Support Groups Forum UK (the Forum), which was not a party to the dispute, applied to the court under Rule 5.4C of Civil Procedure Rules (CPR) for access to all documents used at or disclosed for the trial, including trial bundles and transcripts. The relevant Rule 5.4C CPR provides that a person who is not a party to proceedings may obtain from the court records copies of a statement of case and judgment or orders made in public, and, if the court gives permission, ‘obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person’. In first instance, it was held that jurisdiction to grant the order sought existed either under Rule 5.4C or at common law. Following the appeal by Cape, the Court of Appeal limited the originally broad disclosure to the Forum to (i) statements of case held by the court pursuant to Rule 5.4C; (ii) provision by Cape of witness statements, expert reports and written submissions, and (iii) an order that the application for further disclosure be listed before the trial judge or another High Court judge to decide whether any other documents had lost confidentiality and had been read out in court or by the judge, or where inspection by the Forum was necessary to meet the principle of open justice. Neither Cape nor the Forum were satisfied with this decision and decided to bring their appeal and cross-appeal, respectively, before the Supreme Court. In essence, the appeal considered the powers of the court pursuant to the Civil Procedure Rules or its inherent jurisdiction to permit access to documents used in litigation to which the applicant was not a party, and contested the scope of such powers. The Supreme Court unanimously dismissed the appeal and cross-appeal.

Supreme Court Judgment

Notably, the Supreme Court clarified that the scope of the court’s power to order access to materials to non-parties is not informed by “the practical requirements of running a justice system” (referring thereby to the keeping of records of the court, as laid down in Rule 5.4C), but the principle of open justice. In other words, according to the Court, the CPR are not exhaustive of the circumstances in which non-parties could be given access to court documents. On the contrary, they are considered a “minimum in addition to which the court had to exercise its inherent jurisdiction under the constitutional principle of open justice”.

Furthermore, the Court held that pursuant to the open justice principle, the default position – as previously established in Guardian News and Media Ltd – was that the public should be allowed access not only to the parties’ written submissions and arguments, but also to the documents which had been placed before the court and referred to during the hearing.

As there seems no realistic possibility of the judge making a more limited order than the Court of Appeal, the Supreme Court upheld the orders for access already made by the Court of Appeal, with one change. It ordered that the balance of the application be listed before the judge in the original proceedings to determine whether the court should require Cape to provide a copy of any other document placed before the judge and referred to in the course of the trial to the Forum, at the Forum’s expense, in accordance with the principles laid down in the Supreme Court’s judgment.

Assessment

This judgment is significant for at least two reasons. On the one hand, it provides an extensive analysis of the court’s power to allow third parties access to court documents under the constitutional principle of open justice. In so doing, the judgment revisits the contents of the open justice principle and its application in the context of modern, predominantly written-based, civil proceedings. On the other, the judgment provides certain guidance on the circumstances in which a third party may obtain access to court documents and, to some extent, clarifies the type of documents that may in principle be obtained. As a result, the judgment provides broad third party access to the court files that have previously been under the exclusive purview of the court and the parties.

The present article provides an assessment of the Court’s findings, focusing on the interpretation of the open justice principle in relation to non-party access to court documents. In doing so, the article analyses the judgment in both comparative and the internal, UK legal context.

Seen from a comparative law perspective, the present judgment is a reminder of just how drastically different the approaches to the application of the open justice principle may be. In the context of third-party access to documents before courts this is particularly visible. These differences may be explained by the recent practice of exclusive reliance of the UK Supreme Court on the common law principle of open justice where non-party access to court documents is concerned. In other words, it is argued that, by employing the “common law exclusivity” approach, the Supreme Court has over time further developed the principle of open justice which has come to encompass a broader non-party access to court documents.

Observed within a broader context of the developments within the UK judicial system, the Supreme Court judgment may be understood as a reaction to the increasingly expressed concerns regarding the privatisation of civil justice. This is all the relevant so given the fact that the case at hand was settled out of court before the open judgment could be rendered. From a practitioner’s point of view, the judgment may potentially influence the parties and their counsels’ decision as to the type and number of documents they wish to file in a given case.

It is concluded that the Supreme Court judgment represents a point of departure for future applications for access to court documents. The judgment is not the end of the road, neither for the parties to the present dispute, nor with regard to future applications for access to documents. For the purposes of Cape Intermediate Holdings v Dring, the judgment requires the High Court to now consider whether further access should be granted pursuant to the open justice principle as interpreted by the Supreme Court. It remains to be seen how the High Court will now decide this case.

The upcoming issue of the Zeitschrift für Vergleichende Rechtswissenschaft (German Journal of Comparative Law; Vol. 118 [2019], No. 3) features the following contributions:

40 Years Convention on the International Sale of Goods (CISG) – Even More Important Today than 40 Years Ago to Encourage Trade?

Petra Butler[1]

ZVglRWiss 118 (2019) 231–256

Taking note of the United Nations Convention on Contracts for the International Sale of Good’s (CISG) upcoming 40-year anniversary the article discusses its success in light of empirical research into the contractual behaviour of small and medium-sized enterprises. The article argues that given the way small and medium-sized businesses manage their dispute resolution risk when contracting cross-border, the CISG is needed today more than ever before.

Anbahnung, Abschluss und Durchführung von Smart Contracts im Rechtsvergleich

Francesco A. Schurr

ZVglRWiss 118 (2019) 257–284

In Germany and worldwide the Smart Contract is a legitimate form that can be used to conclude and to exercise contracts. Due to the enormous relevance in all the world, it seems to be essential to use the method of legal comparison in this field. This seems to be important in order to distinguish the Smart Contract from the Distributed Ledger Technology (DLT) in general and more specifically the Blockchain. The comparative analysis of the paper shows, that the fundamental aspects of the Smart Contract, therefore the immutability, the self-enforcement and the unlimitedness, are understood differently in the various legal cultures. Still there seem to be good reasons to assume, that software algorithms will change the contractual landscape in the future: maybe one day a contractual link will be feasible without law and this link will be allocated in a global space without national boundaries. The paper shows that the national law of the respective applicable jurisdiction, that is expressed in a natural language and not in a Code, is still essential. Without that, the features of a contractual relationship and the resulting rights cannot be determined. The most recent legislative initiatives in Italy and Liechtenstein can serve as examples for the future legal development in Europe.

Is the Law Ready to Face the Progressing Digital Revolution? – General Policy Issues and Selected Aspects in the Realm of Financial Markets from the International, European Union and German Perspective

Gudula Deipenbrock[2]

ZVglRWiss 118 (2019) 285–313

The progressing digital revolution is in full swing. It dramatically transforms economies, societies and law. To financial markets, cross-border business, opaque interconnections and rapid transformation are nothing new. It is however the accelerated high-speed growth of technical complexity and advanced levels of digitalisation that force financial markets actors in an unprecedented way to adjust to it. But is the law or – more specifically – are policy makers, legislators, and particularly regulators and supervisors ready to face the manifestations of the progressing digital revolution particularly in financial markets? Such readiness to respond entails at the outset to generally define and critically assess which policies are suitable and shall be pursued in finding adequate legal answers. This paper aims to contribute to this discussion. The paper concludes that the law plays a core part in framing, channelling, structuring and monitoring the progressing digital revolution in financial markets.

Grenzüberschreitende Musterfeststellungsklagen

Simon Horn

ZVglRWiss 118 (2019) 314–340

The paper discusses under which conditions the German Model Declaratory Action allows international participation. The interaction of Sec. 606 et seqq. of the German Code of Civil Procedure and the Brussels Ibis Regulation (Regulation (EU) No 1215/ 2012) provides various possibilities for cross-border Model Declaratory Actions and generally allows international participation in all roles. However, as the Brussels Ibis Regulation is not suited for collective redress mechanisms and the Model Declaratory Action has been drafted from a strictly national perspective without sufficiently considering the problems arising from international participation, cross-border Model Declaratory Actions are a challenge for both German civil procedure and European conflict of jurisdiction rules.

[1] Professor Dr. Petra Butler, Victoria University of Wellington and Director Institute of Small and Micro States. – I am indebted to Chris Nixon, senior analyst (NZIER), Hanneke van Oeveren and Georgia Whelan (both former students at Victoria University Faculty of Law) for the vital empirical research they have done underlying this paper and my enthusiastic colleagues and fellow MSME researchers in Spain, Canada, Singapore, Hong Kong, Belgium, Australia, and the UK (see www.msmejustice.com). I would also like to thank my colleagues at the Max-Planck-Institute for International, European, and Regulatory Procedural Law for providing me with a stimulating and supportive research environment. The article is partly based on a paper delivered at the “The CISG as Middle Age” conference at the University of Pittsburgh in March 2019.

[2] Prof. Dr. iur. Gudula Deipenbrock, Professorin für Wirtschaftsrecht, HTW Berlin, University of Applied Sciences, Germany, and Associate Research Fellow 2018/2019 at Institute of Advanced Legal Studies (IALS), University of London, UK. The author gave talks on selected aspects of preliminary versions of this paper at HTW Berlin, University of Applied Sciences, Germany, on 16 November 2018, and at Institute of Advanced Legal Studies (IALS), University of London, UK, on 26 February 2019.

The Permanent Bureau of the HCCH has just announced that the programme for the first global conference on the newly adopted HCCH Judgments Convention is now available via: <http://www.hcchjudgmentshk.org/programme.php> with registrations are now also open.

As previously posted, the conference will take place on 9 September 2019 in Hong Kong SAR, People’s Republic of China. It is open to interested experts with participation free of charge. However, advance registration is required as the number of participants is limited. Registrations are handled on a first come, first served basis.

The deadline for registration is Saturday 31 August 2019.

Additional information relating to the Conference (incl. venue, accommodation, transportation, visa requirements, and other practical information) is also now available on the Conference website. Interested experts may consult this site regularly for more updates as they become available.

Dr Burcu Yüksel (University of Aberdeen, Scotland) and Dr Florian Heindler (Sigmund Freud University, Austria) have written a post for the Aberdeen Law School’s blog exploring what blockchain/distributed ledger technology can offer to enhance cross-border legal cooperation, particularly in the context of the Hague conventions. The full text is available here.

Benedikt Windau, Judge at the Oldenburg District Court (Landgericht Oldenburg), runs a very interesting blog (in German), focusing on German Civil Procedure. In one of his recent postings, he presented a very interesting judgment of the Frankfurt CoA, related to the Service Regulation. Upon my request, he prepared an English version of his post for our blog.

Benedikt Windau, Judge at the Oldenburg District Court (Landgericht Oldenburg),

author of the German zpoblog

A recent ruling of the Frankfurt Court of Appeals (Docket No. 13 U 210/17) will potentially shake up the (German) law of cross-border service quite a bit, as it imposes new, hence unknown obligations on the plaintiff – and its legal counsel accordingly.

THE FACTS

The plaintiff, a German insolvency administrator, sued the defendant, who is located in France, before the Darmstadt district court (Landgericht). The statement of claim arrived at the court on December 15, 2015; the period of limitation ended on December 31, 2015 (at least that is what the district court and the court of appeals assumed).

In the statement of claim he asked for it to be translated by the court on his costs into French before being served upon the defendant. Yet the court could not find a translator for quite a period of time (yes, that French quite frequently spoken in the EU…) and thus the statement of claim was not translated before October 24, 2016. It was finally served on December 9, 2016.

German law provides, that the limitation period is suspended by inter alia the bringing of an action for performance (Sec. 204 (1) No. 1 German Civil Code). It furthermore provides that if service is made in order to have the period of limitations suspended in this respect, the receipt of the corresponding application or declaration by the court shall already have this effect provided service is made “demnächst” (Sec. 167 Code of Civil Procedure). “Demnächst” (which means something like “soon” or “in the near future”), in this respect is roughly understood as “not with undue delay caused by the plaintiff”.

The district court considered the service to be “demnächst”, as the court, not the plaintiff was to be blamed for the delay. It thus held that the service in December 2016 suspended the period of limitations despite the fact that almost a year passed between the ending of the period of limitation and the service.

THE RULING

On the defendant’s appeal, the Frankfurt Court of Appeal held that the period of limitations was not suspended retroactively and thus dismissed the claim.

It first discusses whether there is an absolute time limit to “demnächst” that might have been exceeded in this case. But according to the court, this need not be decided, as there was undue delay caused by the plaintiff.

The court states, that under the Service Regulation (Regulation (EC) No. 1393/2007) documents do not have to be translated before being served. Without translation the addressee is protected by its right to refuse acceptance of the document (Art. 5, 8 Service Regulation). Furthermore, a translation under the Service Regulation need not comply with any requirements regarding its form and thus could be provided by the parties.

It then argues that according to Art. 5 (1) Service Regulation it had been upon the plaintiff to decide whether the statement of claim would be translated prior to service. So, if the plaintiff here chose the statement of claim to be translated, it would have been upon him to provide a translation along with the statement of claim. Had he done so, the statement would probably have been served within six weeks, thus not later than February 2016. Under these circumstances, the service in December 2016 could not be seen as “demnächst”.

COMMENTS

1. The Court of Appeals is absolutely right in stating the obvious (but widely quite unknown), that  a) documents do not have to be translated under the Service Regulation, and  b) the translation can be provided by the plaintiff as there is no certain form required (just as under the Hague Service Convention).

The defendant is sufficiently protected by his right to refuse acceptance of service (Art. 8 Service Regulation) – and by Art. 45 (1) lit. (b) of the Brussels I bis Regulation, if the quality of the translation is insufficient.

2. Thus the plaintiff could (and maybe should) have chosen the statement of claims to be served without translation in the first place, which would have been faster and probably cheaper. Had the defendant then refused to accept the service, he could still have provided a translation (or asked the court to provide a translation) and this service would still have suspended the period of limitations (see Art. 8 (3) Service Regulation). Alternatively, he could have proven that the defendant does in fact understand the language of the document and therefore the refusal of acceptance was without justification. That would make the statement of claim deemed to be served under German Law (see Sec. 179 Code of Civil Procedure).

3. However I’m not convinced, that under German Law a plaintiff is obliged to provide a translation himself for purposes of cross-border-service, even more so without an explicit request by the court (cf. Sec. 139 Code of Civil Procedure). Such an obligation is neither provided for in the ZRHO (“Rechtshilfeordnung für Zivilsachen”, the German administrative regulation governing inter alia cross-border-service), nor can such an obligation be found in the Service Regulation, especially in light of the wording in Art. 5 (2).

4. Plaintiffs’ counsel will now often find themselves “lost in translation”: On the one hand the Frankfurt Court of Appeals‘ judgment requires the parties to provide translations themselves. On the other hand, the parties‘ right to provide translations themselves may be unkonwn to some courts and therefore require some discussions. A little help in these discussions may be an article by Dr. Philine Fabig (and myself) in the Neue Juristische Wochenschrift (NJW 2017, 2502 et seq.).

OUTLOOK

The only good news is that the plaintiff appealed the judgement; the case is now pending before the Federal Court of Justice (Bundesgerichtshof) under Docket-No. IX ZR 156/19. So maybe the Bundesgerichtshof will find some final and fog-lifting words on the subject.

A half-day Conference at the Max Planck Institute in Hamburg, jointly convened by Ralf Michaels (Max Planck) and Verónica Ruiz Abou-Nigm (Edinburgh) will look at the (renewed) role of academia in Latin American Private International Law. Participants will come from several Latin American countries, as well as from the Institute.
More information and the program are here. The conference takes place on September 10, 13:00-17:30. Registrations by email at veranstaltungen@mpipriv.de

Carlos Santaló Goris, researcher at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law, and Ph.D. candidate at the University of Luxembourg, offers a summary and an analysis of AG Spuznar’s Opinion on the Case C-555/18, K.H.K. v. B.A.C., E.E.K.

I. Introduction

Less than three years after Regulation 655/2014 establishing a European Account Preservation Order (“the EAPO Regulation”) entered into force, the Court of Justice of the European Union (“CJEU”) released its first Opinion on this instrument. This regulation established a uniform provisional measure at the European level, which permits creditors the attachment of bank accounts in cross-border pecuniary claims. In many senses, the EAPO regulation represents a huge step forward, particularly in comparison to the ex-ante scenario regarding civil provisional measures in the Area of Freedom, Security and Justice.  It is no accident that in the first line of the Opinion, AG Szpunar refers to the landmark case Denilauler.  Besides the concrete assessment of the preliminary reference, he found a chance in this case to broadly analyse the EAPO Regulation as such, contextualizing it within the general framework of the Brussels system.

II. Facts of case

The main facts of this case were substantiated before the First Instance Court of Sofia (Bulgaria). Upon the request of a creditor, this court granted a national order for payment against two debtors. The order for payment was sent to the debtors’ domicile as it appeared in the national population register. Since the notification was returned without an acknowledgment of receipt, the debtors were also informed by the posting of a public notice on the door of their “official” domicile. They did not respond to this notification either. In accordance with Bulgarian law, in such occasions, if the creditor does not initiate  declaratory proceedings on the substance of the case to ascertain the existence of a debt, any order for payment would be annulled o. In the present case, before proceeding in that manner, the creditor requested an European Account Preservation Order  (“EAPO“)  before the First Instance Court of Sofia, to freeze the debtors’ bank accounts in Sweden. This court informed the creditor that he must initiate declaratory proceedings in order to avoid the nullification of the payment order. In the court’s view, since the order for payment was not yet enforceable, it could not be considered an authentic instrument. Therefore, based on Article 5(1) of the EAPO, the creditor had to initiate the declaratory proceedings on which he would rely on when applying for the EAPO. Conversely, the President of Second Civil Section of the same court considered that the non-enforceable order for payment was an authentic instrument pursuant to Article 4(10), and thus there was no need for separate proceedings. These different understandings of the regulation led the First Instance Court of Sofia  to refer the following questions to the CJEU:

1. Is a payment order for a monetary claim under Article 410 of the Grazhdanski protsesualen kodeks (Bulgarian Civil Procedure Code; GPK) which has not yet acquired the force of res judicata an authentic instrument within the meaning of Article 4(10) of Regulation (EU) No 655/2014 1 of the European Parliament and of the Council of 15 May 2014?

2. If a payment order under Article 410 GPK is not an authentic instrument, must separate proceedings in accordance with Article 5(a) of Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 be initiated by application outside the proceedings under Article 410 GPK?

3. If a payment order under Article 410 GPK is an authentic instrument, must the court issue its decision within the period laid down in Article 18(1) of Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 if a provision of national law states that periods are suspended during judicial vacations?

III. “Fitting in” in the autonomous concept of authentic instrument

Firstly, AG Szpunar examined if the payment order fell within the autonomous concept of ‘authentic instrument’. Article 4(10) of the EAPO Regulation establish three prerequisites that a document has to satisfy in order to be considered an authentic instrument: (1) it has to be an authentic instrument in a Member State; (2) the authenticity relates to the signature and the content of the instrument; (3) the authenticity has been established by a public authority or other authority empowered for that purpose.

The AG stated that, whereas the first and the third prerequisites were duly satisfied, the second condition, concerning the authenticity of the content, was not fulfilled. Under Bulgarian law, when creditors apply for a payment order, they do not have to provide the court with any documentary evidence, they simply indicate the basis of their claim and the amount  due. Therefore, the judge who grants a  preservation order is merely confirming the obligation to pay a debt, but without “authenticating” the content of that obligation. Consequently, in the  AG’s view, the order for payment would not be an authentic instrument under the regulation. Obiter dictum, he considered the payment order to be a judgment under the EAPO Regulation (at para. 46).

IV. Enforceable or not enforceable, that is the question

Retaking and reformulating the original question, AG Szpunar proceeded to analyse if  titles other than authentic instruments (e.g. judgments and court settlements), are enforceable for the purposes of the EAPO Regulation (at para. 59). This question is not superfluous. As AG Szpunar remarked, the EAPO Regulation establishes two different regimes: one for creditors without a title, and one for creditors with a title. Creditors who lack a title are subject to stricter conditions when they apply for an EAPO (at para. 53). They have to prove their likelihood of success on the substance of the claim (art. 7.2), and the provision of a security becomes mandatory, unless the court decides to dispense of this requirement if it finds it inappropriate in the particular circumstances of the case (art. 12.1).  Furthermore, the court has ten days to render the decision on the EAPO application (art. 18.1), instead of the five working days when the creditor has a title (art. 18.2).

Regarding  this question, the European Commission suggested examining whether “enforceability” as a prerequisite for other titles is present under different European civil procedural instruments, particularly in regards to the European Enforcement Order Regulation (“EEO Regulation”), the Maintenance Regulation, and the Brussels I bis Regulation (at para. 51).  AG Szpunar declined  drawing any comparisons with  other regulations due to the “provisional” nature of the EAPO Regulation. These other instruments are mainly focus on facilitating the enforcement of final decisions on the substance of a  claim, thus, the concept of title would have a different understanding (at para.  51). On this basis, AG Szpunar considered  it  more appropriate to elaborate an “individualized” analysis of the EAPO Regulation and proceeded with a literal, systemic,  historical and teleological interpretation of this instrument:

• In the literal and systemic analysis, AG Szpunar found several provisions referring to the different types of title. In particular, he referred to Article 6 (jurisdiction); Article 7 (material prerequisites); Article 12 (security); Article 14 (information mechanism); and Article 18 (time-limits to render the decision on the EAPO application) (at paras. 55 – 59).  None of these provisions, except Article 14(1),  specify whether the title has to be enforceable or not. Article 14(1) is the sole provision which distinguishes between enforceable and non-enforceable titles. This provision contains the prerequisites that creditors have to satisfy if they want to request information on debtors’ bank accounts. Creditors with a non-enforceable title can apply for bank account information, but under a stricter regime than those who have an enforceable title (at para. 64). AG Szpunar considered that this is an exception, in which creditors without an enforceable title are recognized. For the other cases, these creditors would be placed under the same status as creditors without any kind of title (at para. 66).
• The historical interpretation was based on the Commission Proposal of the EAPO Regulation (at paras. 74 -79). This text still operated under an exequatur Unlike the current version of the EAPO Regulation, it systematically distinguished between two different regimes, one applied to creditors without an enforceable title or a title enforceable in the Member State of origin; another applied to creditors whose titles were already declared enforceable in the Member State of enforcement. Within the first regime, there were also differences between creditors with an enforceable title and creditors without. Creditors with an enforceable title did not have to prove the boni fumus iuris. After the Council reviewed the Commission Proposal, the exequatur was removed along with the distinction between enforceable title in the Member State of origin and in the Member State of enforcement. In AG Szpunar’s view, both “enforceable” titles would then have been subsumed into the more generic term of “title”, which did not expressly refer to the enforceability (at para. 79).
• Perhaps the strongest point of the AG’s Opinion was the teleological argument. In AG Szpunar’s view, including non-enforceable titles within the concept of title would impair the balance between the claimants’ and defendants’ rights (at para. 68). As  stated above, creditors with a title do not have to prove the existence of the boni fumus iuri. This barrier is also a prevention against fraudulent requests of an EAPO. An enlargement of the concept of title would facilitate access to the EAPO, undermining one of the protections against abusive behaviour.

Based on the above reasoning, AG Szpunar concluded that any title for the purposes of the EAPO has to be enforceable.

V. Beyond the preliminary reference: casting light on the EAPO Regulation

The preliminary reference made by the Bulgarian court is a good example of the problems that might arise out of the intersection between domestic procedural law and the uniform procedural rules of the EAPO Regulation. Indeed, observing the questions, they implicitly require a certain analysis (and interpretation) of the domestic procedural system, an inquiry that is not for the CJEU to carry out. This might also be  one the reasons why AG Szpunar opted for a more general interpretation of the EAPO Regulation, especially in the second part of the Opinion. It is in this more general overview where we can find the most interesting insights of his analysis. There are three relevant points that I would like to highlight:

• The first one is the distinction made between the EAPO Regulation and other civil procedural instruments based on its provisional nature. Indeed, this is the very first uniform provisional measure at European level, whereas the other instruments to which AG Szpunar referred are mainly focused on the recognition and enforcement decisions of the merits of a claim (with the exception of some jurisdictional rules on provisional measures). One might speculate that, eventually, the CJEU might adopt a different interpretation of the EAPO Regulation, taking into account elements that it shares with other civil procedural instruments.
• The second point is on the dividing line between the two regimes existing within the EAPO Regulation. The bulk of AG Szpunar’s analysis focused on the distinction between the two different regimes implicitly reflected in the EAPO Regulation. This question is fundamental, not only for creditors who might have to satisfy different prerequisites when they apply for an EAPO, but also for the debtors. Neither the systemic nor the literal interpretation of the regulation seem conclusive. Only in the Spanish version is it mentioned that the authentic instruments have to be enforceable (“documento público con fuerza ejecutiva”). Nonetheless, it seems to have been erroneously transposed from the EEO Regulation. The historical interpretation could lead to different conclusions. The suppression of an express reference to the “enforceability” of the title in the final version of the EAPO Regulation could also be understood as the willingness of the European legislator to include non-enforceable titles. Thus, it seems that the only decisive interpretative tool was the teleological one, which leads to the third and final point.
• The last point relates to a pro-defendant interpretation of the EAPO Regulation. By restricting the most lenient regime to those creditors with an enforceable title, the regulation indirectly protects the defendant’s position or at least, maintains the status quo between both parties. From the debtor’s perspective, the EAPO Regulation could be perceived as too “aggressive”. Some authors have labelled it as too “creditor-friendly” and this was one of the grounds raised by the United Kingdom when they refused to opt-in to the EAPO Regulation. Despite all the safeguards given to the debtor, this criticism does not come without reason. The regulation operates inaudita altera parte, so debtors can only contest the EAPO once it is already enforced. The fumus boni iuris discourages abusive and fraudulent behaviour. For that reason, a broad interpretation of “title”, encompassing those that are non-enforceable, would allow more creditors to circumvent this prerequisite. In this respect, the AG’s approach attempts to maintain the existing fragile equilibrium between both parties.

It is unlikely that in the final judgement the CJEU will reproduce AG Szpunar’s extensive analysis of the EAPO Regulation. Nevertheless, this is a good starting point for an instrument that provokes plenty of inquiries and, for the time being, has seen little application by domestic courts.  This will not be the last time that an Advocate General confronts a preliminary reference concerning the EAPO Regulation.

The Permanent Bureau is seeking a qualified person to fill a full-time position (40 hours) as Administrative Assistant (legal). For more information, see here.

As indicated in the announcement, “the successful applicant will provide administrative support in English and French, including drafting, formatting, and reviewing legal and other documents as well as day-to-day correspondence, assisting with the co-ordination and advancement of various HCCH projects, updating the HCCH’s databases, answering the telephone and door, and providing general assistance during international meetings held by the HCCH,” among other things.

The Permanent Bureau offers a two-year contract with the possibility of renewal.  This is a local recruitment.

The deadline for applications is 19 August 2019.

While this is not strictly a legal job, it may be of interest to some of our readers.

Forty-six countries have signed up to the United Nations Convention on International Settlement Agreements Resulting from Mediation (“Singapore Convention on Mediation”) today. The signatory countries included Singapore, China, India, South Korea and the USA. The Convention, which was adopted by the UN General Assembly in December 2018, facilitates the cross-border enforcement of international commercial settlement agreements reached through mediation. It complements existing international dispute resolution enforcement frameworks in arbitration (the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards) and litigation (the Hague Convention on Choice of Court Agreements and the recently concluded Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters).  Article 1(3) of the Singapore Convention carves out settlement agreements which may fall within the scope of these other instruments to avoid an overlap. The Convention does not prescribe the mode of enforcement, but leaves it to each Contracting State to do so “in accordance with its rules of procedure and under the conditions laid down in this Convention” (Article 3(1)). Formal requirements to evidence the settlement agreement are specified although the competent authority in the state of enforcement is also granted flexibility to accept any other evidence acceptable to it (Article 4). The settlement agreement may only be refused enforcement under one of the grounds listed in Article 5. These grounds include the incapacity of a party to the settlement agreement, the settlement agreement is null and void under its applicable law and breaches of mediation standards. Only two reservations are permitted: one relating to settlement agreements to which a government entity is a party and the other relating to opt-in agreements whereby the Convention applies only to the extent that the parties to the settlement agreement have agreed to the application of the Convention (Article 8).

While mediation currently commands a much smaller slice of the international dispute resolution mode pie compared to arbitration or litigation, some countries are making concerted efforts to promote mediation. To that end, the Singapore Convention will assist to increase mediation’s popularity among litigants in international commercial disputes.