EAPIL blog

Determining financial loss has become the neuralgic point of Art 7(2) Brussels Ibis and Art 4(1) Rome II Regulation. By leaving the EU, the UK has not been able to leave the issue behind. It has retained the Rome II Regulation as domestic law. Additionally, it is obliged to keep the place of damage as a criterion for determining jurisdiction under the Brussels Ibis and the Lugano Convention at least for those proceedings that started before 31 December 2020, the end of the implementation period. This means that English courts will need to continue determining the place of financial loss for a while.

Facts

A recent case, Kwok Ho Wan and Others v. UBS AG (London branch), involved a suit against a Swiss bank brought in London by an individual based in Hong Kong and two companies, one from Hong Kong and the other from the British Virgin Islands.

The subject matter was a botched investment made by the first claimant – a prominent exiled billionaire from China – into shares of a Hong Kong company via a third company, also based in Hong Kong. When entering into the investment agreement, Kwok Ho Wan allegedly relied on misstatements by UBS’ London branch – misstatements which were made in Hong Kong. The London branch of the bank had also partly financed a loan to the acquiring company via a financing and security agreements, which were subject to English law and jurisdiction.

When the investment turned south, the London branch exercised its right under the security agreement and sold the shares, resulting in a heavy loss for the claimants. Unhappy about this, they sued the Swiss bank in London.

Legal Issue and Holding

To decide whether it had jurisdiction, the Court of Appeal had to determine where the damage had occurred in accordance with Art 5(3) Lugano Convention 2007 (“Lugano II”). It held that this was in England.

Rationale

The Court of Appeal discusses the case law of the CJEU, in particular the decisions Kronhofer, Kolassa, Universal Music, Löber and VEB. After a thorough analysis, Sir Geoffrey Vos, the Master of the Rolls, writes that

I am not certain that there is any rule that is universally applicable to financial loss cases, as UBS London seeks to establish. The answer will depend on the facts of those cases as the contrast between the outcomes in Kronhofer and VEB on the one hand and Kolassa and Löber on the other hand, demonstrates. It is, in my judgment, dangerous to seek to define the test for where damage occurs in a wide range of financial loss cases, because they are likely to be so fact dependent” [at 45 and 46].

Few observers on the continent will disagree with this sober assessment.

The Swiss bank submitted that the claimants had suffered loss in Hong Kong when they had entered into the investment agreement there. Sir Geoffrey finds this approach “over technical and not appropriate in this case” [at 51]. In his view, it “puts form above substance, and places too much reliance on the shape of the pleadings” [ibid.]. Instead, an autonomous approach to Art 5(3) Lugano Convention would require an answer to “pragmatic questions”, namely where the damage manifested itself and whether there were sufficient connections to London to displace the rule that defendants have to be sued at their domicile.

He finds such connections in the present case because (1) the loss had manifested itself when the shares were sold in London (2) the loan and the security agreements “were founded” there (3) any real loss to the shares “was always likely to be suffered in London”, and (4) the Swiss domicile of the bank had no connection to the transaction “whatsoever”. As a result, the damage would have occurred in London, not in Hong Kong, and the English courts would have jurisdiction.

Assessment

It is hard to follow the arguments of the Court of Appeal. Under Kolassa, Löber and VEB, the place where the shares are listed or offered is decisive, which would be in Hong Kong. One can of course disregard this line of decisions in the present case on the grounds it does not involve issuer liability. Then, one would end up with Universal Music, which refers to the place where the disadvantageous transaction was entered into. But again, this was in Hong Kong! One way or the other, all roads therefore lead to Hong Kong and away from London.

The counterarguments of the Court are hardly convincing: (1) The sale of the shares certainly generated a loss, but this loss already existed before the sale. It would not have impacted jurisdiction if the Swiss bank had sold the shares from the botched investment e.g. in Zurich. (2) The loss resulted from the investment agreement, not from the financing and the security agreement. The fact that the latter are subject to English law and jurisdiction does not change the place of the loss resulting from the investment itself. (3) Where loss was expected to be suffered cannot impact where it was actually suffered. It was not unforeseeable either that the loss already occurred when the investment agreement was signed in Hong Kong. (4) The rule that the defendant has to be sued at the place of his or her domicile (Article 2 Lugano II) is the general rule of the Convention. It applies irrespective of whether the case has any connection to this place.

The interpretation of the Lugano Convention by the Court of Appeal is thus misconceived. While it is understandable that the English judges prefer not let a profitable case go and assume jurisdiction, one can only hope that this case was an outlier and will not be the harbinger of a larger trend of estrangement from the CJEU’s case law.

This post was written by Giesela Rühl.

The European Association of Private International Law mourns the loss of Jürgen Basedow, director emeritus of the Max Planck Institute of Comparative and International Private Law in Hamburg and one of the most influential private international law scholars of our times. He unexpectedly passed away on 6 April 2023 at the age of 73. His untimely and much too early death leaves a painful gap that cannot be filled.

Jürgen Basedow was a giant – physically (he was almost 2 meters tall) and academically. For more than 40 years he shaped discussions in private international law across the board. In numerous contributions, including his groundbreaking 2012 Hague general course on The Law of the Open Society, he provided brilliant legal analyses on a whole range of issues and redefined the frontiers of our discipline. He was also among the first to support the creation of a European association for the systematic study and development of (European) private international law. In particular, he supported the organization of the Berlin conference of 2018, where the idea to establish a European Association of Private International Law gained momentum. He was later among our first members.

Jürgen Basedow’s interest in private international law was born early in his career when he studied law in his hometown Hamburg. It led him to complement his studies through stays in Geneva (Switzerland), Pavia (Italy) and Harvard (USA). And it made him write his PhD on the recognition of divorces obtained abroad. Private International Law was also the focus of his first two professorships at the University of Augsburg and the Free University of Berlin. He was, therefore, a natural – and as it turned out brilliant – choice when the Max Planck Society had to fill the position of a director at the Max Planck Institute for Comparative and International Private Law in Hamburg in 1997. During the 20 years of his tenure, he shaped the profile of the Institute, contributed to its reputation around the world and used its enormous resources to further the study of private international law. Among others he initiated and led two working groups that commented on the European Commission’s proposals for the Rome I and Rome II Regulations. These comments substantially influenced the outcome of the negotiations and the way the two Regulations were eventually adopted.

Private international law, however, was not the only field that was shaped and influenced by Jürgen Basedow. In fact, his scholarship also covered (European) private and economic law, notably competition law, transport law, insurance law and contract law. In all these fields he left an enduring mark through his clear, matter-of-fact, yet visionary approach to law – and his always original ideas. Through the participation in various advisory committees, he also induced actual change in practice. As a member – and as a chairman – of the German Federal Monopoly Commission, for example, he (co-) authored a number of highly important opinions that dealt, among others, with the (de-) regulation of the German railroad market as well as the German energy market.

Those who knew Jürgen Basedow will remember him for many things: his brilliant mind, his originality, his enormous ability to lead and summarize complex discussions, – but also for his kindness and his humor, his work-ethic and his enormous productivity. In fact, when he retired from his position at the Max Planck Institute in 2017, he did not retire from academia. On the contrary: relieved from all administrative burden he became more active than ever, travelled the world and published, among others, a monograph on EU Private Law. At the time of his death, he was working on another monograph on uniform law – a monograph that will now remain unfinished.

With Jürgen Basedow, the Private International Law community – and legal academia as such – loses an intellectual mastermind and a great person who will be dearly missed. His legacy, however, lives on in his writings and in his numerous PhD students of whom many are teaching in Germany and elsewhere. I consider myself lucky to be one of them and will always cherish the many precious moments that I had the privilege to share with him – from our first meeting some 24 years ago in Hamburg to our last encounter in Oxford two weeks before his death.

Our thoughts are with his wife, Gesche, and his sons.

On 20 April 2023, the Court will reply to the following questions from the Tribunal de première instance de Liège (Belgium), lodged on 7 May 2021, in case C-291/21 Starkinvest, on the European Account Preservation Order Regulation:

Does a judgment which has been served, ordering a party to make a penalty payment in the event of breach of a prohibitory order, constitute a decision requiring the debtor to pay the creditor’s claim within the meaning of Article 7(2) of Regulation (EU) No 655/2014 … establishing a European Account Preservation Order procedure?

Does a judgment ordering a party to make a penalty payment, although enforceable in the country of origin, fall within the meaning of ‘judgment’ in Article 4 of Regulation No 655/2014 … where there has been no final determination of the amount in accordance with Article 55 of [the Brussels I bis Regulation]?

A summary of the factual background can be read here. In his opinion delivered on 20 October 2022, AG  Szpunar suggests the court to answer:

Article 7(2) of Regulation (EU) No 655/2014 … establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters must be interpreted as meaning that a judgment which has been served, ordering the debtor to make a penalty payment in the event of breach of a prohibitory order, does not constitute a ‘[judgment] requiring the debtor to pay [the] claim’ within the meaning of that provision, with the effect that the court hearing an application for a European Account Preservation Order sought by the creditor in order to secure payment of the claim relating to that penalty payment must verify the existence and amount of that claim.

The judgement corresponds to a chamber of five judges (S. Prechal, L. Arastey Sahún, N. Wahl, J. Passer, and F. Biltgen as reporting judge).

The decision on C-352/21 A1 et A2 (Assurance d’un bateau de plaisance) is scheduled one week later. The request from the Østre Landsret (High Court of Eastern Denmark) was lodged on 28 May 2021. In the main proceedings it is discussed whether a jurisdiction clause in an insurance contract, under which proceedings must be brought before the courts of the country of the insurance company’s domicile, can be enforced against the policyholder. The question relates to the Brussels I regulation, and reads:

“Must Article 15(5) of the Brussels I Regulation, in conjunction with Article 16(5) thereof, be interpreted as meaning that hull insurance for pleasure craft that are not used for commercial purposes falls within the exception laid down in Article 16(5) of that regulation, and is, therefore, an insurance contract which contains a choice of court agreement departing from the rule laid down in Article 11 of that regulation valid under Article 15(5) of that regulation?”

The deciding chamber is composed by judges T. von Danwitz, A. Kumin (reporting) and I. Ziemele.

On the same day, the Court will render its decision on case C-372/22 CM (Droit de visite d’un enfant ayant déménagé), on Regulation (EC) Nº 2201/2003. The request from the Tribunal d’arrondissement de Luxembourg (Luxembourg) was lodged on 9 June 2022. The national court asks:

1. Does Article 9(1) of [the Brussels II bis Regulation]  apply:

(a)    to an application to modify rights of access as defined by Article 2(10) of that regulation, made by a person granted such rights by a judicial decision which, in the interests of the children, was not to take effect until a future time, but which became final and has the status of res judicata, delivered in the State in which the children were formerly habitually resident more than four months before the application is brought before the court on the basis of Article 9(1);

(b)    so as to exclude, if it does so apply, the general rule of jurisdiction contained in Article 8 of that regulation, notwithstanding that recital 12 of that regulation states that ‘the grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity[; t]his means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s residence …’?

2. If question 1 is answered in the affirmative, does the jurisdiction which thus exists under Article 9(1) of [the Brussels II bis Regulation], which is expressed to be ‘by way of exception to Article 8’of that regulation, preclude the application of Article 15 of the same regulation, which is expressed to apply ‘by way of exception’and where it ‘is in the best interests of the child’?

In the case at hand, CM, the father, and DN, the mother, are the parents of two children born in France in 2009 and 2010. The family resided in the Paris region until 2015, when they moved to Luxembourg. By judgment of June 12, 2020, the Luxembourg District Court fixed the legal domicile and habitual residence of the children with their mother, in France, with deferred effect from August 31, 2020, and granted the father , still residing in Luxembourg, a right of access with regard to the children, according to certain terms and conditions, also with effect from August 31, 2020. The delayed effect of the change of legal domicile and habitual residence was motivated by the concern to allow children to complete their school year in Luxembourg and to affect as little as possible any plans already planned for the summer holidays.

The mother and children actually moved to France on 30 August 2020, in accordance with the judgment of 12 June 2020. On 14 October 2020, the father submitted a request to the Luxembourg District Court to modify the terms and conditions of the access rights. At that point in time, the mother had already lodged an application before the family affairs judge of the Nanterre Judicial Court (France). By judgment of 1 December 2020, the District Court of Luxembourg, in accordance with Article 19(2) of Regulation No 2201/2003, stayed the proceedings until the French court ruled on its international jurisdiction.

By judgment of 17 September 2021, the Nanterre Judicial Court (France) declared itself incompetent to rule on the mother’s claim, essentially on the ground that, in accordance with Article 9 of Regulation No 2201/2003, the father, on the one hand, had lodged its application before the Luxembourg District Court within three months following the legal removal of the children and, on the other hand, had in no way accepted the jurisdiction of the French courts.

By judgment of 3 March 2022, the Court of Appeal of Versailles (France) dismissed the appeal against that judgment lodged by the mother.

The decision corresponds to judges L.S. Rossi (reporting), J.C. Bonichot and S. Rodin.

As of today, no PIL decisions or opinions are to be published in May 2023, nor will any hearing take place. Early June AG Emiliou will deliver his opinion in C-90/22 Gjensidige, on the relationship between the Brussels I bis Regulation and the CMR Convention. On the 22 there will a hearing on C-339/22 BSH Hausgeräte, on exclusive international jurisdiction regarding patents.

The Institute of International Shipping and Trade Law (Swansea University) and UCL Centre for Commercial Law have joined forces to organise a day event on 19 April 2023 at the UCL Faculty of Laws in London. The conference is devoted to a very contemporary topic with the objective of generating debates that can inform policy making and future direction of law and regulation in the green transition of the shipping industry.

Session chairs include Michael Biltoo and Cathal Leigh-Doyle. The list of speakers includes Lia Amaxilati, Lia Athanasiou, Simon Baughen, Gabriel Castellanos, Grant Hunter, Jolien Kruit, Alicia Mackenzie, Aygun Mammadzada, Melis Ozdel, Tristan Smith, Sam Strivens, B. Soyer, Andrew Tettenborn, Vibe Garf Ulfbeck and Haris Zografakis.

For further info on the conference, and in order to book your place, see here.

Readers of this blog are aware that an EAPIL Working Group has been set to reflect on the reform of the Brussels I bis Regulation. A survey has been launched to collect feedback and comments on the proposals included in the Working Group’s preliminary position paper (see further here and here). Those wishing to share their views are invited to take the survey by 15 April 2023.

Participation in the survey is opened to anybody familiar with Brussels I bis, regardless of their membership in the European Association of Private International Law.

The members of the Working Group are eager to know about the opinion of scholars and practitioners both  on the operation of the Regulation and on the improvements proposed by the Group.

All the received input is valuable for the work that is being done in preparation of the Brussels I bis Reform. Warm thanks to those who have already provided their feedback and to those who plan to so in the next few hours!

As announced on this blog, a series of webinar has been organised under the title The Future of Cross-Border Parenthood in the EU – Analyzing the EU Parenthood Proposal to discuss the issues that surround the proposal of the European Commission for a Regulation dealing with the private international law of parenthood (COM (2022) 695 final).

Registrations are now open through the form available here.

Each webinar will start at 6 pm and end at 8 pm, and will focus on two topics, each presented by one expert, who will discuss the content of the proposal and examine the questions and possible improvement it raises. There will be ample room for discussion.

The programme of the series is as follows:

• 3 May 2023, webinar chaired by Claire Fenton-Glynn: The EU Proposal on Parenthood: lessons from comparative and substantive law (Jens Scherpe), and What’s in it? Subject matter, scope and definitions (Cristina González Beilfuss)
• 10 May 2023, webinar chaired by Fabienne Jault-Seseke: The EU Proposal and primary EU law: a match made in heaven? (Susanne Gössl), and The law governing parenthood: are you my father? (Tobías Helms)
• 17 May 2023, webinar chaired by Nadia Rustinova: The mutual recognition of decisions under the EU Proposal: much ado about nothing? (Alina Ontanu), and Who decides on parenthood? The rules of jurisdiction (Maria Caterina Baruffi)
• 24 May 2023, webinar chaired by Steven Heylen: Authentic documents and parenthood: between recognition and acceptance (Patrick Wautelet), and The European certificate of Parenthood: a passport for parents and children? (Ilaria Pretelli)

The series of webinars is organized by Cristina González Beilfuss (Universitat de Barcelona), Susanne Gössl (Universität Bonn), Ilaria Pretelli (Institut Suisse de Droit Comparé), Tobias Helms (Universität Marburg) and Patrick Wautelet (Université de Liège) under the auspices and with the support of EAPIL, the European Association of Private International Law.

Attendance is free, but prior registration is required.

On 6 December 2022, the European Court of Human Rights (ECtHR) ruled in the Danish surrogacy case of K.K. and Others v. Denmark.

In a 4–3 judgment, the ECtHR held that Denmark violated the rights enshrined in Article 8 of the European Convention on Human Rights (ECHR), as claimed by  two children born through a commercial surrogacy arrangement in Ukraine, by not recognizing their intended Danish mother as a legal parent. However, the three dissenting judges held that there was no violation of Article 8 in the circumstances. According to the minority, a State must be able to have a policy opposing commercial surrogacy arrangements. They emphasized that Denmark recognized the legal relationship between the father and the children.

In December 2013, twins were born by a surrogate mother in Ukraine after a commercial arrangement. Ukrainian authorities issued birth certificates for the children. In the birth certificates, a Danish wife and husband were registered as mother and father. Upon their return to Denmark, the Danish authorities refused to recognize the Danish woman named in the birth certificate as a legal parent under Danish law, as she had not given birth to the children. The father was recognized, as he indeed was the biological father of the children. Due to their family connection to the father, the twins obtained Danish citizenship.

The woman continued her struggle with the Danish authorities to become registered as mother of the twins. Shortly after the refusal to recognize her as a mother, she was granted joint custody of the children together with the father. To become a legal parent, she applied for adoption of the children as a step-mother. That application was processed in different Danish authorities and court procedures for more than six years. Eventually, the Danish Supreme Court held that adoption would be contrary to Section 15 of the Danish Adoption Act as the Ukrainian surrogate mother had received remuneration.

The woman and the father filed an application to the ECtHR, claiming that their rights to a family life under article 8 of the ECHR had been violated.

The ECtHR found, with smallest possible majority, that Denmark had violated the family rights of the two children who were also applicants in the case. In its judgment, the ECtHR referred to the principles primarily set out in the landmark judgments Mennesson and Paradiso and Campanelli. Those principles, which were effectively summarized in the ECtHR’s 2019 advisory opinion, can be said to indicate that article 8 of the ECHR, read in the light of the principle of “the best interests of the child,” protects the rights of children produced through surrogacy. Non-recognition of a parent-child relationship is therefore a violation of the children’s article 8 rights. Following those principles, the ECtHR held that Denmark did not violate article 8 in relation to the woman by not recognizing a legal parent-child relationship. However, the children’s rights under article 8 were violated by not having their relationship to the intended mother recognized. In its conclusion, the court stressed that it was in the best interests of the children to have the legal relationship recognized.

It is noteworthy that the judgment was a close call for the applicants. Only four of seven judges voted for the judgment. In stark contrast to the majority, the remaining three judges’ joint dissenting opinion was that Denmark had not violated any ECHR rights at all. Emphasizing that there is no consensus within the member states of the Council of Europe on the sensitive matter of commercial surrogacy, the dissenters initially held that there must be a margin of appreciation for states to strike a balance between private and public interests or convention rights. According to the minority, the judgment “practically eliminate[s] altogether, in substance, the margin of appreciation” for foreign commercial surrogacy arrangements. The minority also questioned the majority’s application of the principle of the best interests of the child. In the judgment, it is held that the best interests of the children are “paramount”. For its part, the dissenting opinion states that the best interests of the children shall be a “primary consideration” which is the standard set out in international law.

It is illustrative of the split opinions that the judgment only gathered the narrowest possible majority. For states opposed to commercial surrogacy arrangements, there seems to be very few tools in the toolbox. On the other hand, it is clear how hughly the best interests of the child are valued. For the time being, it seems hard to bridge the differing values underlying the judgment’s majority opinion and the dissenting minority opinion, respectively.

Tobias Lutzi (Junior Professor for Private Law at the University of Augsburg) made available on SSRN a pre-print short contribution that is forthcoming in Dalloz IP/IT entitled The Scope of the Digital Services Act and Digital Markets Act: Thoughts on the Conflict of Laws.

The abstract reads as follows:

The DSA and the DMA both define their territorial scope of application through a unilateral conflicts rule following a marketplace approach; but they remain silent on any other question of private international law. This paper will explain why this provides an unsatisfactory answer to the many problems arising out of the inevitable overlaps of national laws in the digital space, including in areas that will soon be governed by the two new regulations. While this approach appears to be part of a wider trend to delegate any question of private international law other than the definition of an instrument’s territorial scope to the general instruments that exist in that area, this paper will argue that a true ‘Digital Single Market’ can only be achieved by addressing the specific challenges it raises for private international law through multilateral conflicts rules.

The points this contribution raises are valuable as they bring to the forefront some of the challenges digital technology is posing for users and the EU internal market when dealing with cross-border aspects. As the DSA and DMA do not contain dedicated private international law rules addressing jurisdiction and matters of applicable law, the challenge remains with private international law instruments. Hopefully, contributions such as these can play a valuable role in raising awareness as to the importance of dedicated rules and mechanisms to be added in the process of review of the EU private international law instruments. In this way a ‘missed opportunity’ may turn into a broader gain for the Digital Single Market from a Private International Law perspective.

Mediation has acquired a growing and unstoppable implantation during the last years, becoming an alternative dispute mechanism for the resolution of international disputes in civil and commercial matters with a great impact on the comparative and international arena. As a result, the normative responses that have been developed to face the challenges generated by the organisation of cross-border mediation have been successive in recent years, both at national and regional level. However, it was not until recently that the international legislator paid attention to this matter. In this framework, the publication of the United Nations Convention on International Settlement Agreements resulting from Mediation (Singapore Convention) constitutes a significant step forward in this direction.

Undoubtedly, one of the major practical difficulties raised by the implementation of mediation to resolve international commercial disputes lays with the cross border enforcement of the agreements resulting from it. Hence the logical aspiration to provide mediation with an international regulatory framework of multilateral origin favoring the international circulation of the agreements resulting from a mediation procedure. This ambition culminated finally in the approval of the Singapore Convention, whose negotiation was not, however, a simple task, but rather plagued by obstacles and complications.

The Singapore Convention represents an outstanding conventional instrument, drawn up within the United Nations Commission on International Trade Law (UNCITRAL), approved by Resolution of the General Assembly of the United Nations (UN) on 20 December 2018; its adoption was accompanied by the publication of the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, 2018 (amending the UNCITRAL Model Law on International Commercial Conciliation, 2002). Consequently, the approval and entry into force of the Singapore Convention, on 12 September 2020, is of an extraordinary importance for the global development and promotion of mediation, since it is the first conventional instrument drawn up in this field by the UNCITRAL –and which has already been ratified by 10 States, Parties to the Convention-.

The Singapore Convention constitutes a concise text (with 16 articles), endowed with great flexibility and a clear functional character. Resulting from a high level of compromise, this UNCITRAL Convention not only builds on its precedents and normative models – mainly the 1958 New York Convention on international arbitration – but also offers novel responses and a uniquely advanced circulation model aiming at solving the main obstacle for mediation practitioners: the international effectiveness of mediation agreements.

A timely Commentary, edited by Guillermo Palao Moreno (Professor of Private International Law, University of Valencia) and published by Edward Elgar in its Commentaries in Private International Law Series, offers academics and practitioners an article-by-article examination of the Singapore Convention, as well as insights into the negotiation process through which the Convention was developed.

It provides deep theoretical and practical analysis of the Convention and its consequences for the promotion of mediation as a mechanism to solve commercial conflicts with a cross-border character. In particular, this work includes a comparative approach with perspectives from five continents and a variety of legal traditions, a critical discussion of every stage from the negotiation to the conclusion of the Convention, with proposals for the Convention’s implementation and application by States and regional organisations. A particular feature of the work is that it provides contributions of a diverse group of leading practitioners and academics from diverse legal backgrounds and jurisdictions, including some who participated of the negotiation of the Singapore Convention itself.

Contributors to the commentary include Itai Apter, Gabriela Balseca, Roni Ben David, Ximena Bustamante, Pablo Cortés, Stefano Dominelli, Carlos Esplugues, Nuria González Martín, Mark T. Kawakami, Gyooho Lee, Dulce Lopes, Peter Mankowski, Théophile M. Margellos, Cedr Mciarb, Achille Ngwanza, Guillermo Palao, Afonso Patrão, Ilaria Queirolo, Valesca Raizer Borges Moschen, S.I. Strong, Sven Stürmann, Dai Yokomizo

See here for the table of contents.

El Tribunal de Justicia de la Unión Europea y el Derecho Internacional Privado (The Court of Justice of the European Union and Private International Law), is a compilation of essays conceived to pay a tribute to the lawyers who dreamed of a European society where people could freely move and circulate among Member States.

Since the Brussels Convention of 27 September 1968, the Court of Justice of the European Union has interpreted, applied and complemented the rules of European private international law with a ‘fist of iron’ and ‘kid gloves’. It has been a legislating court when needed. It has carried out a European reading of European rules against the pro lex fori vagaries of certain Member States. It has shown the way to follow so that the European Union is more than a political sum of States. The Court of Justice of the European Union has believed in Europe. It has believed in free movement and in the freedom of people. The outcome of its work in this regard is inconmensurable.

The book brings together 22 studies devoted to the work of the Court of Justice in the field of European private international law. The Court’s case law is thoroughly examined in individual chapters addressing the EU Regulations on judicial cooperation in civil matters: the Brussels I-bis Regulation (international contracts, non-contractual obligations, express and tacit submission of the parties, exclusive jurisdiction, consumer and employment contracts, and free movement of judgments), the Brussels Ia Regulation (divorce disputes, disputes concerning children), the Rome III Regulation, the Maintenance, European Insolvency and European Succession Regulations, the Service and Evidence Regulations, the Regulation on the European Enforcement Order and the Regulation on the European Account Preservation Order, and the Regulations on European Order for Payment and Small Claims. In addition, it explores as well the principle of mutual recognition, PIL aspects of company law, the free movement of lawyers in the European Union and issues of family reunification.

The book can thus be described as a compilation of research, reflections and comments on the main contributions of the Court of Justice of the European Union in its interpretative, enforcement and regulatory work on European private international law. The Court’s input in the most representative sectors of European private international law is analysed in depth with a view to explaining its contribution to the building of the European system of private international law. In this sense, it is a very useful book for both theoretical and practical purposes – for, as it is well known, law reigns, but case law governs. Those who know jurisprudence master the law; and by mastering the law they dominate the world of private international law. In this way, the dream of creating a free Europe for free people can become a reality.

El Tribunal de Justicia de la Unión Europea y el Derecho Internacional Privado, edited by A.-L. Calvo Caravaca and J. Carrascosa González, Aranzadi, Pamplona, 2021, ISBN: 978-84-1345-495-5, 630 pp.; see here the table of contents.

Aukje van Hoek (Professor of Private International Law and Civil Procedure at the University of Amsterdam, The Netherlands) has made available on SSRN a new research paper dedicated to Teaching Private International Law – A View From the Netherlands. A version of this paper is a forthcoming publication in Xandra Kramer and Laura Carballo Piñeiro, Research Methods in Private International Law, a Handbook (Edward Elgar).

This paper is very interesting for those teaching Private International Law around the world as it provides an insight into how the topic is approached and what choices are made for students in the Netherlands in familiarising them with a topic that is reputably very technical and relying on various layers of rules – national, European, and international. Although the context may be very different from the European one, such contributions can be a point of inspiration for other colleagues tackling this topic for their students around the world, not only on the topic of Private International Law itself, but also on the pedagogical approach to teaching and evaluating the students in line with the objectives of the course.

The abstract of the contribution reads as following:

This contribution discusses the choices facing academics who teach private international law. It builds on the theory of constructive alignment – a theory which is explained in paragraph 3. The author demonstrates that in order to reach depth of understanding, choices have to be made as to the comprehensiveness of topics to be discussed. In paragraph 4 to 6 the author describes different approaches to the teaching of private international law and the concurrent choices as to topics to be discussed and materials to be used. Which choices are eventually made when developing a specific course, will depend on the staff teaching the course and the ‘Umfeld’ in which the course is situated. This Umfeld consist of the societal context, the sources of private international law which are relevant in practice, the overall university system and the programme goals toward which the course contributes.

The author of this post is Uglješa Grušić, Associate Professor, Faculty of Laws, University College London.

As has already been reported on this blog, on 29 March 2023 the European Commission published a study to support the preparation of a report on the application of the Brussels I bis Regulation. This is an important and potentially very influential document.

It is because of its importance and potential influence that I want to share my disappointment with the part of the study that deals with jurisdiction in employment matters (pp 165-171). This part of the study contains some obvious mistakes and omissions.

Let me turn first to the mistakes. The study says this about the comparison between the 2012 Brussels I bis Regulation and the 2001 Brussels I Regulation on p 165:

[Section 5 of Chapter II] remains substantially the same in the Brussels Ia Regulation, with a small change in Article 20(1) (previously Article 18(1)), to which was added ‘(…) in the case of proceedings brought against an employer, point 1 of Article 8’. This insertion clarifies rather than changes the Article’s scope of application.

The study makes the same point on p 166:

The Regulation remains unchanged regarding the provisions addressing jurisdiction relating to individual employment contracts, except for an alteration inserted in Article 20(1).

These statements are not entirely correct. In addition to specifying that employees can join third parties pursuant to Article 8(1), the Brussels I bis Regulation introduces one further novelty in Section 5 of Chapter II. This novelty is the rule in Article 21(2), which provides that an employer not domiciled in a Member State may be sued in a court of a Member State in accordance with Article 21(1)(b), that is, in the courts for the habitual place of work if the habitual place of work is in the EU or, in the absence of the habitual place of work, in the courts for the engaging place of business if the engaging place of business is in the EU.

Another, seemingly innocuous mistake is the wrong citation of an academic commentary on which the authors of this part of the study heavily rely, namely Louse Merrett’s chapter on ‘Jurisdiction over Individual Contracts of Employment’ in Dickinson and Lein’s edited collection on the Brussels I bis Regulation. The mistake in the citation is that Merrett’s chapter was not published in 2020, as the study says, but in 2015. The relevance of this mistake lies in the fact that the authors of this part of the study rely on Merrett’s chapter as supporting the claims made on p 166 that the “concerned parties are satisfied with the solutions adopted and its application in practice through court judgments” and that “[t]here is little case-law related to jurisdiction on individual employment contracts, suggesting that this section has not been subject to much litigation”. Misciting Merrett’s chapter creates a wrong sense of complacency: if a leading scholar writes in a piece published relatively recently that Section 5 of Chapter II works well and there is little case-law, then the implication is that the European Commission need not worry too much about this part of the Brussels I bis Regulation. The problem, however, is that Merrett’s chapter was published in 2015, the same year when this regulation started to apply, and a lot has happened since then.

This brings me to the omissions. The study was completed in January 2023 and was published on 29 March 2023. The study was largely informed by the case law of the CJEU. The problem with the part of the study that deals with jurisdiction in employment matters is that it was outdated the moment it was completed because the authors did not take into account the controversial judgment in ROI Land Investments Ltd v FD that was handed down on 20 October 2022.

While persons domiciled outside the EU can, generally speaking, be sued in the Member State courts under national jurisdictional rules (Article 6(1)), employers domiciled outside the EU can only be sued in the courts for the habitual place of work or, absent a habitual place of work, in the courts for the engaging place of business if the habitual place of work/engaging place of business is located in the EU. The CJEU has clarified in ROI Land Investments Ltd v FDthat, if the habitual place of work/engaging place of business is located in the EU, employers domiciled outside the EU cannot be sued in the Member State courts under national jurisdictional rules. This makes little sense from the perspective of employee protection. As Recital 18 states, ‘[i]n relation to…employment contracts, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules.” ROI Land Investments Ltd v FD achieves the opposite effect.

The purpose of this post is to indicate that there are deficiencies in the part of the study that deals with jurisdiction in employment matters. Consequently, the European Commission should approach this part of the study with care and look at other sources when preparing its report on the application of Section 5 of Chapter II.

For what it’s worth, I have already shared on this blog my proposals for reform of this part of the regulation.

On 26 May 2023 the Center for the Future of Dispute Resolution (Ghent Univeristy) in collaboration with leading organizations, including ArbTech, Arbitrate.com, Cepani, Cepani40 CyberArb, MetaverseLegal, and UNCITRAL will bring together leading voices in technology and dispute resolution to discuss how blockchain, the metaverse and Web3 affects and will transform arbitration

The conference proposes five panels that will debate the impact of the blockchain, the metaverse and Web3 technologies on the fundamentals of arbitration and explore how arbitration practitioners and arbitration institutions have to adjust to stay relevant.

The blockchain, the Metaverse, and Web3 have become part of the conversation in the arbitration community, but few understand their true significance and potential impact. That is why this conference aims to explore how these technologies will transform arbitration and how practitioners and institutions can adapt to stay relevant.

The questions to be addressed are:

• Blockchain: what is it and (why) should the arbitration community care?
• Metaverse: what is it and (why) should the arbitration community care?
• Bringing down the house: How a new architecture (may) affect the fundamentals of arbitration
• A role and place for lawyers: Is the legal market prepared for this new dispute resolution constellation?
• Arbitration institutions in an era of decentralized spaces: on the cutting edge (or falling off)?

Additionally, UNCITRAL will present its insights and work in the area of blockchain and arbitration.

The list of confirmed speakers includes Mihaela Apostel, Pedro Arcoverde, Elizabeth Chan, Paul Cohen, Dirk De Meulemeester, David Earnest, Elizabeth Zoe Everson, Anna Guillard Sazhko, Wendy Gonzales, Emily Hay, Cemre Kadioglu Kumptepe, Crenguta Leaua, Matthias Lehman, Niamh Leinwather, Aija Lejniece, Maud Piers, Colin Rule, Sean McCarthy, Sophie Nappert, Ekaterina Oger Grivnova, Pietro Ortolani, Amy Schmitz, Takashi Takashima, David Tebel, Leandro Toscano, and Dirk Van Gerven.

The conference will take place at Ghent University (Belgium). Additional details related to the event and the speakers can be found here.

For registration, information can be found here.

On 9 March 2022, the CJEU ruled on the concept of “consumer” under Article 17(1)(c) of Brussels I bis Regulation (Wurth Automotive, Case C-177/22).

According to the CJEU, national court may take into account the “impression” created by a person’s conduct towards the other contracting party in order to deny the former consumer status. Behaving like a trader may therefore lead to the consumer being deprived of his/her procedural protection provided by Brussels I bis Regulation, Section 4. Although this solution is already found in the Gruber judgment (paras 51-52), the facts of this new case are quite different. It is therefore questionable whether the analogical reasoning followed by the Court is fully justified.

A person, domiciled in Austria bought a second-hand car over the Internet from a German seller. In practice, however, she had asked her partner, a provider of an online car sales platform, to handle the purchase for her. The contract mentioned that it was concluded between the buyer, described as a “trader” and the German seller. The buyer did not ask for any modification. A few months later, she brought an action for warranty of hidden defects against the German seller before the Austrian court.

Did the Austrian court have jurisdiction based on the consumer’s domicile pursuant to Article 18(1) Brussels I bis Regulation?  And to begin with, was there a “consumer” at all?

The German seller argued that the contract was a B2B contract and raised an objection to international jurisdiction. The Austrian court referred the matter to the Court of Justice to find out how to overcome the factual uncertainties surrounding the characterisation of the “consumer” in this case.

As recalled by the CJEU, the concept of consumer within the meaning of Article 17(1) of the Brussels I bis Regulation is based on the purposes (present or future) pursued by the conclusion of the contract. These purposes must be (for the most part) private or, put differently, for non-business use. The rest, in particular the professional status of the person (i.e., whether the person is employed or self-employed) does not matter. In the present case, the buyer was the regular web designer for her partner’s online car sales platform. The only question to be analysed by the referring court here is therefore whether this car was purchased for personal purposes or (mainly) for the pursuit of a professional activity.

In order to ascertain the private purposes of the contract, the national court must first and foremost rely on the evidence which objectively results from the case in question. But what if this evidence is insufficient? According to the CJEU, the national court may take into account more subjective, “psychological” elements, by checking whether the alleged consumer’s behaviour gave the impression to the other party (i.e. the trader) that she was acting for business purposes.

Consequently, the Court of justice held that

even if the contract does not as such serve a non-negligible business purpose, … the individual must be regarded, in view of the impression he or she has given to the other party acting in good faith, as having renounced the protection afforded by those provisions (para 32, by analogy, Gruber, C‑464/01, para 53).

Hence, a B2C dispute can be removed from Section 4 of Brussels I bis Regulation by a form of “implied waiver” by the consumer.

In order to assess the behaviour of the buyer, the national court must rely on a body of evidence showing “the impression created by that person’s conduct on the other contracting party” (Section 2 of the operative part). In the case at hand, this impression could be revealed (inter alia) by a lack of a reaction on the part of the person relying on the status of consumer to the terms of the contract designating him or her as a trader, by the fact that she had concluded the contract through a professional intermediary in the field of covered by the contract (her partner) or by the fact that, after the contract was signed, the latter had asked the seller about the possibility of mentioning the VAT on the invoice (Section 2 of the operative part).

In addition, where it proves impossible to determine certain circumstances surrounding the conclusion of a contract, the national court must assess the evidentiary value of the available information “in accordance with the rules of national law, including whether the benefit of the doubt must be given to the person relying on the status of consumer” (Section 3 of the operative part). This is a classic expression of procedural autonomy in EU law. Even though the “consumer” within the meaning of Article 17 of the Brussels I bis Regulation is an autonomous concept of EU law, the national court’s assessment shall be based on the lex fori (within the limits of the principles of equivalence and effectiveness).

In contrast to the Gruber judgment, the present case did not involve a contract with a twofold private and professional purpose. It was thus not a question of assessing the “non-negligible business purpose” of the contract in order to exclude consumer procedural protection. Therefore, the consideration of the behaviour of the consumer acting as a trader does not have the same scope here as in Gruber. The CJEU is certainly aware of this since it insists on the “good faith” of the professional contractual party as a counterbalance (paras 34 and 37). The good faith of the other party is a necessary condition for denying the consumer his/her procedural protective regime, whereas in theory he/she should be entitled to it in the case of a contract concluded for entirely private purposes.

The implicit reason why the consumer may lose procedural protection is that traders need legal certainty in contractual matters. Either they are dealing with a consumer and they know (and can anticipate) that the consumer enjoys a favourable regime. Or they are doing business with a partner of their own category and party autonomy fully applies. Vis-à-vis a careless or negligent consumer who, inter alia, did not deny entering into the contract as a “trader”, it can be considered that his/her professional co-contracting party was not able to anticipate and integrate the “risk” of concluding a contract with a weaker party.

From a rational point of view, the solution can be approved. But based on the functional logic of consumerism, offering a derogatory regime to protect the weaker party, one may have a doubt. Was the poker player in the judgment Personal Exchange International (analysed here) more of a consumer than this buyer of a second-hand car? The methodology provided by the Court of Justice is not easy to handle and implies a tricky case-by-case analysis. It is therefore not sure that in the end legal certainty will really be strengthened.

The desirability of adopting a French code of private international law in a field dominated by EU law is hotly debated in France.

In October 2022, the French Committee of Private International Law hosted a conference on the project. The text of the presentations is freely available here. The presentations were followed by a Q&A session where a number of French scholars expressed their criticism of the draft code and indeed of the entire project. The drafters of the code have since then responded in writing to these critiques.

Some of the criticisms voiced during this conference were since then published. They include an article by Dominique Bureau and Horatia Muir Watt and an article by Louis d’Avout.

The European Commission has published, on 29 March 2023, a Study to support the preparation of a report on the application of the Brussels I bis Regulation, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

The blurb reads as follows.

Regulation 1215/2012 (Brussels Ia Regulation) was adopted on 12 December 2012, entered into force on 9 January 2013, and started to apply from 10 January 2015 onwards. It aims to establish a uniform and comprehensive set of rules governing jurisdiction and the recognition and enforcement of judgments in cross-border civil and commercial matters. The scope of the Regulation encompasses a wide range of civil and commercial matters, including insurance, consumer, and employment contracts. It applies in all EU Member States. Since the adoption of the Regulation, several developments, such as the case-law of the CJEU, increased worker mobility, digitalisation, the adoption of new international instruments in the field of private international law (PIL) (such as the 2019 Hague Judgments Convention), the adoption of other EU instruments providing for PIL rules applicable in civil and commercial cross-border matters (such as the Maintenance Regulation or the Insolvency Regulation) are likely to have had an impact on its operation. In this context, the objective of the Study is to assist the Commission in preparing the report on the application of the Brussels Ia Regulation (as provided under its Article 79), and to provide a thorough legal analysis of the application of the Brussels Ia Regulation in the Member States. In particular, the Study aims to determine whether the Regulation is correctly applied in the Member States and to identify specific difficulties encountered in practice. The Study also aims to assess whether recent socioeconomic changes pose challenges to the application of Brussels Ia Regulation’s rules, definitions, and connecting factors. The analysis – based on desk research, CJEU and national case-law analysis and interviews at both the EU and national levels – covers 34 questions on the main legal and practical issues and questions arising from the application of the Brussels Ia Regulation.

The study, written by Milieu, is based on advice provided by Pedro de Miguel Asensio and Geert Van Calster, and draws on input from a team of national experts including Florian Heindler and  Markus Schober, Michiel Poesen, Dafina Sarbinova, Christiana Markou, Hana Špániková, Bettina Rentsch and Maren Vogel, Morten M. Fogt, Thomas Hoffmann and Karine Veersalu, Argyro Kepesidi Eduardo Álvarez-Armas, Katja Karjalainen, Virginie Rouas, Ivan Tot, Tamás Fézer, William Binchy, Laura Carpaneto and Stefano Dominelli, Yvonne Goldammer and Arnas Stonys, Vincent Richard, Aleksandrs Fillers, Emma Psaila, Kirsten Henckel, Anna Wysocka-Bar, Maria João E. de Matias Fernandes, Sergiu Popovici, David Jackson, Ela Omersa, and Natalia Mansella.

The report can be found here.

As many readers of the blog surely know already, the Unified Patent Court Agreement (UPC Agreement) will enter into force on 1 June 2023.

With this in mind, a 3-month Sunrise period started on 1 March 2023. From that date, an opt-out from the jurisdiction of the Court, as laid down in Article 83(3) of the UPC Agreement, can be filed. According to the provision, applicants for and proprietors of a “classic” European patent, as well as holders of a supplementary protection certificate (SPC) issued for a product protected by a “classic” European patent, can opt out their application, patent or SPC from the exclusive competence of the Court. As a result, the UPC will have no jurisdiction concerning any litigation related to this application, patent or SPC. The application to opt out can only be made via the Case Management System of the Court (CMS); the conditions are explained here. It should be noted that the opt-out will only become effective on the date of entry into force of the Agreement on a Unified Patent Court.

Filing a request to become a representative before the UPC, as per Article 48 of the Agreement, is also possible since 1 March 2023. Two categories are eligible to become representative before the UPC: lawyers authorised to practice before a court of a Contracting Member State  (Article 48(1) UPCA) and European Patent Attorneys who are entitled to act as professional representatives before the European Patent Office and who have appropriate qualifications as per Article 48(2) UPCA and the European Patent Litigation Certificate Rules.

The first experiences with the live version of the Court’s Case Management System (CMS) have just been reported by the Registrar (a week before, Luxembourg launched a call for applications for administrative support staff at the Registry and Court of Appeal of the Unified Patent Court in Luxembourg, deadline ending soon, in case of interest. Other vacancies are posted here).

Just for the record: 24 EU Member States have signed the Agreement on a Unified Patent Court (Spain, Poland and Croatia have not). Initially, the UPCA will be in force in 17 states which have ratified the Agreement (Cyprus, Czech Republic, Greece, Hungary, Ireland, Romania, Slovakia have not). The unitary patent is the outcome of enhanced cooperation procedure; it was established via Regulation No 1257/2012 of 17 December 2012. In 2014, Regulation No 542/2014 was adopted amending Regulation No 1215/2012 as regards the rules on jurisdiction to be applied with respect to the Unified Patent Court (see consolidated version of the latter Regulation, whose Article 24(4) will still remain in force after 1 June 2023, albeit with a more limited scope of application).

The European Commission has published in December 2022 an ambitious proposal for a new Regulation dealing with the private international law of parenthood (COM (2022) 695 final).

With this proposal, the EU could for the first time adopt a private international law instrument dealing with the creation (and not only the effects) of a family status. While both the CJEU and the ECtHR have somewhat limited the freedom enjoyed by States faced with parenthood established abroad, there is not yet any precedent of an international instrument dealing with all issues arising when parenthood crosses national borders.

The proposal is currently being discussed in the Council, with the assistance of the Commission. There is no guarantee that a Regulation will effectively be adopted. Nor is it possible to tell at this stage how much a future Regulation will deviate from the proposal.

The proposal raises, however, many intriguing questions which are likely to trigger an intense debate. It offers a unique opportunity to discuss the private international law treatment of parenthood with a special focus on the proposal.

During four sessions in May 2023, experts from various Member States will discuss the main elements of the proposal, find weaknesses and possibilities of improvement. Each webinar will start at 6 pm and end at 8 pm, and focus on two topics, each presented by one expert, who will discuss the content of the proposal and examine the questions and possible improvement it raises. There will be ample room for discussion.

The programme of the series is as follows:

• 3 May 2023, webinar chaired by Claire Fenton-Glynn: The EU Proposal on Parenthood: lessons from comparative and substantive law (Jens Scherpe), and What’s in it? Subject matter, scope and definitions (Cristina González Beilfuss)
• 10 May 2023, webinar chaired by Fabienne Jault-Seseke: The EU Proposal and primary EU law: a match made in heaven? (Susanne Gössl), and The law governing parenthood: are you my father? (Tobías Helms)
• 17 May 2023, webinar chaired by Nadia Rustinova: The mutual recognition of decisions under the EU Proposal: much ado about nothing? (Alina Ontanu), and Who decides on parenthood? The rules of jurisdiction (Maria Caterina Baruffi)
• 24 May 2023, webinar chaired by Steven Heylen: Authentic documents and parenthood: between recognition and acceptance (Patrick Wautelet), and The European certificate of Parenthood: a passport for parents and children? (Ilaria Pretelli)

The series of webinars is organized by Cristina González Beilfuss (Universitat de Barcelona), Susanne Gössl (Universität Bonn), Ilaria Pretelli (Institut Suisse de Droit Comparé), Tobias Helms (Universität Marburg) and Patrick Wautelet (Université de Liège) under the auspices and with the support of EAPIL, the European Association of Private International Law.

A post on this blog will announce the opening of registrations in mid-April 2023 and provide further details.

For inquiries, please contact sgoessl@uni-bonn.de.

“A rose is a rose is a rose”, goes the famous quote. It indicates a basic, intuitive truth: the words we use to designate things usually have the ability to evoke a specific imagery and the mainstream understanding of the “essence” of such things. Usually: this specification is essential in current EU private international law (EUPIL), which is based on judicial cooperation – and therefore communication – among 27 different legal systems, with all the difficulties this might entail. In particular, in this Tower of Babbel of legal languages, some of the legal concepts used by uniform EUPIL Regulations may carry an avoidable ambiguity and present problematic gray areas, where “a rose” might intuitively be “a rose” for some Member States, while appearing like a totally different exotic flower to the eyes of others.

This post focuses on the problems raised by the notions of “judgment” or “decision”, which are in turn strictly linked to the notion of “court”. In this respect, the principle of autonomous interpretation of EUPIL concepts, as established by the CJEU since 1976, seems to have undergone a certain evolution, and more recent case law has lent a remarkably multifaceted character to the interpretive approach to shape the meaning of those notions.  The preliminary ruling handed down by the CJEU on 15th November 2022 in C-646/20, Senatsverwaltung für Inneres und Sport, as well as the fact of this case, are particularly relevant for this purpose.

The uncertainties surrounding the meaning of the notion of “judgment” in EUPIL stem from two main factors.

The first trigger lies in the limited competences of the EU, whose legislative action is bound by the principles of conferral, subsidiarity and proportionality. As a result, large areas of the Member States’ private and procedural laws remain, to the present days, untouched by the process of EU harmonization or approximation, with domestic legislators maintaining high degrees of discretion in shaping their internal laws. This is not necessarily a problem for private international law (PIL), whose raison d’être is, precisely, legal diversity. The problem of characterisation – ie the alternative between lege fori and lege causae – is a leitmotif of PIL and has engaged scholars over centuries. The “real problem” arises when EU law forces the private international lawyer to think out of the box of this traditional alternative, with the CJEU having since long established that, in interpreting the legal notions used by EUPIL instruments, “reference must be made not to the law of one of the States concerned but, first, to the objectives and scheme of [each instrument] and, secondly, to the general principles which stem from the corpus of the national legal systems’. This is the famous LTU v Eurocontrol principle, set out by case 29/76, § 3. I will come back to this principle in a moment.

The second trigger of said “communication difficulties” is inherent to, and exacerbated by, the current structure of EU law in general, and of EUPIL in particular. In the latter, the EU legislator has notably adopted a piecemeal approach to harmonization. As a result, EUPIL is composed by a wide array of subject-specific Regulations, each having a limited material scope of application and covering a particular sub-area of civil law. While the legal notions used across different EUPIL instruments could, in principle, profit from the principle of inter-textual interpretation to receive similar meanings (cf Recitals 7 of the Rome I and Rome II Regulations), the CJEU has warned against a too liberal use if this approach. In C-45/13, Kainz, the Court held that the objective of consistency cannot, in any event, lead to interpreting the notions used by a specific Regulation in a manner which is unconnected to the scheme and objectives pursued by the concerned instrument (§ 20). This is to say that the meaning of uniform legal concepts used by several EU law Regulations could undergo important sectoral variations in accordance with the specific material scope, scheme of objectives of each of them.

This problem acquires a particular importance in relation to some notions, such as the concept of “judgment”, that are used cross-cuttingly by almost all EUPIL Regulations. In a previous post, I pointed to the ambiguity of the term ‘court’ and to the different drafting techniques (and wordings) adopted by the EU legislator with respect to statutory definitions thereof. The same reasoning could be extended to the (bordering) notions of ‘judgment’ or ‘decisions’. The CJEU acknowledged the disrupting effect of these two triggers in a judgment rendered in April 2022, where it remarked that, owing to the limited (material) scope of application of EUPIL Regulations, and lacking a complete unification of Member States’ laws, ‘certain types of proceedings and court judgments in one Member State do not necessarily have an equivalent in the other Member States’ (Case C-568/20, H Limited, commented on this blog here and here). This is precisely the problem of  the “exotic rose”.

Case C-646/20, Senatsverwaltung für Inneres und Sport is a good example thereof. As previously reported on this blog (here, here and here), this case concerned the recognition, in a Member State (Germany) of the dissolution of a marriage established in an agreement between spouses and pronounced by a civil registrar of another Member State (Italy).

Born from the objective of easing the burden on the court system and making divorce procedures swifter in the most “unproblematic” cases of dissolution of marriage by mutual consent, the Italian rules on extra-judicial divorces caused some interpretive doubts in Germany, where the recognition of the resulting divorce deed was sought. Ultimately, the question raised by the referring German court cut down to the definition (and the outer boundaries) of the notions of ‘judgment’ and ‘court’ retained by the Brussels IIa Regulation. Consistently with the general principle set in LTU, the starting point of the reasoning is that no weight should be given, for these purposes, to the explicit characterization established under Italian law, which specifies that the agreement concluded before the civil registrar replaces judicial decisions relating, in particular, to the procedure for dissolution and termination of the civil effects of the marriage (§§ 22-23 of the judgment).

It is worth stressing that the field of family law presents a particular challenge for the “second prong” of the LTU principle, ie for the interpretative value of the “general principles stemming from the corpus of the national legal systems”.

The LTU judgment was handed down in 1976, within the framework of a much more limited EUPIL (limited to the 1968 Brussels Convention) and a much smaller and less “legally diverse” Community (made of just nine States, with all the parties to this Convention belonging to the civil law tradition, since  the UK, Ireland and Denmark only acceded to it in 1978). The possibility of identifying some “general principles”, common or at least familiar to all of those legal systems, was not, at the time, such a preposterous idea. Indeed, in the second prong of LTU, the Court seemed to draw inspiration from both Savigny’s idea of the community of law and Rabels’ comparative approach to characterization.

Several decades later, and within the framework of a much bigger and more diverse Union, the viability and practical usefulness of said approach could be doubted, especially with respect those branches of private (and civil procedural) law that are characterized by remarkable variations at the domestic level. Over the last decade, several Member States have undertaken wide-ranging (and non-coordinated) reforms in a variety of fields, such as debt recovery or divorce law and divorce proceedings, having adopted in this respect a variety of solutions.

Concerning the latter, a common denominator of divorce reforms consists in the momentum gained by extrajudicial divorces, which have been introduced by 9 Member States (see here for the complete legal references to these reforms). Besides this general common feature (the devolution of divorce proceedings to a non-judicial body), the system set in place by said reforms vary greatly from country to country.

Firstly, there is no common solution as concerns the identification of the (non-judicial) authority empowered to hear divorce proceedings. Portugal, Italy and Estonia have chosen to delegate such proceedings to the Civil Registry Office. In Estonia, this competence is shared with the notary. The notary is also the designated authority for Latvia, Romania, France, Greece, Spain and Slovenia. Secondly, there is no common take on the breath of the devolution of divorce proceedings to non-judicial authorities. It seems (this premise is essential given the language barrier and the scarce information available in English with respect to certain jurisdictions) that in some Member States, these non-judicial authorities exercise a mandatory and exclusive jurisdiction over divorce proceedings. This means, in practice, that there is no alternative (i.e., judicial) procedural avenue open to applicants who wish to get divorced by mutual consent.

Combined together, these factors make it particularly difficult to envision the existence of the “general principles stemming from the corpus of the national legal systems” in the field of (extrajudicial) divorce.

In the light of the above, it is not surprising  that, in Senatsverwaltung für Inneres und Sport, the CJEU relied primarily on the first prong of the LTU principle, that is the “scheme and objectives” of the Brussels IIa Regulation. In particular, this judgment is especially interesting for the way in which the Court approaches the assessment thereof:  this analysis proceeds through several steps, in which the Court mobilizes distinct interpretive elements to shed better light on the scheme and/or objectives of the Brussels Ia Regulation.

My impression is that this approach, and said elements, are deemed to acquire increasing importance in future cases, especially in areas where the second prong of the LTU principle – ie the “general principles stemming from the corpus of the national legal systems” – is not of much help owing to the uncoordinated and diverse evolution of the domestic laws of Member States.

These “general interpretive guidelines” can be summarized as follows:

After having recalled the principle of autonomous interpretation of the notions used by the Brussels IIa Regulation, and particularly by its Articles 2 (4) and 21 (§ 41 of Senatsverwaltung für Inneres und Sport), the CJEU summarizes the general objectives pursued by this instrument (§§ 42-45).

The judgment places particular emphasis on the broad wording used by Article 2 (1) and (4) of these Regulation, pursuant to which “the term court shall cover all authorities in the Member States with jurisdiction in the matters falling within the scope of the [Brussels IIa] Regulation pursuant to Article 1”, whereas the notion of “judgment” shall include, inter alia, “a divorce…whatever the judgment may be called…”.

Siding on this point with the Opinion of AG Collins, who also referred to the wide definition of “judge” adopted by Article 2(2) (§ 35), the CJEU concluded that the Brussels IIa Regulation is “is capable of covering divorces which have been granted at the end of both judicial and extrajudicial proceedings, provided that the law of the Member States also confers jurisdiction in relation to divorce on extrajudicial authorities ”.

As I have already remarked elsewhere, however, EUPIL statutory definitions of “court” vary greatly from instrument to instrument, as concerns both their specific contents and the drafting technique (see a recap table here). This circumstance must be born in mind when trying to transplant interpretive solutions from one EUPIL instrument to another.

It is also significant to note that, in Senatsverwaltung für Inneres und Sport, the CJEU itself resorts to inter-textual interpretation. In that case, however, the Court adopts a “vertical”, rather than a “horizontal” approach: that is to say, reference is made not to EUPIL instruments covering tangential subject-matters, but to the evolution (if any) of a single instrument over time, through subsequent recasts.

In support of the broad reading of the notion of judgement resulting from the wording of Article 2(4), the CJEU referred to the considerably clearer stance taken on this point by the successor of Regulation 2201/2003 (§ 58). In particular, Recital 14 of the Brussels IIb Regulation states that “any agreement approved by the court following an examination of the substance in accordance with national law and procedure should be recognized or enforced as a decision”. On this point, the Court accepts the Commission’s submission whereby the Brussels IIb Regulation is no innovation in the pre-existing legal regime, its Recital 14 being therefore useful to clarify the notions used by the Brussels IIa Regulation (§ 61; see, in this respect, the opposite stance taken by the German Government, summarized in §§ 52 and 53 of the AG Opinion).

While the “vertical” approach is, in theory, less risky than the “horizontal” one, insofar as it should not expose to the dangers of evoked by Kainz, it may require to invest considerable efforts in researching preparatory woks. Very often, the legislator’s intent is not clearly expressed by the initial Proposal made by the EU Commission, but emerges later on in the debates within the Parliament or in other exchanges held during the legislative process.

This was the case as concerns the definition of court in the Brussels IIb Regulation. Even though the Commission’s Proposal already made clear that the scope of the Recast should have been limited to matters of parental responsibility (and should therefore not have touched too much upon most of the general definitions set by Article 2) a political discussion about the notion of court topic took place and appeared for the first time in this document, well into the negotiation phase. An explicit proposal to include a Recital dedicated to this issue emerged later on (see this document).

In proceedings before the CJEU, important insights on the unfolding of the legislative process may come from the Commission’s observations, which are systematically filed in all EUPIL preliminary references (see here). Outside this specific context, however, researching the original intent of the EU legislator might be quite burdensome for the “average interpreter”, in cases where this intent does not clearly stand out in the Commission’s proposal.

As specifically concerns the notions of “judgment” or “decision”, and “court” or “tribunal”, the most important criterion used by the CJEU remains the assessment of the type of functions performed by the seized domestic authority.

This approach is used by the CJEU even outside the field of EUPIL (for example, in order to identify the “courts or tribunals” of a Member State for the purposes of Article 267 TFUE), with important sectoral variations. In fact, the Court has always stressed that the uniform meaning of these notions (and of “court” in particular) in EU Law must be fitted to the specific context in which they are called to operate.

In this respect, Senatsverwaltung für Inneres und Sport is no exception, as the most important in the clarification provided by Recital 14 of the Brussels IIb Regulation consists, precisely, in  the explicit identification of the constitutive element of a “decision” in the field of family law and parental responsibility. This “constitutive element” is of fundamental importance for distinguishing “decisions” from the two other types of legal acts contemplated by that Regulation, ie the “authentic instrument” on the one side, and the “agreements that are neither a decision nor an authentic instrument, but have been registered by a public authority competent to do so”, on the other side.

According to the CJEU, the decisive element in the definition of decision is the existence of a prior examination, made by or under the supervision of the competent (public) authority, of the substance of the matter. While the AG endeavored to demonstrate the substantial identity of the tasks performed by the authority conducting a procedure of divorce by mutual consent, which remain essentially the same in a judicial and in an extrajudicial setting (§ 41 of the Opinion), the CJEU focused on the substantive content of these tasks (§§ 54, 57 and 63-66).

What shall an “examination of the substance of the matter” entail, according to the Court?

First, referring to Solo Kleinmotoren, the CJEU reasserts that the competent authority “must retain control over the grant of the divorce”, which implies the examination of the content of the divorce agreement in the light of the applicable provisions of national law, with a view to verify whether the legal requirements set therein are satisfied, as well as the existence and validity of the spouses’ consent to divorce (§§ 54-55). This aspects marks an important difference between consensual divorces and other types of settlement which are “essentially contractual in nature”, as the tasks of the competent authority are limited to the “passive” recording of an agreement, without any examination of its content in the light of the legal provisions in force (§ 57).

Second, the Court attached specific importance to the binding nature of the agreement drafted by the Italian civil registrar (§ 63), as well as to the means and formalities for the examination of the validity and existence of the spouses’ consent (§ 64).

Combined with the analysis of the tasks relating to the examination of the content of the agreement in the light of the Italian legal provisions on extrajudicial divorces (§ 65), these elements led the CJEU to consider that the Italian Civil Registrar retained sufficient control over the grant of the divorce, the resulting agreement being therefore a “judgment” within the meaning of Article 2 (4) of the Brussels IIa Regulation, interpreted in the light of Recital 14 of the Brussels IIb Regulation.

As seen above, the arguments drawn from the inter-textual interpretation of the Brussels Ia and Brussels IIb Regulations played a significant role in supporting the solution finally retained in Senatsverwaltung für Inneres und Sport. Such inter-textual reading  was deployed by the CJEU to reinforce the argument based directly on the “open-ended” statutory definitions set out by Article 2 of the Brussels IIa Regulation.

In this respect, the Court accepted the Commission’s view that, in adopting the newest Regulation, “the EU legislature was not seeking to innovate and introduce new rules, but only to ‘clarify’, on the one hand, the scope of the rule already laid down in Article 46 of the Brussels IIa Regulation and, on the other hand, the criterion for distinguishing the concept of ‘judgment’ from those of ‘authentic instrument’ and ‘agreement between the parties’, namely the criterion relating to the examination of the substance” (§61). As a result, the CJEU could hold that “that interpretation of the concept of ‘judgment’ cannot be invalidated by the fact that no Member State had yet made any provision in its legislation, at the time of the development and adoption of the Brussels IIa Regulation, for the option for spouses to divorce through extrajudicial means” and that this “interpretation follows directly from the broad and open definitions of the concepts of ‘court’ and ‘judgment’ referred to in Article 2(1) and (4) of that regulation” (§ 50).

This “temporal dimension” of the evolution of extrajudicial divorces across EU Member States was approached much more pragmatically by AG Collins. Without referring to the alleged continuity between the two Regulations, and deeming the latest Recast incapable of supporting “any conclusions…for the purposes of interpreting Regulation 2201/2003” (§ 54, last sentence), AG Collins derived a separate duty, for the judiciary, to interpret “clearly open” definitions set out by EU law “in the light of present day circumstances” (§ 54). “The law cannot cut itself from society as it is, and must not fail to adjust to it as quickly as possible, since it would otherwise risk imposing outdated views and adopting a static role”, he contended. Therefore, “in accordance with that view, EU law must be interpreted in a dynamic manner, in order to avoid it becoming ‘fossilised’”.

While the solution adopted the CJEU is to be appreciated for its strong foundations in the letter of the law and the clear legislative intent behind said EUPIL Regulations, the approach proposed by AG Collins is certainly alluring from an academic point of view. It is in fact indisputable that, at the time the Brussels Ia was adopted, no Member State had introduced extrajudicial divorces in its national legal order. Portugal was the first Member State to proceed in this sense, followed in 2010 by three additional Member States (Estonia, Romania and Latvia). Italy followed in 2014 with the procedure analyzed by the CJEU in Senatsverwaltung für Inneres und Sport, tailed by Spain (2015) and France (2016). Finally, in 2017, the new family law code of Slovenia and the Greek law No. 4509/2017 completed the current picture. Seen from this standpoint, it is quite clear that extrajudicial divorces have recently become a veritable legislative trend, which is slowly acquiring a pan-European dimension.

Against this evolving backdrop, AG Collins’ warning against the risks of a “fossilised” EUPIL, no longer suitable for the needs of its final users, reflected a serious concern and evokes the “political dimension” of this field of law remarked by Professor Kinsch in his Hague Academy Course. The latter is linked, among others, to a consistent rhetoric of the EU Commission, which tends to highlight the benefits and advantages that “mobile citizens” can derive from the unified and pan-European EUPIL regimes.

In this vein, the Commission’s initial Proposal for the Brussels IIb Regulation stressed that a Recast was needed in conformity with the objectives set by the Juncker Commission’s Political Guidelines. According to these Guidelines, judicial cooperation among EU Member States had to “be improved step by step keeping up with the reality of increasingly mobile citizens across the Union getting married and having children, by building bridges between the different justice systems and by mutual recognition of judgments, so that citizens can more easily exercise their rights across the Union”. In line with these objectives, the Commission is presenting the new rules as a tangible proof that “the EU works to protect our children and families, ensuring that Member States enforce each other’s judicial decisions” (see the promotional video available here). In particular, “considering the growing number of Member States which allow out-of-court agreements on legal separation and divorce or on matters of parental responsibility, the new rules will facilitate the circulation of [authentic] instruments and [out-of-court] agreements” (here).

In the end, this “pragmatic argument” based on the consideration that EUPIL should keep in touch with an evolving reality in order to serve properly the interests of its final intended users, found no space in the Senatsverwaltung für Inneres und Sport, but could hypothetically become an additional interpretive tool in future cases, in those field of substantive private law presenting a similar evolution.

The fourth 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 five contributions.

Christian Kohler, Private International Law Aspects of the European Commission’s Proposal for a Directive on Slapps (“Strategic Lawsuits Against Public Participation”)

The Commission’s proposal for a Directive on SLAPPs (“Strategic lawsuits against public participation”) aims at protecting journalists and human rights defenders who engage in public debates from manifestly unfounded or abusive court proceedings with cross-border implications. Inter alia, it protects SLAPP defendants against judgments from third countries that would have been considered manifestly unfounded or abusive if they had been brought before the courts or tribunals of the Member State where recognition or enforcement is sought, and allows SLAPP defendants to seek compensation of the damages and the costs of the third country-proceedings before the courts of the Member State of his or her domicile. The article examines the conflicts rules in question and discusses the broader private international law context of the proposed Directive, in particular the rules of jurisdiction and the mosaic approach of the CJEU for the interpretation of Article 7(2) of Regulation Brussels Ia. In order to limit the forum shopping potential of the present rules on jurisdiction and applicable law in defamation cases, an intervention by the EU legislator should be envisaged. 

Pietro Franzina, Il Contenzioso Civile Transnazionale sulla Corporate Accountability (Cross-Border Civil Litigation on Corporate Accountability)

Civil proceedings are brought with increasing frequency against corporations for allegedly failing to prevent or mitigate the adverse impact of their activity on the protection of human rights and the environment. Most of these proceedings are initiated by non-governmental organisations whose activity consists in safeguarding or promoting the collective interests at issue, or otherwise benefit from support provided by such organisations. A cross-border element is almost invariably present in these proceedings, as they often involve persons from different countries and/or relate to facts which occurred in different States. Litigation in matters of corporate accountability is, distinctively, strategic in nature. The aim pursued by those bringing the claim does not consist, or at least does not only or primarily consist, in achieving the practical result that the proceedings in question are meant, as such, to provide, such as compensation for the prejudice suffered. Rather, the goal is to induce a change in the business model or industrial approach of the defendant (and, possibly, of other corporations in the same field or with similar characteristics) and increase the sustainability of their corporate activity at large. The paper gives an account of the factors that determine the impact of the described proceedings, that is, the ability of those proceedings to effectively prompt the pursued change. The analysis focuses, specifically, on the factors associated with the rules of private international law, chiefly the rules that enable the claimant to sue the defendant before the courts of one State instead of another. The purpose of the article is not to examine the latter rules in detail (actually, they vary to a large extent from one State to another), but to assess the strategic opportunities, in the sense explained above, that the rules in question may offer to the claimant, depending on their structure and mode of operation.

Lenka Válková, The Commission Proposal for a Regulation on the Recognition of Parenthood and other Legislative Trends Affecting Legal Parenthood

The developments in science and changing family patterns have given rise to many problems, including those of non-recognition of parenthood, which affects mostly children of same-gender parents and children in cases of surrogacy. The basic drivers of the current difficulties in recognising parenthood lie in the differences of the national rules on the establishment and recognition of parenthood and the lack of the uniform conflict rules and rules on recognition of judgments in the area of parenthood. Despite the numerous case-law of CJEU and ECtHR, which plays a crucial role in allowing flexibility in law with regard to parenthood, there is still no legal instrument which provides for a clear framework seeking to outline a consistent and systematic approach in this area. In 2021 and 2022 three important legislative actions have been taken. The Parenthood Proposal for a Regulation on jurisdiction, applicable law, recognition of decisions has been published on 7 December 2022. At the same time, the Final Report of the Experts Group on the Parentage/Surrogacy Project of the HCCH has been issued on 30 November 2022. Moreover, the Report on Review of the Implementation of the European Convention on the Legal Status of Children Born Out of Wedlock has been prepared in November 2021 as a preliminary step to a possible future update of the substantive law provisions of the Convention. All regulatory initiatives are addressed in this article, with a special focus on the Parenthood Proposal. In particular, this article offers a first appraisal of the Parenthood Proposal in light of other two legislative efforts and examines whether the works on international level may eliminate the need for an action concerning recognition of parenthood at EU level.

Stefano Dominelli, Emoji and Choice of Court Agreements: A Legal Appraisal of Evolutions in Language Methods Through the Prism of Art 25 Brussels Ia Regulation

Starting from the consideration that emoji and the alike are becoming increasingly common in computer-based communication, this article transposes current debates in material law surrounding emoji and their aptitude to express intent into the field of choice of court agreement through the prism of Art 25 Brussels Ia Regulation. The aim of this article is to develop some hypotheses and methods for the assessment of emoji in the conclusion of choice of court agreements.

Michele Grassi, Revocazione della Sentenza Civile per Contrasto con la Convenzione Europea per la Salvaguardia dei Diritti dell’uomo e delle Libertà Fondamentali (Revocation of a Civil Judgment for Conflict with the European Convention for the Protection of Human Rights and Fundamental Freedoms)

This article comments on the recent reform of the Italian Code of Civil Procedure, with a specific focus on the introduction of the possibility to seek revocation of a civil judgment conflicting with a decision of the ECtHR. The possibility to re-open proceedings in breach of the ECHR was not contemplated by the previous rules applicable to the matter, and the Italian Constitutional Court had excluded that the obligation of Contracting States to conform to the judgments of the ECtHR could imply the need to review national res judicata in civil or administrative law matters. Against this background, this article examines the new mechanism of review of national decisions introduced by the recent reform, pointing out that such mechanism has been designed to apply in limited circumstances and that, consistently with the reparatory perspective adopted by the Italian Constitutional Court, it gives little to no consideration to the obligation of cessation of international wrongful acts consisting in violations of human rights protected by ECHR.