EAPIL blog

As reported on this blog by Marco Pasqua, the European Commission adopted on 18 October 2022 its 2023 Work Programme, listing the legislative proposals, including in the area of private international law, that the Commission itself regarded as a priority.

On 15 December 2022, the Presidents of the European Parliament, the Council and the Commission signed a Joint Declaration on EU legislative priorities for 2023 and 2024. The document, as indicated in the official press release, “sets out a shared European vision for a stronger and more resilient Europe in the face of Russia’s unprovoked, brutal aggression against Ukraine and its wide-ranging impact – all the while tackling other serious challenges such as the climate crisis and economic headwinds”.

The joint declaration is accompanied by a working document, which lists 164 “key legislative proposals”, that the three institutions agreed to prioritise.

Some of these proposals either primarily relate to private international law or include provisions that have, or may have, significant private international law implications.

These include the proposal for a Directive on adapting non-contractual civil liability rules to artificial intelligence; the proposal for a Directive harmonising certain aspects of insolvency law; the proposal for a Directive on Corporate Sustainability Due Diligence; the proposal for a Directive on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (SLAPPs); the proposal for a Regulation on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters; and the proposal for a Regulation on the law applicable to the third-party effects of assignments of claims.

The recently adopted proposal for a Regulation aimed at harmonising at EU level the rules of private international law relating to parenthood (which Marta Requejo presented here) is not among those listed in the document.

There is also no reference to the expected developments regarding the international protection of adults.

The latest issue of the RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht) has been published. As always, it contains a number of insightful articles. Here are the authors, titles and abstracts:

Moritz Renner and Torsten Kindt, Internationales Gesellschaftsrecht und Investitionsschutzrecht (Conflict of Corporate Laws and International Investment Law)

The withdrawal of the United Kingdom from the EU has revived the debate on the conflict of corporate laws. Much attention has recently been given to the new generation of EU free trade agreements, such as the EU-UK Trade and Cooperation Agreement, but their impact on conflicts in the field of corporate law remains unclear. This article proposes that the conflict-of-law effects of these agreements can be fully understood only in the light of their common background in international investment law. Building upon an analysis of the role of treaties in Germany’s conflict-of-law system and of the multiple intersections between the conflict of corporate laws and international investment law in general, the article demonstrates that the newest EU free trade agreements imply in particular the application of a restricted conflict-of-law theory of incorporation on foreign corporations originating from the respective signatory states. While the agreements’ effects on conflicts in the corporate law arena are not as far reaching as those of the EU’s freedom of establishment, they nevertheless further narrow the remaining scope of application of the traditional seat theory underlying Germany’s autonomous rules on conflicts vis-à-vis corporate law.

Tobias Lutzi and Felix M. Wilke, Brüssel Ia extendenda est? – Zur Zukunft der internationalen Zuständigkeit deutscher Gerichte in Zivil- und Handelssachen nach Ausweitung der EuGVVO (Brussels I bis extendenda est? On the Future of the International Jurisdiction of German Courts in Civil and Commercial Matters after an Extension of the Regulation)

With the expiry of the deadline of art. 79 Brussels I bis, the academic debate on a possible further extension of the Regulation to situations involving non-EU defendants is (again) gaining momentum. The present study aims to contribute to this discussion. It compares the relevant German rules on international jurisdiction over non-EU defendants with those of the Brussels I bis Regulation in order to be able to assess the consequences of a possible extension from a German perspective. The study reveals that even replacing the national rules in their entirety would not amount to a radical change. In particular, the addition of typified places of performance under art. 7 no. 1 lit. b Brussels I bis to the forum contractus and the availability of a common forum for joint defendants under art. 8 no. 1 Brussels I bis would constitute welcome improvements of the current framework. The loss of jurisdiction based on the presence of assets under § 23 ZPO would arguably be a disadvantage if not properly compensated for, e.g. through a forum necessitatis provision. The biggest advantage, though, would most likely be the harmonization of the law of international jurisdiction across the EU – which, from a German perspective, would come at a rather reasonable price.

Ulla Liukkunen, Decent Work and Private International Law (Open Access)

This article examines the decent work objective set by the ILO and UN Agenda 2030 from the point of view of private international law. It conceptualizes decent work, arguing that inclusivity of protective safeguards and structures in cross-border situations is essential to achieving the objective, and that the need for inclusivity draws attention to the relationship between labour law and private international law. The analysis offered also introduces a migration law-related perspective on decent work and the private international law of employment contracts and labour relations more generally. It is argued that understanding that the idea of inclusivity is embedded in the decent work objective brings up a global dimension which calls for uniform regulatory solutions at the international level. Decent work could be coupled relatively easily with the need for a revival of the private international law of labour relations and for developing a labour rights-based approach in private international law. It also connects private international law’s protective normative frameworks to the body of international labour standards.

Adrian Hemler, Virtuelle Verfahrensteilnahme aus dem Ausland und Souveränität des fremden Aufenthaltsstaats – Zugleich ein Beitrag zum Verhältnis des Völkerrechts zum Kollisionsrecht (Virtual Participation in Court Proceedings from Abroad and Its Effects on the Sovereignty of the Foreign State of Residence – With Consideration of the Relationship Between Public International Law and the Conflict of Laws)

Most German-speaking scholars and some German courts consider participation in virtual court proceedings from a foreign state of residence to be a violation of foreign sovereignty. This essay stakes out a contrary position. In reaching this conclusion, it focuses on the distinction between the exercise of state power abroad and the exercise of state power regarding foreign facts. Especially with regards to extraterritorial legislation, it is argued that the law’s scope of sovereign validity remains territorial even if its scope of application covers facts abroad. The discussion also shows how this distinction is equally applicable to court judgments that concern foreign elements. Furthermore, the article discusses the nature of public international law principles regarding extraterritorial legislation and their relationship to national conflict of laws provisions. Also considered is how the sovereignty principle ought to be understood in cyberspace. Having established this theoretical foundation, it is concluded that regardless of the procedural role of the respective party, participation in virtual court proceedings from a foreign state of residence does not amount to a violation of foreign sovereignty.

Corinna Coupette and Dirk Hartung, Rechtsstrukturvergleichung (Structural Comparative Law) (Open Access)

Structural comparative law explores the similarities and differences between the structures of legal systems. Theoretically grounded in systems theory and complexity science, it models legal systems as networks of documents, organizations, and individuals. Using methods from network analysis, structural comparative law measures these networks, assesses how they change over time, and draws quantitative comparisons between multiple legal systems. It differs from other approaches in its assumptions, its methods, and its goals, in that it acknowledges the relevance of dependencies between system entities and borrows more heavily from data science than from econometrics. Structural comparative law constitutes a novel addition to the comparatist’s toolbox, and it opens myriad opportunities for further research at the intersection of comparative law and data science.

Arseny Shevelev and Georgy Shevelev, Proprietary Status of the Whole Body of a Living Person

This article is a reaction to the growing economic significance of the living human body as well as its legal status. In this paper, we argue that ownership in the human body most effectively guarantees the autonomy of the human will as to the use and disposal of one’s own body, but classical ownership theory is unable to fully ensure the autonomy of the human will, since it risks reviving the institution of slavery. We will demonstrate that theories establishing rights to the body other than ownership rights are limited in content and are inherently inconsistent. At the end of the article, we will propose an abstract ownership theory that allows for the exercise of maximum freedom to dispose of the human body while one is alive and which will be devoid of the flaws of the preceding theories.

The table of contents in German is available here.

On 2 November 2022, the UK Supreme Court delivered its judgment in The Soldiers, Sailors, Airmen and Families Association – Forces Help and another (Respondents) v Allgemeines Krankenhaus Viersen GmbH (Appellant).

The issue at stake was whether the Civil Liability (Contribution) Act 1978, which regulates whether a person liable from a damage may recover contribution from any other person liable, has overriding effect, and thus applies irrespective of the law governing the claim. The Rome II Regulation did not apply ratione temporis.

Mr Roberts suffered brain damage at birth in the Viersen General Hospital (AKV) in Germany in June 2000. Mr Roberts claims that this occurred as a result of the negligence of the attendant midwife, who was employed by the Soldiers, Sailors, Airmen and Families Association Forces Help (SSAFA). He also sued the Ministry of Defence (MoD), which will indemnify SSAFA against any liability.

SSAFA and MoD have brought a claim against AKV for contribution if Mr Roberts’ claim against them succeeds. The basis for this contribution claim is the 1978 Act. The parties agree that the law governing the contribution claim is German law and under German law, the claim would be time-barred. However, if the 1978 Act has overriding effect and if SSAFA/MoD can show that AKV is liable under it, their contribution claim will be in time.

The High Court considered this issue as a preliminary issue before the rest of Mr Roberts’ claim is decided. The High Court decided that the 1978 Act does have overriding effect and therefore SSAFA/MoD’s contribution claim against AKV is not time-barred. The Court of Appeal agreed. AKV now appeals to the Supreme Court.

The Court allowed the appeal on the grounds which were summarised in the Press Summary as follows.

The 1978 Act does not provide expressly that it has overriding effect. It does not provide that the 1978 Act applies irrespective of the foreign law otherwise applicable to the contribution claim. The question is whether such an intention must be implied from the provisions of the statute [38]. Three statutory provisions were identified variously by the Court of Appeal as supporting overriding effect: sections 1(6), 2(3)(c) and 7(3). The Supreme Court, however, considers these provisions equivocal. Their efficacy is not dependent upon overriding effect [39]-[48]. In particular, even in the absence of overriding effect, section 1(6) will be effective in many situations such as where the parties to the contribution claim are in a special relationship governed by the law of England and Wales [43].

Nothing in the admissible Parliamentary materials or the legislative history supports the view that the legislation was intended to have overriding effect [49] – [51]. However, the Bill was a Law Commission Bill and statements by the Commission in other reports suggest it was not intended to have overriding effect [52]-[55]. The weight of academic commentary strongly favours the view that the 1978 Act does not have overriding effect [73]-[79].

A line of authorities supports overriding effect. In a number of these cases overriding effect was assumed, was not directly in point and was not argued [56]-[60]. Arab Monetary Fund v Hashim (No 9) provides direct support for overriding effect, but the reasoning is open to the criticism that it is circular [61]-[68].

In coming to the conclusion that the 1978 Act was not intended to have overriding effect, the Supreme Court is influenced in particular by two considerations. First, there will be many situations in which a contribution claim will be governed by the law of England and Wales, notwithstanding the fact that the underlying liabilities are governed by a foreign law [82]. Secondly, it is difficult to see why Parliament should have intended to confer a statutory right of contribution whenever the party from whom contribution is sought can be brought before a court in this jurisdiction, regardless of the law with which the contribution claim has its closest connection. A failure of foreign law to provide for contribution claims is not a defect requiring remedy by legislation in this jurisdiction. Moreover, it would seem contrary to principle for the law of England and Wales to be applied if the contribution claim were most closely connected to a foreign system of law [83].

Under the Rome II Regulation, the law governing the claim satisfied by a person liable to the victim also governs the right of that person to seek “compensation” from other persons liable to the victim of the same claim. The Rome II Regulation, however, did not apply in this case.

The judgement eventually concludes that German law should also apply to the contribution claim in a reasoning in three steps.

The first is that, although issues of contribution used to be perceived as issues of procedure, it is now widely considered in the British common law world that it is one of substance.

The second is that the issue should be characterised as closely analogous to a restitutionary or quasi-contractual claim, and that the applicable law should be the law with which this claim is the most closely connected. In the present case, given that the claims of each person liable to the victim was governed by German law, that law would be German law as well. But Lord Lloyd-Jones explains that this could have been otherwise if there had been a special relationship between the two liable persons.

The third is that the statutes with overriding effects should be identified by assessing whether the terms of the relevant legislation cannot be applied or its purpose achieved unless it is overriding, and the legislative policy would be so significant that the statute should override the application of foreign law.

The main difference between the English rule and the Rome II Regulation is now, it seems to me, that the English rule relies on a more flexible test which, in certain cases, could lead to the application of a law other than the law governing the claim of the victim. This was critical in this case, as a particular provision of the 1978 Act somewhat required that there be cases were the law of the claim of the victim would be different from the law governing the contribution claim.

Section 1(6) of the 1978 Act provides:

References in this section to a person’s liability in respect of any damage are references to any such liability which has been or could be established in an action brought against him in England and Wales by or on behalf of the person who suffered the damage; but it is immaterial whether any issue arising in any such action was or would be determined (in accordance with the rules of private international law) by reference to the law of a country outside England and Wales.

The answer of the Court is that, for this provision to make sense, it must be possible that English law sometimes applies where foreign law governs the claim of the victim. The example given is a case where a special relationship existed between the two persons liable.

On 24 November 2022, the Court of Justice delivered an interesting judgment on the validity of a digital jurisdictional clause, i.e. the general terms and conditions containing the clause was accessible from a hypertext link mentioned in the written contract (C-358/21, Tilman, already commented here by Krzysztof Pacula and here by Geert Van Calster). In a nutshell, the Court held that such a clause is valid based on the formal requirements laid down in the Lugano II Convention (and, by analogy, in Brussels I bis Regulation) ensuring the parties’ consent to the clause, without the need for a click-wrapping system. Here lies the very point that differentiates the present case from previous ones (in particular C-322/14, Jaouad El Majdoub).

A dispute arose between Tilman, a Belgian-based company and one of its clients, Unilever, established in Switzerland, concerning unpaid invoices. Unilever challenged the international jurisdiction of the Belgian courts seized by Tilman, relying on a jurisdiction clause in favour of the English court. This clause appeared in Unilever General Terms and Conditions (GTC) but these were not directly attached to the main contract; instead, they were only accessible on the Internet via a hypertext link mentioned in the contract. Plus, the hypertext link did not directly give access to the GTC but to a website, access to which allows those general terms and conditions to be viewed.

Before the Belgian Court of cassation, Tilman invoked a violation of the formal requirements of the Lugano II Convention – which corresponds to Article 23 of Regulation 44/20021 Brussels I – with regard to the jurisdictional clause and, therefore, the invalidity of the clause for lack of informed consent on its part.

In this context, the Belgian court asked the Court of justice whether, under Article 23, §1, a) and §2, of the Lugano II Convention, consent to a jurisdiction clause can be deduced from a hyperlink inserted in a written contract, without any ‘obligation’ to click on that link.

The Court answered positively, confirming that business life is increasingly digital, including in its ‘legal dimension’, and that the main principles of contract law must thus adapt to it. This is the case of consent which is seen as genuine even in the digital sphere.

The decision of the Court of justice provides for a three-steps response.

Since the jurisdictional clause was stipulated in favour of the English court, the Court could not ignore the question of the geographical and temporal scope of the Lugano II Convention. After Brexit, the United Kingdom was refused access to the Lugano Convention (see also here and here). The applicable instrument for assessing the validity of the clause could be determined either at the date of its conclusion or at the date of the judicial proceedings. Since the issue at stake here was Brexit, i.e. the modification in time of the scope of application of EU law (including the Lugano II Convention), the Court of Justice chose the second option (for a discussion on this question, see here).

The Court rules that the legal action – the jurisdiction clause producing effects only on the date of the judicial proceedings (see Case Sanicentral, 25/79, point 6) – was brought before 31 December 2020, the termination date of the transitional period provided for in Article 126 of the UK withdrawal agreement. The latter text maintains the application of Union law, including the law on judicial cooperation in civil matters and the international agreements such as the Lugano II Convention. Therefore, the convention is applicable in the present case. The issue will be more difficult in the future (cf. here about a Swiss decision refusing the application of the Convention); in particular, the 2005 Hague Convention on Choice of Court Agreements should be considered.

As regards the interpretation of the Lugano II Convention, the Court recalls, in a very classical way, that it must follow the principles laid down by the previous caselaw concerning the provisions at issue contained in other instruments, including the Brussels Convention and the Brussels I and Ia Regulations, insofar as these provisions are drafted in similar terms.

In order to be valid, a jurisdiction clause must be concluded, inter alia, “in writing or orally with written confirmation” (Article 23, §1). The objective is to ensure that the parties’ consent to the clause is genuine. In case of a dispute, the assessment is left to the court on the basis of this EU substantive rule. In the context of the information society and e-commerce, proof of consent may also be based on “electronic means which provides a durable record of the agreement”. This is an expression of the principle – which is becoming more and more widespread in comparative and EU contract law – of assimilating electronic transmission to written form, with a view to simplifying the conclusion of online contracts. However, according to European caselaw, this does not imply that the clause conferring jurisdiction and the GCT mentioning it are “actually” recorded permanently by the parties (see point 44 of the judgment). This nuance is crucial. In order for electronic transmission to offer the same guarantees as the paper format, in particular as regards evidence, there mere “possibility” to save and print the information before the conclusion of the contract is seen as sufficient.

In the present case, the Court of Justice notes that the jurisdiction clause is stipulated in the GTC explicitly mentioned in the written contract concluded between the parties. This procedure complies with EU law, but it must be ensured that the GTC containing the jurisdiction clause have actually been “communicated” to the contracting party, here Tilman, the Belgian company. This is in principle the case, according to previous case law, “if that information is accessible by means of a screen”. Here, the written contract provided for a hypertext link to an Internet site where the general conditions could be accessed. It is therefore necessary, according to the Court, “that hypertext link functions and can be activated by a party exercising ordinary diligence”. The Court adds that it “equates a fortiori to evidence of communication of that information”.

This analysis is relevant, but it is unclear why it is an a fortiori reasoning. Viewing general conditions on a screen expresses the fact that digital access is effective. This is not the case in the presence of a hypertext link, as long as it has not been clicked on. And then, a key practical issue is how to prove that the link does not function: by taking a photo of the screen (screenshot) which displays an ‘error message’ after the hyperlink has been clicked on?

According to the Court, it is irrelevant that Tilman, the co-contractor, did not have a box to tick on the page of the website to express acceptance of those terms and conditions, nor that the page containing those terms and conditions did not open automatically when the website was accessed. The Court implicitly applies here a proportionality test between the requirement of informed consent and the objective of not hindering commercial exchanges. It is therefore up to the party who is invited to consult the GTC online to do so. A “click” and a reading online, on a screen, are no more demanding in a hyperconnected society than reading a paper document in an annex to a contract.

Finally, the Court allows itself an obiter dictum by referring to points b) and c) of Article 23, §1, in order to clearly situate the case in “international trade”. For the record, these provisions validate jurisdiction clauses concluded in a form consistent with international commercial practice, reinforcing the private autonomy of the economic operators. I am not convinced however that this adds anything to the interpretation and especially that it corresponds (i.e. using a hypertext link to refer to the GTC including a court agreement) to the very concept of usage of international trade. But this is an open question.

This solution must be approved for at least three reasons.

Firstly, outside the digital paradigm, economic operators are supposed to be aware of the GTC of the contract and in particular of the jurisdictional clause they contain. Indeed, the GTC are an important criterion for the financial balance of the commercial agreement.

Secondly, in line with its previous case law, the Court of justice follows a different analysis of contractual consent in B2B contracts than in B2C relationships. The formal requirements laid down in EU secondary law on B2C distance contracts cannot be transposed, by analogy, to the B2B context (see point 37, C-322/14, Jaouad El Majdoub).

Thirdly, the Court’s reading of Article 23(2) is part of a more global European political and legislative context: that of the emerging ‘digital by default principle’. In the e-Government strategy, it means that delivering services digitally is the preferred option through a single contact point (see here). According to the European Commission, the same should progressively apply in the judicial cooperation in civil matters. In its 2020 Communication on Digitalisation of justice in the European Union, the Commission proposed to make “the digital channel the default option in EU cross-border judicial cooperation” (point 3.2 and see here for an update on the topic). Reading this ambition for EU Civil Justice together with the “Brussels/Lugano Regime” (as interpreted in the present case), it shows that the EU legal system is working on providing a coherent framework for international economic exchanges in the digital ecosystem.

A request for a preliminary ruling from the Areios Pagos (Greece) is pending before the Court of Justice in the case of Charles Taylor Adjusting and FD against Starlight Shipping Company and Overseas Marine Enterprises INC (C-590/21, Charles Taylor Adjusting). The summary of the request in English and other languages can be downloaded here. The questions focus on the interpretation of the Brussels I Regulation:

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

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

The request having been lodged in September 2021, the file seems ripe to be addressed by the Court. More information will follow when available.

As announced on this blog, the 9th Journal of Private International Law conference will be hosted by the Yong Pung School of Law, Singapore Management University from 3 to 5 August 2023.

A reminder that the deadline to submit abstracts is Friday 16 December 2022 at jpil2023@smu.edu.sg. The Call for Papers is available here.

More information on the conference and the related registration can be found here.

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published on 1 November 2022. The table of contents is available here. The following abstracts have been kindly provided to us by the editor of the journal.

U. Janzen and R. Wagner, The German implementing rules for the Brussels II ter Regulation

When the original version of the Brussels II Regulation was adopted in 2000, it was not certain whether this regulation would be such a success. In the meantime, the regulation has become one of the most important legal instruments for judicial cooperation in civil matters. The regulation has recently been revised for the second time. The following article presents the German implementing rules for this recast.

R. Magnus, A new Private International Law and new Procedural Rules for Adoptions in Germany

As a result of two recent reforms the German private international and procedural laws applicable to adoptions have changed quite substantively. Article 22 (1) sentence 1 of the Introductory Act to the German Civil Code (EG-BGB) now refers to the lex fori as the law applicable for all domestic procedures, and section 1 (2) of the Adoption effects Act (AdWirkG) introduces an obligatory recognition procedure for many foreign adoptions. The effects of these and other innovations are examined and evaluated in detail in this article.

H.-P. Mansel, Liberalization of the Private International Law of Marriage and Registered Civil Partnership: Remarks on the Place of Marriage and Registration as Connecting Factors

According to the new proposal of the German Council for Private International Law, the law of the “place of marriage” is to govern the establishment of a marriage or registered civil partnership. The article deals with this proposal and explores the question of how this place is to be determined in the case of an online marriage. It argues for the application of the law of the state where the register is kept.

B. Laukemann, Protecting procedural confidence against the insolvency estate?

According to Union law, the effects of insolvency proceedings on a pending lawsuit are governed by the lex fori – and thus not by the law of the opening Member State (s. Art. 18 European Insolvency Regulation [EIR], Art. 292 Directive 2009/138, Art. 32 Directive 2001/24). At first glance, the distinction between the lex fori and the lex concursus raised here does not cause any major problems of interpretation. But can the lex fori and its regulatory purpose, which is to guarantee protection of confidence and legal certainty in civil proceedings, also be brought into position against the liability regime of foreign insolvency proceedings? A look at Art. 7(2)(c) EIR, which, in turn, allocates procedural powers of a debtor and insolvency practitioner to the lex fori concursus, reveals the difficulties of a clear-cut demarcation between the law of the forum and the law governing insolvency proceedings. The present contribution seeks to pursue this classification problem, equally relevant in legal and practical terms, for the relevant pieces of secondary EU legislation. Recently, this legal question was submitted to the CJEU – due to the liquidation of an insurance company within the scope of the Solvency II Directive. The decision gives rise to critically examine the delimitation approach of the CJEU and to ask in general how the protection of procedural confidence, on the one hand, and insolvency-related liability interests of the creditors, on the other, can be brought into an appropriate balance.

J. Kondring, International Service by WhatsApp: Reflections on the Hague Service Convention and the 1928 Anglo-German Convention in Judgement and Recognition Proceedings

In times of electronic communication, the question arises whether cross-border service by means of electronic communication is possible. The Higher Regional Court (OLG) of Frankfurt a.M. had to decide this question in recognition proceedings for a Canadian-German service by WhatsApp. Neither the Hague Service Convention nor bilateral agreements such as the Anglo-German Convention of 1928 allow service by WhatsApp. In this respect, the article also ex-amines the interaction of section 189 German Code of Civil Procedure (ZPO) and Art. 15 of the Hague Service Convention in both judgment and recognition proceedings, including the relationship to the parallel Anglo-German Convention of 1928. In certain cases, Art. 15 of the Hague Service Convention moves aside and “neutralises” section 189 German Code of Civil Procedure and its legal consequences. For the recognition proceedings, Art. 15 of the Hague Service Convention will also have to be taken into account in the context of the examination of the regularity of service of the document instituting the proceedings.

S. Arnold, Applicability of Article 15(1)(c) Lugano II in cases of subsequent relocation of consumers

In its judgment (C-296/20), the ECJ follows the consumer-friendly course already taken in the mBank decision. It interpreted Article 15(1)(c) Lugano II (and by doing so also the corresponding Article 17(1)(c) Brussels Ibis Regulation). The court clarified that the provision governs the jurisdiction of a court also in such cases where a consumer who has contracted with a professional counterparty subsequently relocates to another contracting State. Thus, it is not necessary for the cross-border activities of the professional party to have already existed at the time the contract was concluded. Rather, the subsequent move of the consumer also constitutes the “pursuit” of the professional or commercial activity in the consumer’s member state. Consequently, the court strengthens the position of consumers. Even in the event of a subsequent move, they can rely on the (passive) forum of protection of Article 16(2) Lugano II and the (active) forum of Article 16(1) Lugano II at their place of residence. The burden that this decision places on the professional counterparty – the risk of foreign litigation even if the matter was purely domestic at the time the contract was concluded – seems reasonable, as choice of forum agreements (Art. 17 No. 3 Lugano II) remain possible as a means of protection.

A. Staudinger and F. Scharnetzki, The applicable law for the internal settlement between two liability insurances of a tractor-trailer combination – Karlsruhe locuta, causa non finita

If in a tractor-trailer combination the owners of the tractor unit and the trailer are not the same person and two different liability insurers cover the respective operating risk, the question arises as to the internal settlement between the two liability insurances. Here, first the conflict-of-law issue to be dealt with is the source of law that is to be used to determine the relevant statute for recourse. In its decision of 3 March 2021, the Federal Court of Justice endorsed an alternative approach based on Article 19 of the Rome II Regulation and Article 7 para. 4 lit. b) of the Rome I Regulation in conjunction with Article 46d para. 2 of the Introductory Act to the German Civil Code (EGBGB) for a situation in which a German liability insurer of the tractor seeks half compensation from a Czech trailer insurer. In the opinion of the authors, the IV. Civil Senate had, in light of the European Court of Justice’s decision of 21 January 2016 in the joined cases C-359/14 and C-475/14, an obligation to refer to the Court in Luxembourg under Article 267 para. 1 lit. b), para. 3 TFEU. So, the solution via Art. 19 Rome II Regulation seems hardly convincing, at most a special rule on conflict of laws like Art. 7 para. 4 lit. b) Rome I Regulation. Whether and to what extent Article 7 para. 4 lit. b) Rome I Regulation can be instrumentalized to enforce § 78 para. 2 VVG old version via Article 46d para. 2 EGBGB, however, should have been finally clarified by the European Court of Justice. In particular, it seems doubtful whether Article 46d para. 2 EGBGB as a national rule, which goes back to Art. 7 para. 4 lit. b) Rome I Regulation, allows a provision such as § 78 para. 2 VVG old version to be applied as a mere recourse rule between two insurers. This applies all the more since no special public interests or interests of injured parties worthy of protection are affected here.

C. Mayer, Relevance of the place of marriage for determining the applicable law in relation to the formal requirements of proxy marriage and online marriage

The decisions of the Federal Court of Justice and the Düsseldorf Administrative Court concern a double proxy marriage in Mexico and an online marriage via live video conference with an official from the US state of Utah. In both cases, the spouses were themselves in Germany. Both decisions focus on the conflict of law determination of the applicable law in relation to the formal requirements of marriage. Due to the German conflict of law rules in Art. 11 and Art. 13 Para. 4 EGBGB, the place of marriage is decisive. The Federal Court of Justice concludes that the double proxy marriage took place in Mexico, which is why the marriage was formally valid under the applicable local law. The Dusseldorf Administrative Court rules that the online marriage was concluded in Germany, so that only German law is applicable and the marriage is therefore formally invalid due to the lack of participation of a registrar. Both cases reveal inconsistencies in German conflict of laws.

S. Deuring, The Purchase of Trees Growing in Brazil: Not a Contract Relating to a Right in rem in Immovable Property or a Tenancy of Immovable Property

ShareWood, a company established in Switzerland, and a consumer resident in Austria had entered into a framework agreement and four purchase contracts for the acquisition of teak and balsa trees in Brazil. When the consumer demanded the termination of the purchase contracts, the question arose of whether this demand could be based on Austrian law, even though the parties had agreed that Swiss law should apply. Siding with the consumer, the ECJ ruled that contractual arrangements such as the present one cannot be considered contracts relating to a right in rem in immovable property or tenancy of immovable property pursuant to Art. 6(4)(c) of the Rome I Regulation. The non-applicability of this provision entails the applicability of Art. 6(2) cl. 2 of the Rome I Regulation. According to the latter, a choice of law may not have the result of depriving consumers of the protection afforded to them by provisions that cannot be derogated from by agreement by virtue of the law of the country where the consumer has his habitual residence. In consequence, the consumer could, in fact, base his action on Austrian law.

C. Benicke and N. Suchocki, Judicial approval for disclaimer of interests given by parents for their minor children – Polish cases of succession at German courts and the role of the special escape clause in Art. 15 (2) CPC 1996

Polish probate courts demand for judicial approval of any disclaimer of interest given by parents for their minor children, even if such an approval is not required under the law applicable according to Art. 17 of the Child Protection Convention 1996. If German law is applicable due to Art. 17 CPC 1996, in most cases a judicial approval for the disclaimer of interest is not required according to § 1643 (2) p. 2 BGB. As a consequence, German family courts having jurisdiction to issue a judicial approval according to Art. 5 (1) CPC 1996 cannot do so, because under German law, applicable according to Art. 15 (1) CPC 1996 no judicial approval can be issued if not required by the substantive law applicable according to Art. 17 CPC 1996. This leads to the situation that no valid disclaimer of interest can be made, even though both jurisdictions would allow it in a purely domestic case. Therefore, the question arises as to whether in such cases a German family court may issue a judicial approval due to Art. 15 (2) CPC 1996, which exceptionally allows to apply or take into consideration the law of another State with which the situation has a substantial connection. One of the various regulatory purposes of the special escape clause in Art. 15 (2) CPC 1996 consists in allowing the court to adjust the lex fori in order to solve an adaptation problem as it is in this case. The Higher Regional Court Hamm issued such a judicial approval in taking into consideration that the Polish law requires a judicial approval for the disclaimer of interest. We agree with the OLG Hamm in the result, but not in the justification. As Art. 15 (2) CPC 1996 refers only to Art. 15 (1) CPC 1996 the taking into consideration of Polish law cannot overrule that the law applicable according to Art. 17 CPC 1996 does not require a judicial approval. To solve the adaptation problem, it suffices that German law applicable according to Art. 15 (1) CPC 1996 is modified in so far that it allows the formal issuance of a judicial approval even though such an approval is not required by the substantive law applicable according to Art. 17 CPC 1996.

R. Hüßtege, German procedural law for obtaining a decision that the removal or retention of a child was wrongful – present and future

Art. 15 of the Hague Convention on the civil aspects of international child abduction requests that the applicant should obtain from the authorities of the State of the habitual residence of the child a decision that the removal or retention was wrongful within the meaning of Article 3 of the Convention. The procedure for obtaining the decision is regulated incomplete in the German implementation law. Most of the problems raised will, however, be remedied by the reform of the German implementing act.

P. Schlosser, Recognition even if service of the document initiating the proceedings had not taken place?

The author is submitting that Art. 22 of the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance provides only one alternative for refusing recognition to a maintenance Judgment (“may be refused”) and that, therefore, more liberal provisions in national Law are upheld. The German code of civil procedure, § 328, seems not to be more liberal, but must be seen in the light of the overwhelming principle of safeguarding the right to be heard in court. Yet, this principle is well safeguarded, if the proposed victim in the subsequent proceedings of exequatur gets a chance to assert what he would have asserted in the original litigation but, thereby, he had no chance to achieve a different result. Under these circumstances the contrary solution would amount to a refusal of justice to the other party.

B. Heiderhoff, Refugees and the Hague Child Abduction Convention

The ECJ held that the removal of a child cannot be wrong ful in the sense of Article 2(11) of Regulation No 2201/2003 (now Article 2 sec 2(11) of Regulation No 2019/1111), if the parent has complied with a decision to transfer under Regulation (EU) No 604/2013 by leaving the country. This decision makes a valid point, but seems too general and reaches too far. The contribution shows that the integration of family law and migration law is insufficient and urges better coordination between the actors to achieve better protection of the child.

T. Frantzen, Norwegian International Law of Inheritance

Norway adopted a new act on inheritance and the administration of estates in 2019. The act came into force on 1 January 2021. The new act is based on the principles of the act on inheritance from 1972 and the act on administration of estates from 1930. This means that descendants may claim a forced share of 2/3 of the estate, however with a limitation of approximately 150,000 Euro. With the new act the amount has been increased, and it is regulated each year. A surviving spouse may, as before, claim a legal share. The spouse may alternatively choose to take over the so-called undivided estate. This means that the division of the estate is postponed.
Until the new succession act was adopted, Norwegian choice of law rules on succession were based on customary law. The general principle was that succession was governed by the law of the State in which the deceased had her/his last domicile, and that there was no, or a very limited space, for party autonomy.
The new act decides that the administration of estates may take place in Norway if the deceased had her/his last habitual residence in Norway. When it comes to succession, the main rule is that succession is governed by the law of the State where the deceased had her/his last habitual residence. Party autonomy is introduced in the new act, as a person may choose that succession shall be governed by the law of a State of which he or she was a national. The decision on the choice of law is however not valid if the person was a Norwegian citizen by the time of death. The few provisions on choice of law are based on the EuErbVO.

C. Jessel-Holst, Private international law reform in North Macedonia

In 2020, North Macedonia adopted a new Private International Law Act which replaces the 2007 Act of the same name and applies from 18.2.2021. The new Act amounts to a fundamental reform which is mainly inspired by the Acquis communautaire. It also refers to a number of Hague Conventions. The Act contains conflict-of-law rules as well as rules on procedure. Many issues are regulated for the first time. The concept of renvoi is maintained but the scope of application has been significantly reduced. As a requirement for the recognition of foreign judgments the Act introduces the mirror principle. As was previously the case, reciprocity does not constitute a prerequisite for recognition and enforcement.

As announced in an earlier post, the International Law Association will celebrate its 150 anniversary next year through a number of events.

The celebration will start with an inaugural conference which will take place on line on 12 January 2023 and will discuss the role of parliaments in the creation of International Law so that to increase its legitimacy.

Throughout 2023, webinars will be organised on a variety of topics, including Democracy, Governance, Digital challenges, Civil Status, Anthropocene, Taxation and many others. Each of these webinars is prepared by a White Paper, which will be the focus of the webinar. Members of the public are invited to review the White Papers and comment on them until 31 December 2022 or 31 January 2023.

The organisation has already issued 10 Newsletters, which can be found here.

The programme of the webinars is available here. The White Papers can be accessed here. Registration for these events can be made here.

On 7 December 2022, as announced through the Commission Press Corner, the European Commission adopted a proposal for a Regulation aimed at harmonising at EU level the rules of private international law relating to parenthood.

The proposal is focused on the best interests and the rights of the child. It will provide legal clarity for all types of families, who find themselves in a cross-border situation within the EU, be it because they move from one Member State to another to travel or reside, or because they have family members or property in another Member State. One of the key aspects of the proposal is that the parenthood established in a Member State of the EU should be recognised in all the other Member States, without any special procedure.

Union law as interpreted by the European Court of Justice, notably on free movement, already provides that parenthood established in a Member State should be recognised in all the other Member States for some purposes: access to the territory, right of residence, non-discrimination with the nationals. However, this is not the case for the rights derived from national law.

Today’s proposal allows children in cross border situations to benefit from the rights derived from parenthood under national law, in matters such as succession, maintenance, custody or the right of parents to act as legal representative of the child (for schooling or health matters).

Commission President von der Leyen said in her 2020 State of the Union speech that “If you are parent in one country, you are parent in every country”. With this statement, the President referred to the need to ensure that the parenthood established in a Member State is recognised in all other Member States for all purposes.

EU citizens can live and work in different EU countries. They travel, move for work, buy houses, start families. At the moment, Member States have varying national laws on the recognition of parenthood, so when a family finds itself in a cross-border situation, it might lose the rights derived from parenthood under national law.  The non-recognition of parenthood puts at risk the fundamental rights of children, including their right to an identity, to non-discrimination and to a private and family life.

The proposal was identified as a key action in the EU Strategy on the rights of the child and the EU LGBTIQ Equality Strategy. The European Parliament welcomed the Commission’s initiative in its Resolution on the protection of the rights of the child in civil, administrative and family law proceedings and in its Resolution on LGBTIQ rights in the EU. The Council conclusions on the EU Strategy on the rights of the child underline that children’s rights are universal, that every child enjoys the same rights without discrimination of any kind and that the best interests of the child must be a primary consideration in all actions relating to children, whether taken by public authorities or by private institutions.

The proposal aims at protecting the fundamental rights of children, providing legal certainty for the families, and reducing the legal costs and burden for the families and the Member States’ administrative and judicial systems.

The main elements of the proposal include: (a) designation of the jurisdiction: the proposal determines the courts of the Member States that have jurisdiction in matters related to parenthood, ensuring the best interest of the child; (b) designation of the applicable law:as a rule, the law applicable to the establishment of parenthood should be the law of the State of the habitual residence of the person giving birth. Where that rule results in the establishment of parenthood as regards only one parent, alternative options ensure that parenthood can be established as regards both parents; (c) rules for recognition of parenthood: the proposal provides for the recognition of court decisions and authentic instruments establishing or providing evidence of the establishment of parenthood. As a rule, parenthood established in a Member State, should be recognised in all the other Member States, without any special procedure; (d) creation of a European Certificate of Parenthood: children (or their legal representatives) can request it from the Member State which established parenthood, and choose to use it to prove their parenthood in all the other Member States. The Commission proposes a harmonised template, common to the whole EU. The use of the Certificate would be optional for families, but they have the right to request it and to have it accepted all over the EU.

The proposal will complement other EU private international law rules, on matters such as succession. It does not harmonise substantive family law, which remains the competence of the Member States.

The Commission’s proposal has to be adopted unanimously by the Council, after consulting the European Parliament. Five years after the Regulation becomes applicable, the Commission will evaluate its application by Member States and may propose amendments.

Shahla F. Ali, Filip Balcerzak, Adam Mickiewicz, Giorgio Fabio Colombo, and Joshua Karton have edited a collection of essays titled Diversity in International Arbitration – Why it Matters and How to Sustain It, which has recently been published by Edward Elgar.

After decades of focus on harmonization, which for too many represents no more than Western legal dominance and a largely homogeneous arbitration practitioner community, this ground-breaking book explores the increasing attention being paid to the need for greater diversity in the international arbitration ecosystem. It examines diversity in all its forms, investigating how best to develop an international arbitral order that is not just tolerant of diversity, but that sustains and promotes diversity in concert with harmonized practices.

Offering a wide range of viewpoints from a diverse and inclusive group of authors, Diversity in International Arbitration is a comprehensive and insightful resource on a controversial, fast-moving subject. Chapters present arguments from practitioner, academic, institutional and governmental perspectives that identify the underlying issues and address the various ways in which the goal of diversity, whether demographic, legal, cultural, professional, linguistic, or philosophical, can be reached.

This book’s analysis of the contemporary state of diversity in international arbitration will be a crucial read for researchers in the field. Practitioners and policy makers will also find its discussion of best practices and innovative initiatives for enhancing diversity to be invaluable.

More information available here.

This post was written by Felix M. Wilke, University of Bayreuth.

The new EU Sale of Goods Directive 2019/771 and its sibling, the Supply of Digital Content and Digital Services Directive 2019/770, understandably have attracted a lot of attention in the field of substantive private law. By contrast, to my knowledge, their (negative) private international law dimension has not been featured in any prominent way yet. In this post, I want to highlight and contextualize this aspect. Any input, e.g. regarding directives I might have missed or explanations different from the ones I offer, is very much welcome.

When faced with the term “EU Conflict of Laws”, most people will nowadays immediately think of the different regulations in this area: Rome I to III, the Succession Regulation etc. But this is not the whole story. Some of the Union’s provisions with a direct impact on private international law can be found in directives. Beginning with Article 6(2) of the Unfair Terms Directive 93/13/EEC, many of such instruments on the protection of consumers required the Member States to take “the necessary measures to ensure that the consumer does not lose the protection granted [by the respective legal instrument] by virtue of the choice of the law of a non-Member country as the law applicable to the contract if the latter has a close connection with the territory of the Member States”. Other examples are Article 12(2) of the Distance Marketing of Consumer Financial Services Directive 2002/65/EC and Article 22(4) of the Consumer Credit Agreements Directive2008/48/EC.

Moreover, Article 12(2) of the Time Sharing Directive 2008/122/EC sets forth that, under certain conditions, “consumers shall not be deprived of the protection granted by this Directive, as implemented in the Member State of the forum” where the law of a third country is applicable. (While Articles 17–19 of the new Package Travel Directive 2015/2302 have an obvious connection to conflict of laws, they operate differently.)

All these provisions are still in force. National law of the Member States must contain respective rules – and these rules clearly must be conflict-of-law rules, as they have to affect situations in which the law of a third country would otherwise be applicable (mostly because of a choice by the parties).

Things are different for the new Sale of Goods Directive. While Article 7(2) of the old Sale of Goods Directive1999/44/EC was drafted along the lines of the examples just mentioned, any such provision is now missing from the directive repealing it. (The Supply of Digital Content and Digital Services Directive does not introduce a conflict-of-law provision, either.) The same fate befell Article 12(2) of the Distance Contracts Directive 97/7/EC when the Consumer Rights Directive 2011/83/EU repealed it. From this perspective, EU private international law has actually lost two provisions in the last decade or so.

As the EU legislator seems to have changed its stance on this issue between 2008 and 2011, two possible reasons from this period suggest themselves. The first concerns the new approach to harmonisation of substantive private law by directives, the second the emergence of EU regulations on conflict of laws.

The Distance Contracts Directive and the old Sale of Goods Directive were minimum harmonisation directives. The Member States could maintain or introduce provisions if they ensured a higher level of consumer protection. By contrast, both the Consumer Rights Directive and the new Sale of Goods Directive are full harmonisation directives. Unless otherwise provided, Member States may not maintain or introduce divergent provisions, whether less or more stringent.

Yet no clear link of this changed approach to harmonisation with the present conflict-of-law issue is apparent. True, it is now more or less irrelevant which national law of an EU Member State is applicable to a sale of goods to a consumer. The key rules will be the same across the board (also see Recital 10 Sale of Goods Directive). But this is not with what the respective old provisions and the remaining provisions in other directives were and are concerned. They were and are about protecting the consumer from the application of the (disadvantageous) law of a third country.

For anyone interested in EU private international law, the years between 2007 and 2009 have, of course, special significance. In this time frame, the first EU regulations on conflict of laws were passed and became applicable. In particular, Rome I was passed in 2008 and has been applicable to contracts concluded as from 17 December 2009. So, are the rules found in Rome I on consumer contracts and choice of law in general the reason for the lack of conflict-of-law provisions in more recent directives?

As a matter of law, the answer must be negative. This is because the scope of application of Articles 6(2) and 3(4) of the Rome I Regulation on the one hand and of the conflict-of-law rules in the directives on the other hand do not perfectly overlap: The provisions in the directives have not entirely become redundant once Rome I entered into force. For one, Article 6(4) of Rome I excludes certain contracts. For another, even the relatively broad requirement of “directing activities” in Article 6(1)(b) of Rome I only pertains to the Member State in which the consumer is habitually resident. A consumer concluding a contract in another Member State may not be protected even where Article 6 Rome I would encompass a consumer habitually resident in that country. Finally, Article 3(4) Rome I is too narrow to catch all cases subject to the conflict-of-law provisions in directives.

As a matter of policy, however, one can assume that Rome I was a big factor. The Commission’s Proposal for the new Sale of Goods Directive does refer to the protection of consumers under Rome I, although only in the context of compatibility of the draft with EU private international law. (See also Recital 65 Sale of Goods Directive.) When the Commission states that the legislative proposal “does not require any changes to the current framework of EU private international law”, it is not clear whether it took the actual change it proposed to make to EU private international law – eliminating a conflict-of-law provision – into account.

Life is easier without conflict-of-law provisions in directives, to be sure. Nothing to transpose for national legislators, and no reason for courts to even think about special national conflict-of-law rules favouring consumers. Does this offset the detriments to consumers? One can certainly think so. While the exclusion of some consumers from the protection offered by Article 6 Rome I can lead to some strange results, they only affect a very small number of situations. The practical impact of the conflict-of-law provisions in directives does not seem to have been very big, anyway. As far as I can tell, the Court of Justice only had to deal with any of these provisions once: Case C-70/03 (Commission v. Spain) concerns Spain’s too restrictive transposition of Article 6(2) of the Unfair Terms Directive into its national law.

In any case, the death of conflict-of-law provisions in directives should not be silent. Unlike during the legislative process leading to the Consumer Rights Directive and the new Sale of Goods Directive, the EU legislator should openly communicate that – and preferably also why – it considers such provisions unnecessary. And this not only from a scholarly perspective: In the highly complex realm that is EU (substantive) consumer law, a national legislator might simply miss that a conflict-of-law provision transposing one of the old directives has now lost its base.

December is a relatively short month at the Court of Justice. Very little is happening in PIL (much more on other topics such as the independence of judges or data protection). On 8 December 2022, a hearing will take place in relation to case C-638/22 PPU Rzecznik Praw Dziecka e.a., on the suspension of a Hague return decision – and that will be it.

The Sąd Apelacyjny w Warszawie (Poland) has referred to the Court of Justice a question on Regulations 2201/2003 and 2019/1111:

Does Article 11(3) of Council Regulation (EC) No 2201/2003 [the Brussels II bis Regulation], and Article 22, Article 24, Article 27(6) and Article 28(1) and (2) of Council Regulation (EU) No 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility [Brussels II ter], read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, preclude the application of a provision of national law under which, in cases involving the removal of a person subject to parental responsibility or custody conducted under the Convention on the Civil Aspects of International Child Abduction adopted in The Hague on 25 October 1980, the enforcement of an order for the removal of a person subject to parental responsibility or custody is suspended by operation of law where the Prokurator Generalny (Public Prosecutor General), Rzecznik Praw Dziecka (Commissioner for Children’s Rights) or Rzecznik Praw Obywatelskich (Ombudsman) submits a request to that effect to the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw) within a period not exceeding two weeks from the day on which the order becomes final?

In case at hand, the father (applicant) and the mother (defendant) are Polish nationals who have resided and worked for more than ten years in Ireland. Their two children, aged 5 and 11 have both Polish and Irish nationality.

In the summer of 2021, the defendant went on vacation to Poland with her children with the applicant’s consent. In September 2021, she informed him that she had decided to stay with them in Poland permanently. Two month later, the applicant brought before the Polish courts an application under the 1980 Hague Convention for the return of the children. The court of first instance agreed to the request; a subsequent appeal by the defendant was dismissed. However, she failed to comply with the order for the return of the children within the time limit of 7 days. Therefore, on September 29, 2022, the applicant submitted a request to have an enforcement form appended to the return order, with a view to initiating enforcement proceedings. On 30 September 2022, the Rzecznik Praw Dziecka (Children’s Rights Ombudsman) submitted an application for a stay of execution of the return order, based on a provision of the Polish civil procedure code whereby “In cases involving the removal of a person subject to parental responsibility or custody brought under [the 1980 Hague Convention], at the request of the entity referred to in Article 5191(2)2 notified to the court referred to in Article 5182(1) within a period not exceeding two weeks from the date on which the order for the removal of the person subject to parental responsibility or custody becomes final, the enforcement of such order shall be suspended by operation of law”. On October 5, 2022, a similar request was made by the Prokurator Generalny (Attorney General).

The referring court’s application for the urgent procedure was granted. The case will be decided by the third chamber (judge K. Jürimäe reporting; M. Safjan, N. Piçarra, N. Jääskinen, M. Gavalec), supported by AG N. Emiliou.

The third edition of Talia Einhorn’s textbook on Private International Law in Israel is out, published by Wolters Kluwer.

This third, wholly updated and expanded edition provides a clear, comprehensive statement and analysis of private international law in Israel. Israel’s private international law (PIL) regime is not codified, nor is it clearly traceable to any one legal system. Most Israeli PIL sources are available in Hebrew only. On many legal matters there is neither legislation nor case law. There are, however, legal principles from which the pertinent rules may be deduced. Consequently, this study does not confine itself to the rules already existing in Israeli PIL, but also establishes rules in areas where such are missing. In the process of establishing PIL rules, Israeli courts are often directed by parties to engage in a comparative study as to how such problems are solved elsewhere, especially in the European Union and in its Member States, in particular England, due to the affinity of Israeli law to English law since the British Mandate, and in the United States. Therefore, this study offers comparative insights regarding the possible options open to Israeli courts when establishing or refining Israeli PIL rules.

Subjects covered include: national and international sources of Israeli PIL; principles of establishing the applicable law; characterization, substance and procedure, ordre public; renvoi, block reference, economic conflict-of-law rules; natural and legal persons; contractual and non-contractual obligations; property law, incl. IP, means of transportation, cultural property and trusts; company law, incl. dual-listed companies and corporate groups; cross-border insolvency proceedings; family law – both religious laws and secular, territorial laws, matters of marriage and divorce, handled by Jewish, Muslim and Christian religious tribunals, the recognition of civil marriage celebrated abroad, reputed spouses, same-sex spouses and transgenders, personal effects of marriage, maintenance obligation between spouses, determination of parenthood, child adoption, child maintenance, custody of minors, guardianship/parental authority, and child abduction; international succession law; international civil procedure – incl. jurisdictional immunities; international jurisdiction; detailed analysis of procedure in international litigation in Israel; proof of foreign law; judicial assistance; recognition and enforcement of foreign judgements; and international arbitration.

For more information, see here.

The 16th edition of the Dicey, Morris & Collins on the Conflict of Laws, edited jointly by Lord Collins of Mapesbury (LLD, FBA) and Jonathan Harris KC (Hon.), has been published by Sweet & Maxwell.

Dicey, Morris & Collins on the Conflict of Laws deals with private international law issues. It explains the rules, principles and practice that determine how the law of England & Wales relates to other legal systems. Its commentary, rules and illustrations, with detailed reference to international conventions, legislation and case law, provide a compass for practitioners engaged in cross-border matters.

It is composed of two Volumes and a Companion Volume.

Volume 1 deals with general principles, the effects of withdrawal by the United Kingdom from the European Union, foreign affairs and the conflict of laws, procedural issues relating to international litigation, jurisdiction, recognition and enforcement of foreign judgments and arbitration. Volume 2 is about specific areas of law, such as family law, property law, succession and trusts, corporations and insolvency and the law of obligations.

Finally, a Companion Volume considers in greater detail the transitional issues arising from the United Kingdom’s withdrawal from the European Union and the relevant EU legislation in a number of key areas. It analyses the relevant transitional provision in the Withdrawal Agreement concluded between the United Kingdom and the European Union, as well as domestic legislation on transitional issues. It analyses the relevant EU law in areas likely to remain relevant for the foreseeable future, including in relation to lis pendens and the recognition and enforcement of judgments from EU Member States. It considers the relevant family legislation in the Brussels II bis and Maintenance Regulations. The Companion Volume also includes detailed coverage of relevant provisions of the recast Insolvency Regulation.

Further information available here.

The Experts’ Group on the Parentage/Surrogacy Project of the Hage Conference on Private International Law (HCCH) has issued its Final Report on The feasibility of one or more private international law instruments on legal parentage  on 1 November 2022.

The conclusions of the report are as follows:

The Group agreed on the desirability of, and urgent need for, further work by the HCCH in the form of a binding PIL instrument on legal parentage in general (a Convention) and a binding PIL instrument on legal parentage established as a result of an ISA specifically (a Protocol).

The conclusions of the Group with respect to the feasibility of some of the key elements of a Convention and a Protocol are set out in boxes throughout (and annexed to) this Report.

The Group concluded on the general feasibility of developing a Convention dealing with the recognition by operation of law of foreign judicial decisions on the establishment and contestation of legal parentage.

The Group also concluded on the general feasibility of rules on recognition by operation of law of legal parentage as a result of an ISA established by judicial decision in a Protocol. Feasibility will depend in particular on how safeguards / standards are addressed.

Owing to the particularly complex and sensitive nature of the topic, the Group noted some key feasibility challenges going forward, which include:

-For a Convention, whether or not to include:
⇒ domestic adoption;
⇒ rules on uniform applicable law for the establishment of legal parentage; and
⇒ rules on public documents.
-For a Protocol, the way to address safeguards / standards.
-For both instruments, scope issues related to legal parentage established as a result of a domestic surrogacy arrangements and / or ART involving a third-party individual (donor) and legal parentage established by domestic adoptions following a surrogacy arrangement.
-Some experts agreed on the feasibility of advancing work on only one instrument, while others did not think that advancing work on one instrument without the other would be feasible.

While different elements to be included in a Convention and / or a Protocol, when taken individually, seemed to be feasible, this assessment might change depending on decisions taken on other elements. For example:

-For some experts, any instrument would only be attractive to States if it also addressed legal parentage established without a judicial decision, given that, in the majority of cases, legal parentage is established by operation of law or following an act. For other experts, this did not seem a key issue and / or those experts questioned the feasibility of agreeing rules on legal parentage without a judicial decision in an instrument.
-Although the Group agreed on the need for safeguards / standards in a possible Protocol, experts had different views as to which safeguards / standards should be included and how they should feature. For many experts, a Protocol would only be feasible if it included uniform safeguards / standards included directly in a Protocol, some of which featuring as conditions for recognition, others as grounds for refusal. For some experts, a Protocol would rather be feasible if it included State-specific safeguards / standards indirectly in a Protocol with a declaration mechanism and grounds for refusal.

The Group finally recommends the establishment of a Working Group to explore the provisions on a possible convention and protocol.

The third issue of 2022 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out. In addition to recent case law and other materials, it features four contributions.

Giovanna Adinolfi, States’ Economic Measures to Counter Cyberattacks: Disentangling their (Il)Legitimacy under International Law

The present contribution draws the attention on measures adopted by States to tackle actual or potential cross-border cyberattacks and that may have an impact on international commercial transactions. With a look to the more recent practice, the distinction is proposed between response measures (addressed against those held responsible for cyberoperations that have caused an injury to the target State) and anticipatory or preventive measures (intended to prevent cyberattacks). Against this backdrop, the issue is addressed as to whether both types of measures represent international unlawful acts which find a justification within the international legal order. 

Bruno Barel, Le notificazioni nello spazio giuridico europeo dopo il regolamento (UE) 2020/1784 (Service of Documents in the European Judicial Area after Regulation (EU) 2020/1784)

The second recast of the uniform rules on the service of judicial and extrajudicial documents in civil or commercial matters introduced three innovative elements of particular relevance to the original framework, that dates back to the year 2000 (and which had already been subjected to recasting in 2007). Two of these novel provisions relate to the technological evolution of remote communications, and they consist of the institution of a common IT system for the telematic transmission of acts and documents between national authorities and of the – albeit timid and prudent – opening to direct forms of service by electronic means between individuals, thus surpassing the mediation of authorities. The third – and equally careful – novel provision attempts to reinforce the assistance between the authorities of different Member States aimed at identifying the address of the person to be served. Moreover, the most innovative part of the regulation will be fully operational only in 2025, in expectation of the full development of the decentralised IT system.

Pietro Franzina, Il ruolo degli Incoterms nella determinazione convenzionale del luogo della consegna: note critiche sulla giurisprudenza della Cassazione (The Role of Incoterms in the Determination by Agreement of the Place of Delivery: Critical Notes on the Case Law of the Italian Court of Cassation)

By a recent ruling (Order No 20633 of 28 June 2022), the Italian Supreme Court addressed the issue of the role played by Incoterms in the determination of the place of delivery of the goods for the purposes of Article 7 No 1(b), of Regulation No 1215/2012 of 20 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. As in previous rulings on the same subject, the Supreme Court was reluctant to regard the incorporation of Incoterms into a contract as signalling the parties’ agreement on the place of delivery. Specifically, the Supreme Court dismissed the claim by the Italian seller that the contract in question had been agreed “EXW” its own premises in Italy: the Court acknowledged that the goods had in fact been picked up by a carrier hired by the buyer at the seller’s premises, but found that the parties had failed to agree “clearly” on the place of delivery, as it could not be established that the parties had unequivocally intended to make the seller’s premises the place of delivery of the goods for the purposes of jurisdiction. The paper contends that the approach of the Italian Supreme Court contradicts the principles laid down by the Court of Justice in Car Trim and Electrosteel. The approach is unpersuasive in two respects. First, the Supreme Court regards the parties’ agreement on the place of delivery as a derogation from the “general rule” whereby delivery must be understood to be due, for jurisdictional purposes, at the place of final destination of the goods (whereas, according to the Court of Justice, the latter is just a residual rule, which applies where the parties have failed to agree on the place of delivery). Secondly, the Supreme Court disregards the rules of interpretation adopted by the International Chamber of Commerce to describe the parties’ obligations under the different Incoterms, and follows, instead, its own understanding of the Incoterms concerned: actually, the Supreme Court asserted in the decision reviewed that, “as a rule”, the Incoterm EXW only relates to the allocation of the costs of transport and the transfer of risk, and has no bearing as such on the determination of jurisdiction. 

Michele Grassi, Riconoscimento del rapporto di filiazione omogenitoriale e liberta` di circolazione all’interno dell’Unione europea (Recognition of Same-Sex Parentage and Freedom of Movement within the European Union)

This paper aims to provide a critical analysis of the judgment rendered by the Court of Justice of the European Union in the Pancharevo case, where the Court was confronted with the sensitive issue of same-sex parenthood and its recognition in the context of free movement rights within the Union. The investigation focuses on the functional approach adopted by the Court of Justice in the application of the mutual recognition principle, and its possible implications on the recognition of same-sex parenthood for wider purposes, not directly linked to the exercise of free movement rights.

The UNCITRAL Model Law on International Commercial Arbitration – A Commentary, authored by Gilles Cuniberti, has just been published by Edward Elgar, part of the Elgar Commentaries in Private International Law series.

This Commentary provides rich and detailed analysis both of the provisions of the UNCITRAL Model Law on International Commercial Arbitration (the Model Law), and of its implementation, including a comparative account of the operation of the Model Law in the numerous jurisdictions which have adopted it throughout the world.

Key features: comparative and thorough analysis of the provisions of the Model Law; consideration of the interpretations of the Model Law adopted by courts, with references to numerous cases from common law jurisdictions (Singapore, Hong Kong, India, Australia, New Zealand, Canada), Germany and Austria, central Europe (Poland, Hungary, Bulgaria), Spain, South Korea and Egypt; insight into variations in the statutory implementation of the Model Law in various jurisdictions across Europe, Asia, the Middle East and Latin and North America, with the most common amendments identified and highlighted; discussion on whether the amendments adopted in Model Law jurisdictions should be persuasive in other Model Law jurisdictions.

Exploring how the Model Law is applied and interpreted in multiple jurisdictions, this practical and exhaustive commentary will be an essential resource for arbitrators and commercial litigators and will also appeal to scholars in the fields of arbitration, international dispute resolution, and international commercial law.

Further information can be found here.

The author of this post is Cristina González Beilfuss (University of Barcelona).

The MPA case (Case C-501/20), decided by the CJEU on 1 August 2022, deals, at first sight, with a fairly unusual divorce scenario. The Spanish wife and the Portuguese husband are two members of the contract staff of the European Union working in the latter’s delegation in Togo. Leaving this aspect aside, the case, however, turns out to be quite ordinary. As highlighted by Advocate General Szpunar in his opinion, the situation of European citizens posted to a third State for work reasons is fairly commonplace.

EU expats might have an expectation to be able to divorce in the European Union, particularly, when their connection with the third State in question is tenuous. This seems to be the case here. The spouses were formerly based in Guinea – Bissau; whether they were already employed by the EU at that stage cannot be ascertained by reading the judgment or the Advocate General’s Opinion, but can be safely assumed. In any case, their degree of integration in either Guinea Bissau or Togo seems to be relative. The couple chose to get married in the Spanish Embassy in Guinea-Bissau and the Spanish wife came to Spain to give birth to their two children in 2007 and 2015. It therefore might have seemed only natural to her to file the divorce petition in Spain.

The divorce claim was, in fact, quite standard; she sought the dissolution of the marriage, a decision on the custody of the two children of the marriage and the award of maintenance for the children, including the use of the family home in Togo. But apparently the husband refused to accept that the marriage was over, which is why the divorce became contentious. This was most unfortunate because empirical research has shown that habitual residence is very often not examined unless it is a contested matter, as happened in this case. The court of first instance declined hearing the case. The decision was appealed, because the wife wanted to divorce. The Court of Appeal in Barcelona subsequently made a request for a preliminary ruling on a number of issues.

As regards the dissolution of the marriage, which is the aspect dealt with in this entry, the most significant question referred to the CJEU was the interpretation of the rule formerly contained in Article 6 of Regulation 2201/2003. Many commentators have found this rule confusing, particularly in connection with Article 7 (residual jurisdiction). A clarification by the CJEU is therefore most welcome.

The CJEU chose to interpret the rule literally. A spouse who is habitually resident in a Member State or who is a national Member State can only be sued in another Member State in accordance with the rules of jurisdiction contained in the Regulation. This entails that in an expat situation only the courts in the Member State of the defendant’s nationality (i.e. in the case at hand the courts in Portugal) can have recourse to domestic residual jurisdiction rules. The courts in the Member State of the plaintiff’s nationality have to decline hearing the case. This is what the requesting Court, the Court of Appeal in Barcelona, has done in a decision rendered on the 21 October 2022.

The purpose of this post is not to question the interpretation of the CJEU nor the decision of the Spanish Court. The main problem is, in my view, that the rule as such does not make sense. In the context of marriage dissolution in the strict sense, i.e. in connection with the continuation of the matrimonial bond, there is, in my view, no justification for protecting the defendant, i.e. the spouse that does not want the divorce and making life difficult for the spouse who wants to dissolve the marriage. The rule is moreover only workable if the divorce is contentious and one can distinguish between a defendant and a plaintiff. Would the Spanish court have been able to resort to its domestic rules of jurisdiction had the spouses decided to jointly request the divorce?

 And what are the consequences of the rule? If the Spanish wife wants to divorce in the EU, she has to go to Portugal. Whether Portuguese courts have jurisdiction is, however, uncertain. Article 62 of the Portuguese Código de proceso civil grants international jurisdiction to Portuguese courts when the action may be brought before a Portuguese court under the rules of territorial jurisdiction. Such rules allocate jurisdiction to the courts of the habitual residence or domicile of the plaintiff. The Portuguese courts also have jurisdiction if the fact that gave rise to the cause of action in the lawsuit or any facts leading to the cause of action have taken place in Portugal. Since the Spanish wife never had an habitual residence or domicile in Portugal and there is no factual connection to Portugal, the only possibility left would be to argue that Article 62(c) of the Código de proceso civil, containing a forum necessitatis, applies. The rule seems to be more open ended than the European forum necessitatis as available under the Maintenance, the Succession, the Matrimonial Property and the Registered Partnership Regulations. It grants jurisdiction to the Portuguese courts when effect cannot be given to the invoked right other than through an action filed in Portuguese territory or the claimant has appreciable difficulty in commencing an action abroad, as long as there is a relevant connecting element, either personal or physical, between the subject matter of the dispute and the Portuguese legal order.

A forum necessitatis is, in principle, only available exceptionally if the proceedings in question cannot reasonably be brought or conducted or would be impossible in the third State in question. This has been examined by the Court of Appeal of Barcelona in relation to the maintenance claim ancillary to the divorce petition. Following the guidance given by the CJEU in the MPA decision, the court undertook a detailed analysis of the procedural conditions in Togo and their consequences on the individual case and reached the conclusion that there is no evidence that access to court would not be possible or extraordinarily difficult in Togo.

If the Portuguese courts reached the same conclusion and the Portuguese forum necessitatis was also found to be inapplicable, the Spanish wife would have to seek divorce in Togo. And assuming that they accepted to hear the case, would the courts in Togo dissolve the marriage?  In accordance with Article 714 of the Code des personnes et familles of Togo, the courts in Togo would, in the absence of a common nationality of the spouses, apply the law of their common domicile i.e. the law of Togo. Under the law of Togo divorce is available either on the basis of mutual consent (which is not the case here) or in the absence thereof, on the ground of fault. The Spanish wife would have to plead and prove that marital life had become intolerable as a result of infidelity, excesses, abuse or insults attributable to her husband; that the family life and the safety of children are seriously compromised by notorious misconduct, moral or material abandonment of the home or the sentencing of one of the spouses to a firm sentence exceeding four years of imprisonment. Other grounds are impotence or definitive medical sterility or a refusal to consummate the marriage. Failing that the required separation period would be of at least five years. A stark contrast to the situation under Spanish law which takes the position that nobody should be forced to stay in a marriage he or she no longer wants and accepts divorce on unilateral demand! And to the situation under Portuguese law where divorce can be requested after a de facto separation of only one year!

A forum patriae thus appears to be necessary in order to guarantee access to divorce, not to court. Given the development of EU citizenship which the CJEU has repeatedly stated is destined to be the fundamental status of nationals of the Member States, it is outdated to provide a forum patriae only if spouses hold the nationality of the same Member State, and to treat the situation of an expat couple of EU citizens in the same manner as that of a couple where only one spouse is an EU citizen and even more so as the situation of a couple of an EU citizen and a third State national who happens to be a national of the third State in question.

The implications of EU citizenship in connection with access to European courts were not analysed in the MPA case, simply because the argument was not raised. In his Opinion on Case C‑603/20 PPU, which the CJEU did not follow, Advocate General Rantos derived from Article 20 of the TFUE a right to have parental responsibility examined by a court of a Member State, if the child is an EU citizen (paras 76 and 77). The idea should be further explored in connection with marriage dissolution.

The 2006 Commission Proposal for the amendment of Regulation 2201/2003, which was withdrawn included a provision stipulating that, where neither of the spouses is habitually resident in the territory of a Member State and the spouses do not have the common nationality of a Member State, the courts of a Member State should be competent by virtue of the fact that: (a) the spouses had their common previous habitual residence in the territory of that Member State for at least three years; or (b) one of the spouses had the nationality of that Member State (Article 7 of the Proposal). Life would have been easier for the Spanish wife had this proposal been adopted. In the end, she has been lucky though, because the husband has returned to the EU! Otherwise she would continue being trapped in a marriage that she no longer wants.

As noted earlier on this blog, on 2 December 2022, from 4 pm to 5.30 pm (MET), EAPIL will hold a joint Seminar via Zoom with the British Institute of International and Comparative Law (BIICL). The Seminar will focus on the review of the Rome II Regulation.

Those wishing to attend have time until 30 November 2022 at noon (MET) to register. The registration form is available here.

Registered participants will receive the details to join the Seminar by e-mail the day before the Seminar (please note the e-mails with these details occasionally end up in the spam folder).

For more information, please write an e-mail to secretary.general@eapil.org.

The Research Group on Private International Law of the University of Silesia (Poland) organizes a conference titled Ukraine-Poland. The Choice of Law Aspects of War and Forced Displacement.

The event will be held on 8 December 2022 from 9:00 – 17:30, in a hybrid formula: at the Faculty of Law and Administration of the University of Silesia in Katowice and online. It will focus on personal, family, inheritance matters. The detailed conference program is available here.

Those interested in attending are must register via an online form. Online participation in the conference is free of charge. The conference will be held in Polish, Ukrainian and English.