EAPIL blog

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

Th. Pfeiffer, Judicial Presumptions: Finding of Facts or Application of Law? The characterization of so-called factual presumptions in private international law

This article discusses whether so-called factual presumptions and prima facie-evidence rules qualify as substantive or procedural rules for choice of law purposes. Having analyzed typical situations such as rear-end collisions and the use of standard terms as well as provisions in the Rome I- and II-Regulation, differentiated solution is submitted: Factual presumptions and prima facie evidence are to be qualified procedurally, unless they are exceptionally based on a specific substantive rationale and not on fact related judicial experience.

D. Moura Vicente, The Role of the Brussels I-bis Regulation in European Private International Law and the Challenges Facing it

The 1968 Brussels Convention sought to promote mutual trust between Member States in jurisdictional matters by adopting uniform rules on judicial competence in civil and commercial matters, with a view to implementing a principle of automatic recognition of foreign judgments among them. Such rules could however be formulated only in respect of a limited number of subjects, which explains the Convention’s relatively narrow scope of application. Over the half century since the Brussels Convention’s conclusion, both its nature and that of the Regulations that succeeded it have changed substantially. From an instrument originally restricted to patrimonial matters, the Convention and its successor Regulations became the backbone of a system aimed at ensuring the free movement of judgments and judicial cooperation in a broad spectrum of matters. The Brussels I-bis Regulation has provided the conceptual foundations of the other instruments that integrate that system, which at times replicate its notions and rules or simply refer to it, thereby ensuring the system’s coherence. The Regulation has moreover had a modernising effect on the domestic legal systems of its Member States. The Regulation’s referential role in European Private International Law role nevertheless faces significant challenges arising inter alia from certain shortcomings of its substantive and subjective scope of application, as well as of the available heads of jurisdiction under its rules. It is submitted that these challenges, which this paper seeks to identify, call for a limited reform of the Regulation, the opportunity for which is provided by its review as foreseen in Article 79.

A. Dutta, Reform of German private international law for the names of persons

German private international law dedicates much (probably too much) attention to the names of persons. Based on earlier ideas for a European instrument on the law applicable to names and taking into account the current debate on German substantive law, the article argues for at least a unilateral reform of the current German conflict rules, in particular, for replacing nationality by habitual residence as the primary connecting factor and for a new approach to party autonomy.

T. Helms, German Private International Law and Co-Parenthood

German law of descent does not recognise co-parenthood between two women or two men. This article examines the conditions under which co-parenthood is nevertheless accepted in international cases on the basis of German Private International Law.

M. Pika, On the pathway to European arbitration law or to non-European seats?

In Prestige, the CJEU held that judgments confirming arbitral awards under sect. 66(2) English Arbitration Act 1996 are “decisions” for the purposes of Art. 45(1) lit. c Brussels Ibis-Regulation. In addition, the CJEU held that those judgments cannot prevent recognition of an irreconcilable, earlier judgment if the arbitral tribunal (i) disregarded the lis pendens principles of the Brussels Ibis-Regulation and/or (ii) unduly extended the arbitration agreement to third parties. This is the most significant restriction of the Brussels Ibis-Regulation’s carve-out of arbitration matters in Art. 1(2) lit. d ever since the West Tankers judgment.

T. Kindt, The Pechstein-Decision of the German Federal Constitutional Court

In a long-awaited decision on June 3, 2022, the German Federal Constitutional Court annulled the contested Pechstein-judgment of the German Federal Court of Justice from 2016 that had upheld the validity of an arbitration agreement between Germany’s most prominent speed skater and the International Skating Union (ISU) in favor of the Court of Arbitration for Sport (CAS) in Lausanne. The Constitutional Court holds that the Federal Court of Justice failed to attribute sufficient weight to the claimant’s right to a public hearing as part of her fundamental right of access to justice. Considering the imbalance of power in the contractual relationship between individual athletes and international sports federations, a resort to arbitration could only be accepted if the arbitral proceeding lives up to the minimum standards of constitutionally protected procedural safeguards. In the Constitutional Court’s view, this requirement had not been met by the applicable procedural rules of the CAS at the time, given that they did not provide individual athletes with the right to one-sidedly request a public hearing. This paper argues that the Constitutional Court’s decision, despite its laudable intentions, leaves more questions open than it answers (especially with regard to the question of impartiality and neutrality of the CAS), fails to take into account an important trait of the international arbitral system and will likely only be of limited importance for the further reform of sports arbitration.

R. Geimer, Exclusive international Jurisdiction of Germany based on article 25 (1) Brussels I bis-Regulation without an additive prorogation of a local forum

A German Company registered in Mannheim and a Spanish Company registered in Barcelona had prorogated “the civil courts in Frankfurt, Germany” in a International Distributor Agreement (IDA). It was unclear, which Frankfurt was chosen: Frankfurt on the Main or Frankfurt on the Or? The Higher Regional Court of Frankfurt on the Main ruled that Frankfurt on the Main is the prorogated forum arguing as follows: The representatives on the Spanish Company came by plane over the airport Frankfurt on the Main to Mannheim for signing the International Distributor Agreement including the prorogation clause. They did not know anything about Frankfurt on the Or. Therefore also the representatives of the Spanish Company have nominated Frankfurt on the Main as the exclusively competent forum.

L. Hornkohl, Group Liability in EU Competition Law and International Jurisdiction

In Sumal, the ECJ for the first time applied the single economic entity doctrine in private enforcement of competition law towards corporate groups. According to the ECJ, a subsidiary is liable for the cartel violations of the parent company in descending order if the parent and subsidiary are linked by corresponding economic, organisational and legal relationships. Furthermore, the ECJ requires a connection between the economic activity of the subsidiary and the object of the parent’s infringement to transfer liability. The case law in Sumal has severe international and local jurisdictional consequences. Especially concerning EU-wide cartel agreements, the jurisprudence gives claimants the possibility to sue each legal entity belonging to a single economic entity jointly and severally and thus offers huge potential for forum shopping under the Brussels Ibis Regulation.

C. Mayer, (Supposed) Competing paternities in private international law

Time and again, German courts are confronted with cases in which, as a result of the alternative links in Art. 19 Para. 1 EGBGB, several legal systems are applicable to the parentage of a child. This can result in the child being assigned different legal fathers. The German Federal Court of Justice has already had several opportunities to comment on such conflicting paternity situations and to develop basic structures. Its decision to be discussed here regarding a postnatal acknowledgment of paternity, which competes with a presumption of paternity, fits seamlessly into this line of case law, but raises the interesting question as to where newborns have their habitual residence at the time of birth. The Higher Regional Court Brandenburg, on the other hand, had to clarify the more difficult constellation of whether a prenatal acknowledgment of paternity can take precedence over a presumption of parentage resulting from foreign law, although both become effective at the same time at birth.

D. Henrich, Recognition of private divorces

Private divorces are divorces not by judgment but by agreement of the parties. Art. 21 of the Brussels IIa-Regulation prescribes the automatic recognition of all Member States decisions without any procedure being required. Whether this includes the recognition of non-judicial divorces was unclear. The European Court of Justice decided, that whenever a Member State provides a special proceeding for the recognition of a private divorce, the recognition is a question of procedural law. Whenever a civil status officer of a Member State records the agreement of the parties about their divorce and the parties confirm that the procedure has been performed according to the regulations of the Member State, the record is a judgment in the sense of Art. 2 No. 4 of the Brussels IIa-Regulation. Object of the recognition is here not the decision of a court but a special procedure.

P. Scholz, Mandatory Family Protection in Succession and Ordre Public

In almost every jurisdiction today, rules on mandatory family protection qualify the principle of freedom of testation. However, not only the beneficiaries of such laws vary from country to country. Moreover, over time, different systems of mandatory protection have evolved – and they span from fixed shares in the testator’s estate (like in Austria, Germany, or France) to needs-based judicial awards for the testator’s next of kin (like in England or New Zealand). Under the choice of law regime of the EU Succession Regulation, courts in fixed-share systems will eventually have to decide whether the application of needs-based rules is incompatible with the forum’s public policy where such laws do not result in sufficient claims of the disinherited next of kin. On February 2, 2021, Austria’s Supreme Court positioned itself against such ideas. This stands in stark contrast to the decision of the Cologne Higher Regional Court issued just a few weeks afterwards, which the German High Court upheld with a questionable judgement of June 29, 2022.

Membership in the European Association of Private International Law comes with a small burden: the annual fees!

If you’re a member, and have not paid your fees for 2023, please take a moment to do so.

The amount of the fees is reasonable (and has not changed since the Association was created), and the process is rapid and straightforward: you may pay by bank transfer, or use PayPal.

All information is found here.

Thank you!

This post was authored by François Mailhé, who is Professor of Private Law at the University of Picardie Jules Verne.

At last !

It has been more than 10 years since the French Cour de cassation decided to declare war on asymmetric forum selection clauses in the Banque de Rothschild case (Cass. fr. civ. 1, 26 September 2012, No. 11-26.022). In the span of those 10 years, no less than 7 judgments were rendered by the Cour de cassation itself. And if it found its rationale in 2015 (Cass. fr. civ. 1, 25 March 2015, No. 13-27.264, ICH), almost each new judgment tested and tried a different angle, a different legal basis. At last, two weeks ago, the Cour de cassation chose the path of wisdom and referred a prejudicial question to the European Court of Justice (Cass. fr. civ. 1, 13 April 2023, No. 22-12.965)! 

Once upon a Time: The Brussels Convention

Let’s remember the surprise most felt at reading the Banque de Rothschild decision in 2012. Even if some French court of appeal decisions in maritime cases had already excluded the clause as “potestative” in the 1990s, paragraph 3 of Article 17 of the Brussels Convention seemed to set them aside as a marginal and wrong stream of cases.

Why “potestative”? Because those clauses characteristically consist of two limbs : one, restrictive, pointing in general to only one court and which binds one party, another, liberal, offering the other party a much vaster choice of forum.

The Brussels convention used to hold a specific rule on such clauses, implicitly accepting such imbalance (Article 17, §3 : “If an agreement conferring jurisdiction was concluded for the benefit of only one of the parties, that party shall retain the right to bring proceedings in any other court which has jurisdiction by virtue of this Convention”), but its existence and the reasons of its disappearance from the texts (uselessness, as it seems…) was progressively forgotten by French courts, who became suspicious of such clauses.

From Potestative to Imbalance

This suspicion grew at the same time as the generalization of the “significant imbalance” test. Starting in consumer law, it later appeared in French business law (today at L. 442-6, I, 2° of the French Commercial Code) and last as a general norm of contractual law for standard form contracts (art. 1171 of the Civil Code). The same concern for imbalance in asymmetric forum selection clauses was clear when the Banque de Rothschild decision set one aside as “potestative” (i.e. to the sole power of one of the parties, a much criticized legal ground) but also later, when the ICH case changed the standard from potestativity to foreseeability, as the Cour expressly refer to imbalance as the justification for this new standard.  

It would be a long reading if this post was to detail all the different phrasings, legal grounds and sometimes even contradictory decisions that the Cour de cassation employed to keep its case-law. One may only refer, in English, to the excellent work of Brooke Marshall, published last month, to study the whole case law in depth. Just to give a hint as to its subtlety (or confusion, depending on the point of view), a clause stating that “the bank is nevertheless entitled to bring an action against the borrower before any other competent court” was set aside for unforeseeability (the ICH case), while a clause that “reserved for Apple the possibility of bringing an action, at its choice, before the Irish courts, the courts of the place where eBizcuss has its registered office or the courts of the countries in which Apple suffered damage” was validated (Cass. 1re civ, 7 October 2015, No. 14-16.898, eBizcuss). 

However, the solution still raised many difficulties. The first is, and will perhaps remain for a long time, its inadequacy to the problem. In the terms of the case law, the “potestative” character first, the “imbalance” second, betrays the fact that the solution aimed primarily at restoring a certain fairness to the clauses, a fairness defended by the Brussels texts for employees, insureds and consumers, but absent for SMEs and other non-consumers, who are often without sufficient jurisdictional protection in the face of these clauses. On this point, one can only hope for a reform of the texts, but this does not yet seem to be part of the debate (see the Study to support the preparation of a report on the application of Regulation (EU) No 1215/2012).

What Legal Basis?

The second difficulty is of source: where to find the normative support of this solution? The Cour has used several bases, some of which are taken from European case law, but none of which is very solid (see e.g. Cass. 1re civ., 3 October 2018, No. 17-21.309. I discussed that in Lexisnexis’ JCP G 2018, 1300: among other things, in my opinion, the ECJ never really required selected forums to be foreseeable as a condition of their validity). 

This difficulty has been deepened by Brussels I bis regulation, introducing a specific rule for such clauses substantial validity: “unless the agreement is null and void as to its substantive validity under the law of that Member State” as stated by Article 25.

A new question arose : was this French case-law the national proposition of a European uniform solution, interpreting Article 25, or could it be a French solution, by extension of the scope of this referral to the national law of the chosen court (provided French courts are chosen)?

And, as a problem never comes alone, the asymmetric nature of the clause made the application of the second limb of the question even more complex : in case asymmetry was a substantive problem to be dealt with by the national law of the chosen court, which court must be taken into account?

Those two questions are asked, at last, by the Cour de cassation in this 13 April decision. A third one completes the package: whether the enforceability of such asymmetric clause (more specifically one which allows one of the parties to choose any objectively competent court) is an issue to be governed by a uniform European rule.

The Questions Referred

From this very debatable French case-law were therefore born three interesting questions.  

First, the ECJ will have to interpret the scope of the substantial validity rule : what is to be governed by uniform European rules, and what may be delegated to national laws? 

Second, in case the ECJ decides for a uniform rule, what is to be the future of asymmetric clauses? Will the Court draw from the old versions of the Brussels convention? Will it be sensitive to problems of imbalance beyond consumer-professional relationships? 

Last, in case the ECJ decides for the inclusion in the scope of Article 25 conflict rule, how to apply this conflict rule, relying on the chosen court, when the clause actually points at several chosen courts or, worse, an undetermined number of courts? 

Three very interesting and important questions were asked. Now it is up to the ECJ to pick up the glove. Let’s hope (perhaps with moderate expectations though) that its answer fits the challenge. 

The Special Interest Group on Family and Succession Law of the European Law Institute invites everyone interested to participate in the webinar titled Application of the EU Succession Regulation in the Member States.

The webinar will present the results gathered during the five webinars on the application of the EU Succession Regulation in the Member States organized in 2022 ( which EAPIL blog covered here).

The webinar will take place on 15 May 2023 between 3 and 5 pm CET.

Attendance is free of charge. A Zoom link will be sent to those who register by sending an e-mail to: zivilrecht@uni-graz.at.

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

In the first article, Guillaume Payan (University of Toulon) analyses the recent recast of the EU regulation in matrimonial matters, the matters of parental responsibility and on international child abduction (“Brussels II ter”) in the broader context of EU judicial cooperation in civil matters.

The English abstract reads:

As its title indicates, Regulation (EU) 2019/1111 – known as “Brussels II ter” – of 25 June 2019 has three clearly identified sections: marital disunity, parental responsibility and wrongful removal or retention of a child. Within the limits of its scope thus circumscribed, it contains interesting provisions relating to the recognition and enforcement of court decisions and extrajudicial titles. Either classic or innovative, the solutions adopted converge towards the objective of a generalized abolition of the exequatur. While this development, characterized by an intensification of the principle of mutual recognition, is appropriate, it nevertheless appears insufficient with regard to the issues targeted in Regulation (EU) 2019/1111 and, by extension, the objective of creating a genuine European civil judicial area. Although it identifies the contributions of this new text in the light of Regulation (EC) n°2201/2003 – known as “Brussels II bis” – which preceded it, this study provides an opportunity to question the overall consistency of action of the European Union legislator in the field of civil judicial cooperation.

In a second article, Éric A. Caprioli (Avocat à la Cour and  Member of the French UN Delegation in the field of e-commerce) discusses the UNCITRAL Model Law on Electronic Transferable Records (MLETR), since some countries such as France and Germany are currently working on its implementation into national law.

The English abstract reads:

The UNCITRAL Model Law on Electronic Transferable Records (MLETR) has been adopted on July 13, 2017, during the 50th session of the Commission. The purpose of this document is to develop provisions about electronic equivalents of transferable paper records or instruments. This mainly relates to bills of landing, bills of exchange and promissory notes, insurance policies, and warrants. These documents are essential in the financing of international trade. UNCITRAL has used the three general principles of electronic commerce in its instruments since the Model Law of 1996: non-discrimination against the use of electronic means, technological neutrality, and functional equivalence. Two Articles of the MLETR are fundamental. According to Article 10, Electronic Transferable Record (ETR) must meet two main requirements: the document must contain information required by instrumentum (written documents) and use a reliable method. The second one requirement imposes three other requirements: (i) identify the electronic record as the ETR, (ii) render the ETR capable of being subject to control from its creation until it ceases to have any effect or validity; and (iii) retain the integrity of the electronic record. Another key concept, the Article 11 discusses the control of the electronic record, which constitutes the functional equivalent of possession in the paper environment. Indeed, the individual who has the exclusive control over the document will be allowed to request the performance of the obligation or to transfer the document. Therefore, a reliable method must be used to establish the exclusive control over this ETR and identify this person as an individual who has the control. France has launched a transposition process of the MLETR into its national legislation like other countries of G7 (UK, Germany,…).”

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

As noted earlier on this blog, on 3 May 2023, from 6 pm to 8 pm (MET), the first webinar of the series that has been organised under the title The Future of Cross-Border Parenthood in the EU – Analyzing the EU Parenthood Proposal will take place. The webinar, chaired by Claire Fenton-Glynn, will deal with the following relations: Surrogacy in comparative perspective (Jens Scherpe), and The EU Proposal on Parenthood: What’s in it? Subject matter, scope and definitions (Cristina González Beilfuss).

Those wishing to attend have time until 2 May 2023 at noon (MET) to register. The registration form is available here.

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

The form, then, will remain open for registration for the subsequent webinars of the series.

The updated and final version of the program is available here.

In May 2023, the Court will decide on C-264/22, Fonds de Garantie des Victimes des Actes de Terrorisme and d’Autres Infractions. The decision is expected on 16 May.

The request for a preliminary ruling from the Tribunal da Relação de Lisboa (Portugal) concerns the interpretation of the Rome II Regulation. It was lodged in April 2022.

A French citizen was hit by a boat at Alvor Beach (Portugal) in 2020; as a result, he suffered serious bodily injuries and underwent a number of medical treatments. He sued in France the Fonds de Garantie des Victimes des Actes de Terrorisme et d’Autres Infractions, in its capacity as the French body which covers, inter alia, compensation due for accidents, claiming compensation for the damage suffered. The parties agreed compensation of EUR 229 480.73.

The civil liability of the boat’s owner was insured by Victoria Seguros, S.A., the defendant in the Portuguese proceedings, where the Fonds de Garantie des Victimes des Actes de Terrorisme et d’Autres Infractions seeks an order that the defendant must reimburse to the applicant the abovementioned amount paid. According to the applicant, Portuguese law should apply in relation to the accident and the obligation to pay compensation, and French law should apply in relation to the rules on the limitation period and the calculation of time limits, as is apparent from Article 19 of the Rome II Regulation. In its defence, the defendant put forward a substantive plea that the claim is time-barred. As regards the merits, it denied many of the facts relating to the accident and claimed that the action should be dismissed.

The national court considers it necessary to decide whether French law is applicable (in accordance with which the limitation period for the right claimed has not expired), or whether, in the alternative, if it is decided to apply Portuguese law, the right has not lapsed either, in view of the date of the last payment to the injured party. In this context, the national court is referring the Court of Justice of the EU the following question for a preliminary ruling:

Is the law applicable to the limitation rules for the right to claim compensation that of the place of the accident (Portuguese law), in accordance with Articles 4(l) and 15(h) of [the Rome II Regulation], or, if the injured party’s place is taken by subrogation, is the ‘law of the third person’ subrogee (French law) applicable in accordance with Article 19 of that Regulation?

The decision will be taken by a chamber of three judges (L.S. Rossi, J.C. Bonichot, O. Spineanu-Matei as reporting judge). The opinion of an advocate general was not requested.

This post was written by Sören Segger-Piening, Julius-Maximilians-Universität Würzburg.

It is with a heavy heart that I have to announce the passing of Oliver Remien on 24 April 2023 after a short, severe illness at the age of only 66. He held the Chair of Civil Law, European Economic Law, Private International Law and Litigation as well as Comparative Law at the University of Würzburg from 2001 until his retirement on 1 April 2023. From 1982 to 2000 he had worked as an assistant and research fellow at the Max Planck Institute for Comparative and International Private Law in Hamburg under the supervision of his teacher Ulrich Drobnig. I consider myself lucky to have been Oliver Remien’s student, mentee and friend since 2007.

His work is as multi-layered as it is extensive, which is why the following can only be an incomplete coverage of some of his research priorities.

Early on he pointed out the various dimensions of European private law and benefited from his work as Secretary to the Commission on European Contract Law (Lando-Group) from 1982 to 1990. He repeatedly surveyed, illuminated and advanced the system of internal market law and its implications for private law: fundamentally in his habilitation thesis on Mandatory Law of Contract and the Fundamental Freedoms (2003), most recently in a note on the Thelen Technopark decision of the CJEU.

He made many fundamental contributions to private international law, for example on foreign trade law, overriding mandatory provisions, consumer contracts and the European Succession Regulation. Furthermore, he devoted himself to the “secret king” of conflict of laws: the application of foreign law by domestic courts.

The latter links to his work in the field of international and comparative civil procedure. His ground-breaking and widely acclaimed dissertation on Rechtsverwirklichung durch Zwangsgeld (1992) bears witness to this, as does his recent contribution in the grey area between arbitration and the international jurisdiction regime of the Brussels Ia Regulation.

Of course, he also provided a variety of important impulses in German law, for example with his contribution on the limitation of claims in rem.

During his time at the University of Würzburg, Oliver Remien organised a large number of conferences on important topics in his research areas such as: Modernisation of the Law of Obligations and European Contract Law (2006); The Law of Prescription in Europe (2009); Damages in European Private and Business Law (2010); European Unification of Conflict of Laws (2010, together with Eva-Maria Kieninger); Investment Protection, Arbitration and the Rule of Law in the EU (2017, together with Markus Ludwigs). He was also keen to cooperate with the Law Faculty in Bucharest, as evidenced by a volume on Common European Private Law in Romania (together with Liviu Zidaru), which currently is being printed.

Standing in awe before this comprehensive body of work – which I can only describe inadequately – is accompanied by at least as much admiration for Oliver Remien’s personality: his friendly and open character, his curiosity and his ever-recurring enthusiasm for novelties were outstanding. With Oliver Remien we do not only loose a great European researcher in the truest sense of the word, but also a dear person and friend. He is dearly missed.

My thoughts are with his family and loved ones.

The first issue of the Revue critique de droit international privé of 2023 is primarily dedicated to the Restatement Third of Conflict of Laws.

Restatement Third

Lea Brilmayer (Yale) starts the discussion with an article on The (Third) Restatement of Conflicts and “The Ordinary Processes of Statutory Construction”. 

One of the reporters of the Restatement, Kermitt Rooselvet III (UPenn), then offers a short response: Third Restatement and Method : A Response from Kermitt Roosevelt III.

Three articles follow on more specific topics: Maggie Mills, Statutes of limitation and the substance-procedure dichotomy: a missed opportunity; Sarah Quinn, How should a state choose when to apply foreign law? Comparing answers from the American Law Institute’s Third Restatement and Rome II in the European Union; Catherine Lee, A Cross-Border Maze: Remote Work, Employment Contracts, and the Draft Restatement (Third) of Conflict of Laws.

Other articles

The issues contains two other articles and a number of case notes.

In the first article, Christelle Chalas (University of Lille) offers a comparative analysis of protection measures of children wrongfully removed under the 1980 Hague Convention after the judgement of the U.S. Supreme Court in Golan v. Saada (Les mesures de protection de
l’enfant illicitement déplacé et le risque grave de danger : comparaison de l’office des juges américains et européens).

In the second article, Baptiste Delmas (Paris I University) discusses the emergence of exequatur actions in transnational labour law.

The full table of contents can be found here.

This post was written by Giesela Rühl, LL.M. (Berkeley), Humboldt-University of Berlin, and is also available via conflictoflaws.net.

On 25 April 2023 the German Federal Ministry of Justice (Bundesministerium der Justiz – BMJ) has published a bill relating to the establishment of (international) commercial courts in Germany. It sets out to strengthen the German civil justice system for (international) commercial disputes and aims to offer parties an attractive package for the conduct of civil proceedings in Germany. At the same time, it is the aim of the bill to improve Germany’s position vis-à-vis recognized litigation and arbitration venues – notably London, Amsterdam, Paris and Singapore. Does this mean that foreign courts and international commercial arbitration tribunals will soon face serious competition from German courts?

English-language Proceedings in All Instances

Proposals to improve the settlement of international commercial disputes before German courts have been discussed for many years. In 2010, 2014, 2018 and 2021, the upper house of the German Federal Parliament (Bundesrat) introduced bills to strengthen German courts in (international) commercial disputes. However, while these bills met with little interest and were not even discussed in the lower house of Parliament (Bundestag) things look much brighter this time: The coalition agreement of the current Federal Government, in office since 2021, promises to introduce English-speaking special chambers for international commercial disputes. The now published bill of the Federal Ministry of Justice can, therefore, be seen as a first step towards realizing this promise. It heavily builds on the various draft laws of the Bundesrat including a slightly expanded version that was submitted to the Bundestag in 2022.

The bill allows the federal states (Bundesländer) to establish special commercial chambers at selected regional courts (Landgerichte) which shall, if the parties so wish, conduct the proceedings comprehensively in English. Appeals and complaints against decisions of these chambers shall be heard in English before English-language senates at the higher regional courts (Oberlandesgerichte). If the value in dispute exceeds a threshold value of 1 million Euros and if the parties so wish, these special senates may also hear cases in first instance. Finally, the Federal Supreme Court (Bundesgerichtshof) shall be allowed to conduct proceedings in English. Should the bill be adopted – which seems more likely than not in light of the coalition agreement – it will, thus, be possible to conduct English-language proceedings in at least two, maybe even three instances. Compared to the status quo, which limits the use of English to the oral hearing (cf. Section 185(2) of the Court Constitution Act) and the presentation of English-language documents (cf. Section 142(3) of the Code of Civil Procedure) this will be a huge step forward. Nonetheless, it seems unlikely that adoption of the bill will make Germany a much more popular forum for the settlement of international commercial disputes.

Remaining Disadvantages vis-à-vis International Commercial Arbitration

To begin with, the bill – like previous draft laws – is still heavily focused on English as the language of the court. Admittedly, the bill – following the draft law of the Bundesrat of March 2022 – also proposes changes that go beyond the language of the proceedings. For example, the parties are to be given the opportunity to request a verbatim record of the oral proceedings. In addition, business secrets are to be better protected. However, these proposals cannot outweigh the numerous disadvantages of German courts vis-à-vis arbitration. For example, unlike in arbitration, the parties have no influence on the personal composition of the court. As a consequence, they have to live with the fact that their – international – legal dispute is decided exclusively by German (national) judges, who rarely have the degree of specialization that parties find before international arbitration courts. In addition, the digital communication and technical equipment of German courts is far behind what has been standard in arbitration for many years. And finally, one must not forget that there is no uniform legal framework for state judgments that would ensure their uncomplicated worldwide recognition and enforcement.

Weak Reputation of German Substantive Law

However, the bill will also fail to be a resounding success because it ignores the fact that the attractiveness of German courts largely depends on the attractiveness of German law. To be sure, German courts may also apply foreign law. However, their real expertise – and thus their real competitive advantage especially vis-à-vis foreign courts – lies in the application of German law, which, however, enjoys only a moderate reputation in (international) practice. Among the disadvantages repeatedly cited by practitioners are, on the one hand, the numerous general clauses (e.g. §§ 138, 242 of the German Civil Code), which give the courts a great deal of room for interpretation, and, on the other hand, the strict control of general terms and conditions in B2B transactions. In addition – and irrespective of the quality of its content – German law is also not particularly accessible to foreigners. Laws, decisions and literature are only occasionally available in English (or in official English translation).

Disappointing Numbers in Amsterdam, Paris and Singapore

Finally, it is also a look at other countries that have set up international commercial courts in recent years that shows that the adoption of the bill will not make German courts a blockbuster. Although some of these courts are procedurally much closer to international commercial arbitration or to the internationally leading London Commercial Court, their track record is – at least so far – rather disappointing.

This applies first and foremost to the Netherlands Commercial Court (NCC), which began its work in Amsterdam in 2019 and offers much more than German courts will after the adoption and implementation of the bill: full English proceedings both in first and second instance, special rules of procedure inspired by English law on the one hand and international commercial arbitration law on the other, a court building equipped with all technical amenities, and its own internet-based communication platform. The advertising drum has also been sufficiently beaten. And yet, the NCC has not been too popular so far: in fact, only 14 judgments have been rendered in the first four years of its existence (which is significantly less than the 50 to 100 annual cases expected when the court was set up).

The situation in Paris is similar. Here, a new chamber for international commercial matters (chambre commerciale internationale) was established at the Cour d’appel in 2018, which hears cases (at least in parts) in English and which applies procedural rules that are inspired by English law and international arbitration. To be sure, the latter cannot complain about a lack of incoming cases. In fact, more than 180 cases have been brought before the new chamber since 2018. However, the majority of these proceedings are due to the objective competence of the Chamber for international arbitration, which is independent of the intention of the parties. In contrast, it is not known in how many cases the Chamber was independently chosen by the parties. Insiders, however, assume that the numbers are “negligible” and do not exceed the single-digit range.

Finally, the Singapore International Commercial Court (SICC), which was set up in 2015 with similarly great effort and ambitions as the Netherlands Commercial Court, is equally little in demand. Since its establishment, it has been called upon only ten times by the parties themselves. In all other cases in which it has been involved, this has been at the instigation of the Singapore High Court, which can refer international cases to the SICC under certain conditions.

No Leading Role for German Courts in the Future

In the light of all this, there is little to suggest that the bill, which is rather cautious in its substance and focuses on the introduction of English as the language of proceedings, will lead to an explosion – or even only to a substantial increase – in international proceedings before German courts. While it will improve – even though only slightly – the framework conditions for the settlement of international disputes, expectations regarding the effect of the bill should not be too high.

— Note: Together with Yip Man from Singapore Management University Giesela Rühl is the author of a comparative study on new specialized commercial courts and their role in cross-border litigation. Conducted under the auspices of the International Academy of Comparative Law (IACL) the study will be published with Intersentia in the course of 2023.

The Swiss Institute of Comparative Law in Lausanne will host its 34th Private International Law day on 1 June 2023, under the title Personal Identity and Status Continuity – A focus on Names and Gender in the Conflict of Laws.

The event continues a series inaugurated last year with two webinars on filiation and same-sex marriage, respectively.  The programme and materials of those webinars can be found here and here (under media & fichiers).

The three panels are co-organised with ELI special interest group on family and succession law.

The day before the conference, a special side event organized by the Institute with the collaboration of Walter Stoffel, University of Fribourg, and Lucie Bader, film and media scholar, Bern, will introduce the topic of Law and Gender.

More details here.

The EU has decided on 24 April 2023 to establish treaty relations with Ukraine under the Hague Judgments Convention. Ukraine acceded to the Convention on 29 August 2022 by submitting its ratification to the depositary, the Dutch Ministry of Foreign Affairs. From that moment, the other Signatories have 12 months to object against the establishment of treaty relations with the new member (Article 29 of the Convention).

The EU Council decided not to do so. According to the Press Release, the Council considers that

there are no fundamental obstacles, such as related to the independence and efficiency of the judiciary, the fight against corruption or the respect of fundamental rights, which could prevent the EU from entering into treaty relations with Ukraine.

The Swedish Minister for Justice, Gunnar Strömmer, said on the occasion that “[w]ith this decision to recognise and enforce each other’s judgments the ties between the EU and Ukraine will only become stronger.”

The Judgments Convention will enter into force for all Signatories on 1 September 2023. Although the EU theoretically still has time until the 29 August 2022 to notify the depositary of its objections to establish relations with Ukraine under the Convention, this is unlikely after the decision by the Council. Courts in the EU will therefore soon be obliged under the Convention to recognise and enforce Ukrainian judgments in civil or commercial matters, and vice versa.

Within the framework of the Jean Monnet Module “CoRiMaR” (2020-2023), the University of Udine, in cooperation with a consortium of European universities, now including University of Essex , De Montfort University, Universitatea de Vest din Timisoara, East Anglia University, University of Rijeka, University of Belgrade and University of Szeged, organizes the 16th edition of the Summer School on Consumer’s Rights and Market Regulation in the European Union, to be held 12-21 July 2023 in Udine.

The 2023 Summer School will consist of 40 hours of lectures, a workshop and a moot court. It aims to provide a comprehensive training on the legal discipline of consumer protection and market regulation in the European Union Law, with a particular reference to digital technologies, the following relevant aspects: consumer protection and empowerment; private international law; dispute resolution and redress; market regulation.

The call for application and the brochure are respectively available here and here.

The application deadline is 31 May 2023.

For further info, please write an email to ip.europeanlaw.uniud@gmail.com.

As announced on this blog, the IX Congress of Private International Law of the University Carlos III of Madrid will take place on 4 and 5 May 2023.

It will be devoted to the Proposal for a Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood, presented by the European Commission on 7 December 2022.

The speakers include: Esperanza Castellanos Ruiz, Juliana Rodríguez Rodrigo, Ilaria Pretelli, Estelle Gallant, Antonia Durán Ayago, María José Castellanos Ruiz, Aurora Hernández Rodríguez, Javier Carrascosa González, Asunción Cebrián Salvat, Isabel Lorente Martínez, Fabrizio Marongiu Buonaiuti, Emelina Santana Páez and Alfonso-Luis Calvo Caravaca.

The programme and further information are available here.

Two relatively new Scandinavian free online law library projects ease the accessibility of older legal writings, which opens new possibilities for researchers. First, the Danish law library project jurabog was launched. Being inspired by that, the similar Swedish project juridikbok.se followed. The two projects are both free and their respective focus are to collect older legal writings and make them available online.

Whereas the Danish project aims at collecting Danish legal writing, the Swedish project collects Swedish legal writings. The collections are general, but content several books on private international law. Even if most of them are in either Danish or Swedish, one can find private international law books written in English.

On the Danish website, one can for instance find Ole Lando’s General Course of 1985 for the Hague Academy (Recueil des Cours) which had the title The Conflict of Laws of Contracts – General Principles. Also, the general course in the same series from 1958 on The Scandinavian Conventions on Private International Law by Allan Philip is found on the website.

The Swedish library contains e.g. Michael Bogdan’s dissertation Expropriation in Private International Law (1975) as well as Stig Strömholm’s dissertation Torts in the conflict of laws (1961).

In the contemporary digital reality, the free Scandinavian law library projects seem to be pioneering by offering an alternative to the paywalls that often delay and hinder research.

Judge François Ancel (Cour de cassation) and Professor Gustavo Cerqueira (University of Nice) are the editors of a book on the Respective Roles of (French) Courts and Parties in the Application of Choice of Law Rules (L’office du juge et la règle de conflit de lois).

The book collects the proceedings of a conference held at the Cour de cassation in May 2021.

A summary of the conference is available on the website of the court in French and in English.

The Commentary on the Brussels II ter Regulation, edited by Ulrich Magnus and the late Peter Mankowski, part of the European Commentaries on Private International Law series published by Otto Schmidt, has recently been released.

The list of authors includes Alfonso-Luis Calvo Caravaca, María-Asunción Cebrían Salvat, Gilles Cuniberti, Stefano Dominelli, Agnieszka Frąckowiak-Adamska, Estelle Gallant, Thomas Garber, Oliver Knöfel, Vesna Lazić, Luís Pietro Rocha de Lima Pinheiro, Ulrich Magnus, Peter Mankowski, Maire Ní Shúilleabháin, Marta Pertegás Sender, Walter Pintens, Ilaria Queirolo, Dimitrios K. Stamatiadis and Spyros Tsantinis.

See here for further information.

The University of Urbino will host on 17 May 2023 a conference on the international aspects of the Digital Services Act (DSA) in a hybrid way.

The speakers include Marie-Elodie Ancel, Basile Darmois, Federico Ferri, Valère Ndior, Edoardo Alberto Rossi, Massimo Rubechi and Maria Isabel Torres Cazorla.

For registration and the full programme, see here.

For further info, write an email at edoardo.rossi@uniurb.it.

The author of this post is Verena Wodniansky-Wildenfeld, University of Vienna.

Since the introduction of the Rome II Regulation, the question whether rules of conduct of non-governmental organisations are to be taken into account in the context of Article 17 of that Regulation has been the subject of extensive discussion.

A recent decision of the Austrian Supreme Court dealt with the impact of the FIS Rules, which are drawn up by the international ski federation (FIS) and contain guidelines to assist in the promotion of skiing and snowboarding (I.1. FIS rules), with regard to Article 17 Rome II. The court held that the FIS Rules can generally fall within the “rules of safety and conduct” defined in Article 17 Rome II. However, this is only the case if the rules at the place of the event causing the damage are not identical to the rules of safety and conduct of the applicable law. Further examination was therefore not necessary, as the FIS rules are used to determine the duty of care in both states: the state where the harmful act was committed and the state of the applicable law. Nevertheless, the ruling contributes to provide clarity on the interpretation of “rules of safety and conduct” and enrich the case law on Article 17 Rome II.

Facts of the case

The case at hand concerned the collision of two skiers domiciled in the Netherlands in an Austrian ski resort. Prior to the accident, the plaintiff was on the slope above the defendant when the defendant crossed the plaintiff’s lane without turning to see if any skiers are coming from above. In the following crash, both parties were injured.

Judgment

The Austrian Supreme Court first found the application of Dutch substantive law under Article 4(2) Rome II to be undebated. Article 4(2) Rome II provides an exception to the law of the place where the damage occurred, as appointed in Article 4(1) Rome II, in favour of the law of the common habitual residence of the person claimed to be liable and the person sustaining the damage. As the place where the damage occurred and the place where the harmful act was committed normally coincide in skiing accidents, the issue of the FIS rules as foreign rules of safety and conduct arises mainly in cases governed by Article 4(2) Rome II.

The further examination was therefore limited to the assessment of the FIS Rules, as the defendant’s conduct could have constituted a breach of Rule 1. According to this rule every skier must behave in a way not to endanger or harm others. The Court holds that the question whether the conduct in question results in liability is governed exclusively by the lex causae determined in Article 4(2), and thus by Austrian law. However, the court confirms the FIS Rules can be taken into account as a rule of conduct and standard of due care. As both Austrian and Dutch law measure the conduct of skiers against the FIS Rules, the latter are in any case taken into account by the application of Dutch law. Thus, no conduct rules foreign to the applicable law needed to be taken into account and their consideration under Article 17 Rome II was superfluous.

Assessment

Although ultimately the “rules of safety and conduct” at the place of the harmful event were not taken into account, the Supreme Court thus seems to have clarified that for the required standard of care, also norms established by non-state organisations are to be considered under Article 17 Rome II.

While mandatory rules, e.g. of formalised and customary law, distinguishing legal from illegal conduct, are evidently encompassed by Article 17 Rome II, it is debated whether purely private safety and conduct rules can also be considered as “rules” in the understanding of Article 17 Rome II. “Soft law”, such as the FIS Rules of Conduct, is the most prominent example of such standards.

The question of the relevance of the FIS rules to cross-border situations in the context of Rome II has been addressed by other courts before. In a similar case, the Higher Regional Court Munich had assumed that the FIS Rules were to be taken into account as customary law at the place of the harmful event (Austria). However, according to Austrian case law, the FIS Rules cannot be considered customary law in Austria. Moreover, in Austria as in the Netherlands, the FIS Rules of Conduct were never legally codified or given legal force in the form of a decree. The situation, however, differs in European countries. In Italy, for example, the conduct on the ski slopes is prescribed by special law through the third section of the law on safety in skiing (Law No. 363 of 24 December 2003). Also, in Slovenia the obligatory conduct of skiers is regulated by special law (Act No. 110/2002 of 18 December 2002).

There is also controversy in literature as to what significance rules of non-state actors have within the framework of Article 17 Rome II. The key question is whether Article 17 Rome II requires a binding nature of the rule or whether purely factual obedience of rules set by private actors is sufficient.  According to the “local data theory”, a very broad approach is to be taken. As even state law is only taken into account as a matter of fact, a differentiation between the legally or factually binding nature between statutory law and “soft law” created by non-state organizations cannot be justified (Calliess/Renner/v. Hein Art 17, para. 19; Dicey/Morris/Collins CoL 34-069).

A second theory seeks to distinguish between two aspects: The question whether and to what extent non-legal standards of conduct are relevant for the liability shall be assessed exclusively in accordance with the lex causae. Insofar as the lex cause takes recourse to soft law when determining liability, the standards of conduct at the place of the event giving rise to the liability must then be taken into account on a second level (BeckOGK/Maultzsch Art 17 Rn 21; NK-BGB/Lehmann Art 17 para 34).

A third theory considers it neither possible nor necessary for the FIS Rules to be taken into account under private international law per se. Nevertheless, on the level of substantive law, they can serve as an interpretative aid for the liability if the national tort law system provides a general clause for the assessment of the conduct of the tortfeasor (Diehl IPRax 2018, 374)

With the present decision, the Austrian court has not explicitly taken a position on the controversy raised in the literature. Up until now it seemed that the Supreme Court would follow the second theory. In a purely domestic decision, the Supreme Court stated that under Austrian Civil Law, considerable importance to the FIS rules is to be attributed, but only “in applying the general principle that everyone must behave in such a way as not to endanger others.” However, the fact that the Supreme Court does not mention the Dutch sweeping clause and recourse to soft law when determining liability, which would be a necessary precondition for the applicability of the FIS Rules under the second theory, seems contradictory to this approach. The reference in the case at hand to the FIS Rules for assessing the duty of care with regard to Article 17 Rome II without further explanation is therefore rather surprising. For the final act of the ongoing debate, a decision of the CJEU will nevertheless have to be awaited. In any way, whether the FIS Rules are considered under Dutch Law cannot, contrary to the Supreme Court’s judgment, matter in their application under Article 17 Rome II. 

The European Commission published on 13 April 2023 a study on the application of Regulation 4/2009 on maintenance obligations. The study, authored by Marion Goubet, Sophie Buckingham,  Cécile Jacob, Michael Wells-Greco and Quentin Liger, consists of a final report and various annexes, including a synthesis report. Details on the operation of the Maintenance Convention in the Member States between 2011 and 2019 are found here.

The final report finds that the majority of stakeholders consider the Maintenance Regulation to be effective in establishing common rules for the recovery of maintenance claims across the EU, but acknowledges that, in response to the challenges and issues raised in terms of practical implementation of the Regulation’s provisions, “certain adjustments could be made were it to be recast”.

The report observes, among other things, that the provisions regarding jurisdiction appear to be fragmented and can thus difficult to apply due to there being multiple possible fora and no hierarchy amongst them. In addition, “certain inconsistencies arise both within the Regulation itself, and when compared to other instruments, including Brussels IIa and Brussels IIa recast”.

Concerning the applicable law, which is to be determined in accordance with the Hague Protocol of 2007, the report highlights the practical difficulties experienced in respect of Article 10, concerning public authorities. One issue, the report notes, “was that the process for a public body to prove permissible representation of a creditor is sometimes lengthy and burdensome”. In addition, “if recovery is already under way for the applicant (not a public body) for unpaid maintenance, a public body can be denied legal aid given that two recoveries from the same debtor are not possible”.

As to recognition and enforcement, the study indicates that challenges have arisen in the enforcement of maintenance decisions that set the amount of maintenance obligations on the basis of a percentage of the salary of the debtor or of the requesting State’s minimum wage, but adds that, in this aspect, “a greater uptake and update of the current non-compulsory standard form on the statement of maintenance arrears created by the EJN could be recommended”. For example, “the form could also include information on how to calculate the maintenance based on the State’s minimum monthly wage”. 

The report also signal that “delays are still encountered to enforce maintenance decisions originating from Member States other than the Member State of enforcement”, which is “partly due to the obligation under Article 41 of the Regulation to afford the same conditions for enforcement in the Member State of enforcement to those decisions originating from another Member State”. In fact, if “criteria that are necessary for enforcement in some Member States are not met, this circumstance explains the delays faced for the enforcement of decisions originating from a Member State other than the Member State of enforcement”. The lack of minimum procedural harmonisation, it is contended, “also encompasses differences in the service of maintenance decisions across Member States, termination of maintenance proceedings and different practices in the recovery of lawful interests”. In the end, “a minimum harmonisation of enforcement procedures of maintenance decisions across Member States could be recommended”, in particular as concerns “the procedures for the location of the income and other financial circumstances of the debtor abroad, the possibility to access some information about the debtor, and the introduction of grounds for the suspension and the termination of the maintenance proceedings”.

Challenges (and proposals aimed to address them) are identified in the report also as regards legal aid and cooperation between authorities.

Various remarks are made concerning the interplay between the Maintenance Regulation an other instruments. It is observed, inter alia, that the Regulation and the 2007 Lugano Convention “are not sufficiently aligned, and their interaction can be complex, especially when it comes to jurisdictions rules such as in the case of choice of court agreements”. If the Regulation were to be revised, “the opportunity could be taken to abide by the 2007 Lugano Convention, especially when dealing with the application of exclusive jurisdiction clauses agreed based on the Convention”. Likewise, the Regulation “could allow the EU second seized court to decline jurisdiction in favour of the first seized non-EU court, thus ensuring the respect of the lis pendens rule of the 2007 Lugano Convention”: a recommendation would be to “draft choice of law rules that leaves less leeway for different interpretations in different States”. 

The report also stresses the benefits that (further) digitalisation in this area would provide.