EAPIL blog

The author of this post is Chukwuma Okoli, Assistant Professor in Commercial Conflict of Laws at the University of Birmingham, and Senior Research Associate at the University of Johannesburg.

In a recent article, I explore what should be globally significant in a forum selection agreement as an indicator of the implied choice of law.

This topic is in itself a very old one, dating back to the late 19th century when English judges in Hamlyn & Co v Talisker Distillery (1894) AC 202, 208.explicitly held that in the absence of an express choice of law, a choice of forum agreement would imply the choice of law. The popular Latin maxim for this is: Qui eligit forum vel iudicem eligit ius. Currently, however, this topic is ill-defined, notoriously complex, and a hotly debated issue in theory and practice across the global community.

Indeed, there are two main opposing schools of thought on this topic, the first being that where there is no express choice of law, a forum selection agreement (encompassing a jurisdiction and arbitration agreement) should be decisive or a strong presumption in implying the choice of law. This enhances coherence between the forum and lex fori. Moreover, on pragmatic grounds, it is easier and less expensive for the forum to apply its own law correctly. Conversely, the opposing school of thought argues against a forum selection agreement being decisive or a strong presumption to imply the choice of law. This is on the basis that parties who choose a forum should also choose the law. Failure to choose a law to match a forum selection agreement will negate an implied choice of law; it could either mean that the parties were ignorant of the choice of law or did not intend to apply the law of the chosen forum. Therefore, according to a strict standard, this school of thought requires the corroboration of other indicators to imply a choice of law. In essence, where an express choice of law is absent, the choice of forum alone cannot imply a choice of law, because this wrongly conflates jurisdiction with choice of law.

There are many scholarly works that have commented on this issue, but few have devoted their attention to the topic. Maxi Scherer (2011) and Jan Neels (2016) are the only scholars I have found to dedicate their research to this area. Scherer’s focus is exclusively based on the European Union, whilst Neels is mainly concerned with  a note on the approach of the Indian courts in this regard. Nevertheless, other scholars have discussed the matter in great depth, even though it has not been the main thrust of their research, for example, Manuel Penades Fons (2012), Peter Mankowski (2017), Richard Plender &, Michael Wilderspin, (2019) Michael McParland (2015), and Garth Bouwers. (2021).

However, what is lacking in the previous scholarly works is the commitment to provide clear guidance on global uniform criteria for this issue. My article explicitly departs from a recent study by Garth Bouwers, who proposes a ‘case-by-case basis, avoiding fixed criteria’ in the use of a forum selection agreement as an indicator to imply a choice of law (ibid at at pages 237 & 247) The reason for advancing a clear guide to global uniform criteria is that it should contribute to greater certainty, predictability, and uniformity in this field of law.

The methodology employed, namely, a global comparative perspective, is one that presents all relevant international, regional, and supranational instruments, and selected legal systems in Africa, Asia, Australasia, Europe, the Middle East, and North and South America. The legal systems compared encompass those in the Global North and Global South, including common law, civil law, and mixed legal systems. I consider Symeon Symeonides to be the intellectual godfather of this form of global comparative perspective on choice of law. A decade or so ago, he employed this methodology in his seminal work, which covered around 100 codifications on choice of law. Daniel Girsberger, Thomas Graziano, and Jan Neels also utilised this methodology in an edited work on choice of law in international commercial contracts. Finally, Garth Bouwers applied this methodology in his recent study on tacit choice of law in international contracts.

Based on such a global comparative perspective, my article’s core proposal is that an exclusive forum selection agreement should be a key factor in implying the choice of law. However, except in cases where the forum is chosen on a neutral basis, there should be a general requirement of corroboration with at least one other factor of significance. My proposal is therefore a compromise between the school of thought that insists on the corroboration of a plurality of factors as a requirement, and the other, which rejects this requirement. Therefore, it is a proposal that should not be difficult to sell as a global approach.

However, debate might be unnecessary if parties make an express choice of law in their international contracts. Nevertheless, the reality is that whilst choice of forum agreements are popular worldwide, agreements on an express choice of law are not always entered into. Therefore, this present study is one that should remain pertinent to the theory and practice of international commercial dispute resolution.

The University of Coimbra Institute for Legal Research, UCILeR, Portugal, is an investigation center devoted to the analysis of the legal implications and possible solutions for societal challenges.

Knowing that the family and personal status have been going through profound changes in internal legislations and in the scope of international mobility, the organizing committee of the Seminar on Transatlantic dialogues on PIL: family and personal status on the move (consisting of Dulce Lopes, Guillermo Palao Moreno, Nicolas Nord and Paula Távora Vítor) decided to contribute to the ongoing discussions on those issues, by adding a clear and necessary intercontinental dimension to them.

The Seminar is intended to discuss topics related to novelties in the regulation and recognition of family and personal status, through a series of combined panels from colleagues from Europe and America, ranging from the more general issues such as Family and Personal Status and Registry, Family and Personal Status between Nationality and Habitual Residence, Family and Personal Status and Human Rights and Family and Personal Status and Best Interest of the Child, to the more specific topics on Name in Private International Law (How far should personal autonomy go?), Multiple Parenthood in Private International Law (Socio-affective ties and new family models), Gender in Private International Law (Should sex still be a part of the civil status?) and Poly Amorous Relationships in Private International Law (Going beyond polygamy?). 

Young Researchers are welcome to propose individual or co-authored presentations. These presentations should cover one of the above-mentioned themes or others closely related to them. Paper proposals shall fit into the objectives of the Seminar and will be selected according their innovative approach, academic soundness as well as to their contribution to the development of private international law studies.

Proposals should be submitted no later than 20 September 2023 by e-mail to dulcel@fd.uc.pt and paulavit@fd.uc.pt. The proposals should include: the proposed title; an abstract of no more than 300 words; the participant’s name, function and affiliation; the indication if the paper is to be presented online or on-site.

The submission of paper abstracts and participation in the Seminar is free of charge. UCILeR does not cover expenses.

The conference will be held in a hybrid format – online and on-site – at the University of Coimbra. The papers selected by the conveners will be presented on 12 October 2o23.

Horatia Muir Watt (Sciences Po Law School) has published the lecture that she gave as the 18th Rabel Lecture in November 2022 on Alterity in the Conflict of Laws – An Onthology of the In-Between.

The conflict of laws can serve heuristically to underscore two established but radically opposing models of modernist legal ordering: multilateralism and statutism. Such a prism is helpful if we want to rethink (as we must!) our late-modern legality’s deep epistemological settings in the shadow of the »catastrophic times« to come, whether in terms of environmental devastation or political dislocation. Both phenomena are profoundly linked and indeed constitute two faces of alterity, natural and cultural, from which modernity has progressively taught us to distance ourselves. Importantly, law encodes the conditions that produce these dual somatic symptoms in our contemporary societies. This chasm between nature and culture has produced humanity’s “ontological privilege” over our natural surroundings and a similar claim of superiority of modern (Western) worldviews over “the rest”. In this respect, the main achievement of the moderns, as Bruno Latour wryly observed, has been to universalise the collective blindness and amnesia that allow our “anthropocentric machine” to hurtle on, devastating life in its path and devouring the very resources it needs to survive.

The paper, which is published in free access, is forthcoming in the Rabels Zeitschrift.

The third issue of the Journal du droit international for 2023 was released. It contains three articles and several case notes relating to private international law issues.

In the first article, Sylvette Guillemard (Laval University) analyses the recent French Draft PIL Code based on the Quebec experience in this area (Regard québécois sur le projet de Code de droit international privé français).

A draft of a French private international law code project was presented to the Minister of Justice in March 2022. As soon as it was submitted, it was immediately commented on by various parties; its qualities are admired as much as its shortcomings are pointed out. In 1994, the Quebec legislator adopted a book dedicated to private international law in its new Civil Code. After nearly 30 years, it was able to reveal its flaws and demonstrate its advantages. Therefore, neither too old nor too young, it appeared to us as an excellent object of comparison with the French project. At the end of the exercise, we may conclude that French law can only emerge as the winner of this “operation of shaping the rules [of private international law] into a whole”, to borrow the words of Rémy Cabrillac.

In a second article, Djoleen Moya (Catholic University of Lyon) discusses the evolving role of courts in applying choice of law rules, using divorce law as a case study (Vers une redéfinition de l’office du juge en matière de règles de conflit de lois ? L’exemple du divorce international).

The latest developments in matters of divorce, both in domestic law and in private international law, have largely renewed the question of the obligation for a judge to apply choice-of-law rules. Traditionally, the Cour de cassation considers that in matters of divorce, judges must apply, if necessary ex officio, the applicable conflict rule, because unwaivable rights are concerned. However, this solution is under discussion. First, the qualification of divorce as an unwaivable right is questionable, especially since the admission of a purely private divorce by mutual consent in French law. But above all, the Europeanisation of the applicable choice-of-law rules seems likely to call for a new definition the judges’ procedural obligations. If we add to this the recent reorientation of the Cour de cassation’s position and the solutions stated in the draft Code of Private of International Law, the question undoubtedly calls for a reassessment.

In the third article, Sara Tonolo (University of Padova) examines the role of private international law in fundamental rights disputes in the context of a recent ECtHR case dealing with surrogate motherhood and cross-border recognition of civil status record (Les actes de naissance étrangers devant la Cour européenne des droits de l’homme. À propos de l’affaire Valdís Fjölnisdóttir et autres c/ Islande).

The European Court of Human Rights ruled on the recognition of the filiation status within surrogacy in the Valdís Fjölnisdóttir and others v. Iceland case. This perspective leaves many questions unanswered and prompts further reflection, particularly with regard to the role that private international law can play in the protection of human rights, in the context of the difficult balance between the protection of the right to private and family life and the margin of appreciation reserved to member states.

The table of contents of the issue can be accessed here.

Alfonso Luis Calvo Caravaca (University Carlos III of Madrid), Javier Carrascosa González (University of Murcia), María Asunción Cebrián Salvat (University of Murcia) and Isabel Lorente Martínez (University of Murcia) authored the European Kodex of Private international Law 2023. Cases & materials on European private international law.

The abstract reads:

The authors want this work to be able to operate as an instrument for improving legal quality in the practical application and in the study of private international law in the English language. In this sense, any opinion on “The European Kodex of Private international law” will be very well received, as it will help to outline, polish and improve these materials for the benefit of all legal operators dedicated to private international law and, ultimately, for the benefit of a correct and useful practice of this fascinating sector of law.

It is freely accessible here.

A new anthology titled Applicable Law Issues in International Arbitration has been published in the Hague Academy of International Law’s Centre of Resarch Series.

The book is the result of research undertaken by scholars accepted to the Centre for Studies and Research in International Law and International Relations in 2021.

Giuditta Cordero-Moss and Diego P. Fernández Arroyo were the directors of the research centre.  The two directors have also edited the anthology which includes a selection of 16 works stemming from that research session (authored by Apollin Koagne Zouapet, Ana Coimbra Trigo, Didier Bationo, Wendinkonté Sylvie Zongo, Ali Kairouani, Nicola Strain, Andrea Mackielo, Alexandre Senegacnik, Ludovica Chiussi Curzi, Giulia Vallar, Marco Buzzoni, Yağmur Hortoğlu, Paola Patarroyo, Erik Sinander, Federico Cabona, and Lito Dokopoulou), as well as two chapters written by the specially invited guests Franco Ferrari and Luca Radicati di Brozolo.

In the introduction, the editors reflect on the research results and conclude that “determining the applicable law in arbitration is a manifold task that needs to balance involved interests, which are not necessarily always consistent with each other”.

The table of contents of the anthology can be read here.

On 13 April 2023, the University Paris Dauphine hosted a conference on State Immunity from Enforcement (L’immunité d’exécution de l’Etat).

Speakers included Philippe Théry (Univ. Paris Panthéon-Assas), Louis Perreau-Saussine (Univ. Paris Dauphine), Gilles Cuniberi (Univ. Luxembourg), Sophie Lemaire (Université Paris Dauphine), Nathalie Meyer-Fabre (Avocate au Barreau de Paris), Duncan Fairgrieve (Univ. Paris Dauphine), Fabrizio Marrella (Univ. Ca’ Foscari), David Pavot (Univ. Sherbrooke), Mathias Audit (Univ. Panthéon-Sorbonne), Juliette Morel-Maroger (Univ. Paris Dauphine), Jérôme Chacornac (Univ. Paris Panthéon-Assas), Hélène Tissandier (Univ. Paris Dauphine), Victor Grandaubert (Univ. Paris Nanterre), Renaud Salomon (Cour de cassation).

The videos of the conference of the various sessions of the conference are freely available and can be accessed here.

Florence Guillaume (Professor of Private International Law at the University of Neuchâtel, Switzerland, and Founder of the LexTech Institute) has made available on SSRN a draft version of a paper on Decentralized Autonomous Organizations (DAOs) Before State Courts. How can private international law keep up with global digital entities? that is forthcoming in a book edited by Madalena Perestrelo de Oliveira and Antonio Garcia on DAO Regulation: Principles and Perspective for the Future.

The abstract reads as follows:

This paper examines civil and commercial disputes involving Decentralized Autonomous Organizations (DAOs) and the complex questions of private international law that arise. The legal capacity of a DAO to be a plaintiff or defendant in court varies across jurisdictions, highlighting the need to determine the applicable law to a DAO. A distinction must be made between different types of DAOs. There are currently a few jurisdictions, notably in the United States, that have enacted DAO legislation defining a legal status for such entities. Those regulated DAOs are governed by both computer code and company law. In other jurisdictions, existing company structures can be used to offer a legal wrapper to DAOs. However, the vast majority of DAOs currently in existence are constituted and solely governed by code, posing challenges in bringing them before a state court.

The paper explores recent case law and the difficulties in identifying the appropriate party to sue when pursuing a DAO. Using Swiss law as a basis, it examines the qualification of DAOs under private international law and the challenges of anchoring a global digital entity to a specific jurisdiction. The article illustrates these challenges through three types of disputes: governance, contractual, and tort-related. Determining jurisdiction over a DAO-related dispute requires applying private international law rules. Although the paper assumes Swiss courts for convenience, the reasoning can be applied to different legal systems due to the similarities in conflict of jurisdiction rules. However, challenges persist even if a court has jurisdiction and renders a decision, as enforcement may prove difficult, especially on-chain. Additionally, initiating legal proceedings against a DAO presents issues with serving court documents. DAOs offer opportunities for innovative electronic methods of document service, but specific requirements and restrictions exist for international service of documents. Practical difficulties may arise, making it impractical or unattainable to serve court documents on the defendant.

The analysis concludes that state courts currently struggle to ensure reliable access to justice in disputes involving DAOs. As an alternative to state courts, opting for Alternative Dispute Resolution (ADR) mechanisms, such as Blockchain-based Dispute Resolution (BDR), can offer a simpler and more efficient solution depending on circumstances. In any case, entrusting dispute resolution to a BDR mechanism avoids the complexities associated with state court procedures.

Joseph Singer (Harvard Law School) has posted Conflict of Abortion Laws on SSRN.

The abstract reads:

When a resident of an anti-abortion state goes to a prochoice state to get an abortion, which law applies to that person? To the abortion provider? To anyone who helps them obtain the abortion? Since Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade, states have passed conflicting laws regarding abortion, and courts will need to determine whether anti-abortion states can apply their laws to persons or events outside their territory either through civil lawsuits or criminal prosecution. This article canvasses the major disputes likely to arise over conflicts of abortion law and the arguments on both sides in those cases. It addresses both common law analysis and the constitutional constraints on application of state law under the Full Faith and Credit Clause and the Due Process Clause, and it comes to some conclusions both about what laws should apply in different fact settings and how the choice of law analysis should proceed.

Since Dobbs focused on the “history and tradition” behind rights under the Due Process Clause, and because the constitutional test for “legislative jurisdiction” that regulates when a state can apply its law to a controversy is partly based on the Due Process Clause, we start with the prevalent approaches to conflicts of law available to judges at the time the Bill of Rights was adopted in 1791 and when the Fourteenth Amendment was adopted in 1868, focusing on the “comity” approach championed by Justice Joseph Story. We consider also the First Restatement’s vested rights approach in vogue between the end of the nineteenth century and the middle of the twentieth century. We then move to modern choice of law analysis to determine which law applies when a person leaves their state to obtain an abortion. We will consider the Second Restatement’s “most significant relationship” test, the “comparative impairment” approach, the “better law” and “forum law” approaches, as well as the emerging Third Restatement of Conflict of Laws rules being drafted right now by the American Law Institute.

One set of cases involves conduct that is wholly situated within the borders of the anti-abortion state. That state has full authority under the Constitution to regulate its internal affairs and to apply its laws to people who distribute or use anti-abortion medication there or who otherwise assist residents in violating its laws prohibiting or limiting access to abortion. Anti-abortion states have full authority to regulate conduct within their borders. However, the First Amendment protects people who provide information about the availability of abortion services in other states where it is legal, and the constitutional right to travel should protect those who transport someone out of state to get an abortion in a prochoice state or who subsidize the cost of such out-of-state travel.

A second set of cases concerns cross-border torts where conduct in a prochoice state has effects in an anti-abortion state. Courts traditionally apply the law of the place of injury to those cases if it was foreseeable that the conduct would cause the injury there. But there are traditional exceptions to the place of injury rule that should apply in the abortion context when the place of conduct defines the conduct as a fundamental right and immunizes the actor from liability or places a duty or an affirmative privilege on the abortion provider to provide the care. Courts should depart from the place of injury rule in those circumstances when conduct is wholly confined to the immunizing (prochoice) state, and that means that an anti-abortion state cannot legitimately punish an abortion provider in a prochoice state who provides care there in reliance on rules of medical ethics that require the care to be provided. Nothing would violate rule of law norms more severely than placing a person under a simultaneous duty to provide care and a duty not to provide that care. On the other hand, anti-abortion states have full authority to regulate out-of-state conduct that does spill over the border into the anti-abortion state, such as shipping abortion medication to a recipient there. Difficult issues of foreseeability and proximate cause arise when an abortion provider prescribes abortion medication in a prochoice state but knows or suspects that the patient will be taking the medication back to the anti-abortion state to ingest. In some fact settings, the foreseeability issue is significant enough that it may rise to a constitutional limitation on the powers of the anti-abortion state to apply its law to out-of-state conduct or to assert personal jurisdiction over the abortion provider. In other cases, the place of injury has the constitutional authority to apply its law to out-of-state conduct that the actor knows will cause unlawful harm across the border but it may or may not have personal jurisdiction over the nonresident provider.

A third set of cases involve bounty claims, tort survival lawsuits, or wrongful death suits that an anti-abortion state might seek to create by giving claims to one of its residents against the resident who left the state to get the abortion. Such cases may be viewed as “common domicile” cases by the anti-abortion state since both plaintiff and defendant reside in the anti-abortion state. That may tempt the anti-abortion state to apply its laws to an abortion that takes place in another state even though both conduct and injury occurred in a state that privileges the conduct and immunizes the defendant from liability. However, the law of the place of conduct and injury should apply in those cases since the prochoice law is a “conduct-regulating rule,” and choice of law analysis, traditional rules, and constitutional constraints on legislative jurisdiction all require deference to the law of the prochoice state in such cases. Courts sometimes apply the law of the common domicile when the law at the place of conduct and injury is not geared to regulating conduct there, but the opposite is true for laws directed at conduct, and this article will show why prochoice laws that define abortions as a fundamental right are conduct-regulating rules. The same is true for the question of criminal prosecution. An anti-abortion state has no legitimate authority to punish a resident who leaves the state to get an abortion in a state where abortion is protected as a fundamental right.

The paper is forthcoming in the Northeastern University Law Review.

The Department of Private International Law at the University of Groningen is looking for an assistant professor in the field of European private international law to strengthen education and research. Candidates from outside the Netherlands are expressly invited to apply.

The responsibilities include: teaching English language classes on private international law within the existing bachelor- and master programmes; supervising bachelor and master theses in the field of private international law; conducting research within the area of European private international law (in line with the Faculty’s research programme PIPR (Public Interests and Private Relationships); supervising PhD projects together with the Professor of Private International Law; engage in the development of research projects.

Applications must be filed by 31 August 2023, at the end of the day, through a dedicated form.

More information can be found here..

Lawrence Collins (UCL, former Justice of the UK Supreme Court) has posted Reflections on the Law Governing Confidentiality in Arbitration on SSRN.

The abstract reads:

The paper considers the law governing confidentiality in international arbitration, and in particular where there is a binary choice between the law governing the arbitration agreement and the law of the seat of the arbitration. The paper concludes that not only is there no binary choice, but also that the solution may depend upon the forum in which the issue arises, and that it will be only very rarely that the issue will need to be addressed directly.

The paper was published in Brekoulakis et al (eds), Achieving the Arbitration Dream: Liber Amicorum for Professor Julian DM Lew (Wolters Kluwer, 2023).

This post was written by Ralf Michaels and Antonia Sommerfeld, Max Planck Institute for Comparative and International Private Law, and is also available via conflictoflaws.net.

The Draft for a Corporate Sustainable Due Diligence Directive currently contains no rules on jurisdiction. This creates inconsistencies between the scope of application of the Draft Directive and existing jurisdictional law, both on the EU level and on the domestic level, and can lead to an enforcement gap: EU companies may be able to escape the existing EU jurisdiction; non-EU companies may even not be subject to such jurisdiction. Effectivity requires closing that gap, and we propose ways in which this could be achieved.

The Proposal for a Directive on Corporate Sustainability Due Diligence

The process towards an EU Corporate Sustainability Due Diligence Directive is gaining momentum. The EU Commission published a long awaited Proposal for a Directive on Corporate Sustainability Due Diligence (CSDDD), COM(2022) 71 final, on 23 February 2022; the EU Council adopted its negotiation position on 1 December 2022; and now, the EU Parliament has suggested amendments to this Draft Directive on 1 June 2023. The EU Parliament has thereby backed the compromise textreached by its legal affairs committee on 25 April 2023. This sets off the trilogue between representatives of the Parliament, the Council and the Commission.

The current state of the CSDDD already represents a milestone. It not only introduces corporate responsibility for human rights violations and environmental damage – as already found in some national laws (e.g. in France; Germany; Netherlands; Norway; Switzerland; United Kingdom) – but also and in contrast (with the exception of French law – for more details see Camy) introduces civil liability. Art. 22 (1) CSDDD entitles persons who suffer injuries as result of a failure of a company to comply with the obligations set forth in the Directive to claim compensation. It thereby intends to increase the protection of those affected within the value chain, who will now have the prospect of compensation; it also intends to create a deterrent effect by having plaintiffs take over the enforcement of the law as “private attorney generals”. Moreover, the Directive requires that Member States implement this civil liability with an overriding mandatory application to ensure its application, Art. 22 (5) CSDDD. This is not unproblematic: the European Union undertakes here the same unilateralism that it used to criticize when previously done by the United States, with the Helms/Burton Act as the most prominent example.

That is not our concern here. Nor do we want to add to the lively discussion on the choice-of-law- aspects regarding civil liability (see, amongst others, van Calster, Ho-Dac, Dias and, before the Proposal, Rühl). Instead, we address a gap in the Draft Directive, namely the lack of any provisions on jurisdiction. After all, mandatory application in EU courts is largely irrelevant if courts do not have jurisdiction in the first place. If the remaining alternative is to bring an action in a court outside the EU, the application of the CSDDD civil liability regime is not, however, guaranteed. It will then depend on the foreign court’s conflict-of-law rules and whether these consider the CSDDD provisions applicable – an uncertain path.

Nonetheless, no mirroring provisions on international jurisdiction were included in the CSDDD, although such inclusion had been discussed. Suggestions for the inclusion of a new jurisdictional rule establishing a forum necessitatis in the Brussels I Regulation Recast existed (see the Study by the European Parliament Policy Department for External Relations from February 2019, the Draft Report of the European Parliament Committee on Legal Affairs with recommendations to the Commission on corporate due diligence and corporate accountability (2020/2129(INL) as well as the Recommendation of the European Groupe of Private International Law (GEDIP) communicated to the Commission on 8 October 2021). Further, the creation of a forum connexitatis in addition to a forum necessitatis had been recommended by both the Policy Department Study and the GEDIP. Nevertheless, the report of the European Parliament finally adopted, together with the Draft Directive of 10 March 2021, no longer contained such rule on international jurisdiction, without explanation. Likewise, the Commission’s CSDDD draft and the Parliament’s recent amendments lack such a provision.

Enforcement Gap for Actions against Defendants Domiciled within the EU

To assess the enforcement gap, it is useful to distinguish EU companies from non-EU companies as defendants. For EU companies, the Directive applies to companies of a certain size which are formed in accordance with the legislation of a Member State according to Art. 2 (1) CSDDD – the threshold numbers in the Commission’s draft and the Parliament amendments differ, ranging between 250–500 employees and EUR 40–150 million annual net worldwide turnover, with questions of special treatment for high-risk sectors.

At first sight, no enforcement gap seems to exist here. The general jurisdiction rule anchored in Art. 4 (1) Brussels I Regulation Recast allows for suits in the defendant’s domicile. Art. 63 (1) further specifies this domicile for companies as the statutory seat, the central administration or the principal place of business. (EU-based companies can also be sued at the place where the harmful event occurred according to Art. 7 (2) Brussels I Regulation Recast, but this will provide for access to an EU court only if this harmful event occurred within the EU.) The objection of forum non conveniens does not apply in the Brussels I Regulation system (as clarified in the CJEU’s Owusu decision). Consequently, in cases where jurisdiction within the EU is given, the CSDDD applies, including the civil liability provision with its mandatory application pursuant to Art. 22 (1), (5).

Yet there is potential leeway for EU domiciled companies to escape EU jurisdiction and thus avoid the application of the CSDDD’s civil liability. One way to avoid EU jurisdiction is to use an exclusive jurisdiction agreement in favour of a third country, or an arbitration clause. Such agreements concluded in advance of any occurred damage are conceivable between individual links of the value chain, such as between employees and subcontractors (in employment contracts) or between different suppliers along the chain (in purchase and supply agreements). EU law does not expressly prohibit such derogation. Precedent for how such exclusive jurisdiction agreements can be treated can be found in the case law following the Ingmar decision of the CJEU. In Ingmar, the CJEU had decided that a commercial agent’s compensation claim according to Arts. 17 and 18 of the Commercial Agents Directive (86/653/EEC) could not be avoided through a choice of law in favour of the law of a non-EU country, even though the Directive said nothing about an internationally mandatory nature for the purpose of private international law – as Art. 22 (5) CSDDD in contrast now does. The German Federal Court of Justice (BGH) extended this choice-of-law argument to the law of jurisdiction and held that jurisdiction clauses which could undermine the application of mandatory provisions are invalid, too, as only such a rule would safeguard the internationally mandatory scope of application of the provisions. Other EU Member State courts have shown a similar understanding not only with regard to exclusive jurisdiction agreements but also with regard to arbitration agreements (Austrian Supreme Court of Justice; High Court of Justice Queen’s Bench Division).

Common to Arts. 17 and 18 Commercial Agents Directive and Art. 22 CSDDD is their mandatory nature for the purpose of private international law, which established by the ECJ for the former and is legally prescribed for the latter in Art. 22 (5) CSDDD. This suggests a possible transfer of the jurisdictional argument regarding jurisdiction. To extend the internationally mandatory nature of a provision into the law of jurisdiction is not obvious; choice of law and jurisdiction are different areas of law. It also means that the already questionable unilateral nature of the EU regulation is given even more force. Nonetheless, to do so appears justified. Allowing parties to avoid application of the CSDDD would run counter to its effective enforcement and therefore to the effet utile. This means that an exclusive jurisdiction agreement in favour of a third country or an arbitration clause will have to be deemed invalid unless it is clear that the CSDDD remains applicable or the applicable law provides for similar protection.

Enforcement Gap for Actions against Defendants Domiciled Outside the EU

While the enforcement gap with regard to EU companies can thus be solved under existing law, additional problems arise with regard to non-EU corporations. Notably, the Draft Directive applies also to certain non-EU companies formed in accordance with the legislation of a third country, Art. 2 (2) CSDDD. For these companies, the scope of application depends upon the net turnover within the territory of the Union, this being the criterion creating a territorial connection between these companies and the EU (recital (24)). The Parliament’s amendments lower this threshold and thereby sharpen the scope of application of the Directive.

While application of the CSDDD to these companies before Member State courts is guaranteed due to its mandatory character, jurisdiction over non-EU defendants within the EU is not. International jurisdiction for actions against third-country defendants as brought before EU Member State courts is – with only few exceptions – generally governed by the national provisions of the respective Member State whose courts are seized, Art. 6 (1) Brussels I Regulation Recast. If the relevant national rules do not establish jurisdiction, no access to court is given within the EU.

And most national rules do not establish such jurisdiction. General jurisdiction at the seat of the corporation will usually lie outside the European Union. And the territorial connection of intra-EU turnover used to justify the applicability of the CSDDD does not create a similar basis of general jurisdiction, because jurisdiction at the place of economic activity (“doing business jurisdiction”) is alien to European legal systems. Even in the US, where this basis was first introduced, the US Supreme Court now limits general jurisdiction to the state that represents the “home” for the defendant company (BNSF Railroad Co. v. Tyrrell, 137 S.Ct. 1549 (2017); Daimler AG v. Bauman, 571 U.S. 117 (2014); Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011)); whether the recent decision in Mallory v. Norfolk Southern Railway Co., 600 U.S. (2023) will re-open the door to doing business jurisdiction remains to be seen (see Gardner).

Specific jurisdiction will not exist in most cases, either. Specific jurisdiction in matters relating to tort will be of little use, as in value chain civil liability claims the place of the event giving rise to damages and the place of damage are usually outside the EU and within that third state. Some jurisdictional bases otherwise considered exorbitant may be available, such as the plaintiff’s nationality (Art. 14 French Civil Code) or the defendant’s assets (Section 23 German Code of Civil Procedure). Otherwise, the remaining option to seize a non-EU defendant in a Member State court is through submission by appearance according to Art. 26 Brussels I Regulation Recast.

Whether strategic joint litigation can be brought against an EU anchor defendant in order to drag along a non-EU defendant depends upon the national provisions of the EU Member States. Art. 8 (1) Brussels I Regulation Recast, which allows for connected claims to be heard and determined together, applies only to EU-defendants – for non-EU defendants the provision is inapplicable. In some Member States, the national civil procedure provisions enable jurisdiction over connected claims against co-defendants, e.g. in the Netherlands (Art. 7 (1) Wetboek van Burgerlijke Rechtsvordering), France (Art. 42 (2) Code de procédure civile) and Austria (§ 93 Jurisdiktionsnorm); conversely, such jurisdiction is not available in countries such as Germany.

Various Member State decisions have accepted claims against non-EU companies as co-defendants by means of joinder of parties. These cases have based their jurisdiction on national provisions which were applicable according to Art. 6 (1) Brussels I Recast Regulation: In Milieudefensie in December 2015, the Court of Appeal at the Hague held permissible an action against a Dutch anchor defendant that was joined with an action against a Nigerian company as co-defendant based on Dutch national procedural law, on the condition that claims against the anchor defendant were actually possible. The UK Supreme Court ruled similarly in its Vedanta decision in April 2019, wherein it found that English private international law, namely the principle of the necessary or proper party gateway, created a valid basis for invoking English jurisdiction over a defendant not domiciled in a Member State (with registered office in Zambia) who had been joined with an anchor defendant based in the UK. The claim was accepted on the condition that (i) the claims against the anchor defendant involve a real issue to be tried; (ii) it would be reasonable for the court to try that issue; (iii) the foreign defendant is a necessary or proper party to the claims against the anchor defendant; (iv) the claims against the foreign defendant have a real prospect of success; (v) either England is the proper place in which to bring the combined claims or there is a real risk that the claimants will not obtain substantial justice in the alternative foreign jurisdiction, even if it would otherwise have been the proper place or the convenient or natural forum. The UK Supreme Court confirmed this approach in February 2021 in its Okpabi decision (for discussion of possible changes in UK decisions after Brexit, see Hübner/Lieberknecht).

In total, these decisions allow for strategic joint litigation against third-country companies together with an EU anchor defendant. Nonetheless, they do not establish international jurisdiction within the EU for isolated actions against non-EU defendants.

How to Close the Enforcement Gap – forum legis

The demonstrated lack of access to court weakens the Directive’s enforceability and creates an inconsistency between the mandatory nature of the civil liability and the lack of a firm jurisdictional basis. On a substantive level, the Directive stipulates civil liability for non-EU companies (Art. 22 CSDDD) if they are sufficiently economically active within the EU internal market (Art. 2 (2) CSDDD). Yet missing EU rules on international jurisdiction vis-à-vis third-country defendants often render procedural enforcement before an intra-EU forum impossible – even if these defendants generate significant turnover in the Union. Consequently, procedural enforcement of civil liability claims against these non-EU defendants is put at risk. The respective case law discussed does enable strategic joint litigation, but isolated actions against non-EU defendants cannot be based upon these decisions. At the same time, enforceability gaps exist with respect to EU defendants: It remains uncertain whether the courts of Member States will annul exclusive jurisdiction agreements and arbitration agreements if these undermine the application of the CSDDD.

This situation is unsatisfactory. It is inconsistent for the EU lawmaker to make civil liability mandatory in order to ensure civil enforcement but to then not address the access to court necessary for such enforcement. And it is inadequate that the (systemic) question of judicial enforceability of civil liability claims under the Directive is outsourced to the decision of the legal systems of the Member States. National civil procedural law is called upon to decide which third-country companies can be sued within the EU and how the Ingmar case law for EU domiciled companies will be further developed. This is a problem of uniformity – different national laws allow for different answers. And it is a problem of competence as Member State courts are asked to  render decisions that properly belong to the EU level.

The CSDDD aims to effectively protect human rights and the environment in EU-related value chains and to create a level playing field for companies operating within the EU. This requires comparable enforcement possibilities for actions based on civil liability claims that are brought pursuant to Art. 22 CSDDD against all corporations operating within the Union. The different regulatory options the EU legislature has to achieve this goal are discussed in what follows.

Doing business jurisdiction

A rather theoretical possibility would be to allow actions against third-country companies within the EU in accordance with the former (and perhaps revived) US case law on doing business jurisdiction in those cases where these companies are substantially economically active within the EU internal market. This would be consistent with the CSDDD’s approach of stretching its scope of application based on the level of economic activity within the EU (Art. 2 (2) CSDDD). However, the fact that such jurisdiction has always been considered exorbitant in Europe and has even been largely abolished in the USA speaks against this development. Moreover, a doing business jurisdiction would also go too far: it would establish general jurisdiction, at least according to the US model, and thus also apply to claims that have nothing to do with the CSDDD.

Forum necessitatis and universal jurisdiction

Another possible option would be the implementation of a forum necessitatis jurisdiction in order to provide access to justice, as proposed by the European Parliament Policy Department for External Relations, the European Parliament Committee on Legal Affairs and the GEDIP. However, such jurisdiction could create uncertainty because it would apply only exceptionally. Moreover, proving a “lack of access to justice” requires considerable effort in each individual case. Until now, EU law provides for a forum necessitatis only in special regulations; the Brussels I Regulation Recast does not contain any general rule for emergency jurisdiction. Member State provisions in this regard generally require a certain connection with the forum to establish such jurisdiction – the exact prerequisites differ, however, and will thus not be easily agreed upon on an EU level (see Kübler-Wachendorff).

The proposal to enforce claims under Art. 22 CSDDD by means of universal civil jurisdiction for human rights violations, which could be developed analogously to universal jurisdiction under criminal law, appears similarly unpromising; it would also go further than necessary.

Forum connexitatis

It seems more promising to implement a special case of a forum connexitatis so as to allow for  litigation of closely connected actions brought against a parent company domiciled within the EU together with a subsidiary or supplier domiciled in a third country, as proposed by the European Parliament Policy Department for External Relations and the GEDIP. This could be implemented by means of a teleological reduction of the requirements of Art. 8 (1) Brussels I Regulation Recast with regard to third-country companies, which would be an approach more compatible with the Brussels Regulation system than the implementation of a forum necessitatis provision (such a solution has, for instance, been supported by Mankowski, in: Fleischer/Mankowski (Hrsg.), LkSG, Einl., para. 342 and the GEDIP). This would simultaneously foster harmonisation on the EU level given that joint proceedings currently depend upon procedural provisions in the national law of the Member States. Moreover, this could avoid “blame games” between the different players in the value chain (see Kieninger, RW 2022, 584, 589). For the implementation of such a forum connexitatis, existing Member State regulations and related case law (Milieudefensie, Vedanta, and Okpabi) can serve as guidance. Such a forum is not yet common practice in all Member States; thus, its political viability remains to be seen. It should also be borne in mind that the implementation of a forum connexitatis on its own would only enable harmonised joint actions that were brought against EU domiciled anchor defendants together with non-EU defendants; it would not enable isolated actions against third-country companies – even if they are economically active within the EU and fall within the scope of application of the CSDDD.

Best option: Forum legis

The best way to close the CSDDD enforcement gap would be introducing an international jurisdiction basis corresponding to the personal scope of application of the Directive. The EU legislature would need to implement a head of jurisdiction applicable to third-country companies that operate within the EU internal market at the level specified in Art. 2 (2) CSDDD. Effectively, special jurisdiction would be measured on the basis of net turnover achieved within the EU. This would procedurally protect the Directive’s substantive regulatory objectives of human rights and environmental protection within EU-related value chains. Moreover, this would ensure a level playing field in the EU internal market.

Other than a forum premised on joint litigation, this solution would allow isolated actions to be brought – in an EU internal forum – against non-EU companies operating within the EU. The advantage of this solution compared to a forum of necessity is that the connecting factor of net turnover is already defined by Art. 2 (2) CSDDD, thus reducing the burden of proof, legal uncertainty and any unpredictability for the parties. Moreover, this approach would interfere less with the regulatory interests of other states than a forum necessitatis rule, which for its part would reach beyond the EU’s own regulatory space.

A forum legis should not be implemented only as a subsidiary option for cases in which there is a lack of access to justice, because this would create legal uncertainty. The clear-cut requirements of Art. 2 (2) CSDDD are an adequate criterion for jurisdiction via a forum legis. On the other hand, it should not serve as an exclusive basis of jurisdiction, because especially plaintiffs should not be barred from the ability to bring suit outside the EU. The risk of strategic declaratory actions brought by companies in a court outside the EU seems rather negligeable, and this  can be avoided either by giving preference to actions for performance over negative declaratory actions, as is the law in Germany or through the requirement of recognisability of a foreign judgment, which would not be met by a foreign decision violating domestic public policy by not providing sufficient protection.

This leaves a problem, however: The CSDDD does not designate which Member State’s court have jurisdiction. Since a forum legis normally establishes adjudicatory jurisdiction correlating with the applicable law, jurisdiction lies with the courts of the country whose law is applied. This is not possible as such for EU law because the EU does not have its own ordinary courts. The competent Member State court within the EU must be determined. Two options exist with regard to the CSDDD: to give jurisdiction to the courts in the country where the highest net turnover is reached, or to allow claimants to choose the relevant court. The first option involves difficult evidentiary issues, the second may give plaintiffs an excessive amount of choice. In either case, non-EU companies will be treated differently from EU companies on the question of the competent court – for non-EU companies, net turnover is decisive in establishing the forum, for EU-companies, the seat of the company is decisive. This difference is an unavoidable consequence resulting from extension of the scope of application of the Directive to third-country companies on the basis of net turnover.

Implementation

How could this forum legis be achieved? The most straightforward way would be to include a rule on jurisdiction in the CSDDD, which would then oblige the Member States to introduce harmonised rules of jurisdiction into national procedural law. This would be a novelty in the field of European international civil procedure law, but it would correspond to the character of the special provision on value chains as well as to the mechanism of the CSDDD’s liability provision. An alternative would be to include in the Brussels I Regulation Recast a sub-category of a special type of jurisdiction under Art. 7 Brussels I Regulation Recast. This as well would be a novelty to the Brussels system, which in principle requires that the defendant be seated in a Member State (see also Kieninger, RW 2022, 584, 593, who favours reform of the Brussels I Regulation Recast for the sake of uniformity within the EU). This second option would certainly mesh with current efforts to extend the Brussels system to non-EU defendants (see Lutzi/Piovesani/Zgrabljic Rotar).

The implementation of such a forum legis is not without problems: It subjects companies, somewhat inconsistently with the EU legal scheme, to de facto jurisdiction merely because they generate significant turnover in the EU’s internal market. Yet such a rule is a necessary consequence of the extraterritorial extension of the Directive to third-country companies. The unilateral character of the CSDDD is problematic. But if the CSDDD intends to implement such an extension on a substantive level, this must be reflected on a procedural level so as to enable access to court. The best way to do this is by implementing a forum legis. The CSDDD demonstrates the great importance of compensation of victims of human rights and environmental damage, by making the cicil liability rule internationally mandatory. Creating a corresponding head of jurisdiction for these substantive civil liability claims is then necessary and consistent in order to achieve access to court and, thus, procedural enforceability.

The author of this post is Lydia Lundstedt, a Senior Lecturer at the Stockholm University.

By a ruling of 17 May 2023 (No 13504), the Corte Suprema di Cassazione (Italian Supreme Court) held that the Italian courts lacked jurisdiction over an action concerning the non-infringement of an international design right. The decision raises several interesting issues concerning the application of the rules on jurisdiction set out in the Brussels I bis Regulation to infringements of intellectual property rights.

Facts

The German company Bulthaup is the holder of an international design right for a tap valid for inter alia Germany and Italy. Bulthaup sent a warning letter to another German company, Nobilia-Werke, demanding that it cease selling the tap “Alila” claiming that it was a copy of Bulthaup’s design. The Alila tap is manufactured by an Italian company, Gessi. When Gessi learned that Bulthaup had sent a warning letter to its customer, Nobilia-Werke, Gessi wrote to Bulthaup and denied infringement. After communication between Gessi and Bulthaup’s lawyers, Gessi sued Bulthaup and the related company Bulthaup Italia Srl (Bulthaup Italia) before the Tribunale di Milano (Court of Milan). In addition, Nobilia-Werke was made a party to the proceedings.

Gessi requested that the Court of Milan declare that the Italian part of the international design was invalid. In addition, Gessi requested inter alia a declaration that the production and marketing of the Alila tap did not infringe the industrial property rights of Bulthaup and/or Bulthaup Italia and that its and Nobilia-Werke’s activities did not constitute acts of unfair competition. Bulthaup and Bulthaup Italia objected to the Court of Milan’s jurisdiction on the basis that the claims “concern German territory only”, with the exception of the invalidity claim concerning the Italian part of the design. Nobilia-Werke did not contest jurisdiction. The Court of Milan set a hearing to clarify and Gessi appealed to the Supreme Court.

The Supreme Court’s decision

The Supreme Court held that the Court of Milan had jurisdiction over the invalidity claim concerning the Italian part of the design in accordance with Article 24(4) of Brussels I bis Regulation. With regard to the other claims concerning inter alia a declaration of non-infringement of design rights and a declaration of non-violation of unfair competition rules, the Supreme Court held that the Court of Milan did not have jurisdiction.

First, the Supreme Court held that Article 4 of the Brussels I bis Regulation could not provide a basis for jurisdiction because both Bulthaup and Nobilia-Werke were domiciled in Germany, not Italy.

Second, the Supreme Court examined whether Article 7(2) of Brussels I bis Regulation could provide a basis for jurisdiction. With references to the case law of the Court of Justice of the European Union (CJEU), the Supreme Court observed that Article 7(2) was applicable to actions for negative declarations and that a plaintiff could sue either at the place of the causal act or the place of (direct) damage. The Supreme Court recalled the CJEU’s decision in Wintersteiger (C‑523/10) holding that in cases of trademark infringement, damage occurs in the Member State where the right is protected. The Supreme Court observed that this ruling was relevant for infringements of design rights. The Court found however that this decision did not provide a basis for jurisdiction because the right at issue was the German part of the international design.

In addition, the Supreme Court rejected Gessi’s assertion that damage occurred in Italy in accordance with the CJEU’s interpretation of Article 7(2) in Bolagsupplysningen (C-194/16).  It can be recalled that the CJEU held that a legal person claiming that its personality rights have been infringed by the publication of incorrect information on the internet can sue where it has its centre of interests because that is where the damage to its reputation is most keenly felt. The Supreme Court stated that Bolagsupplyningen concerned “a completely different” situation specific to internet, whereas in the case at hand, the damage alleged by Gessi, namely, interference with its contractual relationship with Nobilia-Werke, occurred in Germany. Indeed, the Court explained that damage from a warning letter sent by a German company (Bulthaup) to another German company (Nobilia-Werke) about activity in Germany in alleged violation of a right protected in Germany could only occur in Germany. In addition, the Court rejected Gessi’s assertion that Bulthaup had sent another warning letter addressed to Gessi concerning Gessi’s conduct in Italy. The Supreme Court explained that this so-called warning letter was in fact a letter from Bulthaup’s lawyer in reply to a letter from Gessi’s lawyer concerning a possible settlement. As a lawyer’s letter seeking an amicable settlement could not be a basis for damage, the Supreme Court held that the Court of Milan did not have jurisdiction on the basis of Article 7(2).

Lastly, the Supreme Court examined whether Article 8(1) of the Brussels I bis Regulation could provide a basis for jurisdiction in light of the fact that Gessi had also sued Bulthaup Italia, which is domiciled in Italy. Pursuant to Article 8(1), a defendant domiciled in a Member State may be sued, when he or she is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.

The Supreme Court recalled the CJEU’s decision in Roche Nederland (C-539/03) that the application of Article 8(1) does not apply to alleged infringements of different parts of a European patent because each part is a separate and independent right which must be assessed under national law so there is no risk for irreconcilable judgments. Thus, the Supreme Court noted that the claim concerning the invalidity of the Italian part of the design was not relevant for establishing jurisdiction over for the claims for non-infringement.

Thereafter, the Supreme Court noted that while Gessi’s action for negative declaratory relief was justified in so far as it related to Bulthaup’s accusation of infringement in Germany of the German part of the design right, the Supreme Court held that jurisdiction could not be fictitiously established by bringing a claim against a “silent” and “disinterested” defendant (Bulthaup Italia). The Supreme Court explained that Bulthaup Italia was not the holder of the design right and had not asserted the right so there was therefore no plausible reason for involving it in the dispute. Consequently, the Supreme Court held that the Court of Milan did not have jurisdiction on the basis of Article 8(1).

Analysis

The Supreme Court’s ruling does not clearly separate the question of jurisdiction from the question of admissibility under national procedural law. As the defendant Bulthaup Italia is domiciled in Italy, it may be sued in Italy for any claim within the scope of the Brussels I bis Regulation except for where there is exclusive jurisdiction. Thus, the Court of Milan should have jurisdiction over Bulthaup Italia in accordance with Article 4 Brussels I bis Regulation in respect of the negative declaratory claims concerning infringement and unfair competition. It is a separate question that these claims are inadmissible under national procedural law because Gessi had no legitimate interest in bringing a claim against Bulthaup Italia.

In addition, while I agree with the Supreme Court that Article 7(2) would not provide a basis for jurisdiction over Bulthaup for the negative declaratory claims concerning Germany, Gessi’s claims appear to refer also to Italy. Indeed, Gessi requests a declaration that “the production and marketing” of the tap does not infringe industrial property rights. The production of the tap, which likely takes place in Italy, concerns the Italian part of the international design. As the Supreme Court rightly noted, in Wintersteiger, the CJEU held that jurisdiction lies in the Member State where the right is protected, and Bulthaup’s right is protected (also) in Italy. Thus, the Court of Milan should have jurisdiction over Bulthaup in accordance with Article 7(2) Brussels I bis Regulation in respect of the claim for non-infringement of the Italian part of the international design. Again, it is a separate question whether this claim is admissible under national procedural law in light of the fact that Bulthaup had not sent any warning letter to Gessi concerning Italy.

Concerning Article 8(1) of the Brussels I bis Regulation, I agree with the Supreme Court that the invalidity claim was not relevant for establishing jurisdiction over the non-infringement claims, but for an additional reason not mentioned by the Court. The invalidity claim was brought against Bulthaup, not Bulthaup Italia. Clearly, Bulthaup cannot be used as an anchor defendant to bring additional claims against Bulthaup.

In contrast, the negative declaratory claims were brought against both Bulthaup and Bulthaup Italia so the latter could serve as an anchor defendant. That said, the Supreme Court’s conclusion that Article 8(1) was not applicable in cases of abuse is arguably in line with Freeport (C‑98/06). In that case, the CJEU held that if the requirements of (what is now) Article 8(1) are fulfilled, there is no further need to establish separately that the claims were not brought with the sole object of ousting the jurisdiction of the courts of the Member State where one of the defendants is domiciled. This decision has been understood to mean that the claims are either sufficiently connected or there is abuse. In this case, the Supreme Court found that there was abuse because there was no plausible reason for involving Bulthaup Italia in a dispute concerning the German part of the design right.

As noted above, however, Gessi’s negative declaratory claims appear to concern Italy as well. There would be a plausible reason for involving Bulthaup Italia in a dispute concerning the Italian part of the design right. This raises two issues. First, could Bulthaup Italia be used as an anchor defendant even though the claims against Bulthaup Italia were likely inadmissible under Italian procedural law for lack of a legitimate interest? In Reisch Montage (C‑103/05), the CJEU held that (what is now) Article 8(1) applies even when an action brought against the anchor defendant (here Bulthaup Italia) is inadmissible pursuant to a provision of national law already at the time it is brought.

Second, are the negative declaratory claims against Bulthaup Italia concerning Italy connected to the claims against Bulthaup concerning Germany in the meaning of Article 8(1)? The CJEU’s decision in Roche Nederland which was cited by the Supreme Court, deals with patents. In a later case, Painer (C-145/10), which deals with copyright infringement, the CJEU did not exclude the application of article 8(1) in relation to defendants accused of infringing copyright protected in different Member States when the national laws on which the claims were based were “substantially identical”. In light of the fact that national design rights have been harmonized in accordance with Directive 98/71/EC on the legal protection of designs, the question arises whether the approach in Roche or Painer should be followed.

On 28 June 2023, the European Commission presented a package consisting of three proposals regarding the Euro currency. It includes a proposal for a regulation on the legal tender of Euro banknotes and coins, a proposal for a regulation on the establishment of the digital euro, accompanied by a proposal for a regulation of on the provision of digital Euro services by payment services providers incorporated in Member States whose currency is not the Euro.

While ensuring that individuals and businesses can continue to access and pay with Euro banknotes and coins across the Euro area, the package aims to set out a framework for a possible new digital form of the Euro that the European Central Bank could choose to issue in the future, as a complement to cash.

The package is not concerned, as such, with private international law. However, it appears to have some implications for private international law, which will be briefly discussed below.

Background

Digitalisation and new technology are progressively influencing the lives of Europeans and the European economy. As the European economy becomes more digital, Europeans are increasingly using private digital payment methods to transact. Banknotes and coins, the only existing forms of central bank money with legal tender available to the general public (including individuals, governments, and corporations), cannot support the EU’s economy in the digital age.

As online transactions expand and payment habits of the general public migrate to the wide range of private digital payment methods available in the EU, their use in payments declines. The lack of a widely available and useable form of central bank money that is technologically fitted to the digital era may also erode trust in commercial bank money, and eventually in the Euro itself.

In this context, the issuing of a retail CBDC (Central Bank Digital Currency) has acquired substantial attention in recent years: a retail CBDC, like cash, would be an official form of central bank money that is directly available to the general public and has the legal tender status. And attention would like to turn into reality also in the EU.

Indeed, many central banks across the world have started looking at the possibility of introducing CBDCs. They, like the European Central Bank, have been conducting research and piloting programmes to better understand their potential advantages and drawbacks. Sweden, for instance, began a research on the viability of an e-krona within the EU. Outside of the EU, the United Kingdom has published multiple consultations and begun research towards a digital pound, akin to the European Central Bank’s technical inquiry into a digital euro. China has previously produced a digital yuan outside of Europe, which is already accessible for payment in an increasing number of places, with major banks and payment service providers facilitating the process. The United States, then, is looking at the possibility of a digital dollar but has not yet concluded if it is necessary.

However, some underlying choices need to be faced. For example, CBDC can be of two different types: (a) Account-based: before allowing a user to make a payment, an account-based approach often entails the use of a trusted third party to authenticate the identification of the account holder and the check on account balance; the accounts are then debited and credited accordingly; or (b) Token-based: a form of money issued by a central bank whereby the monetary claim on the central bank is incorporated in a digital token and the transfer of the token equals transfer of the claim, without current-account relationship between the central bank and the holder.

To conclude this overall background, it is useful to clarify that it is not a matter of crypto-assets and blockchain. Crypto assets, indeed, are purely digital assets that use public ledgers over the internet to prove ownership. They use cryptography, peer-to-peer networks and a distributed ledger technology (DLT) – such as blockchain – to create, verify and secure transactions. While the digital euro, unlike crypto-assets, would be central bank money. The European Central Bank would guarantee its safety, stability, and ability to be exchanged for Euro currency at face value. In contrast, the value of crypto-assets might vary substantially, and their conversion into Euro currency or even commercial bank money cannot be guaranteed.

Proposal on Digital Euro

The goal of the proposal on digital Euro is to keep central bank money with legal tender status available to the general public, while also providing a cutting-edge and cost-effective payment method, ensuring a high level of privacy in digital payments, maintaining financial stability, and promoting accessibility and financial inclusion.

As a result, they offer the essential legal framework to guarantee the successful use of the digital Euro as a single currency throughout the eurozone, addressing the demands of users in the digital age, and supporting competitiveness, efficiency, innovation, and resilience in the EU’s digitalizing economy. They offer the essential legal framework to guarantee the successful use of the digital Euro as a single currency throughout the eurozone, addressing the demands of users in the digital age, and supporting competitiveness, efficiency, innovation, and resilience in the EU’s digitalizing economy.

Subject Matter, Establishment and Issuance of the Digital Euro

‘Digital euro’ means the digital form of the single currency available to natural and legal persons for the purpose of retail payments. It may be issued by the European Central Bank and, if authorised by the European Central Bank, by eurozone national central banks. This means that it would be public money or central bank money. Like Euro banknotes and coins, the digital Euro will be a direct liability of the European Central Bank or of eurozone national central banks vis-à-vis digital Euro users, i.e. those making use of a digital Euro payment service in the capacity of payer, payee, or both.

Several rules are being proposed to integrate the digital Euro into the current legal framework. In particular, digital Euro payment transactions shall be subject to Payment Services Directive (PSD2, as will be replaced by proposed PSD3 and PSR), the Cross-Border Payments Regulation (as will be amended by the proposed accompanying Regulation), the Anti-Money Laundering Directive (AMLD5, as will be replaced by proposed AMLD6 and AMLR) and the Funds Transfer Regulation.

Legal Tender

The digital Euro will have legal tender status, which means that it must be accepted at face value with the ability to satisfy a payment obligation; this is not the case for existing electronic means of payments provided by commercial banks. Surcharges will be prohibited. To guarantee the effective preservation of the digital euro’s legal tender status as a unified currency throughout the eurozone, as well as the acceptance of digital Euro payments, provisions on sanctions for infringements will be adopted and implemented in the Member States.

Payees are entitled to refuse payment in digital Euro under the circumstances indicated in Article 9.
The digital Euro will be convertible in the same way as Euro banknotes and coins, scriptural money, and electronic money are. Where both digital Euro and Euro cash acceptance is required, the payer may choose between the two.

Distribution

(Private) Payment service companies would act as intermediaries for the digital euro. Banks and other payment service providers, indeed, would be in charge and in responsibility of distributing digital euros and providing payment services to natural and legal persons, primarily via offering a variety of digital Euro payment services (without the need for an extra licence). These services include first of all enabling users to access and use digital euro; persons, indeed, would be able to open a digital Euro account at any commercial bank or any other payment service provider, such as payment institutions and electronic money institutions. Then, other digital Euro payment services included cover initiating and receiving digital Euro payment transactions, managing their digital Euro payment accounts (which function similarly to digital wallets and have a unique account number), providing users with digital Euro payment instruments, and conducting funding (i.e., acquiring digital Euro in exchange for cash or other funds) / defunding operations.

There is also a list of basic digital Euro payment services that must be provided to individuals for free, such as opening and maintaining digital Euro payment accounts, funding/defunding from/into cash, initiating and receiving digital Euro payment transactions (person-to-person, person-to-government, government-to-person, or point of interaction including point-of-sale and e-commerce) via an electronic payment instrument, or providing such instruments. Users using digital euros can have one or more digital Euro payment accounts with the same or other payment services providers.

Access, Use and its Limits, Technical Features and Privacy

The proposal provides also other rules.

Chapter six, devoted to the access side, deals with the use of the digital Euro outside the Euro area, which depend on whether natural and legal persons reside or are established in a non-Euro area Member States or in a third country. It will be possible, subject to described conditions under Articles 18 to 21.

Technical features are also taken into account under chapter seven, where it is indicated that the digital Euro should be developed in a way that makes it easy to use for the general public, including financially excluded or at-risk individuals, those with impairments, functional limits, or inadequate digital skills, and the elderly. In order to achieve this aim, digital Euro users will not be needed to have a non-digital Euro payment account. And the digital Euro should be available for digital Euro payment transactions both offline and online as of the first issuance of the digital Euro and should allow for conditional payment transactions. Users may use the European Digital Identity Wallets established under the proposed Regulation on a European Digital Identity, described on this blog, to onboard and make payments. The digital Euro should enable digital users to switch their digital Euro payment accounts to another payment services provider at the request of the digital Euro user.

Finally, privacy and data protection issues are addressed.

Private International Law Implications

CBDCs are not free from private international law implications. Payment currency, indeed, is a component that private international law cannot ignore.

Basically, the problem of problems, which then concerns all the classic private international law issues, is that relating to the connecting factors to be used for this currency. Can the criteria of the locus rei sitae and lex rei sitae have any weight? And if so, where is this currency located? If not, what other criteria to use?

And, generally related to the latter, also the role of private autonomy and its possible limits is to be addressed. For instance, if the CBDC is included in a contract with cross-border elements, how do you provide for party autonomy? Should boundaries to CBDC, and the contract, be established?

In jurisdiction matter, it follows that identifying the court to deal with it is relevant, among intermediaries and account holders.

But also for the applicable law the problems are no less: opening CBDC accounts, holding, transactions, payments, settlements, and other aspect such as data flow can be dealt with.

An impact, also, in terms of recognition and enforcement, imagining having a judgement including CBDC matters to be recognized and enforced in different countries.

History tends to repeat itself: what to do then? Adapt existing rules, if they resist this tool, or devise new ones?

Surely a good starting point is to refer to the contribution in progress in this field, such as the Proposal for Exploratory Work: Private International Law Aspects of Central Bank Digital Currencies (CBDCs) by the Hague Conference on Private International Law. Perhaps the HCCH is also the place to regulate these private international law issues at international level (so, with non-EU countries) on these topics?

Finally, since we are talking about dematerialized assets, can some help come from the system developed under the Convention of 5 July 2006 on the Applicable Law to Certain Rights in Respect of Securities held with an Intermediary (Securities Convention)?

The Dickson Poon School of Law is seeking to appoint three outstanding candidates with research and teaching expertise in Intellectual Property (IP) law or Private International Law/Conflict of Laws (PIL/CoL) to Lectureships. The successful candidate/s will have a primary research interest in either IP law or PIL/CoL and the ability to produce internationally excellent research in this area.

This post will be offered on an indefinite contract (subject to a probation period). This is a full-time post.

Applications close on 10 August 2023.

Further information is available here.

The authors of this post are Bernadette Boehl, Sophie Dannecker, Larissa Grundmann, Maira Gabriela Nino Pedraza (all University of Bonn). A series of webinars took place in May 2023 under the title The Future of Cross-Border Parenthood in the EU – Analysing the EU Parenthood Proposal. Experts from various Member States discussed the main elements of the proposal and possibilities for improvement. The key issues addressed  in  each webinar are illustrated  below. Those interested in the PowerPoint presentations prepared by the speakers, are invited to follow this link. 

Session One

The first webinar (3 May 2023) started with a presentation by Jens Scherpe about Surrogacy in comparative perspective. 

Scherpe emphasized the impossibility of avoiding surrogacy as a worldwide phenomenon, hence the global surrogacy market which affects people on an international level.  He classified the jurisdictions into three categories. The jurisdictions that prohibit (e.g., France, Germany), tolerate (e.g. England), and regulate surrogacy.

For Scherpe, surrogacy tourism is a consequence of the prohibitive as well as the tolerant approach to surrogacy. Surrogacy plays an important economic role. It can be a multi-million-dollar business. This is especially true in countries whose jurisdictions follow a free market approach, such as some Canadian provinces, which could be described as “Rolls Royce” jurisdictions. This allows the intended parent to be recognised on the birth certificate from the outset. Countries that allow surrogacy in a way that the intended parents can be documented on the birth certificate beforehand but leave the process more or less unregulated tend to be attractive to a lot of people from prohibitive or tolerant countries. Those “Wild-West” jurisdictions, as Scherpe calls them, are much cheaper for future parents. But as a matter of fact, they are less protective of the surrogate and of children, and exploitation may occur. According to Scherpe, the achievement of the seemingly morally better approaches, the prohibitive and the tolerant, has the effect of exporting exploitation to those countries.

After signaling the experiences of countries like England and Denmark, the speaker concluded that both models, the prohibitive and the tolerant, have failed to prevent surrogacy by not recognising parenthood. In fact, a clear regulation is necessary and unavoidable and could solve some of the legal problems. He ends with the prediction that good regulation will not wipe out all exploitation in surrogacy matters but will, with no doubt, reduce the number of cases drastically.

Afterwards, Cristina González Beilfuss introduced the Parenthood Proposal and explained in her presentation (What’s in it? The subject matter, scope and definitions) four of the most important issues regarding the scope of the proposal.

(1) The substantive scope of the proposal is described in Article 1. “jurisdiction and applicable law for the establishment of parenthood in a Member State in cross-Border situations”. To understand parenthood is also to be seen from a sociological perspective, the definition in Article 4 can be used. Beilfuss expresses her sympathy with the term used in the Spanish draft, which is not “parentalidad” but “filiación” because it puts the child in the center of the law. Filiation should also be the preferred term in the English version, since it is a more child-centered concept than parenthood. For González, the contestation of parenthood, which is included, should have a more significant role in the proposal.

(2) Following the traditional practice of the European Commission, Article 3 defines the scope of application in a negative way. This Article confirms that the Proposal focuses on the bond of filiation but not on its consequences (Articles 3, 2. (b), (f) or (g)). Parental responsibility is not covered and should be consistently distinguished from filiation.

(3) Among the excluded matters is the existence, validity or recognition of a marriage. Marriage, however, regularly arises as a preliminary question in filiation matters. This is due to the significance of the mother´s civil status in establishing  a second child-parent relationship. It would therefore be important that the Regulation included a common rule on the preliminary question in order to ensure that it is solved uniformly across the Member States.

(4) Another exclusion that is problematic is that of adoption. The English text is more correct than the French or the Spanish.  Only intercountry adoptions, e.g. adoptions where the child is taken from their country of habitual residence to the country of habitual residence of those adopting are excluded, The Proposal is however wrong in assuming that all other adoptions are domestic adoptions that do not give rise to Private international questions. Whenever the child or the prospective adopters hold a foreign nationality there is a need to determine jurisdiction and the applicable law. The rules proposed are not well suited for adoption cases.

(5) The proposed rules only apply to the recognition or, as the case may be, acceptance of documents issued in a Member (see Article 3.3). Documents, in particular, birth certificates may however be issued after the recognition or acceptance of a decision or document issued in a Third State. This entails that the dividing line between Third State and European Union cases is far from clear.

In conclusion, the examination conducted by Cristina González Beifuss, as well as the questions left open, highlights the need for further discussion about the Proposal from the European Commission.

Session Two

The second webinar (10 May 2023) opened with a look at EU Primary law and a presentation by Susanne Gössl titled The EU Proposal and primary EU law: a match made in heaven?

The presentation started with an overview of the case law of the CJEU regarding the free movement of citizens (Article 21 TFEU), Article 18 TFEU (discrimination on grounds of nationality) and Article 20 (EU citizenship) in questions of status. According to that case law, a limping status constitutes an obstacle to the free movement of EU citizens and EU primary law requires the Member States to remove the obstacle.

To avoid a limping status, courts need to recognize at least parts of a status validly established in another EU Member State. The EU has two possibilities to legislate: harmonization of substantial law (as happened in Company Law) and the harmonization of private international law which is the approach the EU has taken in family law matters. The Proposal follows the second path and transforms the CJEU case law into EU secondary law.

In that reading, Article 2 of the Proposal (relationship with other provisions of Union law) seems mysterious, as EU primary law is at another level of hierarchy than EU secondary law.

One reading could be that the provision allows Member States to give more room to free movement if the national law is more generous than the proposal. Another interpretation could be that the Proposal does not understand itself as exhaustive in transforming the case law into secondary law. The latter could be the case if the scope of application does not extend to situations where EU citizens are not domiciled and therefore not registered in a Member State. They would fall under EU primary law as EU citizens but not under the proposal.

Furthermore, Gössl criticized Article 17 para. 2 (applicable law) as it contains alternative connecting factors and discretion to the court in case the main rule does not establish two parents. Discretion of the court means that EU primary law could give an obligation to recognize as father an EU citizen no matter whether this is in the best interest of the child. Finally, it remains unclear whether the conflict of laws rules of the proposal can be used in EU Member States to accept a status if they use the method of “recognition via conflict of laws”.

In Sahyouni I & II, the CJEU rejected the use of Rome III for such a national method. It would enhance the free movement of citizens if the Parenthood Proposal allowed Member States to use the Proposal for that way of acceptance. At least a clarification would be helpful.

In this order of ideas, the relationship between the draft and European private law is, for Gössl, not a match made in heaven, but at least a match.

Afterwards, Tobias Helms talked about The law governing parenthood: are you my father?.

Helms emphasized in advance that the initiative of the European Commission is to be welcomed. However, there would still be room for improvement in detail. During his presentation, Tobias Helms mainly analysed Article 17 of the Proposal.

The primary connecting factor for the establishment of parenthood is, according to para. 1, the law of the state in which the person giving birth has their habitual residence at the time of birth. As Tobias Helms pointed out, this connecting factor would be particularly friendly to surrogate motherhood. However, the connecting factor is unchangeable because it is fixed forever at the time of birth, which is problematic. Therefore, Article 17 para. 1 of the draft should be applied only with regard to the time of the child’s birth; thereafter, the child’s habitual residence should be decisive.

Also, Article 17 would have to be supplemented by establishing an Article 17a concerning the termination of parenthood. Additionally, a new Article 18a should be introduced regarding adoptions. An extra Article 22a could deal with overriding mandatory provisions.

Session Three

The third webinar (17 May 2023) started with a presentation by Alina Tryfonidou on The mutual recognition of decisions under the EU Proposal: much ado about nothing?

Tryfonidou provided an overview of the EU provisions regarding the recognition of decisions concerning parenthood. The provisions broadly follow the approach of other EU private international law regulations in the field of family law.

Article 4 of the proposal defines court and court decisions. The definitions are more abstract than those used in other EU private international law provisions in family law. Therefore, further clarification is desirable. The EU proposal is only applicable to cases with cross-border elements between member states. Decisions in third-party states are excluded from the scope of the application (Article 3(3)). Recognition of those decisions remains a question of national law. Children subject to decisions in third states are at least protected by the ECHR.

The central provision regarding the recognition of decisions is Article 24(1). It states that a court decision on parenthood given in a Member State shall be recognized in all other Member States without any special procedure being required. Article 24(3) allows the court to determine the issue where the recognition of a court decision is only raised as an incidental question.

Article 26 specifies the documents to be produced for recognition of a decision. The required attestation is supposed to enable the authority to determine whether there are grounds for refusal. The exhaustive list of such grounds is laid down in Article 31(1). The most famous ground allows the refusal if the recognition is manifestly contrary to the public policy of the Member State in which recognition is sought. The provision must be applied in observance of fundamental rights and principles laid down in the CFR. Articles 32 and 25 regulate applications for the refusal of recognition or the decision that there are no grounds for the refusal of recognition.

The next presentation was given by Maria Caterina Baruffi on Who decides on parenthood? The rules of jurisdiction.

Baruffi started by referring to the heavy criticism aimed at the proposal. Although she admitted that some of these criticisms are partly justified, she emphasized the positive aspects, namely the protection of children and fundamental rights.

The general system of jurisdiction is laid down in Article 6 of the proposal. It lists six grounds for jurisdiction alternatively. That allows for additional flexibility and facilitates access to justice.

On the other hand, a different approach may have reduced the possibility of parallel proceedings and forum shopping. Article 7 combines the presence rule with these grounds. According to recital 42, this is supposed to allow the courts to exercise jurisdiction regarding third-country national children. Article 8 states that where no court of a Member State has jurisdiction pursuant to Articles 6 or 7, jurisdiction is determined by national law. Article 9 adds the forum necessitatis rule. Articles 6 to 9 could be called exorbitant when combined. The reference to the national law of member states in Article 8 creates the additional possibility of taking recourse to exorbitant rules of jurisdiction in national law. However, the broad approach further facilitates access to justice and protects children’s fundamental rights.

Following this, Maria Caterina Baruffi briefly introduced Articles 10 and 14 which mirror the Brussels IIb Regulation, Article 15 which specifies the child’s right to be heard. She then touched on the child’s right to know its origin. This right was excluded from the proposal. Maria Caterina Baruffi argued that the Union does not have the competence to include such a right. It is not possible to predict the outcome of the proposal. It is a good starting point for a reasonable solution.

Session Four

The last webinar started with Patrick Wautelet who talked about Authentic documents and parenthood: between recognition and acceptance.

Wautelet discussed the recognition of court decisions in another Member State (Chapter IV, Section 1-2) together with the acceptance of other authentic instruments with either binding legal effect (Chapter IV, Section 3) or those with no binding legal effect (Chapter V) in the Member State of origin.

The most critical point of the proposal regarding Chapters IV and V is the distinction between the authentic instruments with binding or no binding legal effect since the question of whether an instrument has legally binding effect or not is a matter for the national law of the Member State in which the instrument was issued. It may therefore be answered differently in each Member State.

Wautelet illustrated the difficulties which this diversity may cause with an example from practice: when a child is born in France to married parents, the birth certificate drawn up must, of course, be regarded as an authentic instrument. Whether it also has a “binding legal effect” must be determined according to French family law. This question must be answered differently in France regarding maternity and paternity. However, this does not apply equally to every Member State, which means the question which category is relevant may not be answered in general for all birth certificates.

In the presentation and the following discussion, it was underlined that drawing the line between authentic instruments with binding and no binding legal effect can be complex, not least regarding other existing family arrangements (same-sex parenthood).

Furthermore, it was suggested that the terms used in the Proposal lack precision: even if an authentic act has a binding legal effect, it may be that it is not completely binding, as it may be amenable to challenge. The  term ‘no legal binding effect’ suggests further that the instrument is not legally effective although it actually is. Those labels are therefore confusing and should either be reconsidered or at least explained further. His preferred choice is to not differentiate between the two categories but to merge the two.

Another topic was the acceptance of authentic instruments with no binding legal effect, as stated in Article 45 of the Proposal. There are two options for an evidentiary effect of those documents: the text may provide that the effects the original instrument has in the Member State of origin will be extended to other Member States (“same evidentiary effects”). Article 45, however, also includes another possibility, i.e. that an instrument be giventhe “most comparable effect”. Understand the evidentiary effect exiting in the state of origin requires extensive and difficult work. Patrick Wautelet proposes simplifying the Regulation with regard to the comparable effect by striking it out.

To conclude, the speaker presented four points to be considered for further reflection. Firstly, it is important to work on the language, ensuring that all terms are clearly defined. Secondly, the alternative rules for acceptance and the relationship with public policy need to be cleared. Thirdly, it is advisable to merge the two categories of authentic instruments, which should help avoid confusion or ambiguity in their application. Finally, he would like to strive for a less complex regulation – not at least to keep the users in mind.

The very last presentation, given by Ilaria Pretelli, concerned The European certificate of Parenthood: a passport for parents and children?.

The last presentation refers to Chapter VI of the proposal and the creation of a “European Certificate of Parenthood”. The certificate is supposed to make a binding presumption of the status, which results only from the certificate itself. This certificate may not make a decisive difference in numerous cases because birth certificates are widely accepted even today. But especially for cases of co-maternity, it will help with an easier recognition of co-maternity and support same-sex couples by setting a reliable framework. Additionally, this framework will be useful regarding contractual arrangements, such as surrogacy. It eliminates the risk of the child being stateless.

The similarity between the proposed “European Certificate of Parenthood” and the “European Certificate of Succession” regarding the presumption of status should not be seen as extensive as it may seem at first sight. The presumption of the status of parenthood stated by Article 53 para. 2 of the proposal differs not in the wording but in the meaning, from the presumption of status regulated by the Certificate of Succession (Article 69 para. 2). According to Ilaria Pretelli there is a huge difference in the meaning of the “presumption of status” as it is used by the proposal, because of how it can be challenged. The granted status by the proposal states a much stronger binding effect than the certificate of succession. This she concludes from seeing the explanatory memorandum, which stresses the evidentiary effects of established parenthood in another Member State. But she suggests that this matter should be clarified because of the identical and therefore misleading wording. She points to the unanswered question about the possibility of challenging the certificate by another Member State as a main problem in the proposal.

Also, Ilaria Pretelli explained the background of the numerous specifications of the certificate’s content. The purpose of those elaborate regulations is to prevent attempts of manipulation. In this respect, the rights of the child should be more in the focus of the regulations, especially the right of the child to know their origin. To do so, appropriate safeguards could be introduced by means of ad hoc rules specially designed to meet the need of pursuing the best interests of the child.  In this matter, she points out that the language of the whole proposal is not focused enough on the child. She suggests to change the wording of the English version of the proposal, e.g. “filiation” instead of “parenthood”.

“Wishes” of the Organisers of the Series of Webinar

At the end of the seminar, the five organizers of the Webinars concluded the last session by expressing their “wishes” for improvement of the proposal.

These wishes were:
– Further definition of the concept of Court (Cristina Gonzalez Beilfuss);
– If the Regulation keeps the distinction between 2 types of authentic acts, that Member States and the Commission find a better way to distinguish them (Patrick Wautelet);
– Restrict the existing rule on the applicable law to designating the applicable law at the time of birth and find other rules for the time after birth (Tobias Helms);
– Introduce safeguards to prevent child-trafficking or exploitation (e.g. right of the child to know their origins or rules as those preventing illegal adoptions) (Ilaria Pretelli);
– Define the concept of “establishment” of parenthood in cases parenthood is established by the law and not by courts or authentic acts with binding effect (Susanne Gössl).

As it is usual at this time of the year, the EAPIL blog will slightly slow down its activity for a few weeks.

We’ll provide news on scholarship, recent case law and on-going legislative work every week, but we’ll limit ourselves to two or three post a week.

The usual five-post-a-week pace will resume at the beginning of September.

Enjoy your Summer, readers!

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.

B. Heiderhoff, Care Proceedings under Brussels IIter – Mantras, Compromises and Hopes

Against the background of the considerable extension of the text of the regulation, the author asks whether this has also led to significant improvements. Concerning jurisdiction, the “best interests of the child” formula is used a lot, while the actual changes are rather limited and the necessary compromises have led to some questions of doubt. This also applies to the extended possibility of choice of court agreements, for which it is still unclear whether exclusive prorogation is possible beyond the cases named in Article 10 section 4 of the Brussels II ter Regulation. Concerning recognition and enforcement, the changes are more significant. The author shows that although it is good that more room has been created for the protection of the best interests of the child in the specific case, the changes bear the risk of prolonging the court proceedings. Only if the rules are interpreted with a sense of proportion the desired improvements can be achieved. All in all, there are many issues where one must hope for reasonable clarifications by the ECJ.

G. Ricciardi, The practical operation of the 2007 Hague Protocol on the law applicable to maintenance obligations

Almost two years late due to the COVID-19 pandemic, in May 2022 over 200 delegates representing Members of the Hague Conference on Private International Law, Contracting Parties of the Hague Conventions as well as Observers met for the First Meeting of the Special Commission to review the practical operation of the 2007 Child Support Convention and the 2007 Hague Protocol on Applicable Law. The author focuses on this latter instrument and analyses the difficulties encountered by the Member States in the practical operation of the Hague Protocol, more than ten years after it entered into force at the European Union level. Particular attention is given to the Conclusions and Recommendations of the Applicable Law Working Group, unanimously adopted by the Special Commission which, in light of the challenges encountered in the implementation of the Hague Protocol, provide guidance on the practical operation of this instrument.

R. Freitag, More Freedom of Choice in Private International Law on the Name of a Person!

Remarks on the Draft Bill of the German Ministry of Justice on a Reform of German Legislation on the Name of a Person. The German Ministry of Justice recently published a proposal for a profound reform of German substantive law on the name of a person, which is accompanied by an annex in the form of a separate draft bill aiming at modernizing the relevant conflict of law-rules. An adoption of this bill would bring about a fundamental and overdue liberalization of German law: Current legislation subjects the name to the law of its (most relevant) nationality and only allows for a choice of law by persons with multiple nationalities (they max designate the law of another of their nationalities). In contrast, the proposed rule will order the application of the law of the habitual residence and the law of the nationality will only be relevant if the person so chooses. The following remarks shall give an overview over the proposed rules and will provide an analysis of their positive aspects as well as of some shortcomings.

D. Coester-Waltjen, Non-Recognition of “Child Marriages” Concluded Abroad and Constitutional Standards

The Federal Supreme Court raised the question on the constitutionality of one provision of the new law concerning “child marriages” enacted by the German legislator in 2017. The respective rule invalidated marriages contracted validly according to the national law of the intended spouses if one of them was younger than 16 years of age (Art. 13 ss 3 no 1 EGBGB). The Federal Supreme Court requested a ruling of the Federal Constitutional Court on this issue in November 2018. It took the Federal Constitutional Court nearly five years to answer this question.
The court defines the structural elements principally necessary to attain the constitutional protection of Art. 6 ss 1 Basic Law. The court focuses on the free and independent will of the intended spouses as an indispensable structural element. The court doubts whether, in general, young persons below the age of 16 can form such a free and independent will regarding the formation of marriage. However, as there might be exceptionally mature persons, the protective shield of Art. 6 ss 1 Basic Law is affected (paragraphs 122 ff.) and their “marriage” falls under the protective umbrella of the constitution. At the same time, the requirement of a free and meaningful will to form a marriage complies with the structural elements of the constitutionally protected marriage. This opens the door for the court to examine whether the restriction on formation of marriage is legitimate and proportionate.
After elaborating on the legitimacy of the goal (especially prevention and proscription of child marriages worldwide) the court finds that the restriction on the right to marry is appropriate and necessary, because comparable effective other means are missing. However, as the German law does not provide for any consequence from the relationship formed lawfully under the respective law and being still a subsisting marital community, the rule is not proportionate. In addition, the court demurs that the law does not provide for transformation into a valid marriage after the time the minor attains majority and wants to stay in this relationship. In so far, Art. 13 ss 3 no 1 affects unconstitutionally Art. 6 ss 1 Basic Law. The rule therefore has to be reformed with regard to those appeals but will remain in force until the legislator remedies those defects, but not later than June 30, 2024.
Beside the constitutional issues, the reasoning of the court raises many questions on aspects of private international law. The following article focuses on the impact of this decision.

O.L. Knöfel, Discover Something New: Obtaining Evidence in Germany for Use in US Discovery Proceedings

The article reviews a decision of the Bavarian Higher Regional Court (101 VA 130/20), dealing with the question whether a letter rogatory for the purpose of obtaining evidence for pre-trial discovery proceedings in the United States District Court for the District of Delaware can be executed in Germany. The Court answered this question in the affirmative. The author analyses the background of the decision and discusses its consequences for the long-standing conflict of procedural laws (Justizkonflikt) between the United States and Germany. The article sheds some light on the newly fashioned sec. 14 of the German Law on the Hague Evidence Convention of 2022 (HBÜ Ausführungsgesetz), which requires a person to produce particular documents specified in the letter of request, which are in his or her possession, provided that such a request is compatible with the fundamental principles of German law and that the General Data Protection Regulation of 2018 (GDPR) is observed.

W. Wurmnest/C. Waterkotte, Provisional injunctions under unfair competition law

The Higher Regional Court of Hamburg addressed the delimitation between Art. 7(1) and (2) of the Brussels Ibis Regulation after Wikingerhof v. Book ing.com and held that a dispute based on unfair competition law relating to the termination of an account for an online publishing platform is a contractual dispute under Art. 7(1) of the Brussels Ibis Regulation. More importantly, the court considered the requirement of a “real connecting link” in the context of Art. 35 of the Brussels Ibis Regulation. The court ruled that in unfair competition law disputes of contractual nature the establishment of such a link must be based on the content of the measure sought, not merely its effects. The judgment shows that for decisions on provisional injunctions the contours of the “real connecting link” have still not been conclusively clarified.

I. Bach/M. Nißle, The role of the last joint habitual residence on post-marital maintenance obligations

For child maintenance proceedings where one of the parties is domiciled abroad, Article 5 of the EU Maintenance Regulation regulates the – international and local – jurisdiction based on the appearance of the defendant. According to its wording, the provision does not require the court to have previously informed the defendant of the possibility to contest the jurisdiction and the consequences of proceeding without contest – even if the defendant is the dependent minor child. Article 5 of the EU Maintenance Regulation thus not only dispenses with the protection of the structurally weaker party that is usually granted under procedural law by means of a judicial duty to inform (such as Article 26(2) Brussels Ibis Regulation), but is in contradiction even with the other provisions of the EU Maintenance Regulation, which are designed to achieve the greatest possible protection for the minor dependent child. This contradiction could already be resolved, at least to some extent, by a teleological interpretation of Article 5 of the EU Maintenance Regulation, according to which international jurisdiction cannot in any case be established by the appearance of the defendant without prior judicial reference. However, in view of the unambiguous wording of the provision and the lesser negative consequences for the minor of submitting to a local jurisdiction, Article 5 of the EU Maintenance Regulation should apply without restriction in the context of local jurisdiction. De lege ferenda, a positioning of the European legislator is still desirable at this point.

C. Krapfl, The end of US discovery pursuant to Section 1782 in support of international arbitration

The US Supreme Court held on 13 June 2022 that discovery in the United States pursuant to 28 U.S.C. § 1782 (a) – which authorizes a district court to order the production of evidence “for use in a proceeding in a foreign or international tribunal” – only applies in cases where the tribunal is a governmental or intergovernmental adjudicative body. Therefore, applications under Section 1782 are not possible in support of a private international commercial arbitration, taking place for example under the Rules of the German Arbitration Institute (DIS). Section 1782 also is not applicable in support of an ad hoc arbitration initiated by an investor on the basis of a standing arbitration invitation in a bilateral investment treaty. This restrictive reading of Section 1782 is a welcome end to a long-standing circuit split among courts in the United States.

L. Hübner/M. Lieberknecht, The Okpabi case — Has Human Rights Litigation in England reached its Zenith

In its Okpabi decision, the UK Supreme Court continues the approach it developed in the Vedanta case regarding the liability of parent companies for human rights infringements committed by their subsidiaries. While the decision is formally a procedural one, its most striking passages address substantive tort law. According to Okpabi, parent companies are subject to a duty of care towards third parties if they factually control the subsidiary’s activities or publicly convey the impression that they do. While this decision reinforces the comparatively robust protection English tort law affords to victims of human rights violations perpetrated by corporate actors, the changes to the English law of jurisdiction in the wake of Brexit could make it substantially more challenging to bring human rights suits before English courts in the future.

Deyan Draguiev is the author of this monograph published in 2023 by Springer. He has kindly provided the following abstract.

The book proposes a holistic overview of interim measures and associated procedures in civil and commercial matters in international litigation and arbitration proceedings. It reexamines key features in this context and outlines novel findings on interim relief in the area of international dispute resolution. The book analyses the rules of EU law (EU law regulations such as the Regulation Brussels I bis and the rest of the Brussels regime) as the single system of cross-border jurisdictional rules, as well as the rules of international arbitration (both commercial and investment). In the process, it conducts a complete mapping of interim measures problems and explores the criteria for granting relief under national laws. For this purpose, it includes an extensive comparative law overview of many jurisdictions in Europe, Asia, Africa, the Americas, etc., to reveal common standards for granting interim relief.

In deeper depth, as follows, chapter after chapter.

Chapter one provides the wider framework for the analysis of interim relief procedures in cross-border civil and commercial disputes.
It sets out the underpinnings of the dispute resolution process from the standpoint of philosophy, sociology, psychology, and general legal theory by drawing references from fundamental social scientists and legal philosophers. It outlines the conceptual grounds for the existence of interim relief within the system of dispute resolution. Furthermore, after portraying the key background features upon which the study builds its foundations, chapter one also clarifies the terminology, which the study employs. This chapter puts forward the key points, which the entire study seeks to argue. More particularly, the position, which is argued, is that interim measures are not merely a procedural power of the dispute resolution authority or means to ensure the proper enforcement of the final ruling of the dispute, rather they have a wide-ranging function as a tool to manage and influence the pending dispute itself.

Chapter two focuses on the procedural rules for establishing jurisdiction to grant interim relief.
The first part deals with the so called “Brussels regime” or “system”, i.e. the variety of regulations which the European Union has established in the area of cross-border civil and commercial disputes. The backbone of the system is Regulation Brussels I bis – “Recast” (1215/2012), previously Regulation Brussels I (44/2001). The main features of interim relief in EU law stem from it and influence a number of other EU regulations. This chapter analyses the prerequisites for EU courts’ jurisdiction to provide interim relief, both as general grounds and as specific interim measures jurisdiction, with details about Art. 35 of Regulation Brussels I bis. This chapter also includes the regulations covering matrimonial matters (Regulation 2201/2003 and Regulation 2019/1111) and also Regulation 4/2009, Regulation 650/2012, Regulation 2016/1103, and Regulation 2016/1104. The European Account Preservation Order is not included.
The second part provides overview of the jurisdictional bases for interim relief in the area of international arbitration. It makes a brief overview of the general grounds for jurisdiction of arbitral tribunals, and of the specific rules establishing jurisdiction to grant interim relief. This includes also a review of the rules of major arbitral institutions and domestic legislations, as well as analysis of the coordination, concurrence, even competition between state courts and arbitral tribunals in granting interim relief, with a proposed possible solution for this situation.

Chapter three analyses the procedural nature and characteristics of interim measures with strong focus on a comparative survey of most systems of law – in Europe, Asia, Africa, both Americas and Australia.
Based on this review of national law criteria for granting interim relief, the purpose is to outline several key benchmarks that are found within a wide-ranging list of legislations – proof of prima facie merit on the substance of the dispute, necessity, proportionality of measures, urgency as time factor, unilateral or bilateral nature of proceedings, etc. Furthermore, this part also provides an overview of various rules of arbitral institutions containing guidance on what measures may be granted under the respective rules. Chapter three looks into the procedural functioning of interim measures before state courts and arbitral tribunals, i.e. standards of proof, conduct of procedure, issuance of final award/decision/order, its form and content, etc. The chapter reviews the scope of interim measures and strives to provide in-depth list of the powers of dispute resolution bodies and the types of measures that are traditionally granted by courts and arbitral tribunals. The liability for damages if the measures are cancelled/revoked is reviewed, as well. Chapter three, finally, features an analysis of the typical measures that are provided in a selection of particularly common types of international disputes, including international sale of goods, international construction projects, intellectual property disputes, maritime and aviation disputes, anti-suit injunctions, etc. The argument in this section is that the characteristics of the underlying dispute are related to the nature of the measures that are typically awarded.

Chapter four seeks to outline the procedural mechanism for putting interim measures into effect.
This chapter provides review of the enforcement conditions, formalities and procedural steps under the regulations within the Brussels regime with focus on Regulation Brussels I bis. This chapter also contains an overview of one of the most challenging aspects of interim relief in international arbitration, i.e. its enforcement.
First, it covers a salient issue, which is widely discussed in legal theory and in arbitral case law, that is to what extent interim measures may be forced by an arbitral tribunal upon the parties to the arbitration case.
Second, this chapter analyses the important matter whether third parties non-signatories can be compelled by arbitral measures.
Third, the chapter reviews the procedural mechanisms contained in various national laws established to facilitate enforcement of interim relief by domestic legal procedures.
The chapter also deals with the liability for non-compliance with interim measures, including those granted in arbitral proceedings, providing overview of national laws and case law examples from different legal systems.

Chapter five compares the features of interim measures in private law disputes having international elements with the relief granted by international bodies established by public international law such as the International Court of Justice, the International Tribunal for the Law of the Sea, the European Court of Human Rights, the Court of Justice of the European Union and also the European Commission as an organ of an international organization (the EU).
The grounds for such comparison stem from the transnational characteristics of the disputes that arise both in private and in public international law. Focusing on these common international elements, Chapter five outlines the similarities to obtain interim relief under the auspices of the listed international judicial or quasi-judicial bodies in comparison to the conditions analysed under chapters two-four regarding civil and commercial cases. This chapter analyses this by providing review of the legal status and powers of these international adjudication bodies through the prism of the key benchmarks: jurisdiction, standards for assessment, procedure to obtain relief, and enforcement of measures. The comparison demonstrates significant similarities especially as to the criteria for granting relief and the potential issues with enforcement.

Chapter six provides assessment of the matter concerning interim relief and procedures in private law international disputes by drawing conclusions from the review and analysis under the previous chapters.
This chapter outlines the grounds to argue the two focal points of the entire study.
The first argument is that the proper understanding of interim relief is that it does not merely safeguard enforcement/compliance with the final decision on a dispute but that, if measures are placed in wider context, they should be seen as an instrument to manage not only the pending legal proceedings but also the entire ongoing conflict until its resolution.
The second argument is that the result of interim relief should be that no further aggravation of the dispute is allowed.
This chapter further employs the tools of the law & economics theory as to portray interim relief also as a wealth maximization lever. This chapter puts in comparison the effectiveness of the mechanism of granting and enforcement of relief before courts and before arbitral tribunals in order to propose what strategy parties are recommended to employ for better results. Finally, this chapter summarizes the types of interim measures and puts them in different categories.

Chapter seven is an attempt to look at the discussion in chapters one-six in a rearview mirror and provide a final overview placed in a wider context.
This study has purported from its outset to put the issue of interim relief against a broader, cross-jurisdictional and cross-sectoral background. It reflects the current global trends in business, private relations and disputes. This chapter reiterates the position of the author that the proper way to perceive interim measures is to view them not only as a creature of legal dispute resolution procedure but to understand interim relief as a means to ensure greater values such as reaching a meaningful end of the legal procedure, organizing the management of the underlying relationship between the parties, and providing an opportunity for restoration of the accord between them. If interim measures are seen through such a prism, their role and effectiveness appear to be ever important.

Edward Elgar has just published a Research Handbook on International Child Abduction, edited by Marilyn Freeman and Nicola Taylor.

With a focus on the 1980 Hague Convention, this cutting-edge Research Handbook provides a holistic overview of the law on international child abduction from prevention, through voluntary agreements and Convention proceedings, to post-return and aftercare issues.

Discussing the repercussions of abduction from the perspectives of both abducted children and the therapeutic and family justice professionals engaged in their cases, chapters consider the contributions of the many professionals and key agencies involved in the field. Identifying the 1980 Hague Convention as the principal global instrument for dealing with child abduction, the Research Handbook traces its role, history, development and impact, alongside the mechanisms required for its effective use. Evaluating current trends, areas of concern in legal/judicial practice and various regional initiatives, it also considers alternatives to high-conflict court proceedings in international child abduction cases. The Convention’s strengths, successes, weaknesses and gaps are discussed, and the Research Handbook concludes by addressing how best to tackle the challenges in its future operation.

Interdisciplinary and accessible in approach, the contributions from renowned subject specialists will prove useful to students and scholars of human rights and family law, international law and the intersections between law and gender studies, politics and sociology. Its combination of research, policy and practice will be of value to legal practitioners working in family law alongside NGOs and central authorities active in the field.

Contributors include: Anna Claudia Alfieri, Sarah Calvert, Stephen Cullen, Jeffrey Edleson, Linda Elrod, Mary Fata, Sarah Cecilie Finkelstein Waters, Marilyn Freeman, Gérardine Goh Escolar, Diahann Gordon Harrison, Michael Gration, Mark Henaghan, Costanza Honorati, Ischtar Khalaf-Newsome, Clement Kong, Thalia Kruger, Suzanne Labadie, Sara Lembrechts, Nigel Lowe, Alistair MacDonald, Anil Malhotra, Ranjit Malhotra, Jeremy Morley, Yuko Nishitani, Christian Poland, Kelly Powers, Joëlle Schickel-Küng, Rhona Schuz, Henry Setright, Sudha Shetty, Ann Skelton, Julia Sloth-Nielsen, Victoria Stephens, Nicola Taylor, Mathew Thorpe.

More information here.