EAPIL blog

On 19 and 20 October 2023, the Academic Research Federation “Europe in Change” (University of Strasbourg) is organising a Symposium on Reparation for “Crimes of the Past” (Réparer les “crimes du passé) under the scientific coordination of Bénédicte Girard, Etienne Muller and Delphine Porcheron. The event will be held in French.

A number of presentations will focus on private international law issues, in particular international litigation on public and private liability (e.g., State immunity and private compensation).

Mass crimes, deportations, spoliations, colonial exploitation, slavery… The “crimes of the past” are first known as historical facts. Their protagonists have mostly disappeared; they have been documented by historians; almost all of them are mentioned in school textbooks. They have become part of our collective memory as disastrous episodes of a bygone past.

And yet, decades later, claims for reparation are initiated. Individuals and groups who have been materially, socially or psychologically affected by these events are turning to justice. They expect not just symbolic recognition, but genuine reparation for their losses, compensation for their suffering, and restoration of their social status.

But are State courts capable of responding appropriately to these claims? Are the law and litigation practice capable of delivering justice? What other institutional mechanisms can be implemented to this end?

These are the questions that the speakers at this symposium will attempt to answer, combining legal, historical and philosophical approaches by looking successively at “Jurisdictional avenues of reparation” (Part I) and “Alternative avenues of reparation” (Part II).

The list of speakers and chairpersons includes : Magalie Bessone, Jean-Sébastien Borghetti, Nicolas Chifflot, Marc Del Grande, Peggy Ducoulombier, Gabriel Eckert, Michel Erpelding, Etienne Farnoux, Samuel Fulli-Lemaire, Antoine Garapon, Bénédicte Girard, Patrick Kinsch, Marc Mignot, Horatia Muir-Watt, Etienne Muller, Dorothée Perrouin-Verbe, Delphine Porcheron, Thibault de Ravel d’Esclapon, Mathieu Soula, Jeanne-Marie Tufféry-Andrieu, Patrick Wachsmann.

For registration and more information, see here. The full programme is available here.

This post is not about Article 6 Rome I, but about Article 6 of the Unfair Terms Directive (UTD). Paragraph 2 of this provision invalidates any choice of law of a non-EU Member State that would result in the consumer losing the protection afforded by the UTD, provided there is a ‘close connection with the territory of the Member States’.

There have been similar conflict-of-laws provisions hidden in secondary EU legislation outside the Rome I Regulation. They have however been increasingly eliminated from EU law, leading Felix Wilke to speak about their ‘silent death’.  Not so Article 6(2) UTD, which has neither died nor been amended since the Directive’s adoption in 1993.

What is the precise scope and operation of this provision? This issue became relevant in a recent decision by the CJEU in the Lyoness case (8 June 2023, Case C-455/21). A Romanian resident had entered over the internet into a membership contract with a Swiss company, providing him with certain benefits such as refunds when shopping with companies associated to the scheme. The contract was not connected to his profession as a mechanical engineer.

In the end, the contract turned out to be not so favourable after all. The Romanian resident therefore brought an action in a court in his home country, seeking a declaration that some of its terms are ‘unfair’ within the meaning of the Romanian law transposing the UTD. The Romanian court referred a request for a preliminary ruling to the CJEU concerning the substantive scope of the Directive, in particular the notion of the ‘consumer’.

Before answering the question referred, the CJEU discusses as a ‘preliminary point’ whether the case falls within the geographical scope of the Directive (paras 37–45). This was not self-evident because the membership contract contained a choice of Swiss law. Yet the CJEU overcomes these doubts by referring to Article 6(2) UTD (and also to Article 6(2) Rome I, which however does not play any role in the rest of the decision) (para 39).

Then, the CJEU derives a most remarkable conclusion from Article 6(2) UTD: where a contractual clause designates the law of a third country as applicable and the consumer has his or her habitual residence in a Member State, the national court must apply the provisions transposing the UTD into the legal order of that Member State (para 45). Taken literally, this would mean that the provision on unfair terms of their country of residence protects EU consumers everywhere. It would cover them like a shield they carry, even when they become ‘active consumers’ and go to a third country to acquire products and services there.

Evidently, this goes too far. The CJEU neglects that Article 6(2) UTD is conditioned on ‘a close connection with the territory of the Member States’. This may be a slip of the hand. Yet this condition is itself problematic because its formulated very vaguely, especially in comparison to the much more precise criteria provided later by the Rome I Regulation.

The rather obvious solution to this problem would be to interpret this connection in line with Article 6 Rome I, especially its para 1 and 4(a). The CJEU and the European Commission, however, think otherwise. They suggest Article 6(2) UTD would grant consumers extra protection because the conditions of its application would be broader than that of Article 6 Rome I or its forerunner, Article 5 of the Rome Convention (see CJEU, Commission v Spain, Case C-70/03, para 33; European Commission, Guidance on the Interpretation and Application of the UTD, para 1.2.5). But just how broad is this protection?

Member States have identified additional cases in which unfair terms control could apply beyond those mentioned in the Rome I Regulation, e.g. where the contract was concluded on their territory (see Article L231-1 French Code de la consommation), or where the contract concerns domestic immovable property (Article 78(4) Italian Codice del consumo; Article 3 Spanish Ley 7/1998, de 13 de abril, sobre condiciones generales de la contratación). Some Member States require a comparison with the law that would be applicable in the absence of a choice of law (§ 13a Austrian Konsumentenschutzgesetz), while still others presume a close connection would exist in the cases mentioned in Article 6 Rome I, yet leave open the application to other cases (see Article 46b German EGBGB).

This situation is messy. EU consumers will not be protected in the same way, but depending on the court in which they sue. This creates divergences in the level of consumer protection, opens up opportunities for forum shopping, and makes the applicable law unforeseeable.

A specific conflict-of-laws rule in the UTD is unnecessary. The main protective purpose of Article 6(2) UTD was achieved by introducing the EU-wide uniform Article 6(2) Rome I. A further protection may even do more harm than good because it makes the international scope of the UTD dependent on Member States’ implementation. The gain in consumer protection is negligible when weighed against the legal uncertainty caused. Article 6(2) UTD has outlived its usefulness and should be abolished. In the meantime, it should be interpreted in line with the criteria laid down for the international application of EU consumer law in Article 6 Rome I to avoid divergences between national laws as far as possible.

One more general remark: mandatory rules on the scope as well as overriding mandatory rules in special EU acts risk undermining the uniformity of conflicts rules and the foreseeability of the applicable law. A further important drawback of such rules is that they only protect EU-residents and not those of third states, which fuels ‘EU unilateralism’ and breaks with the universalism of EU PIL. If the conflict rules are insufficient, the way to go is to amend them and not to add unilateral conflicts provisions hidden in substantive rules.

— Many thanks to Emeric Prévost, Felix Wilke, Verena Wodniansky-Wildenfeld, Felix Krysa and Paul Eichmüller for helpful comments.

On 21 September 2023 at 17 CET Lex&Forum, in collaboration with Εκδοσεισ Σακκουλα – Sakkoulas Publications, will be holding an online day conference titled Environmental claims in Private International Law.

The webinar aims to shed light on the intersection between environmental claims and private international law.

Charis Pamboukis (Law School of the National and Kapodistrian University of Athens) will chair. Speakers include: Geert Van Calster (KU Leuven), Climate justice litigation and private international law; Ioannis Revolidis (University of Malta), Collective redress in environmental matters: outlooks through the Volkswagen litigation saga; Komninos Komnios (International Hellenic University, Plenary of the Greek Regulatory Authority for Energy (RAE)), The ‘Climate Trial’: Procedural Issues; Elina Moustaira (Law School of the National and Kapodistrian University of Athens (EKPA)), Environmental claims in cross-border insolvency; Vasiliki Marazopoulou (PhD, Lawyer), Climate Change Resolution of Disputes: Identifying Legislative and Regulatory tools in international commercial arbitration.

Registration is free and open until 20 September 2023 at 11 CET.

In order to register for the webinar, click here.

For further information, see here.

The European Association of Private International Law, together with the Department of Law, Economics and Cultures of the University of Insubria (Italy), with the Law Faculty of the University of Murcia (Spain) and the Law Faculty of the Jagiellonian University in Kraków (Poland), is organising the first EAPIL Winter School. This inaugural edition will be devoted to Personal Status and Family Relationships.  

The Winter School will be held on-site in Como, in the wonderful cloister of the Basilica di Sant’Abbondio, from 12 to 16 February 2024. 

The lectures will address recent aspects and new trends regarding personal status and family relationships in cross-border situations. The following topics, among others, will be discussed: the principle of mutual recognition, to the transnational safeguard of human rights in Europe, to the continuity of the status cross-border. Both Hague conventions and EU legislative measures will be examined, under an approach combining theory and practice, and making ample room for interaction with the attendees. 

The lecturers are academics, magistrates and practising lawyers. Among them: Paula Poretti and Mirela Župan (J.J. Strossmayer University of Osijek), Anna Wysocka-Bar (Jagiellonian University in Kraków), Laura Carpaneto (University of Genova), Cristina González Beilfuss (University of Barcelona), Etienne Pataut (University Paris 1 Sorbonne), Javier Carrascosa González (University of Murcia), Silvia Marino (University of Insubria).

The Winter School is aimed at PhD students, young scholars, young practitioners and EU private international lovers!

Participation in the Winter School will additionally provide an opportunity to get in touch with colleagues from all over Europe, make new friends and enjoy the Como Lake! 

The final programme of the Winter School will be available shortly.

For information, please write an e-mail to Silvia Marino at silvia.marino@uninsubria.it.

The recently published Volume 428 of the Collected Courses of the Hague Academy of International Law includes a course by Mario J. A. Oyarzábal (Argentine Ambassador to the Netherlands, Member of the United Nations International Law Commission, Professor at the University of La Plata Law School) on The Influence of Public International Law upon Private International Law in History and Theory and in the Formation and Application of the Law.

This course explores the influence of public international law upon private international law, in the history and the theory as well as in the formation and the application of the law. It focuses on the biggest transformations that have taken place on the international plane over the course of the last century and assesses how that has affected the legal landscape, raising questions as to the scope and the potential of private international law and the suitability of the traditional sources of international law to address the role of private actors and the incursion of public law in the private arena. Examples are drawn from the areas of jurisdictional immunities and their impact on the right of access to justice, mutual legal assistance, sovereign debt restructuring, child protection, sports, arts law, cyberspace, and issues related to law of the sea and climate change. This course takes a pragmatic problem-solving approach, which nonetheless is systemic and based on principles, and argues that while public and private international law are and should be kept as separate legal fields, both are needed to address an increasing number of issues.

Further details about this course are available here.

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. The table of contents is available here. The following abstracts have been kindly provided to us by the editor of the journal.

C. Budzikiewicz/K. Duden/A. Dutta/T. Helms/C. Mayer, The European Commission’s Parenthood Proposal – Comments of the Marburg Group

The Marburg Group – a group of German private international law scholars – reviewed the European Commission’s Proposal for a Council Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood. The Group welcomes the initiative of the Commission and embraces the overall structure of the Parenthood Proposal. Nevertheless, it suggests some fundamental changes, apart from technical amendments. The full article-by-article comments of the Group with redrafting suggestions for the Commission Proposal are available at http://www.marburg-group.de. Building on the comments, the present article authored by the members of the Marburg Group focuses on the main points of critique and considers the present state of discussion on the proposed Regulation.

U.P. Gruber, A plea against ex post-adaptation of spousal inheritance rights

Adaptation is recognized as a tool to eliminate the lack of coordination between the provisions of substantive law derived from different legal systems. According to a widespread view, adaption is very often necessary with regard to the spouse’s share in the deceased’s estate, namely if the matrimonial property regime and questions relating to succession are governed by different laws. However, in this article, the author takes the opposite view. Especially in light of the ECJ’s classification of paragraph 1371(1) BGB as a provision dealing with succession, there are new solutions which render ex post adaptations superfluous.

M. Mandl, Apparent and virtual establishments reflected through Art. 7 No. 5 Brussels Ia Regulation and Art. 19 (2) Rome I Regulation

The Federal Court of Justice (Bundesgerichtshof – BGH) has ruled that a dispute has the required connection to the operation of an (existing) establishment pursuant to Article 7 (5) Brussels Ia Regulation if the business owner operates an internet presence that gives the appearance of being controlled by this establishment instead of the company’s central administration and the contract in dispute was concluded via this internet presence. This decision provides an opportunity to examine the prerequisites and legal consequences of apparent establishments and so-called virtual establishments (internet presences) from a general perspective, both in the context of Article 7 (5) Brussels Ia Regulation and in connection with Article 19 (2) Rome I Regulation.

D. Nitschmann, The consequences of Brexit on Civil Judicial Cooperation between Germany and the United Kingdom

The United Kingdom’s withdrawal from the European Union has far-reaching consequences for international civil procedure law. This is exemplified by the decisions of the Higher Regional Court of Cologne for the international service of process. Since the European Regulation on the Service of Documents no longer applies to new cases, the Brexit leads to a reversion to the Hague Service Convention and the German-British Convention regarding Legal Proceedings in Civil and Commercial Matters. Of practical relevance here is, among other things, the question of whether and under what conditions direct postal service remains permissible.

R.A. Schütze, Security for costs of english plaintiffs in Austrian litigation

The judgment of the Austrian Supreme Court (Oberster Gerichtshof – OGH) of 29 March 2022 deals with the obligation of English plaintiffs to provide security for costs according to sect. 57 Austrian Code of Civil Procedure. The principle stated in para. 1 of this section is that plaintiffs of foreign nationality have to provide security for costs. But an exception is made in cases where an Austrian decision for costs can be executed in the country of residence of the plaintiff.
The OGH has found such exception in the Hague Convention 2005 on Choice of Court Agreements. As the United Kingdom has, on 28 September 2020, declared the application of the Hague Convention 2005 for the United Kingdom, the Convention is applicable between Austria and the United Kingdom despite the Brexit. The Hague Convention opens the possibility to recognition and execution of judgments rendered under a choice of court agreement including decisions on costs.

Th. Garber/C. Rudolf, Guardianship court authorisation of a claim before Austrian courts – On international jurisdiction and applicable law for the grant of a guardianship court authorization

The Austrian court has requested court approval for the filing of an action by a minor represented by the parents. The international jurisdiction for the granting of a guardianship court authorisation is determined according to the Brussels II-bis Regulation or, since 1.8.2022, according to the Brussels II-ter Regulation. In principle, the court competent to decide on the action for which authorization by the guardianship court is sought has no corresponding annex competence for the granting of the authorization by the guardianship court: in the present case, the Austrian courts cannot therefore authorize the filing of the action due to the lack of international jurisdiction. If an Austrian court orders the legal representative to obtain the authorization of the guardianship court, the courts of the Member State in which the child has his or her habitual residence at the time of the application have jurisdiction. In the present case, there is no requirement for approval on the basis of the German law applicable under Article 17 of the Hague Convention 1996 (§ 1629 para 1 of the German Civil Code). The Cologne Higher Regional Court nevertheless granted approval on the basis of the escape clause under Article 15 para 2 of the Hague Convention 1996. In conclusion, the Cologne Higher Regional Court must be agreed, since the escape clause can be invoked to protect the best interests of the child even if the law is applied incorrectly in order to solve the problem of adaptation.

M. Fornasier, The German Certificate of Inheritance and its Legal Effects in Foreign Jurisdictions: Still Many Unsettled Issues

What legal effects does the German certificate of inheritance („Erbschein“) produce in other Member States of the EU? Is it a reliable document to prove succession rights in foreign jurisdictions? More than one decade after the entry into force of the European Succession Regulation (ESR), these questions remain, for the most part, unsettled. In particular, commentators take differing views as to whether the Erbschein, being issued by the probate courts regardless of whether the succession is contentious or non-contentious, constitutes a judicial decision within the meaning of Article 3(1)(g) ESR and may therefore circulate in other Member States in accordance with the rules on recognition under Articles 39 ESR. This article deals with a recent ruling by the Higher Regional Court of Cologne, which marks yet another missed opportunity to clarify whether the Erbschein qualifies as a court decision capable of recognition in foreign jurisdictions. Moreover, the paper addresses two judgments of the CJEU (C-658/17 and C-80/19) relating to national certificates of inheritance which, unlike the German Erbschein, are issued by notaries, and explores which lessons can be learned from that case-law with regard to certificates of inheritance issued by probate courts. In conclusion, it is submitted that, given the persisting uncertainties affecting the use of the Erbschein in foreign jurisdictions, the European Certificate of Succession provided for by the ESR is better suited for the settlement of cross-border successions.

E. Vassilakakis/A. Vezyrtzi, Innovations in International Commercial Arbitration – A New Arbitration Act in Greece

On 4.2.2023 a new Arbitration Act came into effect in Greece. It was approved by means of Law No. 5016/2023 on international commercial arbitration, and was enacted in order to align the regime of international commercial arbitration with the revision of the UNCITRAL Model Law on International Commercial Arbitration adopted in 2006 (hereinafter the revised Model Law). The new law contains 49 arbitration-related provisions and replaces the Law No. 2735/1999 on international commercial arbitration, while domestic arbitration continues to be regulated by Art. 867–903 of the Greek Code of Civil Procedure (hereinafter grCCP). A reshaping of Art. 867 ff. grCCP was beyond the “mission statement” of the drafting Committee.1 Besides, it should also be associated with a more extensive and, in consequence, time-consuming reform of procedural law. Hence, the dualist regime in matters of arbitration was preserved.
Pursuant to Art. 2, the new law incorporates on the one hand the provisions of the revised Model Law and on the other hand the latest trends in international arbitration theory and practice. Therefore, it is not confined to a mere adjustment to the revised Model Law, but also includes several innovative provisions that merit a brief presentation.

C. Rüsing, Dialogue International Family Law, 28th – 29th April, Münster, Germany

The post below was written by Giuditta Cordero-Moss, who is a Professor at the Department for Private Law, University of Oslo. It is the sixth and concluding contribution to the EAPIL online symposium on the English Law Commission’s proposed reform of the law governing arbitration agreements. The previous posts of Alex Mills, Manuel Penades, George Bermann, Sylvain Bollée and Matthias Lehmann can be found here, here, here, here and here.

Readers are encouraged to participate in the discussion by commenting on the posts. 

We are aware that some users are experiencing technical issues while posting comments: while we fix these issues, comments may be sent to Ugljesa Grusic (u.grusic@ucl.ac.uk). 

In this online symposium, we addressed one particular aspect of the Final Report on the Review of the Arbitration Act 1996 rendered by the Law Commission of England and Wales: the choice of the law applicable to the arbitration agreement.  The Law Commission recommends reversing the law as stated in the known UK Supreme Court decisions Enka (Enka v Chubb [2020] UKSC 38), and Kabab-Ji (Kabab-Ji SAL (Lebanon) v Kout Food Group (Kuwait) [2021] UKSC 48). Among other things, these decisions established that the choice of law made by the parties in their commercial contract applies also to the arbitration agreement.

Arbitration agreements are often contained in an arbitration clause which is part of a larger contract regulating the commercial relationship between the parties (which the Law Commission defines as the “matrix contract”, and I refer to as the “main contract”). Often, the main contract contains, in addition to the arbitration clause, a choice of law clause subjecting the contract to a certain law. The question is whether the choice of law made by the parties for the main contract also covers the arbitration clause. According to the Supreme Court, it does; according to the Law Commission, it does not.

In the Law Commission’s Final Report, the law chosen by the parties for the main contract applies to the arbitration clause only if it was expressly and specifically also made for the arbitration agreement. Failing an express and specific choice, the Report recommends that the arbitration agreement be subject to the law of the place of arbitral seat. This default rule is aligned with the New York Convention provision in article V(1)(a) and with the UNCITRAL Model Law provision in article 34(2)(a)(i), and will not be commented any further here, other than to commend the Law Commission for having recommended a clear rule harmonised with international sources.

The spirit of the reform is clear: party autonomy is respected, but subject to the principle of severability – although Manuel Penades points out in his post that the wording suggested by the Law Commission may give rise to some uncertainties.

The recommendation’s rationale is explained in sections 12.17-20 of the Final Report: the aim is to give a clear rule and to align the law applicable to the arbitration agreement with the law applicable to the arbitral procedure – which, incidentally, permits to apply English law to arbitration agreements that are to be performed in England.

There is a general acceptance that the arbitration agreement may be subject to a law different from that governing the main agreement (see, for France, Cour de cassation, 28 September 2022, n° 20-20.260 (Kabab-Ji); for Sweden, ; for Germany,  BGH 26 November 2020, I-ZR 245/19 (Mace-Flower)). However, opinions diverge on the effects for the arbitration agreement of a choice of law contained in the main contract and that does not specifically refer to the arbitration agreement.

Alex Mills argues in his post that the Law Commission does not persuasively explain why the policies mentioned in the Report should trump the principle of party autonomy. Likewise, George Bermann finds that the law chosen by the parties should be given respect even though it does not specifically mention the arbitration agreement.

The question is, however, whether the Law Commission’s proposal represents a restriction of party autonomy. If the parties to a contract subject to the law of Ruritania decide to submit disputes between them to arbitration in England, are they more likely to expect that their arbitration agreement is subject to the law of Ruritania or to the law of England?

The arbitration agreement is the source of the arbitral tribunal’s powers. Subjecting it to the law applicable to the arbitral proceedings may turn out to be more compatible with the parties’ expectations than a scenario in which the law of Ruritania has a say on the existence and scope of the arbitral tribunal’s powers in an arbitration that, according to the parties’ choice, is to be carried out in England.

The arbitration agreement is to be deemed a separate agreement, even where it is a clause within the main contract. This is confirmed, i.a., in article 16(1) of the UNCITRAL Model Law.

Without falling into excessive dogmatism, as correctly warned against in the post by Matthias Lehmann, the principle of severability has important practical consequences.

The purpose of severability is to preserve the integrity of the arbitration agreement; if there were no severability, any issues relating to the existence, validity or termination of the contractual relationship would affect the arbitration agreement. Questioning the validity of the contract would be sufficient to affect the whole basis of the arbitral process in which the contract’s validity is an issue. The question is how far severability reaches: does it cover only the validity of the arbitration agreement, or also its applicable law?

George Bermann correctly assumes, in his post, that parties who choose the arbitration seat only choose the arbitration law of that country. He concludes that rules on the arbitration agreement fall outside of this choice. Arguably, however, the arbitration law covers also questions relating to the arbitration agreement and its effects – both the New York Convention and the UNCIRAL Model Law, to name two examples, have rules precisely on this, and there is no doubt that they can be defined as arbitration law. By choosing the seat for their arbitral proceedings and the arbitration law applicable to them, therefore, parties may well have expected that their choice would cover also questions regarding the arbitration agreement.

The UK Supreme Court argues in Enka that the arbitration clause should be dealt with like any other clause in the agreement. Surprisingly, instead of concluding that the parties’ choice of law consequently directly applies to the arbitration clause, the majority in Enka states that choice of law for the main agreement amounts to an implied choice of law for the arbitration agreement. According to the minority, this choice creates a presumption that the law was chosen also for the arbitration agreement.

The Law Commission correctly points out in sections 12.34-38 that this reasoning lacks internal logic: if the arbitration agreement is a clause like any other clause in the main contract, shouldn’t the parties’ choice of law be deemed to be an expressed choice of law, just like it is for any other cause of the contract? Why is it defined as implied, or presumed? The severability principle prevents drawing a full equivalence of the arbitration agreement with any other clauses of the contract; but an implicit, or presumed, equivalence, is assumed after all.

A comparative view supports the Law Commission’s proposal.

Indirectly, some of the most arbitration-friendly national arbitration laws confirm that the law chosen by the parties for the main contract not necessarily is the law governing the arbitration agreement: Article 178(2) of the Swiss Private International Law Act, as well as Article 9(6) of the Spanish Arbitration Act, are based on the validation principle. According to these provisions, an arbitration agreement is valid if it complies with the requirements contained in (i) the law chosen by the parties to govern the arbitration agreement, (ii) the law applicable to the main contract, or (iii) the lex fori. If a choice of law for the main contract had the effect to select the law applicable to the arbitration agreement, it would not be necessary to list the law chosen by the parties as one of three alternatives.

Also under French law, the parties’ choice in the main agreement does not apply to the arbitration agreement – although this is the consequence of a special understanding of arbitration as an autonomous legal order, as Sylvain Bollée explains in his post.

According to Swedish courts, the principle of severability implies that the arbitration agreement is subject to the lex arbitri, irrespective of any choice the parties may have made for the main contract (Svea Court of Appeal, 20 May 2015, T 8043-13).

Indeed, it seems artificial to affirm that the validity of the arbitration agreement is to be examined separately, while the law applicable to the validity is the same as the law applicable to the main agreement. This does not to correspond to the practice of arbitration either.

Parties rarely specify the law governing their arbitration agreement. Usually, model Arbitration clauses recommended by arbitration institutions or, for ad hoc arbitration, by the UNCITRAL, do not contain a choice of law specific for arbitration either. The Model clauses may suggest adding which law governs the contract, but this applies to the merits of the dispute, not to the procedural aspects of the arbitration, as is confirmed by the wording suggested by the LCIA (‘The governing law of the contract shall be the substantive law of []’) and by the SCC (‘This contract shall be governed by the substantive law of […]’). By expressly mentioning the substance of the dispute, these rules arguably exclude that the choice applies to the arbitration agreement itself; and they are generally silent on the law applicable to the clauses themselves. In one instance, (Hong Kong), the model clause specifically suggests that the parties choose the law applicable to the arbitration clause, thus indirectly confirming that severability extends to choice of law.

In my opinion, the above supports extending severability to the applicable law, as the Law Commission recommends. It is compatible with the principle of severability, corresponds to the expectations in international practice, and favours harmonisation of English law with what has been defined as the preferred approach (Gary Born, International Commercial Arbitration 3rd edition, Kluwer Law International 2021, §4.04[A]).

The Law Commission approach is to be saluted. In addition to the practical and policy reasons it mentions, the proposal has the advantage of enhancing harmonization.

In a study carried out at the Hague Academy on the law applicable to various issues in arbitration (D. Fernández Arroyo and G. Cordero-Moss (eds.), Applicable Law Issues in International Arbitration, Brill 2023), one chapter is devoted precisely to the law applicable to arbitration agreements: Giulia Vallar, “Validity of the arbitration agreement”, pp. 325-346. Vallar suggests two main solutions to enhance predictability for the parties. One solution is readily available, but seldom applied: the parties should choose the applicable law in the arbitration agreement. The other, is defined by Vallar as utopistic: a uniform conflict rule.  While I agree with her skepticism about the feasibility of codifying a multilateral rule, I find it an acceptable second best solution that the different legal systems spontaneously adopt a harmonized solution.

The Law Commission recommendation is a step into the right direction.

The post below was written by Matthias Lehmann, who is Chair for Private Law, International Private Law and Comparative Law at the University of Vienna and an editor of the EAPIL blog. It is the fifth contribution to the EAPIL online symposium on the English Law Commission’s proposed reform of the law governing arbitration agreements. The previous posts of Alex Mills, Manuel Penades, George Bermann and Sylvain Bollée can be found here, here, here and here.  

Readers are encouraged to participate in the discussion by commenting on the posts. 

We are aware that some users are experiencing technical issues while posting comments: while we fix these issues, comments may be sent to Ugljesa Grusic (u.grusic@ucl.ac.uk). 

Legislative proposals from the British islands to correct the intricacies of the common law always fill the continental lawyer with joy. Yet interestingly, most of the questions that the Law Commission’s proposal to reform English arbitration law addresses are not dealt with explicitly by legislation but rather by court judgments on the continent. This is at least true for the two legal systems that I will survey in this post, German and Austrian law. Moreover, the case law of these two countries diverges in some very important respects from the Law Commission’s proposal.

I start with the law governing the arbitration agreement. German and Austrian courts unanimously rule that the law governing the arbitration agreement can be chosen by the parties (see e.g. German Federal Court, 12 May 2011, IX ZR 133/10; Austrian Supreme Court, 23 June 2015, 18 OCg 1/15v). For this, they rely on the conflicts rule contained in Article V(1)(a) New York Convention for the Recognition and Enforcement of Foreign Arbitral Awards (NYC), which they extend per analogiam to the situation before an arbitration award has been rendered. This position is buttressed by Article 6(2) European Convention on International Commercial Arbitration of 1961, which explicitly allows to choose the law applicable to the arbitration agreement.

More difficult is whether a choice in the main contract can be extended to the arbitration agreement, as the UK Supreme Court held, but the Law Commission denies. This issue is moot in German and Austrian literature. The whole debate is impregnated by an unhealthy dose of dogmatism. It basically revolves around the separability of the arbitration agreement from the main contract and its ‘true nature’ – whether it is procedural or substantive.

The Austrian Supreme Court has left this question open (decision of 23 June 2015, 18 OCg 1/15v). The German Supreme Court, however, has cut the Gordian knot and explicitly ruled that a choice in the main contract is to be presumed to also cover the arbitration clause contained therein – at least absent any indications to the contrary (see German Federal Court, 12 May 2011, IX ZR 133/10, discussed here). You can call this an ‘implied choice’, although this expression was not used by the German court; it would probably be more correct to speak of a ‘presumed choice’.

A notable particularity in comparison to English law is caused by the fact that both Germany and Austria are signatories of the Convention for the International Sale of Goods (CISG). Although this Convention is geared towards sales contracts, the German Federal Court has held that its provisions concerning the formation of the contract (Articles 14–24 CISG) also apply when determining the validity of an arbitration clause contained in the sales contract (German Federal Court, id.). As a result, the question whether standard terms and conditions of one party which contain such a clause have become part of the contract will be governed by the CISG if the contract falls within its scope. Even where the parties have explicitly excluded the CISG, it may be relevant when courts determine whether German law provides a more favourable rule in the sense of Article VII NYC (German Federal Court, id.). To understand this viewpoint, it is necessary to realise that in the eyes of German (and Austrian) courts, the CISG is part of their domestic law, merely providing a special regime for international sales contracts.

In case no law has been chosen – neither for the arbitration agreement nor for the main contract – German and Austrian courts refer to the law of the place of the seat of arbitration to determine the validity of an arbitration agreement (see German Federal Court, id., para 52; Austrian Supreme Court 18 OCg 1/15v). For this, they rely again on Article V(1)(a) NYC per analogiam; with Article 6(2) European Convention on International Commercial Arbitration of 1961 being even more to the point. In this respect, both legal systems converge with the suggestions of the Law Commission.

A difficult question is which law governs the arbitration agreement when the applicable law has not been chosen and the seat of the arbitration is yet to be determined. There is no case law in Austria or Germany on this issue yet.

Two solutions are discussed in literature. The first is to always apply the law of the forum of the state court that is facing the task to assess the validity of the arbitration clause, for instance when it is invoked as an exception to its jurisdiction. Yet, this lex forism has the evident downside of favouring diverging results and inviting forum shopping.

Therefore, the second solution is preferrable, which is to apply the law of the state with the closest connection to the arbitration agreement. This connection must be determined on the basis of all circumstances. Most authors understand this to be the law of the state that governs the merits of the case.

From an Austrian and German perspective, there is light and shadow in the Law Commission’s Proposals. The suggestion to lay down in statutory law the parties’ freedom to choose the law governing the arbitration agreement will be met with cheers. Equally, the role of the seat of the arbitral tribunal as a connecting factor in the absence of a choice is down the alley of German and Austrian law. In contrast, the decoupling of the law governing the main contract and that governing the arbitration agreement will raise some eyebrows, at least in Germany.

But it is the exclusion of the review of the validity of the arbitration agreement by state courts that will be most frowned upon from Schleswig to the Danube. The Law Commission wants to exclude a de novo hearing when this issue has already been discussed and decided before by the arbitral tribunal (see the post by Ugljesa Grusic). The justification for this are efficiency and fairness.

Although German and Austrian courts are no less committed to these values, their position is entirely different. According to them, a party must always have the possibility to invoke a lack of consent to arbitration before a state court, regardless of whether this question was already debated before the arbitral tribunal or not. The famous concept of Kompetenz-Kompetenz developed by the German Federal Court does not imply otherwise. As the German Federal Court has said quite clearly:

“According to the mandatory provision of section 1041 (1) no. 1 ZPO [German Code of Civil Procedure before the reform of 1998, concerning the annulment of arbitral awards], the ordinary court has to examine the validity of the arbitration agreement without being bound by the decision of the arbitral tribunal. Since the arbitral tribunal, according to § 1025(1) ZPO [German Code of Civil Procedure before the reform of 1998, concerning the validity and effects of the arbitral agreement], obtains its jurisdiction solely through the arbitration agreement, it cannot itself make a binding decision on its legal existence. The so-called competence-competence, i.e. the power to make a binding decision on its jurisdiction for the state courts (or other authorities), is therefore not available to it.” (decision of 5 May 1977, III ZR 177/74)

This position, which is shared by Austrian courts (OGH, decision of 19 December 2018, 3 Ob 153/18y), is not merely the product of a particular legal thinking or culture. Instead, it seems to be required by the European Convention of Human Rights (ECHR). To bind a party to a decision of an arbitral tribunal to which it has not agreed would violate the right to a fair trial enshrined in Article 6 ECHR. In no case can efficiency prevail over this fundamental right. If the UK legislator retained the proposal by the Law Commission in this regard, it would create a permanent abyss between English law and that of other European states. This would certainly give rise to heated discussions and a possible recycling of the title of an old article: “What Sort of Kompetenz-Kompetenz has Crossed the Channel?”

— Many thanks to Paul Eichmüller for his assistance in researching the Austrian decisions.

The post below was written by Sylvain Bollée, who is Professor at Paris 1 Panthéon-Sorbonne University. It is the fourth contribution to the EAPIL online symposium on the English Law Commission’s proposed reform of the law governing arbitration agreements. The previous posts of Alex Mills, Manuel Penades and George Bermann can be found here, here and here.

Readers are encouraged to participate in the discussion by commenting on the posts.

We are aware that some users are experiencing technical issues while posting comments: while we fix these issues, comments may be sent to Ugljesa Grusic (u.grusic@ucl.ac.uk). 

For a French lawyer, the Law Commission’s proposal concerning the determination of the law governing the arbitration agreement is of particular interest. It comes a little less than a year after the decision rendered by the French Court of Cassation in the Koot Food Group case (Civ. 1st, 22 September 2022, No. 20-20.260), in which the French and English courts were notoriously divided on the contemplated issue.

Without going into the details of the solutions found in English case law, their key points can be summarized (albeit with a degree of approximation) – as follows: 1) the parties are free to choose the law applicable to the arbitration agreement; 2) a choice of law clause stipulated in the matrix contract will generally be held applicable to the arbitration agreement; 3) in the absence of any choice of law, the arbitration agreement will generally be governed by the law of the seat chosen by the parties.

In order to understand the French approach, it is important to bear in mind that it is primarily based on the rejection of any conflict-of-laws reasoning and, supposedly, the application of any national law to the arbitration agreement. French courts directly apply “substantive rules” (règles matérielles) which, to a large extent, seek to give effect to the parties’ common intent to submit their dispute to arbitration. In reality, this “substantive rules method” inevitably amounts to applying rules that are a creation of the French legal system. Thus, in the final analysis, it is not so much the application of legal rules from national sources that is set aside, but rather conflict-of-laws rules and all foreign laws (and also, at least in theory, the application of French law rules applicable to domestic situations). The Dalico judgment (Civ. 1st, 20 December 1993, No. 91-16.828), which is the landmark decision on the subject, does not bring this out so clearly. But that is indeed the methodological approach which, in principle, prevails before French courts. Obviously, the underlying policy is to favour the validation of arbitration clauses and, by implication, the enforcement of arbitral awards.

One question is whether the parties may still choose to submit their arbitration agreement to a foreign law. As a matter of principle, the French Court of Cassation has answered in the affirmative. But the existence of such an electio juris is not easy to establish: according to the terms of its judgment in Koot Food Group, “the parties must have expressly submitted the validity and effects of the arbitration agreement itself to such a law”. This entails that a choice of law clause stipulated in the matrix contract, with no specific indication as to its applicability to the arbitration agreement, will not be regarded as sufficient. As a result, the application of the substantive rules method will likely not be overturned in the vast majority of cases.

The Law Commission’s proposal would significantly narrow the gap between the English and French solutions. Of course, from a methodological point of view, there is still a profound divergence: the English approach does not deviate from conflict-of-laws reasoning in the first place, whereas the French approach only grants it a secondary role. But if one looks at the solutions in terms of their practical results, two points of convergence stand out.

The first is a strict limitation of the cases in which the existence of a choice of law clause applicable to the arbitration agreement will be deemed to be established. An express choice will be required, and it will not be sufficient to refer to the existence of a choice of law clause in the matrix contract.

This immediately gives rise to an objection: why exclude the possibility of an implied choice? If the arbitrator or the judge is convinced that the parties have implicitly agreed on the application of a certain law, is it not unfortunate that he or she is obliged to disregard this implicit choice? Of course, one should not be too quick to dismiss the prima facie advantages of the solution: it is expected to close the door to overly subtle discussions, costly litigation and, in the end, what is perceived as legal uncertainty. But can this objective really be achieved? Only to a limited extent, because the existence of an express choice might also be debated. My colleague Dr Manuel Penades rightly raised this point in his contribution and I will take one of his examples here: what will be decided in the case where the matrix contract contains both a choice of law clause the scope of which (as per its very wording) is “the Agreement”, and a clause that defines “the Agreement” as all the clauses contained in the contractual document (which, by hypothesis, will include the arbitration clause)? Commercial contracts regularly include such provisions and I suspect reasonable people might disagree about the existence of an express choice in the considered scenario.

Besides, it would seem to be in the nature of things that a choice of law clause included in the matrix contract should apply to the arbitration agreement, as long as it does not turn out that the parties intended otherwise. In this respect, it has been convincingly objected to the Law Commission’s proposal that it disregards the normal expectations of the parties (see the Final report, paras 12-32 et seq.). As a matter of fact, international contracts very often contain choice of law clauses, which tend to support the view that the parties are keen to settle the issue of applicable law themselves. At the same time, they generally say nothing specific about the law applicable to the arbitration clause. Why is that? Precisely, I believe, because they naturally assume that the choice of law clause they have inserted in the contract will also apply to the arbitration agreement. It is regrettable that the Law Commission’s proposal does not draw the consequences from this, all the more so as the application of two different laws – one to the matrix contract and the other to the arbitration clause – is not without practical disadvantages: it is likely to result in undesirable complexity, if not inconsistencies. This objection is not new and concerns about such a split in the applicable law were raised during the consultation process (see the second consultation paper, paras 2.66 and 2.67).

The second point of convergence between the Law Commission’s proposal and French law pertains to the case (which, in practice, is likely to be by far the most common) where the parties are deemed not to have expressly chosen the law applicable to the arbitration agreement. If the seat of the arbitration is in England, the English court will do what the French court would do in its place: it will apply its own law. In fact, this appears to be one of the main reasons why the Law Commission found it adequate to rule out the possibility of an implied choice: combined with the default rule in favour of the law of the seat, that solution is likely to ensure the applicability of English law in the contemplated situation and, correlatively, to protect the arbitration clause against the effects of a foreign law which might be less supportive of arbitration (see the Final report, paras 12-18, 12-72 and 12-73). Such a pro-arbitration attitude is also at the root of the French method of substantive rules and, arguably, the reluctance of French courts to acknowledge the existence of a choice of law clause which might submit the arbitration agreement to a foreign law.

This being said, French law goes much further in its policy of favouring the validity of arbitration agreements: its substantive rules method applies independently of any conflict of laws rule, so that the benefit of the pro-arbitration rules of French law is not restricted to arbitrations seated in France. The resonance of this approach is all the greater in the light of another aspect of French law: as shown by the decisions rendered in the well-known Hilmarton (Civ. 1st, 23 March 1994, No. 92-15.137) and Putrabali (Civ. 1st, 29 June 2007, No. 05-18.053) cases, the annulment of the award in the country of the seat does not constitute a ground for non-recognition in France. Thus, if the court of the seat of the arbitration, applying its own law, considered that the arbitral tribunal lacked jurisdiction, this will not prevent the French courts from granting exequatur to the award. The Law Commission’s proposal, as it provides for the application of the law of the seat even when it is located abroad, is a reminder that profoundly different conceptions of international arbitration prevail on either side of the Channel.

The post below was written by George A Bermann, who is Walter Gellhorn Professor of Law and Jean Monnet Professor of European Union Law at Columbia Law School. It is the third contribution to the EAPIL online symposium on the English Law Commission’s proposed reform of the law governing arbitration agreements. The previous posts, by Alex Mills and Manuel Penades, can be found here and here. 

Readers are encouraged to participate in the discussion by commenting on the posts. Those wishing to submit longer analyses are invited to do so by e-mailing Ugljesa Grusic (u.grusic@ucl.ac.uk).

The relationship between the law (if any) chosen in the arbitration clause and the law of the seat is unsettled in the US.

It was taken up in the Restatement of the US Law of International Commercial and Investor-State Arbitration. The gist of the Restatement is that, while the law of the seat governs the conduct of the arbitration, it does not govern the interpretation of the arbitration agreement. Interpretation of the arbitration agreement should of course be governed by the law, if any, chosen in the arbitration clause itself. (I note that the court in Enka v. Chubb cited the Restatement in support.)

There was debate over whether, in the absence of a choice of applicable law in the arbitration clause, the arbitration agreement should be governed by the law, if any, chosen in the main contract. The view that ultimately prevailed is that more respect on matters of choice of law should be given to any expression of preference as to choice of law in the contract (even if not in the arbitration clause) over the law of the seat. That was a choice of seat, not a choice of law (other than the law of arbitration of the seat).

Unfortunately, the Restatement drew no distinction between issues of the interpretation and the validity of the arbitration agreement. More on that below.

The Restatement did not go much further, but the thinking behind it can be amplified and extrapolated. I attempt to do so below. I hasten to add that what follows happens also to be what I think the law should be.

It is this framework that I would use in assessing the differences between US law and the law advanced by the Law Commission.

As a general matter, I believe that Report in some cases fails to make an important distinction and in other cases, acknowledges the distinction, but makes the wrong choice.

I set out below what I consider to be these important distinctions:

1. Distinction between the purposes underlying a choice of law in the arbitration clause (absent which in the law of the main contract) and the purposes underlying a choice of law function of the arbitration law of the seat

When parties choose a seat, they are choosing a seat, full stop. We should not suppose they are choosing an applicable law of any kind other than the arbitration law of the seat (lex arbitri).

By contrast, when parties indicate an applicable law in their arbitration agreement they are making a choice of applicable law. But, absent an indication of an applicable law in the arbitration clause, where else did the parties express a choice of law preference? They expressed it in the choice of law clause in the main contract. There too they are making a choice of applicable law, and their choice of an applicable law should be respected.

2. Distinction between the law of the arbitration agreement and the law of the main contract

This result should be unaffected by the principle of separability. The principle of separability exists for one reason: to ensure that the demise of the main contract (as invalid) does not entail the demise of its arbitration clause. That is why we have the separability principle. It should not be extended to functions (such as choice of law) for which it was not intended.

3. Distinction between “arbitration law of the seat” and “law of the seat”

It is vital to distinguish between the arbitration law of a jurisdiction (lex arbitri) and the whole body of law at the seat, and we too often fail to do so by referring sloppily to “the law of the seat”. An arbitration statute should make clear what it is talking about when it refers to “the law of the seat.”

When the parties chose a seat they certainly chose the lex arbitri of the seat. But, notwithstanding, it seems to be assumed that when the law of the seat is referred to, it includes at least some parts of the law of the seat outside the lex arbitri. For example, if the formation or validity of an arbitration agreement is called into question, the law of the seat may include the law of contract of the seat. If contract law at the seat treats coerced contracts as invalid, then that would apply to a claim that the arbitration agreement was coerced.

4. Distinction between the issues of interpretation and issues of validity

As I mentioned, the Restatement fails to distinguish between issues of interpretation and validity, but it should have.

The law chosen in an arbitration agreement most fundamentally determines the interpretation of that agreement (such as its scope). There is absolutely no reason why the law of the seat should have anything to say about the meaning and scope of the arbitration agreement. If there is no choice of law in the arbitration agreement, then interpretation of the arbitration agreement should be governed by the law chosen in the main contract (on the reasoning set out above).

The question of the validity of the arbitration agreement is slightly more subtle.

Suppose the arbitration agreement is invalid under the law, if any, designated in the arbitration agreement, failing which the law governing the main contract, then it is invalid. It should not matter that it happens to be valid under the law of the seat.

On the other hand, conversely, if the arbitration agreement is invalid under the law of the seat, it is invalid, even if it would be valid under the law, if any, designated in the arbitration agreement, failing which the law governing the main contract. Why? Because the seat has a legitimate interest in the validity of the arbitration agreement giving rise to an arbitration on its territory.

More generally, one should not assume that if the law of the arbitration agreement is not the law of the seat, the seat’s policies risk being impaired. But that is not the case. Under no circumstance can the law of the arbitration agreement or the law of the main contract override the mandatory norms of the arbitration law of the seat (or the public policy of the seat).

The approach set out here is of course contrary to the so-called “validation principle,” and deliberately so. The impetus is a belief that the law chosen by the parties (even that in the main contract) deserves a measure of respect, as does the law of the seat. More delineation should be given to the matter than is generally given. I believe it is sometimes assumed that, unless you give as much weight as you possibly can to the law of the seat, you are not pro-arbitration, which is not the case.

5. Distinction between the mandatory and default law provisions of the lex arbitri

Focusing now on the lex arbitri, it contains both mandatory and default rules. Its mandatory law provisions (and principles of public policy at the seat more generally) must be respected. But its default rules can be contracted around by the parties.

How can parties contract around the arbitration law at the seat? Obviously parties can contract around default rules of the seat by a term of their arbitration agreement. But they should also be allowed to contract around the default rules of the seat via the law designated in the arbitration clause.

Whether they can contract around the default rules of the seat via the law governing the main contract will be more controversial, but, for the reasons set out above, they should be able to do so.

1. 12.17: I do not share the view that subjecting an arbitration agreement to the law of the main contract is a threat to the UK as a seat. It is no more a threat than application of a law chosen in the arbitration clause itself; yet the Report allows the latter to apply in lieu of the law of the seat (sec. 12.17).
2. 12.18, 12:47: The Report treats a choice of law clause in the main contract as only an “implied” choice of law for the arbitration agreement. Driving a wedge between the law designated in the arbitration agreement and the law designated in the main contract is an unwarranted extrapolation of the separability principle.
3. 12.19: I see nothing wrong with the law designated in either the arbitration clause or the main contract with displacing the non-mandatory law of the seat.
4. 12.22: the rule in Enka v. Chubb is not “too complex and unpredictable”.
5. 12.25: as may be expected, I, like those commenters referred to here, do not believe the placement of the choice of law clause in a contract should be determinative.
6. 12.35: This is just another assertion of separability where it doesn’t belong.
7. 12.40: This view is correct. When parties choose a seat, they do not think they are choosing anything more than the seat. Maybe they should be bound by the lex arbitri, but why by the law of the seat writ large?
8. 12.53: What is said here makes no sense. To have the law chosen in the main contract govern the arbitration agreement in no way compromises the parties’ decision to arbitrate. The parties will still arbitrate, won’t they?  The arbitration clause is 100% intact. What the Report is in effect doing is to convert the notion of “the decision to arbitrate” into the notion of “the decision to arbitrate under the law of the seat.” In other words, the remark already assumes what the Report wants to establish, namely necessarily subject the arbitration agreement to the law of the seat.  Moreover, if giving effect to a choice of law (other than the law of the seat) in the arbitration clause itself – which the Report clearly allows – does not undermine the decision to arbitrate, then giving effect instead to the applicable law clause in the main contract doesn’t undermine that decision either. Here, the Report is “question-begging.”
9. 12.66: I do not understand the Report’s aversion to using the law designated in the main contract in the rare situation that no seat was yet chosen.
10. 12.73: Here and elsewhere it is said that we can’t allow a choice of law in the main contract to override the parties’ intent to arbitrate. But it doesn’t override. We can easily give effect to the parties’ intent to arbitrate without subjecting the arbitration agreement in all respects to the law of the seat.

The post below was written by Manuel Penades, who is a Reader in International Commercial Law at King’s College London. It is the second contribution to the EAPIL online symposium on the English Law Commission’s proposed reform of the law governing arbitration agreements. The previous post, by Alex Mills, can be found here. 

Readers are encouraged to participate in the discussion by commenting on the posts. Those wishing to submit longer analyses are invited to do so by e-mailing Ugljesa Grusic (u.grusic@ucl.ac.uk).

This post examines the changes proposed by the Law Commission of England and Wales to the choice of law rules for arbitration agreements. Previous contributions to this Symposium have transcribed the text of the draft legislation, which can be found here. The Law Commission introduces three significant amendments that impact the three steps of the common law doctrine of the proper law of the contract. First, the proposal limits the types of choice of law clauses that can demonstrate an express selection of the law applicable to arbitration agreements. Second, it eliminates the possibility to choose the governing law impliedly. Third, it replaces the closest and most real connection test with a hard-and-fast rule in favour of the law of the seat.

Each of these changes requires analysis, followed by a reflection on the New York Convention.

The new rule continues to respect the parties’ freedom to choose the law governing their arbitration agreement. Party autonomy, however, is tempered by proposed section 6A(2) of the Arbitration Act, which provides that an ‘agreement between the parties that a particular law applies to the contract to which the arbitration agreement forms part does not, of itself, constitute an express agreement that that law also applies to the arbitration agreement’. The rule is apparently simple and excludes the possibility to rely on a generic choice of law clause applicable to the contract that includes the arbitration agreement. Section 6A(2) AA, however, does not capture other scenarios, which might become a source of controversy.

The first refers to cases in which the only choice of law in the whole contract is found in the arbitration agreement itself (e.g., ‘the arbitrators shall decide the dispute in accordance with the law of X’). While these cases do not refer to the arbitration agreement specifically, they are express references to the governing law of the whole contract and are contained in the arbitration agreement itself. It is unclear whether these choices will be express enough to satisfy section 6A(2) AA.

The second scenario refers to cases in which the matrix contract not only includes an express choice of law clause applicable to the whole ‘Agreement’, but also a clause in the contract that defines ‘Agreement’ as encompassing all the clauses incorporated in the contractual document, including the arbitration agreement. The UKSC ruled in Kabab-Ji v Kout Food [2021] UKSC 48 that ‘the effect of these clauses is absolutely clear’ [39] and amounts to an express choice also for the arbitration agreement. The Law Commission’s proposal does not mention whether section 6A(2) AA intends to overrule Kabab-Ji. In these scenarios it is not the generic choice of law clause ‘of itself’ that supports the finding of an express choice of law but the combined reading of that clause alongside the definition of the term ‘Agreement’ expressly agreed by the parties in another clause of the contract.

Neither of these uncertainties would exist in the current regime under Enka v Chubb [2020] UKSC 38, as the same law would apply under express or implied choice of law.

Enka clarified that the designation of a seat does not amount to an implied choice of the law governing the arbitration agreement. This reduced, yet did not eliminate, the uncertainty surrounding implied choice. The proposal of the Law Commission goes much further; it eliminates implied choice altogether from the choice of law rules applicable to arbitration agreements. This is quite revolutionary and might come as a surprise.

Notwithstanding the complexities caused by its application, the courts of England have never questioned the acceptance of implied choice and the UKSC confirmed in Enka that ‘an implied choice is still a choice which is just as effective as a choice made expressly’ [35]. An implied choice is a manifestation of party autonomy, a principle which is at the root of English contract and private international laws.

The proposed new rule also runs contrary to the acceptance of implied choice of law in the vast majority of instruments governing international business transactions (see article 3.1 Rome I, article 14.1 Rome II or article 4 Hague Principles on Choice of Law).

Against this background, disregarding an implied choice of law might seem a step backwards in the common law tradition and global trends. The truth, however, is that decades of arbitration-related litigation in England demonstrate that the inquiry around implied choice is a source of significant uncertainty, expense and tactical litigation. The Law Commission is willing to adopt a regime that disregards cases of real (yet implied) choice of law in exchange for the certainty and savings produced by the elimination of implied choice of law. This less litigious regime makes for better arbitration regulation and strengthens the position of England as efficient arbitration destination.

The proposed solution does not necessarily curtail party autonomy. In fact, the rule after Enka that an implied choice of law for the matrix contract automatically amounts to an implied choice of law for the arbitration agreement, while apparently straightforward, might not always be reflective of the real intent of the parties. The proposed rule eliminates such risk of artificiality.

Further, case law shows that in most disputes where the issue of implied choice arises, English law offers the most arbitration-friendly outcome among the various alternative laws. Under the proposed reform, those cases will be resolved frequently in favour of English law pursuant to the default rule. This will generally protect the parties’ agreement to arbitrate more than under the current regime.

From a normative point of view, the Law Commission’s proposal also eliminates the somewhat artificial cases of double implication, where an implied choice of law for the matrix contract is used as evidence to find an implied choice of the law governing the arbitration agreement (see the conclusion of the minority in Enka [207, 228]).

Finally, the proposal eliminates the confusion sometimes perceived in English judgments between the test applicable to imply a choice of law and the (stricter) requirements to imply an ordinary contractual term [Enka [35] or Kabab-Ji [53]].

Under the proposed regime, the absence of an express choice results in the application of the law of the seat. Hard-and-fast rules are alien to the common law doctrine, where the reference to the closest and most real connection permits certain room for manoeuvre in the determination of the applicable law. Other choice of law regimes that provide hard-and-fast rules incorporate escape clauses that allow for the exceptional disapplication of the identified law (e.g., article 4.3 Rome I). In contrast, the proposed rule lacks any reference to the possibility to escape from the law of the seat.

One could wonder whether this could be a residual role for the validation principle. This principle was used in Enka to support the application of the law of the seat when an implied choice in favour of the law of the matrix contract led to a serious risk that the arbitration agreement would be invalid or ineffective. The expulsion of implied choice from the proposed regime would eliminate the raison d’etre of the validation principle. Still, the Law Commission does not exclude the principle in absolute terms, and rather states that ‘we do not need the validation principle for that purpose’ [Para. 12.56]. The question then arises whether other purposes exist.

One option would be to retain the application of the validation principle to correct express choices of law that render the arbitration agreement invalid or ineffective. The answer should be negative. The role of courts is not to improve the contract (Arnold v Britton [2015] UKSC 35, [20]). The validation principle allows the court to resort to the more favourable interpretation when the contract allows for various possible interpretations. When the choice is express, however, there is only one undisputable choice, even if it renders the arbitration agreement invalid or ineffective. In those cases, party autonomy (and the pathologies derived from it) must prevail. Any deviation from the principle of party autonomy would have required an express rule in the Law Commission’s proposal.

The other possible application of the validation principle would be in the context of the default rule, when the law of the seat renders the arbitration agreement invalid or ineffective. Indeed, the majority of the UKSC in Enka suggested (but did not confirm) that the closest connection test might itself be subject to the validation principle [146]. As noted by the Law Commission [para. 12.58], my response to the Second Consultation said that it would be odd to apply the validation principle to escape from an invalidity provided by English law itself under the default rule. However, the proposed default rule is not just in favour of English law, but in favour of the law of any seat. This approach could open the door to the application of the validation principle when, unlike the law of the seat, English law rendered the arbitration agreement valid and effective. While the Final Report of the Law Commission does not explore this option, such extended reach of the validation principle would deviate from the finality and simplicity with which the Law Commission views the default rule. Also, it might not be an appropriate and efficient policy to use English law to enforce a foreign arbitration agreement when the parties have not selected the governing law and the law of the seat would render it invalid or ineffective.

Article V(1)(a) NYC provides that arbitration agreements shall be governed by the law to which the parties subjected it or, failing any indication thereon, by the law of the country where the award was made. The default rule in the Law Commission’ proposal aligns English law with the NYC, which is a welcome result.

Section 103(2)(b) AA incorporates article V(1)(a) NYC and therefore allows ‘any indication’ of choice of law made by the parties. The UKSC concluded unanimously in Kabab-Ji that ‘the word “indication” signifies that something less than an express and specific agreement will suffice’ [33]. It is unclear whether the Law Commission intends the new choice of law rule to apply in the context of section 103 AA. The UKSC said in Kabab-Ji that the common law rules on choice of law for arbitration agreements were not ‘directly applicable’ in the context of NYC enforcement actions [35]. Also, awards caught by section 103 AA have a foreign seat by definition and are not English arbitrations. Still, the proposal makes it clear that ‘the new rule would apply whether the arbitration was seated in England and Wales, or elsewhere’ [12.75]. An option would be to interpret this statement as referring to every scenario in which English courts examine an arbitration agreement (whether seated in England and Wales or elsewhere) with the exception of cases caught by section 103 AA. That is, two different choice of law treatments would co-exist within the Act. This internal dealignment would be undesirable and could lead to serious inconsistencies. The same arbitration agreement in favour of an arbitration seated abroad could be subject to different laws in pre-award disputes (e.g., section 9 AA) and post-award litigation (e.g., section 103). The UKSC said in Enka [136] and in Kabab Ji [35] that this divide would be ‘ilogical’.

The better interpretation is that the Law Commission’s proposal also extends to section 103 AA cases. Nothing in the proposal expressly excludes this reading. In fact, the Report argues that the NYC allows, but does not require, the recognition of implied choices [12.47] and concludes that the proposal is compatible with the NYC [12.52]. Ultimately, the new rule replaces the common law doctrine with a statutory provision, which becomes part of the of the regulatory fabric of English arbitration law and should not be limited, unless otherwise provided, to areas originally governed by the common law. Section 100(2) AA shows that critical parts of the notion of arbitration agreement in Part III (where section 103 AA belongs) ‘have the same meaning as in Part I’ (where the new section 6A AA would be placed). Such internal coherence of English arbitration law supports the application of the proposed rule across the board. Still, should Parliament adopt of the Law Commission’s proposal, they would need to be aware of two undesirable (yet tolerable) dealignments.

The first is that English law would move away from the prevailing interpretation of article V(1)(a) NYC as regards the acceptance of implied choice. The UKSC in Kabab-Ji objected to this departure and held that ‘it is desirable that the rules set out in article V(1)(a) for determining whether there is a valid arbitration agreement should not only be given a uniform meaning but should be applied by the courts of the contracting states in a uniform way’ [32]. Still, England would not be alone in this travel. For instance, France has also departed from the choice of law rule in the NYC. Moreover, the generally pro-arbitration results usually achieved by the proposed rule could well place the reform within the favourable gateway of article VII NYC.

The second consequence is that the same arbitration agreement (and award) might be treated differently between English and foreign courts if an existing implied choice of law disregarded in England is effective in other jurisdictions. It should be noted, however, that retaining the possibility of implied choice does not guarantee the uniformity of outcome. For instance, the same dealignment of outcome could occur between two legal systems that accepted the possibility of implied choice of law if one favoured the law of the matrix contract whereas the other veered toward the law of the seat.

The reasons above support the view that the potential disregard of real (yet implied) choice in some exceptional cases and the risk of some disfunctions derived from the described dealignments would be compensated by the significant simplification and savings produced by the Law Commission’s proposal. The draft Bill is therefore well-founded, courageous and beneficial to reinforce English law’s position at the forefront of international arbitration globally.

The post below was written by Alex Mills, who is Professor of Public and Private International Law at University College London. It is the first contribution to the EAPIL online symposium on the English Law Commission’s proposed reform of the law governing arbitration agreements.

Readers are encouraged to participate in the discussion by commenting on the posts. Those wishing to submit longer analyses are invited to do so by e-mailing Ugljesa Grusic (u.grusic@ucl.ac.uk).

The Law Commission of England and Wales has produced a deeply thoughtful and well-researched Report, which proposes a number of very welcome reforms to the Arbitration Act 1996. Regretfully, however, I have significant reservations about the proposal which is the subject of this Symposium – the adoption of a new choice of law rule for arbitration agreements. This proposal is based on the Second Consultation Paper produced by the Law Commission in March 2023, and this comment draws on my Submission which responded to that Consultation Paper.

The rules for identifying the law applicable to an arbitration agreement have long been the subject of debate. The issue was prominently addressed by the UK Supreme Court in Enka v Chubb [2020] UKSC 38, which acknowledged (at [3]) that it had “long divided courts and commentators, both in this country and internationally”. The decision in Enka v Chubb has, however, strikingly failed to end the division among commentators. I understand why the Law Commission considered it desirable to address this question, because of the importance of the issue and the policy considerations it presents, and because it has been suggested that there is a lack of clarity in the Supreme Court’s judgment in Enka v Chubb. This issue is complex and reasonable arguments can certainly be made on both sides, as indeed acknowledged in the impressive Report and Second Consultation Paper. I am, however, not convinced of the proposal set out in the Report, which is that “the Arbitration Act 1996 be amended to provide that the arbitration agreement is governed by the law of the seat, unless the parties expressly agree otherwise” [Report, 12.77]. In this post I set out what I understand to be the relevant principles, and explain how these broadly support the rule adopted by the Supreme Court in Enka v Chubb, which has also been followed in other common law jurisdictions (such as Singapore and Hong Kong).

A first and well-known key principle is that the law governing the arbitration agreement need not be the same as that governing the remainder of the contract, sometimes referred to as the ‘matrix contract’. This is because of the principle of separability, which allows for a distinct analysis of the arbitration clause’s applicable law.

A second key principle is party autonomy, which is the starting point for analysis of any contractual choice of law issue, and particularly important in arbitration because of its contractual foundations. An agreement as to the law which governs a contract or a clause of a contract must generally be given effect, absent considerations of public policy. Traditionally, a choice of law may be express or implied – if the latter, the search is for factors which demonstrate a real (but undocumented) choice, not a choice which is imputed to the parties as one which they ought to have made.

In the absence of a real choice, it is necessary to consider not the intentions of the parties but the objective factors linking the contract to a particular system of law. Arbitration clauses remain subject to the common law choice of law rule, under which the objective test is sometimes described as a search for the system of law with ‘the closest and most real connection’ to the contract or contractual clause. An arbitration clause will generally be most closely connected to the place where it is to be performed, which is the seat of the arbitration (see further Enka v Chubb, at [120] et seq).

In the law of arbitration, another principle is that of efficiency, but this principle is secondary to that of party autonomy. While the fact that efficiency is generally a goal for parties and for arbitration can assist in interpreting arbitration clauses (see eg Fiona Trust v Privalov [2007] UKHL 40), parties may choose to have their agreements resolved according to inefficient arbitral procedures should they so wish. The law should not interfere with their choices merely because they are thought unwise or undesirable.

On the basis of these clear principles, the law applicable to an arbitration agreement should be governed by the following rule, comprised of three parts in hierarchical order. This is, in essence although not form, the rule set out by the Supreme Court in Enka v Chubb.

Subject to considerations of public policy, an arbitration agreement is governed by:

(i)         The law expressly chosen to govern it;

(ii)        The law implicitly chosen to govern it;

(iii)       The law with which it has its closest and most real connection, which will ordinarily be the law of the seat of the arbitration.

This rule is simple in appearance, although its application may be complex in particular circumstances, as explained further below. The analysis below does not consider the application of public policy, but it remains an important limitation.

The Report proposes to amend the Arbitration Act 1996, to insert the following choice of law rule:

(1) The law applicable to an arbitration agreement is—

(a) the law that the parties expressly agree applies to the arbitration agreement, or

(b) where no such agreement is made, the law of the seat of the arbitration in question.

(2) For the purposes of subsection (1), agreement between the parties that a particular law applies to an agreement of which the arbitration agreement forms a part does not, of itself, constitute express agreement that that law also applies to the arbitration agreement.

This rule differs from the previous rule in three respects. First, for an express choice to be made, it is necessary that the parties expressly agree that it applies to the arbitration agreement. Second, there is no possibility for an implied choice. Third, in default of a choice, the law of the seat is automatically applied, rather than being the ordinary outcome of the rule.

Under existing law a choice of law for an arbitration agreement may arise in one of three ways.

First, the contract may contain a specific express choice of law agreement for the arbitration clause. In this case, the application of this law to the arbitration clause is self-evidently based on the principles of party autonomy and separability, and is not controversial. This position is maintained in the Law Commission’s proposal.

Second, there may be an implied choice of law for the arbitration agreement. This could arise, for example, where the parties have indicated an understanding that certain statutory provisions which are specific to a governing law will apply to the validity of the arbitration agreement. In this case, the application of the chosen law to the arbitration agreement once again follows straightforwardly as a matter of party autonomy and the principle of separability. One important question in this context is whether a choice of arbitral seat should give rise to an implied choice of law for the arbitration clause. This would certainly be a factor indicating a possible choice of the law of the seat, but it is not generally considered to be a decisive one on its own, as the inquiry is concerned with identifying a real choice made (but not documented) by the parties, and must be attentive to the terms of the contract and other relevant circumstances. This rule would thus in many cases lead to the same outcome as the proposed rule 1(b) in the Report, but would do so not because of a fixed rule of law but because of an implied agreement of the parties. This possibility is rejected in the Law Commission’s proposal.

Third, the matrix contract may contain an express or implied choice of law which should, unless the contrary is agreed, be interpreted to extend to the arbitration clause. This is understood to follow from party autonomy, in combination with the common sense presumption that if parties have made a choice of law for their entire contract, and have not specified a different applicable law for any particular clause of the contract, their choice extends to all of the terms of their contract – including any arbitration agreement (see eg Enka v Chubb, at [43]). This presumption is, however, rebuttable, if there are indications that the parties would not have wanted their choice to cover the arbitration agreement. It is important, however, to understand that this question is about the correct interpretation of the scope of a choice which has been made by the parties. (Here I depart slightly from the reasoning in Enka v Chubb, as I take the view that an express choice of law in the matrix contract which also applies to the arbitration clause is an express, not implied, choice of law for the arbitration clause – see also Report, at [12.34] et seq.) The issue is whether there is evidence which might rebut the common sense presumption. The rule proposed in the Report abolishes the presumption and indeed the possibility of a choice of law in the matrix contract extending to the arbitration agreement, unless it does so specifically and expressly.

There are two main justifications offered for the changes in the Report. The first is that they align with the principle of separability (Report, [12.72]). The analysis of the law applicable to the arbitration agreement is treated as an issue which is entirely unrelated to the contract of which it forms part. It is submitted, however, that this takes separability too far (see eg Enka v Chubb, at [41] and [232] et seq). Separability as a principle rightly ensures that the validity of an arbitration clause is analysed separately from the matrix contract, so that challenges to the validity of the matrix contract do not necessarily undermine the validity of the arbitration clause. This does not, however, require that the arbitration clause be treated as an entirely free-floating agreement, ignoring the context in which it was formed. Indeed, if a choice of law clause in the matrix contract is (as proposed in the Report) deemed to be irrelevant to the arbitration clause, this raises the question whether other clauses in the matrix contract are similarly irrelevant. What if the matrix contract contains an ‘entire agreement’ clause, or a ‘no oral modification’ clause? Are they also irrelevant to the arbitration clause? If not, why is the choice of law singled out, particularly as it may also have interpretive effect?

The second is that the rule proposed in the Report would be more desirable for various policy reasons. The rule would, for example, undoubtedly be clearer and easier to apply than the current position (Report, [12.74]). Applying the rule would also strongly favour the selection of English law to determine the validity of an arbitration agreement with the seat of arbitration in England, which the Report considers to be desirable on various grounds, such as the alignment of the law governing the arbitration agreement and the law governing the arbitration process, and the favourable approach of English law toward arbitration agreements (see Report, [12.16] et seq). It is submitted, however, that these justifications are also not persuasive, as they elevate efficiency and other similar policy considerations above party autonomy. In the absence of an express choice of law specific to the arbitration clause, the fixed rule in the Report in favour of the law of the seat no longer requires but rather excludes an inquiry into what the parties have actually agreed. Contrary to the analysis in the Report (eg, at [12.53], [12.73]), this is a significant constraint on party autonomy. Where parties have chosen a seat for their arbitration, but have (expressly or impliedly) chosen a different governing law for their arbitration clause, the fact that they have thereby chosen different laws for the law governing the arbitration process and the law governing the arbitration agreement may be considered undesirable, and it may be inefficient, but it is submitted that this is not a sufficient reason for the law to disrespect their choice, which is the very foundation of arbitration. The proposed rule also has the undesirable effect that the arbitration agreement and the matrix contract are more likely to be governed by different laws, which raises difficult questions concerning their consistent interpretation and validity (see, eg, Enka v Chubb, at [53] and [235] et seq). There is also a concern that arbitrators will be faced with a difficult choice between applying a law chosen by the parties (for example, through a matrix choice of law agreement, or through an implied choice), which they may consider themselves to be required to do as a matter of their contractual mandate, and applying the law that will be applied by the English courts if their award is challenged.

The Law Commission’s Report is overall an excellent example of law reform, offering carefully crafted and well-reasoned proposals for improvement. On this issue, it makes its case well, and there would undoubtedly be some benefits to the reforms which it proposes. Ultimately, however, I am not persuaded that they are consistent with the core principles that should be guiding the law. A simple and clear rule is often desirable, but in this case it is my view that the complexities of the existing rule simply reflect the complexities of arbitration, which cannot and should not be legislated away.

On 7 September 2023, the Court of Justice of the European Union ruled in Case C-590/21, Charles Taylor Adjusting that judgements ordering a party to pay certain sums of money for violating a choice of court agreement are ‘quasi anti suit injunctions’ which violate mutual trust. The courts of Member States are therefore free to consider that such judgements violate public policy and to deny them enforcement under the Brussels I Regulation.

On 3 May 2006, the vessel Alexandros T sank and was lost, along with its cargo, off the bay of Port Elizabeth (South Africa). The companies Starlight Shipping Company and Overseas Marine Enterprises Inc. (‘OME’),  the owner and operator of that vessel, respectively  requested that the insurers of that vessel pay an indemnity on the basis of their contractual liability arising from the occurrence of the insured incident.

After the insurers refused, Starlight initiated proceedings before English courts and before an arbitral tribunal. The parties settled all these actions in several Settlement Agreements, which contained a jurisdiction clause designating English courts. The Settlement Agreements were ratified by several English judgments in 2007 and 2008.

A few years later, Starlight and OME initiated tort actions in Greek courts related to the actions settled in England. One of the defendants in the Greek proceedings was Charles Taylor Adjusting Limited, a legal and technical consultancy which had defended the insurers of the vessel Alexandros T against the claims made by Starlight before the English court, and against the director of that consultancy.

While those actions were pending, the insurers of the vessel and their representatives, including, in particular, Charles Taylor and its director, the defendants in the Greek proceedings, brought actions against Starlight and ΟΜΕ before the English courts seeking a declaration that the actions brought in Greece constituted infringements of the settlement agreements and applying for declarative relief and compensation.

In 2014, the English High Court awarded the applicants compensation in respect of the proceedings instituted in Greece as well as payment of their costs incurred in England on the basis of the content of the settlement agreements and of the jurisdiction clause that they contained.

Charles Taylor and its director then sought recognition and partial enforcement of the 2014 English judgement in Greece.

The Piraeus Court of Appeal found that the 2014 English judgement amounted to a quasi anti suit injunction and should thus be denied recognition and enforcement. The Greek Court of Cassation referred the matter to the CJEU.

The starting point of the reasoning was obviously Turner and the other judgments of the CJEU which have confirmed that anti-suit injunctions are unacceptable under the EU law of jurisdiction: ‘Any injunction prohibiting a claimant from bringing such an action must be seen as constituting interference with the jurisdiction of the foreign court which, as such, is incompatible with that regulation’.

The key issue was to determine whether other forms of assessment of the jurisdiction of courts of other Member States and sanctions of parties wrongly litigating before the courts of Member States could equally interfere with the jurisdiction of those courts.

The CJEU found that, although it did not order any party to discontinue the foreign proceedings, the English judgment still held:

26. … That judgment and those orders nonetheless contain grounds relating to, first, the breach, by Starlight and OME together with the natural persons representing them, of those settlement agreements; second, the penalties for which they will be liable if they fail to comply with that judgment and those orders; and, third, the jurisdiction of the Greek courts in the light of those settlement agreements. Moreover, that judgment and those orders also contain grounds relating to the financial penalties for which Starlight and OME, together with the natural persons representing them, will be liable, in particular a decision on the provisional award of damages, the amount of which is not final and is predicated on the continuation of the proceedings before the Greek courts.

The CJEU ruled that the 2014 English judgment thus interfered with the jurisdiction of Greek courts, and could thus be classified as a quasi anti suit injunction:

27. … While the purpose of that judgment and those orders is not to prohibit a party from bringing or continuing legal action before a foreign court, they may be regarded as having, at the very least, the effect of deterring Starlight and OME, together with their representatives, from bringing proceedings before the Greek courts or continuing before those courts an action the purpose of which is the same as those actions brought before the courts of the United Kingdom, which matter is, in any event, for the referring court to determine.

The CJEU then discussed whether the prohibition to review foreign judgments under the Brussels Regulation prevented the Greek court from denying enforcement to the 2014 English judgment. The CJEU concludes that the Greek Court could rely on the public policy exception to sanction the infringement to the principle that every court is to rule on its own jurisdiction, that other courts should trust the result, and the principle of access to justice.

The rationale for the judgment seems to be twofold. First, the courts of the Member States should not deter litigants from bringing  proceedings before the courts of any other Member State. Second, the courts of the Member States should always refrain from assessing whether the court of other Member States have jurisdiction.

The first reason seems to exclude any interference in proceedings pending before other Member States which could be perceived as exercising pressure on one party to terminate them. It would leave open the possibility to sue after the termination of the proceedings to seek any form of remedy for initiating the foreign proceedings in violation of a choice of court agreement. The second reason, however, would seem to apply even after the foreign proceedings resulted in a judgment.

The broader question is whether it is possible to seek a remedy for abuse of process for seizing wrongly the court of a Member State. For instance, for initiating proceedings in violation of lis pendens. The answer seems to be that such remedy can only be sought in the Member State of the court wrongfully seized, and nowhere else.

London holds the distinction of being a preferred seat for arbitration, making significant developments in English arbitration law of general interest to arbitration specialists and, at times, private international lawyers. Few developments in arbitration law can match the significance of a reform affecting the statute providing a framework for arbitration. This is precisely what the Law Commission of England and Wales is recommending in its final report on the review of the Arbitration Act 1996.

One of the proposals aims to introduce a statutory rule for determining the governing law of an arbitration agreement, which significantly departs from the current common law position. Given the importance of this proposal, the EAPIL blog will host an online symposium on the law governing arbitration agreements from 11 to 13 September 2023.

In this post, I will introduce the Law Commission’s proposals and the symposium.

On 6 September 2023, following an extensive consultation process that included the publication of two consultation papers in September 2022 and March 2023, the Law Commission unveiled its proposals for reforming the 1996 Act (the text of the final report and draft Bill is available here; a summary is available here). These proposals aim to uphold the Act’s core principles, while introducing improvements aimed at enhancing London’s position as a global arbitration centre.

The Law Commission’s major proposals are: codifying an arbitrator’s duty of disclosure; strengthening arbitrator immunity around resignation and applications for removal; introducing the power to make arbitral awards on a summary basis; improving the framework for challenges to awards under section 67 on the basis that the tribunal lacked jurisdiction; adding a new rule on the law governing arbitration agreements; and clarifying court powers in support of arbitral proceedings and emergency arbitrators.

Additionally, the Law Commission proposes several minor corrections, including: allowing appeals from applications to stay legal proceedings; simplifying preliminary applications to court on jurisdiction and points of law; clarifying time limits for challenging awards; and repealing unused provisions on domestic arbitration agreements.

Since private international lawyers are likely more interested in the proposed choice-of-law rule for arbitration agreements and the proposed new relationship between courts and arbitrators regarding jurisdictional challenges, I will focus on these two proposals.

The Rome I Regulation does not cover arbitration agreements, leaving the determination of the law governing arbitration agreements in England to the common law choice-of-law rules for contracts. These rules are well-known: a contract is governed by the law expressly or impliedly chosen by the parties or, in the absence of choice, by the system of law with which the contract is most closely connected. Applying this rule to arbitration clauses can be difficult. Does a broad choice-of-law clause in a matrix contract amount to an express choice of law for the arbitration clause contained therein? If the parties have not expressly chosen the law to govern their arbitration clause, is the choice of law for the matrix contract an indication of implied choice for the arbitration clause? Is the designation of the arbitral seat an indication of such implied choice?

The United Kingdom Supreme Court addressed these questions twice in the past three years in Enka and Kabab-Ji. The court’s majority in Enka (Lord Hamblen, Lord Leggatt, and Lord Kerr) set out the following rules for determining the existence of parties’ choice of law in [170]:

iii) Whether the parties have agreed on a choice of law to govern the arbitration agreement is ascertained by construing the arbitration agreement and the contract containing it, as a whole, applying the rules of contractual interpretation of English law as the law of the forum.

iv) Where the law applicable to the arbitration agreement is not specified, a choice of governing law for the contract will generally apply to an arbitration agreement which forms part of the contract.

v) The choice of a different country as the seat of the arbitration is not, without more, sufficient to negate an inference that a choice of law to govern the contract was intended to apply to the arbitration agreement.

vi) Additional factors which may, however, negate such an inference and may in some cases imply that the arbitration agreement was intended to be governed by the law of the seat are: (a) any provision of the law of the seat which indicates that, where an arbitration is subject to that law, the arbitration agreement will also be treated as governed by that country’s law; or (b) the existence of a serious risk that, if governed by the same law as the main contract, the arbitration agreement would be ineffective. Either factor may be reinforced by circumstances indicating that the seat was deliberately chosen as a neutral forum for the arbitration.

vii) Where there is no express choice of law to govern the contract, a clause providing for arbitration in a particular place will not by itself justify an inference that the contract (or the arbitration agreement) is intended to be governed by the law of that place.

The court also clarified that the law of the seat is ‘generally’ the system of law most closely connected to the arbitration agreement.

Unsurprisingly, consultees said that these rules were complex and unpredictable. This has led the Law Commission to propose a reform of these rules in its second consultation paper.

The proposal has three key elements: 1) retaining express choice; 2) eliminating implied choice; and 3) specifying that the law of the seat applies in the absence of an express choice.

The proposed choice-of-law rule for arbitration agreements reads as follows:

6A Law applicable to arbitration agreement

(1) The law applicable to an arbitration agreement is—

(a) the law that the parties expressly agree applies to the arbitration agreement, or

(b) where no such agreement is made, the law of the seat of the arbitration in question.

(2) For the purposes of subsection (1), agreement between the parties that a particular law applies to an agreement of which the arbitration agreement forms a part does not, of itself, constitute express agreement that that law also applies to the arbitration agreement.

(3) This section does not apply in relation to an arbitration agreement that was entered into before the day on which section 1 of the Arbitration Act 2023 comes into force.

If a party participates in arbitral proceedings, raises a jurisdictional challenge before the tribunal, and is accorded a fair hearing, should they be allowed to challenge the tribunal’s jurisdiction before a court using the same arguments and evidence? The answer to this question is principally guided by two somewhat conflicting considerations: efficiency and freedom of contract (which, of course, includes a freedom not to be bound by a non-existent or invalid contract).

The UKSC addressed this issue in Dallah. Lord Mance wrote obiter in [26] that:

An arbitral tribunal’s decision as to the existence of its own jurisdiction cannot…bind a party who has not submitted the question of arbitrability to the tribunal. This leaves for consideration the nature of the exercise which a court should undertake where there has been no such submission and the court is asked to enforce an award. Domestically, there is no doubt that, whether or not a party’s challenge to the jurisdiction has been raised, argued and decided before the arbitrator, a party who has not submitted to the arbitrator’s jurisdiction is entitled to a full judicial determination on evidence of an issue of jurisdiction before the English court, on an application made in time for that purpose under s.67 of the Arbitration Act 1996.

Lord Collins and Lord Saville expressed similar views in, respectively, [96] and [159]-[160].

The Law Commission believes that such a de novo rehearing is inefficient and unfair to the party wishing to enforce the arbitration agreement. It proposes to limit when a participating party can raise a jurisdictional challenge before English courts.

Following a very controversial proposal in its first consultation paper, the Law Commission has settled on a proposal that has the following four key elements: 1) it covers situations where a party participates in arbitral proceedings, objects to the tribunal’s jurisdiction, and the tribunal rules on its jurisdiction; 2) the court will not entertain any new grounds of objection, or any new evidence, unless it was not reasonably possible to put them before the tribunal; 3) the court will re-hear evidence only if necessary in the interests of justice; and 4) these limitations are to be introduced through rules of court rather than the 1996 Act itself.

The proposed rules outlining this new relationship between courts and arbitrators regarding jurisdictional challenges, to be inserted in section 67, read as follows:

(3A) Rules of court about the procedure to be followed on an application under this section may, in particular, include provision within subsection (3B) in relation to a case where the application—

(a) relates to an objection as to the arbitral tribunal’s substantive jurisdiction on which the tribunal has already ruled, and

(b) is made by a party that took part in the arbitral proceedings.

(3B) Provision is within this subsection if it provides that—

(a) a ground for the objection that was not raised before the arbitral tribunal must not be raised before the court unless the applicant shows that, at the time the applicant took part in the proceedings, the applicant did not know and could not with reasonable diligence have discovered the ground;

(b) evidence that was not heard by the tribunal must not be heard by the court unless the applicant shows that, at the time the applicant took part in the proceedings, the applicant could not with reasonable diligence have put the evidence before the tribunal;

(c) evidence that was heard by the tribunal must not be re-heard by the court, unless the court considers it necessary in the interests of justice.

From 11 to 13 September 2023, the EAPIL blog will host an online symposium on the law governing arbitration agreements. The focus will be on assessing the Law Commission’s proposal and providing a comparative perspective. Professor Alex Mills (UCL) and Dr Manuel Penades Fons (KCL) will kick off the discussion by assessing the proposed choice-of-law rule for arbitration agreements from a UK perspective on Monday 11 September 2023. More contributions from comparative perspectives will follow on Tuesday and Wednesday.

Readers are encouraged to participate in the discussion by commenting on the posts. Those wishing to submit longer analyses on the law governing arbitration agreements, the relationship between courts and arbitrators, or any other issue relating to the Law Commission’s final report are invited to do so by e-mailing Ugljesa Grusic (u.grusic@ucl.ac.uk).

The editorial team of the EAPIL blog has just become a bit larger! Ugljesa Grusic, an Associate Professor at the Faculty of Laws of UCL, has kindly accepted to join our invitation: thanks a lot, Ugljesa, and welcome!

Please check out Ugljesa’s first post here.

It’s a rather special first post, as it announces an on-line symposium, edited by Ugljesa himself, that will run from Monday to Wednesday next week, on the law applicable to arbitration agreements in light of the recent proposals of the English Law Commission.

The Hague Academy of International Law has made known the programme of the winter course on International Law of 2024.

The course will be opened by Yves Daudet (Hague Academy of International Law) with a lecture on Solidarity in International Law.

The general course, titled On the Interface between Public and Private International Law, will be given by Campbell Mclachlan KC (Victoria University of Wellington).

The special courses will be as follows: Ximena Fuentes (University of Chile), Defying Existing International Law as the Starting Point of the Formation of New Customary Law; Patrícia Galvão Teles (Autonomous University of Lisbon) The Advisory Function of International Courts and Tribunals; Maria Gavouneli (National and Kapodistrian University of Athens) Energy in International Law; August Reinisch (University of Vienna) The Settlement of Disputes Involving International Organizations; Ben Saul (University of Sydney) The Special Regime of International Counter-Terrorism Law; Santiago Villalpando (Office of United Nations Educational, Scientific and Cultural Organization – UNESCO) The Practice of the Law of Treaties since the Vienna Convention.

The directors of studies will be Fuad Zarbiyev (Geneva Graduate Institute) for the English-speaking section, and Paula Wojcikiewicz Almeida (Getulio Varga Foundation Law School in Rio de Janeiro) for the French-speaking session.

All applicants are required to register online. A limited amount of scholarships is available. Registration period for full fee applicants is between 1 May 2023 and 1 October 2023. Selected attendees of the Winter Courses will also be able to participate in the doctoral networking sessions coordinated by Daniëlla Dam-de Jong (Leiden University), additional afternoon lectures, embassy visits, social activities,  and to register for an exceptional event: the “Hours of Crisis“ Simulation Exercise. The competition will be conducted in English only.

More information on the Academy’s programmes may be found here.

The eleventh edition of the treatise on Droit international privé in the Précis Dalloz series, one of the leading texts on private international law in France, has recently been published (January 2023, 1100 pages).

The previous edition was published ten years ago. The new, fully revised edition has been prepared by Pascal de Vareilles-Sommières (Sorbonne Law school, Paris I University), who was the co-author of the previous editions (alongside the late Yvon Loussouarn and Pierre Bourel), and Sarah Laval (Littoral Côte d’Opale University).

The first part, titled “Common rules governing private international law” (Règles générales de droit international privé), focuses on the general theory of private international law, and adopts an original distinction between “identification of the legal source” (i.e. in the three fields of choice of law, jurisdiction and judgments) and “regime of the foreign norm” (i.e. the regime of the international regularity (or lawfulness) of the foreign norm – law and judgment – and then the regime of the implementation of the foreign norm).

The second part, titled “Special rules governing private international law” (Droit international privé special), is concerned with the special rules applicable in the different fields of private law (i.e. persons, family, property, obligations, businesses). Another sign of originality here is that each of the areas presented contains a preliminary development on the “policy of building connecting factors”.

While the treatise’s foreword is insightful and conceived as a “user’s guide”, I thought it would be interesting to directly ask the two authors about some specific features of this revised edition. They kindly agreed to answer some questions for the readers of the EAPIL blog and I thank them very warmly.

– This treatise takes, in your own words, a “neo-Savignian” approach to private international law. What does this mean?

On the one hand, a neo-Savignian approach to PIL focuses, like under the traditional Savignian approach, on the links between a given legal relationship and a particular country, in order to sort out, in favour of this country, the choice-of-law/choice-of-court issues (including issues related with jurisdiction of foreign courts, in case of a dispute over a foreign judgment dealing with the case) arising out of said relationship. Like Savigny, a neo-Savignian advocate believes that one of these links (or one set of links among them) justifies better than others the precedence of the concerned country as to ruling the relationship at stake through its law or its courts. This creed relies on the idea that the authority of a ruler varies depending on the strength of its links with the governed subject.

When enacting a choice-of-law (or choice-of-court) rule, a lawmaker who follows a neo-Savignian approach picks up the link (or set of links) which, in his opinion, is the most relevant for the kind of relationship covered by the created rule – and which appears to him as showing the “seat” (like Savigny used to say) of the legal relationship in a particular country. This link will therefore become the connecting factor in the choice-of-law rule (or the jurisdictional basis in the choice-of-court rule – including, here again, the jurisdictional standards applied to foreign courts, as provided by the foreign judgment regime) covering the legal relationship at stake. And this “seat country” will consequently have (at least in principle) its law and/or the judgments rendered by its courts enforced, for said legal relationship, by the forum (viz, the country whose choice-of-law/choice-of-court rules apply, assuming that the dispute is brought before that country’s courts).

But on the other hand (and conversely to the Savignian approach), our neo-Savignian approach promotes the idea that legal relationships between private persons in an international setting do not necessarily have only one seat in one country – whose law and courts would thus govern this relationship –, but may well have (and actually often have) several “anchors” or relevant connections to different countries, each of whom being a possible seat or “anchorage”. Two important consequences stem from this: (i) in a given case, the seat relevant for adjudicating the dispute may well prove different from the seat relevant for legislating over it; (ii) moreover, since one must think contemporary choice-of-law and choice-of-court rules (including, as aforementioned, those governing foreign judgments) in terms of domestic rather than international sources (at least in principle), the seat of a given relationship may well vary from country to country.

All this shows that, in our early XXI century, reasoning (as used to do Savigny) in terms of “one seat in one country for one kind of relationship” – at least each time this relationship appears in an international setting – is a bit misleading since it does not correspond to the truth of law as it is experienced by the parties. Our neo-Savignian doctrine admits the possibility of plural seats for a given legal relationship and addresses this occurrence through a set of choice-of-law and choice-of-courts rules which are inspired by Savigny’s thought (search of the most relevant links), as adapted to fit the contemporary legal landscape for private law applying in an international context (plurality of relevant fora enacting varied choice of law and choice of court rules). Accordingly, in a given country, the conflict between the countries (taken as lawmakers or as judgment-makers for the case at stake) with which a legal situation is linked, will be won by the one that has the most relevant relationship with the situation, this relevance being determined by a series of private and public considerations.

Far from being merely neutral, the choice-of-law rules appear as the result of a certain policy implemented by the authors of these rules (the “choice-of-law policy”, distinct from the “substantive policy” enacted by the substantive law chosen as applicable and relevant when it comes to sorting out the substantive issue). The same is true, mutatis mutandis, for the choice-of-court rules.

The neo-Savignian approach also repudiates two popular postulates: (i) the postulate according to which countries are not affected by the solution of conflict of laws (since at a minimum, the authority of the sovereign country, taken as a ruler, vis-à-vis the parties to the legal relationship is at stake when sorting out a choice-of-law/choice-of-court issue); and (ii) also the postulate according to which, in a given case, the applicable law and the jurisdiction of courts are basically disconnected from one another; on the contrary, they are both seen as one side of the exercise of one countries’ power to make “law” (broadly speaking: either by enacting a bill, or by rendering a judgment). The originality of the neo-Savignian approach therefore also lies in a sort of presumption that the country whose courts have jurisdiction over a case often ought to be (and actually, quite naturally) the country whose law governs the relationship (jurisdiction of the forum legis).

– Could you concretely illustrate this neo-Savignian approach?

Let us take one example of a multiple-seat private law relationship; it will be provided by the family chapter of PIL, and more especially, the filiation issue (relation of child to father).

Under French law, the choice-of-law rule points to a country as being the correct lawmaker for filiation where it turns out that the child’s mother has the nationality of that country (C. civ., Article 311-14); whereas the jurisdiction rule points to France as being the correct judgment-maker for filiation where the defendant (often the suspected father) is domiciled in France (CPC, Article 42), or, in case he is not, where he is a French citizen (C. civ., Article 15), or even, as a minimum, where the claimant (the child in a filiation proceeding) is a French citizen (C. civ., Article 14). These rules show that French substantive law on filiation will apply before French courts in a dispute brought before French courts each time that (i) the suspected father is domiciled in France, or at least that he, or the child, has French nationality (so that French courts have jurisdiction); and (ii) the mother is French (so that French substantive law governs the case). In such a case, France gets a plenary power to provide for a substantive regime (both through legislature and through court) for the filiation. The seat of the relation of child to father (at least from the French viewpoint) is located in France, both with respect to the substantive law governing the case and to the court having the final word in the dispute.

Let us assume now that the man is Italian, and the child is a US citizen (since he was born within the US territory, where one assumes also here that his French mother lives with him). In that case, Italian courts claim jurisdiction over the case (Italian Act No 218, 1995, Article 37). Assuming that the claimant brings the dispute against the suspected father before Italian courts, these courts should assert jurisdiction on the filiation issue, since for Italy, the judicial seat of the case is in Italy. As to the legislative seat, it will be provided by the Italian choice-of-law rule, under which the law governing filiation is the law of the country of origin (nationality) of the child (Italian Act No 218, 1995, Article 33), here the law of the relevant US state. Hence the Italian court will not apply the French law, even though the child’s mother is French (and notwithstanding the French choice-of-law rule claiming applicability of French law for that reason).

Typically, under our neo-Savignian approach, the filiation proceeding covers a relation that has not one seat in onecountry, but at least three seats in three countries (France, Italy and the United States), and parties to this relationship should be aware of this data when wondering what is the content of the legal regime governing the substantive issues arising out of their case. One should add here that the country where the filiation proceeding is brought would be well advised not to forget this plural-seat data when it comes to addressing the legal issues arising out of this dispute. It is probably so for France, if recognition of enforcement of the Italian judgment is sought there: even though the French choice-of-law rule claims French substantive law being applicable to the filiation issue (since the mother is French), the foreign judgment regime as set up by French case-law does not rule out the Italian judgment for the mere reason that the Italian court did not enforce French law (but rather the law of the relevant state in the USA).

– The formal presentation of private international law solutions in the treatise is inspired by a “trans-systemic/transnational” pedagogy. The aim is to go beyond the particularistic (i.e., French-oriented) approach to the discipline. Could you elaborate on that?

This presentation divides each PIL development into two parts. The first part is more about rhetoric; it sets the problematics, the principles and the interests at stake for each topic, it lists the different considerations that shall be taken into consideration to solve the choice-of-law/choice-of-court issues, and it suggests a solution according to the neo-Savignian approach. These rhetoric parts are not too deeply invaded by legal data from one particular country or another. Accordingly, at that stage, the book rather sticks to a universalist view of PIL.

The second part of the developments on each issue is a presentation of the rules as they exist in some jurisdictions, would these rules stick to the solutions exposed in the first part or would they differ from them. In this second part, the rules are not only French rules, but European and International (Hague Conventions in particular) rules as well. The purpose of this transnational presentation is to depart from a purely French point of view as well as to understand the extent to which French Law solutions are similar to European and International Law solutions. The outcome of this presentation is that, contrarily to other handbooks on the libraries’ shelves, this recast edition is not merely a book on French PIL, but rather a book on PIL as it is conceived and applied by France, by the European Union and by the international community through international conventions (mainly Hague conventions from the Hague Conference for PIL).

The (private international) law of choice-of-court agreements provides us with a good example of this methodology. In the rhetoric part of the presentation on this issue, the book draws on (i) the relation between the lawfulness of choice-of-court agreements and the question whether the jurisdiction rule is binding or non-binding in law, for the parties; and (ii) the considerations influencing the decision whether such a rule ought to be binding in law or not for the parties. Then, in a series of developments on law as it is in force in some jurisdictions, a quick presentation is made regarding French law, EU law (Brussels I bis Regulation) and the Hague convention on choice of court agreements.

– How do you “present” and “represent” in the treatise the Europeanisation of private international law and, ultimately, EU private international law?

To make a long story short, one can say that there are two possible paths that one can follow in order to present the EU as a lawmaker in the field of PIL.

On the one hand, the traditional way tends to look at the EU from the classical public international law viewpoint. EU member-states are sovereign States bound by an international treaty (Treaty of Rome, 1957 – which was ultimately renamed the Treaty on the Functioning of the European Union by the Treaty of Lisbon, 2007). From that standpoint, EU PIL is fostered by EU institutions and comes into force in the EU member-states through an international treaty. It is on that basis that it becomes part of the law of each member-state and it ought to work as such.

On the other hand, a more unusual analysis of the EU is to see this entity as a political entity having some features of a sovereign State (nevertheless not all of them, so that it cannot claim being a State from the international law standpoint, but, at a maximum, it may qualify as what is sometimes called a “proto-state”). As such, EU PIL in a member-state differentiates from domestic PIL of this member-state, with some consequences like one in the field of characterization, where, for a member-state court, resorting to domestic definitions for interpreting EU legal categories as used in EU PIL regulations is not appropriate (at least in principle). Similarly, the proto-state notion proves useful for the correct understanding of the function of EU PIL, compared to member-state PIL of domestic origin. This last one may be seen as a tool for fixing the ambit of legislative or judiciary action of a member-state. The first one is seen in the book as delineating the outskirts of each member-state’s private law (as made by a legislature or by a court), whether with regards to each other, or even with regards to non-member-states. It may well be used also as a tool for delineating the outskirts of EU private law where it exists, as the case may be. And finally, the proto-state notion is useful to understand another influence of EU law on EU member-state PIL having a domestic origin: to the extent that EU may be seen as a “proto-federal State”, the interference of EU freedom of persons (Article 21 TFEU) on the law of EU member-states, including PIL of domestic origin, appears as one regarding the lawfulness of the legal provisions composing this domestic law.

One must add that the European influence on the PIL of European countries is not limited to EU law, but may come from other organizations or instruments as well, like the Council of Europe. This international organization is much less integrated than the European Union, and for this reason the book does not see it as a proto-state. But of course, this does not prevent us from scrutinizing the possible incidence of the Council of Europe law (and especially the ECHR case-law) on EU (and EU member-state) PIL, particularly through the reshaping of the public policy defence.

– Could you concretely illustrate your “proto-state” approach of EU PIL?

Article 4.1 of Rome II Regulation and Articles 4, 7, and 45 of the Brussels I bis Regulation read as follows, through the proto-State notion as applied to the European Union:

In principle, under Article 4.1 of Rome II regulation, the EU grants (or recognizes) jurisdiction to legislate in matter of non-contractual obligation to any member-state having sovereignty on the territory where the damage occurs. The same jurisdiction to legislate is recognized in principle by EU PIL to any non-EU country exercising sovereignty on this territory. EU member-states are granted jurisdiction to adjudicate a case in non-contractual obligations under the Brussels I.a regulation (article 4 and 7); but countries having rendered a judgment in this subject matter may be seen as providing a regular ground to their judgment, even though they are not a country selected by these articles, and this is so whether they are (i) an EU member-state (since the origin of the EU member-state judgment is not controlled under article 45.3 of Brussels I.a regulation); or (ii) a non-EU country (since EU PIL does not cover recognition and enforcement of non-EU country judgments).

– For the benefit of the private international law community, what are the two or three major issues which, in your book, seem to you to be at the heart of the reflections to be conducted for the private international law of the future? 

The first issue could be a potential harmonization between the answer to the two questions of (i) which law prevails? and (ii) which court has jurisdiction? In France, scholars usually have strong opinions on the separation between these two fields and stick to the postulate that their regulation relies on distinct considerations: whereas the court that has jurisdiction appears to be chosen after purely procedural considerations, the choice of law is usually determined by non-procedural considerations, since the choice-of-law issue may arise outside any proceedings. This presentation neglects the idea that choosing a country’s court instead of another one is not neutral with respect to the outcome of the proceeding and eventually has a strong influence on the solution of the dispute. Therefore, a country exercising a legislative power also has an interest in exercising its judicial power. Taking these elements into consideration might be a good opportunity to review the choice-of-court rules and see to what extent they stick – or could stick – to this approach.

A second issue is about the leeway available to a court when it comes to exercising its jurisdiction over a case presenting relevant links with court’s country. Since the claimant holds a strong sway on the outcome of the proceeding – through the choice of the forum where the dispute is brought –, any country ought to provide its courts with the power to give up the exercise of its jurisdiction over the dispute, each time it turns out that the claimant would have an excessive advantage in suing the defendant before the court of one of the countries whose links with the case are sufficient to trigger its jurisdiction to adjudicate.

A third issue could be the digitalization of international private relations. This digitalization emphasizes the opportunity to depart from a reasoning in terms of mere localization of facts and urges the need to adopt a reasoning in terms of policy advocated for by the choice-of-law/choice-of-court legislature. For these relations, the determination of the applicable law or of the court that has jurisdiction cannot be the result of a search for a country where the facts take place (it is submitted that this country really does not exist), but the result of the comparison between the different public and private interests at stake. Eventually, the relationship arising in a digitalized context has its seat in the country with the most relevant links to it – relevance being here the outcome of an analysis and weighing of the competing interests that one can find, for a country, to be recognized as a ruler (through its laws or courts) for said relationship, and, for the parties to said relationship, that this country be recognized as governing it.

This post was written by Verena Wodniansky-Wildenfeld, University of Vienna.

On 8 March 2023, the German Supreme Court issued a judgment on the paternity of two children. In the case at hand, the validity of the marriage of the mother, which gives rise to the presumption of paternity, had to be determined as a preliminary issue. This was further complicated by the interference of a talaq divorce.

An Iranian-German woman married an Iranian man in Iran in 1996 and was subsequently divorced by a talaq in Iran in 2006. The recognition of this divorce was refused in Germany, as is usual for reasons of public policy in connection with the right to be heard, in 2012 by a decision of a German administrative authority. In 2009, the woman remarried another Iranian man in Iran and gave birth to two children in 2010 and 2013, who have had their habitual residence in Germany ever since. The second husband was registered as the father in the German birth register. The registry office wanted to correct this registration in favour of the first husband, as Section 1592(1) of the German Civil Code (BGB) considers the husband of the mother at the time of the birth as the legal father of the child.

The core issue before the German Supreme Court was the determination of the law applicable to parenthood. In the absence of overriding rules of EU or international law (the Bilateral Treaty between Germany and Iran did not apply because the mother of the children has both German and Iranian nationality), the court turned to national conflicts rules. Article 19(1) of the Introductory Act to the German Civil Code (EGBGB) provides for an alternative connecting factor based either on the law of the child’s habitual residence or, for each parent separately, on his or her nationality. In the case of married persons, parentage may also be determined according to the law governing the general effects of their marriage at the time of birth.

As the children had their habitual residence in Germany, the Court examined parentage in accordance with German substantive law. Accordingly, the children’s father would be the person who was married to the child’s mother at the time of birth.

The question arose to whom the mother was effectively married at the time of birth. The court therefore assessed the validity of the second marriage as a preliminary question. The substantive requirements for marriage are governed by the law of the nationality of each of the spouses (Article 13(1) EGBGB). Accordingly, the second marriage violated from a German viewpoint the prohibition of bigamy (Section 1306 BGB), as the Iranian divorce was not recognised in Germany. For the mother of the child, the second marriage would merely be dissolvable under German law, but not automatically null and void by operation of law (ex lege). For the second husband, who is exclusively of Iranian nationality, Iranian law applies according to Article 13(1) EGBGB, which stipulates that a man must not marry a woman who is already married (Article 1050 Iranian Civil Code), otherwise the marriage is considered to be invalid.

In this respect, the Court first had to decide whether the talaq divorce with the first husband was effective in order to answer the question of the validity of the marriage with the second husband.

The legally binding decision of the German administrative authority not to recognise the talaq divorce has the consequence that it has no legal effect in Germany. A separate conflict-of-laws assessment is therefore not required, at least in cases with a strong national link, as in the present case. The Court therefore correctly assumed that the second marriage of the mother was a violation of the Iranian prohibition of bigamy and therefore null and void, as the divorce had to be considered invalid.

In order to avoid a situation in which the status of the parties to a marriage is in doubt (limping marriage), the “stricter” law that is most opposed to the marriage is generally applied when examining the substantive requirements for marriage. According to this principle, the second marriage would be considered void, as it is considered void under Iranian law. However, this would be a “paradox” result in so far as the marriage would not be null and void under either of the two legal systems when examined individually. Therefore, the Court deviates from the principle of applying the stricter law and, exceptionally, allows the milder German law to decide the consequence. The result is that under German law two marriages existed at the time of birth. The court resolves the subsequent double presumption of paternity by an analogous application of Section 1593 sentence 3 BGB (A child that could be both the child of the former husband and the new husband is to be regarded only as the child of the new husband). Consequently, only the second marriage is decisive, and the second husband was registered as the father of both children.

Although the reasoning of the decision may appear contrived and somewhat forced, the outcome reflects the factual circumstances. The prior legally binding decision not to recognise the divorce and the resulting lack of a conflict-of-laws analysis forces the court to reach deep into its bag of tricks in order not to undermine a presumption of paternity that is effective in both legal systems. Adaptation would normally be the tool of choice in cases where the result of a conflicts analysis is unsatisfactory because the legal consequences would not arise in either jurisdiction. In the case at hand, however, adapting the outcome was not possible due to the interplay between procedural law and substantive law. The procedural effect of the refusal to recognise the divorce must be clearly distinguished from the conflict-of-laws implications. The court is therefore facing the challenge of making corrections at the level of the legal consequences in order to achieve the desired result. Dogmatically as well as methodologically, it is always problematic to put the cart before the horse in this way, and once again the approach taken by the Court is not flawless. Instead of following legal practice, the Court chose the most practical solution in the individual case – which is always where legal practice and science have to part company.

Holidays are over and September 2023 will be a busy month at the Court of Justice also as regards private international law, starting with the delivery of the Opinion by AG Emiliou in case C-90/22, Gjensidige, and of two decisions by the third and the fifth chamber respectively (both formations of five judges) already on Thursday 7.

The request for a preliminary ruling in Gjensidige comes from the Lietuvos Aukščiausiasis Teismas (Lithuania). In the case at hand, the proceedings in cassation focus on the legal provisions governing the significance of an agreement conferring jurisdiction, entered into by the parties to a contract for international carriage, in the context of determining both the jurisdiction of the court hearing the dispute that arose from that contract and the legal consequences of a breach of the lis pendens rules. The national court is asking the following:

Can Article 71 of Regulation No 1215/2012, having regard to Articles 25, 29 and 31 and recitals 21 and 22 thereof, be interpreted as permitting the application of Article 31 of the CMR Convention also in cases where a dispute falling within the scope of both those legal instruments is the subject of an agreement conferring jurisdiction?

Having regard to the legislature’s intention to strengthen the protection of agreements conferring jurisdiction in the European Union, can Article 45(1)(e)(ii) of Regulation No 1215/2012 be interpreted more broadly, as covering not only Section 6 of Chapter II of that regulation but also Section 7 thereof?

After assessment of the specific features of the situation and the resulting legal consequences, can the term ‘public policy’ used in Regulation No 1215/2012 be interpreted as covering the ground for deciding not to recognise a judgment of another Member State where the application of a specialised convention, such as the CMR Convention, creates a legal situation in which both the agreement conferring jurisdiction and the agreement on the applicable law are not observed in the same case?

One the same day the Court will hand down its judgement in cases C-590/21, Charles Taylor Adjusting,  and C-832/21 Beverage City Polska.

The request for a preliminary ruling in case C-590/21 was lodged by the Areios Pagos (Court of Cassation, Greece). It concerns the interpretation of Article 34(1) and Article 45(1) of the Regulation No 44/2001 (Brussels I), in proceedings on the recognition and enforcement by a court of a Member State of judgments issued by a court of another Member State which have the effect of deterring parties, which had brought proceedings before another court of the former Member State, from continuing the proceedings pending before it. The questions referred read:

(1) Is the expression “manifestly contrary to public policy” in the EU and, by extension, to domestic public policy, which constitutes a ground for non-recognition and non-enforcement pursuant to point 1 of Article 34 and Article 45(1) of Regulation No 44/2001, to be understood as meaning that it extends beyond explicit anti-suit injunctions prohibiting the commencement and continuation of proceedings before a court of another Member State to judgments or orders delivered by courts of Member States where: (i) they impede or prevent the claimant in obtaining judicial protection by the court of another Member State or from continuing proceedings already commenced before it; and (ii) is that form of interference in the jurisdiction of a court of another Member State to adjudicate a dispute of which it has already been seised, and which it has admitted, compatible with public policy in the EU? In particular, is it contrary to public policy in the EU within the meaning of point 1 of Article 34 and Article 45(1) of Regulation No 44/2001, to recognise and/or declare enforceable a judgment or order of a court of a Member State awarding provisional damages to claimants seeking recognition and a declaration of enforceability in respect of the costs and expenses incurred by them in bringing an action or continuing proceedings before the court of another Member State, where the reasons given are that: (a) it follows from an examination of that action that the case is covered by a settlement duly established and ratified by the court of the Member State delivering the judgment (or order); and (b) the court of the other Member State seised in a fresh action by the party against which the judgment or order was delivered lacks jurisdiction by virtue of a clause conferring exclusive jurisdiction?

(2) If the first question is answered in the negative, is point 1 of Article 34 of Regulation No 44/2001, as interpreted by the Court of Justice of the European Union, to be understood as constituting a ground for non-recognition and non-enforcement in Greece of the judgment and orders delivered by a court of another Member State (the United Kingdom), as described under [(1)] above, where they are directly and manifestly contrary to national public policy in accordance with fundamental social and legal perceptions which prevail in Greece and the fundamental provisions of Greek law that lie at the very heart of the right to judicial protection (Articles 8 and 20 of the Greek Constitution, Article 33 of the [Astikos Kodikas (Greek Civil Code)] and the principle of protection of that right that underpins the entire system of Greek procedural law, as laid down in [Article 176, Article 173(1) to (3) and Articles 185, 205 and 191] of the [Kodikas Politikis Dikonomias (Greek Code of Civil Procedure)] cited in paragraph 6 of the statement of reasons) and Article 6(1) of the [European Convention on Human Rights], such that, in that case, it is permissible to disapply the principle of EU law on the free movement of judgments, and is the non-recognition resulting therefrom compatible with the views that assimilate and promote the European perspective?

In his Opinion delivered on 23 March 2023, AG Richard de la Tour proposes propose that the Court of Justice answer as follows:

Article 34(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that a court of a Member State can refuse to recognise and enforce a decision on the ground that it is contrary to public policy based on the fact that that decision prevents the continuation of proceedings pending before another court of that Member State, in that it awards to one of the parties provisional damages in respect of the costs and expenses incurred by it in bringing those proceedings, where the reasons given are, first, that the subject matter of those proceedings is covered by a settlement duly established and ratified by the court of the Member State delivering that decision, and, second, that the court of the other Member State before which those proceedings were brought lacks jurisdiction by virtue of a clause conferring exclusive jurisdiction.

It is now for judges K. Jürimäe, M. Safjan, N. Piçarra, N. Jääskinen (as reporting judge) and M. Gavalec to decide.

In case C-832/21, Beverage City Polska, the Oberlandesgericht Düsseldorf (Higher Regional Court for Civil and Criminal Matters of Düsseldorf, Germany), made a request for a preliminary ruling on the interpretation of Article 8, point 1, of the Brussels I regulation, in relation to Article 122 of Regulation (EU) 2017/1001 on the European Union trade mark. The main proceedings engaged the owner of a Union trademark, established in the United States, and a distributor and its supplier, respectively domiciled in Germany and Poland, regarding the alleged violation by them of said trademark. The Court of Justice is asked to complete its jurisprudence on the requirements of the special rule established in Article 8, point 1, of Regulation No. 1215/2012, which allows several persons domiciled in different Member States to sue before the courts of the domicile of only one of them, whereas the claims filed before the referring court are directed against several companies and their administrators, against whom the action has been filed not only in their capacity as representatives of such companies, but also in their personal capacity.

AG Richard de la Tour’s Opinion, March 23, 2023 proposes the Court to answer:

Article 8(1) of Regulation (EU) No 1215/2012 …, read in conjunction with Article 122 of Regulation (EU) 2017/1001 …, must be interpreted as meaning that more than one defendant, domiciled in different Member States, may be sued in the courts for the place where one of them is domiciled that are seised, in the context of infringement proceedings, of claims brought against them by the proprietor of an EU trade mark where the defendants are alleged to have infringed that trade mark in a materially identical manner through each of their acts in a supply chain. It is for the court seised to assess whether there is a risk of irreconcilable judgments resulting from separate proceedings, taking into account all the relevant material in the case file.

The decision corresponds to judges E. Regan, D. Gratsias, M. Ilešič (reporting judge), I. Jarukaitis and Z. Csehi.

Three further decisions will be published the following week, i.e. on Thursday 14.

C-632/21, Diamond Resorts Europe e.a., is a Spanish request from the Juzgado de Primera Instancia e Instrucción n.º 2 de Granadilla de Abona on the law applicable to contractual obligations under Regulation No 593/2008 (Rome I) and (to some extent) its predecessor, the 1980 Rome Convention. The succinct presentation  of the facts according to the English summary of the request establishes that an action was brought before the referring Spanish court seeking the annulment of two contracts (of 14 April 2008 and of 28 June 2010) concluded between a UK company and the applicants in the main proceedings, Mr JF and Ms NS, of British nationality. The contracts relate to the purchase of points which enable consumers to use accommodation belonging to the club owned by the defendant in Europe, including Spain. Consumers are not allocated specific accommodation, even for a specified period each year; instead, they are offered a brochure of accommodation and must request availability for each property at a particular time.

These are the questions referred to the Court:

1) Are the 1980 Rome Convention … and Regulation No 593/2008 on the law applicable to contractual obligations to be construed as applying to contracts in which both parties are United Kingdom nationals?

If the answer to the first question is in the affirmative

2) Is Regulation No 593/2008 to be construed as applying to contracts concluded before its entry into force, pursuant to Article 24 of that regulation? If the answer is no, must a club-points-based timeshare contract be treated as falling within the scope of Articles 4(3) or (5) of the 1980 Rome Convention, including where the consumer has chosen the law of a State other than his or her State of habitual residence as the applicable law? Further, if the answer is that such contracts can come under either provision, which set of rules takes priority?

3) Irrespective of the answers to the second question, is a club-points-based timeshare contract to be treated as a contract for the acquisition of rights in rem in immovable property or association-type rights in personam?

– If it is considered that rights in rem are acquired, for the purposes of determining the law applicable, which of Article 4(c) and 6(1) of Regulation No 593/2008 is applicable by way priority, including in the event that the consumer chooses the law of a State other than that of his or her State of habitual residence as the applicable law?

– If it is considered that rights in personam are acquired, are those rights to be treated as a tenancy of immovable property, for the purposes of Article 4(c), or as a provision of services, for the purposes of Article 4(b)? Further, and in any event, is Article 6(1) applicable by way of priority in so far as the contract is with a consumer and/or user, including where the consumer chooses the law of a State other than that of his or her State of habitual residence as the applicable law?

4) In all of the above cases, is national legislation which states that ‘all contracts concerning rights relating to the use of one or more immovable properties situated in Spain during a specified or specifiable period of the year are subject to the provisions of this Law, regardless of the place or the date on which such contracts were concluded’ to be interpreted as being compatible with the provisions governing the applicable law laid down in the 1980 Rome Convention and in Regulation No 593/2008?

No Opinion has been asked for. The Court will decide in a chamber of three judges, namely L. Arastey Sahún, F. Biltgen (as reporting judge) and J. Passer.

On the same day, the same chamber will hand down the judgment in case C-821/21, Club La Costa e.a., corresponding again to a Spanish request; no Opinion precedes the decision. Six questions have been referred to the Court on the Brussels I bis and Rome I Regulations:

In relation to Regulation (EU) No 1215/2012 …:

1. In the case of consumer contracts to which Article 18(1) of the Brussels I Regulation is applicable, is it compatible with that regulation to interpret the term ‘the other party to a contract’ used in that provision as encompassing only a person who signed the contract, such that it cannot include natural or legal persons other than those who actually signed the contract?

2. If the term ‘the other party to a contract’ is interpreted as encompassing only a person who actually signed the contract, in situations in which both the consumer and ‘the other party to a contract’ are domiciled outside Spain, is it compatible with Article 18(1) of the Brussels I Regulation to conclude that the international jurisdiction of the Spanish courts cannot be determined by the fact that the group of undertakings to which ‘the other party to a contract’ belongs includes companies that are domiciled in Spain but did not sign the contract or signed different contracts other than that in respect of which a declaration of nullity is sought?

3. If ‘the other party to a contract’, as referred to in Article 18(1) of the Brussels I Regulation, provides evidence that its domicile is established in the United Kingdom in accordance with Article 63(2) of the regulation, is it compatible with that provision to conclude that a domicile so established delimits the option that can be exercised under Article 18(1)? And, in addition to that, is it compatible with that provision to conclude that it does not simply establish a mere ‘presumption of fact’, or that that presumption is overturned if ‘the other party to a contract’ carries on business outside the jurisdiction of its domicile, or that the onus is on ‘the other party to a contract’ to demonstrate that its domicile, as determined in accordance with the provision cited, is the same as the place where it carries on its business?

In relation to Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008:

4. In the case of consumer contracts to which the Rome I Regulation is applicable, is it compatible with Article 3 of that regulation to conclude that clauses determining the applicable law, which are included in the ‘general conditions’ of the contract signed by the parties or which are included in a separate document which is expressly referred to in the contract and is shown to have been provided to the consumer, are valid and applicable?

5. In the case of consumer contracts to which the Rome I Regulation is applicable, is it compatible with Article 6(1) of that regulation to conclude that it can be relied on by a consumer and by the other party to a contract?

6. In the case of consumer contracts to which the Rome I Regulation is applicable, is it compatible with Article 6(1) of that regulation to conclude that, if the conditions laid down therein are satisfied, the law indicated in that provision will in all cases be applied in preference to that indicated in Article 6(3), even though the latter may be more favourable to the consumer in the particular case?

In the main proceedings, Mr NM, a British national domiciled in the United Kingdom, concluded in Spain in 2018 a timeshare contract under Spanish Law 4/2012 of 6 July 2012. Mr NM’s wife, also a British national domiciled in the UK, was a party to the contract as well, as was, through its Spanish branch, the entity Club La Costa (UK) PLC, a British company domiciled in the UK which directs its commercial activities to Spain and other countries, including the UK. The timeshare contract contained a clause according to which it ‘shall be interpreted in accordance with English law and shall be subject to the exclusive jurisdiction of the English courts.’ Mr NM brought an action against the other party to the contract, Club La Costa (UK) for a declaration of nullity of that contract before the referring court together with a claim for a refund of payments made PLC. The claim was directed as well against another four companies, three of British nationality and a fourth of Spanish nationality; none of them had participated in the conclusion of the contract at issue in the main proceedings; they had, though, in the conclusion of other contracts in which Club La Costa (UK) PLC was not involved. The disputed issue in the main proceedings is whether the Spanish courts have jurisdiction to hear the claim. It is also necessary to determine what the applicable law is. In this regard, albeit not the subject matter of a question to the Court of Justice, the doubts of the referring court are raised by the fact that under Spanish procedural law, if a foreign law is applicable, the party which invokes that law must confirm the existence and content of that law. Spanish law also lays down rules on the admission of evidence under foreign law.

Finally, the decision by judges L. Arastey Sahún, F. Biltgen (as reporting judge) and J. Passer in case C-393/22, EXTÉRIA, not accompanied by a previous Opinion, will be published on 14 September 2023. Here, the Nejvyšší soud (Supreme Court, Czech Republic) asks the Court in Luxembourg whether Article 7(1)(b) of Regulation No 1215/2012 must be interpreted ‘as meaning that the concept contract for the provision of services also includes a contract to enter into a future contract (pactum de contrahendo), in which the parties undertook to enter into a future contract that would be a contract for the provision of services, within the meaning of that provision’.

On 31 August 2023, the European Court of Human Rights has handed out its decision regarding application in case C. v. Italie (application no. 47196/21), on the refusal by the Italian authorities to recognize the bond of filiation established by a Ukrainian birth certificate between the child C, born abroad by surrogacy, and her biological father and her mother of intention. Article 8 of the Convention is at stake.

The Court has declared the request admissible (unanimously); it has held, by six votes to one, that there has been a violation of Article 8 of the Convention in its procedural aspect in connection with the establishment of parentage between the applicant and L.B.; and has held unanimously that there has been no violation of Article 8 of the Convention on account of the refusal to transcribe the applicant’s birth certificate in respect of her intended mother.

The decision is already available in French at HUDOC.

On a related previous ruling against Denmark, with three dissenting opinions (out of seven) see E. Sinander’s post here.

In 2018, L.B. and E.A.M., an Italian heterosexual couple, enter into a surrogacy contract in Ukraine. An embryo from an egg from an anonymous donor and sperm from L.B. was implanted in the uterus of a surrogate mother. The applicant was born in August 2019. A birth certificate was drawn up in Ukraine.

On September 16, 2019, L.B. and E.A.M. asked the civil registrar of the Italian town of V. for the entry into the civil status register of the child’s Ukrainian birth certificate. By decision of 4 December 2019, the civil status office rejected the request on the ground that such a transcription was contrary to public order. On January 14, 2020, L.B. and E.A.M. appealed before the court of V. They requested the transcription of the certificate and, in the alternative, the transcription of the name of the biological father alone. By a decision of March 16, 2020, the court dismissed the appeal on the grounds that taking into account the best interests of the child could not lead to disregard of the principle of incompatibility of surrogacy with public order. L.B. and E.A.M. appealed against this decision and requested, by way of an interim appeal included in the appeal proceedings, the partial transcription of the birth certificate in respect of L.B. In a judgment of June 14, 2021, the Court of Appeal dismissed their appeal.

On 8 June 2022, L.B. asked the civil status office of the municipality of C.S., where he had transferred his residence, to carry out a partial transcription of his daughter’s birth certificate. By a note of July 6, 2022, the civil status office refused the partial transcription on the grounds that the prohibition of surrogacy could not be circumvented.

On the merits, the Strasbourg Court considers that the existence of an interference with the applicant’s right to respect for her private life is beyond doubt. It recalls that such interference infringes Article 8 unless, ‘in accordance with the law’, it pursues one or more of the legitimate aims set out in the second paragraph of this provision and if it is ‘necessary in a democratic society’, the notion of ‘necessity’ implying an interference based on a pressing social need and, in particular, proportionate to the legitimate aim pursued (Mennesson v. France, no. 65192/11).

The Court finds that the rejection of the request for the entry in the civil status registers of the applicant’s foreign birth certificate was provided for by law, within the meaning of the second paragraph of Article 8, surrogacy being prohibited under Italian law. It also finds the condition of legitimate aims is met, in that the interference under examination pursued two of the legitimate aims listed in the second paragraph of Article 8 of the Convention (‘the protection of health’ and ‘the protection of human rights and freedoms of others’).

The interference is, however, not ‘necessary in a democratic society’ to achieve the pursued aims. Here, the Court differentiates:

A. On the establishment of the parent-child relationship between the applicant and her biological father, the Court recalls that, according to its case-law, Article 8 of the Convention requires domestic law to provide for the possibility of recognition of the link between a child, born as a result of surrogacy practiced abroad, and the intending father when the latter is the biological father. In addition, the Court has already noted that the absence of recognition of a parent-child relationship between a child born from surrogacy practiced abroad and the intended parent has negative consequences on several aspects of the right of the child to respect for private life; it also disadvantages the child in as far as it places him in a form of legal uncertainty as to his identity in society. It is in the interest of the child who is in this situation that the duration of the uncertainty as to the establishment of his filiation be as short as possible.

Regarding the case at hand, the Court concludes that the domestic courts dismissed the disputed claims without weighing the various interests at stake and, above all, without considering the requirements of speed and efficiency required in proceedings such as the present one. The Court finds that, in view of the particular circumstances of the case, despite the margin of appreciation afforded to the State the Italian authorities failed in their positive obligation to guarantee the applicant’s right to respect for her privacy to which he is entitled under the Convention. Accordingly, there has been a violation of Article 8 of the Convention on this point (see dissenting opinion by Judge Wojtyczek).

B. Regarding the impossibility for the applicant to have the bond which unites her to her intended mother recognized, the Court admits that Italian law does not allow the transcription of the birth certificate for the intended mother. It acknowledges, however, that Italian law guarantees the latter the possibility of legally recognizing the child through adoption. In this regard, the Court notes that, according to the Plenary Assembly of the Italian Court of Cassation, adoption enables the courts seised to assess the requirements of Article 8 of the Convention and the best interests of the child.

In view of the foregoing, the Court is of the opinion that by refusing to transcribe the applicant’s Ukrainian birth certificate into the Italian civil status registers in so far as it designates E.A.M. as her mother, the Respondent State did not, in the circumstances of the case, exceed its margin of appreciation. Therefore, there has been no violation of Article 8 of the Convention on this point.