EAPIL blog

The Interest Group on Private International Law of the Italian Society of International Law (SIDI) will host two webinars – one in English, the other in Italian – in the framework of its recurring webinar series, titled Private International Law in Europe: Current Developments in Jurisprudence.

On 28 June 2022, from 5 to 7 pm (CET), Andrea Bonomi (University of Lausanne) will speak of Habitual Residence of an Abducted Child for the Purposes of the Law Applicable to Maintenance. Francesco Pesce (University of Genova) will serve as discussant.

On 8 July 2022, from 5 to 7 pm (CET), Javier Carrascosa González (University of Murcia) will deal with the recent case law of the Court of Justice relating to the citizenship of the Union and its implications for private international law. The discussant will be Bruno Barel (University of Padova).

The webinars will be chaired by Stefania Bariatti (University of Milan), convenor of the Interest Group.

Those wishing to attend the webinars are are invited to write an email to sidigdipp@gmail.com. Further information available here.

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

Jurisdiction over foreign patent disputes is again the subject of two new requests for preliminary rulings by the Swedish Patent and Market Court of Appeals. The latest referral, BSH Hausgeräte (C-339/22), concerns the scope of Article 24(4) of Regulation No 1215/2012 (Brussels I bis Regulation) with respect to infringement disputes when the invalidity of a foreign patent is raised as a defence. It also concerns the potential “reflexive effect” of Article 24(4) in relation to patents registered in third countries.

The first question reads as follows (my translation):

Is Article 24(4) of Regulation (EU) 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to be interpreted so that the words ‘proceedings concerned with the registration or validity of patents . . .irrespective of whether the issue is raised by way of an action or as a defence,’ mean that a national court which, in accordance with Article 4(1) of that regulation, has established its jurisdiction to hear an infringement action no longer has such jurisdiction to determine the infringement action if an objection is raised that the patent in question is invalid, or is that provision to be interpreted as meaning that the national court only lacks jurisdiction to determine the invalidity objection?

The second (related) question is (my translation):

Is the answer to question 1 affected by the existence of provisions in national law, similar to those in the second paragraph of Section 61 of the [Swedish] Patent Act, which stipulate that an invalidity objection raised in an infringement action requires the defendant to bring a separate action for a declaration of invalidity in order to be admissible?

The third question concerning the potential “reflexive effect” of Article 24(4) reads (my translation):

Is Article 24(4) of the Regulation to be interpreted as applying in relation to a court in a third country, that is to say, in the present case so that it also confers exclusive jurisdiction on the courts of Turkey for the part of the European patent validated there?

The background is that the German company BSH Hausgeräte GmbH brought proceedings before the Swedish Patent and Market Court against the Swedish company Aktiebolaget Electrolux for the infringement of its European patents validated in Austria, Germany, Spain, France, UK, Greece, Italy, Netherlands, Sweden, and Turkey. Electrolux responded by alleging that the foreign patents were invalid and that the Swedish court therefore lacked jurisdiction to hear the infringement actions concerning the foreign patents.

Electrolux argued that the wording of Article 24(4) of Brussels I Regulation, which codifies the CJEU ruling in GAT (C-4/03), clearly covers infringement actions in which invalidity objections have been raised. It argued further that infringement and invalidity cannot be separated because a valid patent is a prerequisite for an infringement. In addition, Electrolux argued that there was nothing to prevent it from raising invalidity objections before the Swedish court and that the second paragraph of Section 61 of the Swedish Patent Act, which requires an invalidity objection to be raised as an independent action and not merely as an objection in an infringement action, only concerns Swedish patents. In addition, Electrolux argued that pursuant to Article 8 of Regulation (EC) No 864/2007 (Rome II), Swedish law was not applicable and that Swedish law could not either be applied by analogy.

BSH argued that the Swedish court had jurisdiction over the infringement actions pursuant to Article 4 of the Brussels I bis Regulation based on Electrolux’s domicile and the Swedish court did not lose this jurisdiction because Electrolux contested the patents’ validity. It argued further that its action principally concerned infringement, not invalidity so Article 24 and 27 of the Brussels I bis Regulation were not engaged. In addition, BSH argued that pursuant to the second paragraph of Article 61 of the Swedish Patent Act, the court should disregard Electrolux’s invalidity objections unless Electrolux brought separate invalidity actions in the countries where the patents are validated. In such case, BSH argued that the Swedish court could stay the infringement proceedings until the invalidity proceedings became final. Lastly, BSH argued that Article 24(4) of the Brussels I bis Regulation did not apply in relation to third countries.

The Swedish Patent and Market Court held that it lacked jurisdiction over the foreign patents. In short, it held that Article 24(4) applied when invalidity objections were raised in an infringement action concerning foreign patents and that the fact that Electrolux had yet to bring invalidity actions in the countries of registration was not relevant. In addition, the court held that it must also decline jurisdiction over the Turkish part of the European patent because Article 24(4) of the Brussels I bis Regulation was an internationally accepted principle.

BSH appealed to the Patent and Market Court of Appeals. The Court found that the wording of Article 24(4) did not clearly indicate whether it covered infringement actions once invalidity had been raised in objection and that this question was not answered by the GAT decision or the CJEU’s subsequent case law. Concerning the application of Article 24(4) to third country patents, the Court observed that it was not clear from the wording of Article 24(4) of the Brussels I Regulation whether it applied, in contrast to Articles 33 and 34 of the Brussels I Regulation on lis pendens and related actions, which clearly state that that they apply in relation to third countries. The Court also noted that this question had not been answered in Owusu (C-281/02), where the CJEU held that Article 2 of the Brussels Convention (now Article 4 Brussels I bis Regulation) on jurisdiction of the basis of domicile applied to disputes involving relations between the courts of a Contracting State and a non-Contracting State.

An earlier referral, IRnova (C-399/21) also concerns the scope of Article 24(4) of the Brussels I Regulation, but this time in the context of a patent entitlement action when the basis for the action is that the claimant is the true inventor.

The question reads as follows:

Is an action seeking a declaration of better entitlement to an invention, based on a claim of inventorship or co-inventorship according to national patent applications and patents registered in a non-Member State, covered by exclusive jurisdiction for the purposes of Article 24(4) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters?

The background is that the Swedish company IRnova AB brought proceedings before the Swedish Patent and Market Court against the Swedish company FLIR Systems AB for entitlement to patent applications and patents that FLIR Systems AB had applied for and registered in third countries (USA and China) by FLIR Systems AB. The companies had previously had a business relationship. IRnova alleged that one of its employees had developed the inventions, or at least, had made such a substantial contribution to the inventions that he was to be regarded as a co-inventor and that IRnova was therefore the rightful owner. FLIR Systems AB objected to the Swedish court’s jurisdiction and the Patent and Market Court dismissed IRnova’s action. The court held that Article 24(4) of the Brussels I bis Regulation was an internationally accepted principle and therefore should apply in relation to third countries. The court held further that an entitlement action based on inventorship was so closely related to the registration and invalidity of patents that Article 24(4) was engaged.

IRnova AB appealed to the Patent and Market Court of Appeal. The Court noted that the answer to this question was not clear from the CJEU’s previous case law including Duijnstee (288/82), where the CJEU held that Article 16 of the Brussels Convention (now Article 24(4) Brussels I bis Regulation) does not apply to a dispute between an employee for whose invention a patent has been applied for or obtained and his employer, where the dispute relates to their respective rights in that patent arising out of the contract of employment.

This is the second post an online symposium on the ruling of the European Court of Justice, of 20 June 2022, in London Steam-Ship Owners’ Mutual Assistance Association Ltd v Spain. The first post was contributed by Adrian Briggs. 

The most significant consequence of the judgment of the CJEU in London Steam-Ship Owners might be the holding that the courts of the Member States requested to declare enforceable arbitral awards should verify whether the relevant arbitral tribunal respected the rule on lis pendens of the Brussels I bis Regulation.

According to the CJEU, the minimisation of the risk of concurrent proceedings, which that provision is intended to achieve, is one of the objectives and principles underlying judicial cooperation in civil matters in the European Union. Thus, a judgment on an arbitral award rendered in violation of lis pendens does not deserve deference, and should not qualify as a judgment in the meaning of Article 34(3) of the Brussels I Regulation.

Is the Objective of Avoiding Concurrent Proceedings so Essential in the EU?

As pointed out by Adrian Briggs, the CJEU rules that the rule of lis pendens should be applied by the courts of Member States in courts proceedings on arbitral awards. The CJEU suggests, it seems, that those courts should dismiss request to declare enforceable arbitral awards in case the rule on lis pendens would have been violated.

The proposition that the rule of lis pendens is so important that it should be applied by courts in exequatur proceedings of arbitral awards is very hard to reconcile with previous cases of the CJEU where the Court held that the doctrine of lis pendens is not important enough to become a ground for denying enforcement to judgments under the Brussels Regulations (I or II).

In Liberato, the CJEU held that

the rules of lis pendens in Article 27 of Regulation No 44/2001 and Article 19 of Regulation No 2201/2003 must be interpreted as meaning that where, (…) the court second seised, in breach of those rules, delivers a judgment which becomes final, those articles preclude the courts of the Member State in which the court first seised is situated from refusing to recognise that judgment solely for that reason. 

So, the doctrine of lis pendens is not important enough to exclude that a judgment which violated it be enforced in other Member States. Why does the same doctrine suddenly become so much more important in the context of arbitration?

Lis pendens and Jurisdiction Clauses: The New Rules

For the purpose of assessing the consequences of this case, it must be underscored that it was governed by the Brussels 44/2001. At the time, thanks to the (in)famous Gasser case, the rules of lis pendens fully applied to cases involving jurisdiction clauses.

As many readers will know, the rules on lis pendens were amended by the Brussels I Recast to overturn Gasser. Under Article 31(2) of the Brussels I Recast:

Without prejudice to Article 26, where a court of a Member State on which an agreement as referred to in Article 25 confers exclusive jurisdiction is seised, any court of another Member State shall stay the proceedings until such time as the court seised on the basis of the agreement declares that it has no jurisdiction under the agreement.

So, if the judgment in London Steam-Ship Owners is to be understood as extending to arbitration agreements the mandatory rules of the Brussels regime on jurisdiction clauses and lis pendens, then Article 31(2) should give a priority to arbitral tribunals over the courts of Member States which were not chosen by the parties.

The CJEU has opened the Pandora box. Does it contain an obligation for the courts of the Member States to stay proceedings once an arbitral tribunal seated in a Member State is seised?

The post below was written by Adrian Briggs QC, who is Professor of Private International Law Emeritus at the University of Oxford. It is the first contribution to an online symposium on the ruling of the European Court of Justice, of 20 June 2022, in the case of London Steam-Ship Owners’ Mutual Assistance Association Ltd v Spain.

The clearing up of the oil which in 2002 splurged out of the wretched MT Prestige (the ownership and operation of which was a worthless stew of Greek, Bahamian and Liberian entities) and into the Atlantic onto the coast of Galicia was an astonishing, miraculous, environmental triumph. It is even reported that a year after the catastrophe, the beaches of Galicia were cleaner than ever before, this thanks, no doubt, to the army of volunteers who laboured to rid the coast of all traces of the filthy effluent when the Spanish state failed to demonstrate the necessary vigour. By contrast, the clearing up of legal liability has proved to be the polar opposite. The account which follows has been pared to its barest essentials, for life is just too short for the full story to be set out.

The Spanish state sued various entities to recoup what it claimed as losses resulting from the cleaning operation. Among other targets it identified the (London) insurer of the vessel, and fancied that it had a direct claim against the insurer for the sums payable under that policy. The policy of insurance provided for arbitration in London, but the Spanish state preferred to sue in its own courts, taking the position that it had no obligation to proceed by arbitration: as one might say in England, it claimed to take the benefit, but not the burden, of the policy on which it relied; it picked out the plums and left the duff.

The English insurer, having issued a policy which provided for arbitration, took objection to its liability to anyone claiming through or under that policy being determined outside the arbitral tribunal foreseen by the policy. It was doubtless aware that it could not defend the attack on the integrity of the arbitration agreement by asking for an injunction from the English courts, so convened the tribunal. The tribunal decided that the Spanish claim for the sums due under the policy, which claim was manifestly contractual in nature and in quantum, was enforceable only by arbitration; its award, determining also that the insurer was not liable on the policy, followed. The insurer then obtained a judgment from the High Court declaring the award, in accordance with the Arbitration Act 1996, to be enforceable as a judgment. Meanwhile, the Spanish courts proceeded to order the insurer to pay $ 1 billion, which represented the cap on insurer liability under the policy of insurance. Thus the scene was set.

Seised of the question whether the Spanish judgment should be registered for enforcement in England under Chapter III of Regulation 44/2001, and perceiving this to be a question which he could not answer, an English judge made a reference to the European Court, nine days before the Brexit divorce was to be made absolute. In it he asked, in effect, what the Regulation required him to do with a Spanish judgment which was radically inconsistent with the London award and English judgment. While the cogs and wheels of the CJEU were starting to turn, the insurer appealed against the decision to make reference to the European Court, relying on orthodox grounds of European law to justify it. The Court of Appeal allowed the appeal, but concluded it was bound to remit the matter to the High Court judge who alone might recall the reference. The Spanish state appealed to the Supreme Court against the decision of the Court of Appeal. The Supreme Court arranged an early date for the appeal which would finally clarify the need or otherwise for the reference. Three days before the published date for the hearing before the Supreme Court, the European Court put out its ruling, trashing the Opinion of its Advocate-General, scuttling the appeal and preventing the English court from considering, in accordance with European law, whether a reference and ruling was required, and doing its level best to make the insurer liable in law to the Spanish state.

No doubt the timing, and the outcome, is the purest coincidence, and the fish-like smell is just an incident of coastal life. But the ruling, and the justification offered for it, is truly, madly, deeply weird.

One starts with the proposition, freely accepted by the court, that the Regulation 44/2001 does not apply to arbitration, because Article 1 says as much. The logical and legal consequence of that, in a decision to which the Court made reference, was that the English court was entitled to apply its law of arbitration, even to the point of refusing to recognise a judgment in a civil or commercial matter given by the courts of another Member State. In 145/86 Hoffmann v Krieg, the court had, at [18], deduced that

the answer to be given to the national court is that a foreign judgment whose enforcement has been ordered in a contracting state pursuant to article 31 of the [Brussels] convention and which remains enforceable in the state in which it was given must not continue to be enforced in the state where enforcement is sought when, under the law of the latter state, it ceases to be enforceable for reasons which lie outside the scope of the convention.

The judgment in Hoffmann was indeed referred to (at [52]), though this was not the paragraph there mentioned. It appears to give a complete answer to the question, as the English judge who set this all in motion should have realised. Instead, the Court used another part of the judgment in Hoffmann for its conclusion that the English judgment on the award was irreconcilable with the Spanish judgment. One may accept that that was so, but still shrug: for this question, framed by Article 34(3) of Regulation 44/2001, would be void of content if the entire subject matter of the English court order lay outside the scope of the Regulation, ratione materiae, in the first place. The Court reasoned that the English order was a judgment within the meaning of Article 34(3), even though it was one on a matter to which the Regulation has no application in the first place. This is very odd (though not a novelty: see C-568/20 J v H Ltd EU:C:2022:264), but in the court’s defence one might claim that it provides a ramshackle means for dealing with a structural problem. The problem has been noticed before; indeed, the writer has written elsewhere that it offers a feasible, if untidy, solution. So be it, then.

So did it follow that the English court could and should refuse recognition of the irreconcilable Spanish judgment? According to the Court, it did not. The reasons given were, it is submitted, as perverse as they are incredible. The gist of paragraphs 54 to 72 goes something like this. If the London tribunal had been a court, and the arbitration clause had been a jurisdiction clause, the jurisdiction clause would not have been enforceable against the Spanish state, which was a third party to the policy of insurance under which it was claiming. If the London tribunal had been an English court, it could not have taken jurisdiction in any event, as the Spanish state had already seised the Spanish courts with the same cause of action. It followed that to allow the actual English judgment to count as a judgment for the purposes of Article 34(3) would undermine or conflict with the objectives of the Regulation; the English order was not a judgment after all. The English courts had been at fault for not realising this nonsense was law:

It is for the court seised with a view to entering a judgment in the terms of an arbitral award to verify that the provisions and fundamental objectives of Regulation No 44/2001 have been complied with, in order to prevent a circumvention of those provisions and objectives, such as a circumvention consisting in the completion of arbitration proceedings in disregard of both the relative effect of an arbitration clause included in an insurance contract and the rules on lis pendens laid down in Article 27 of that regulation. In the present case, it is apparent from the documents before the Court and from the hearing that no such verification took place either before the High Court of Justice (England & Wales), Queen’s Bench Division (Commercial Court), or before the Court of Appeal (England & Wales) (Civil Division) and, moreover, that neither of those two courts made a reference to the Court for a preliminary ruling under Article 267 TFEU.

So here it is. The arbitral tribunal in London was entitled – at least, it has not yet been said that it wasn’t – to proceed to determine the claim to the proceeds of the policy of insurance, but the English court, called upon to approve enforcement of the award, was required to go through the looking glass and play its part in the pantomime just described. The fact that it has not done so meant that it had committed a jurisdictional error. In consequence, its judgment – as the court said that it was – failed to qualify as a judgment, for those reasons of jurisdictional error, to count as a judgment for the purposes of Article 34(3). There is, of course, absolutely nothing in the jurisprudence to suggest that the home court’s ‘judgment’ in Article 34(3) means ‘judgment free of all taint of jurisdictional error’, though there is the collateral instruction in Article 35 that the jurisdiction of the court that gave the foreign judgment shall not be reviewed. No wonder the English court failed to see what it should have done: the words directing it have yet to be written, never mind enacted. The result is that European law requires the English court to construct a parallel reality to enable and require it to ignore its law on arbitration. But of course, it meant that the European Court was able to order the transfer of $1 billion from London to Madrid.

We have been here before. Lewis Carroll, also writing from Oxford, reported the dialogue between Alice and Humpty-Dumpty, in the following terms

‘When I use a word’, Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less’. ‘The question is’, said Alice, ‘whether you can make words mean so many different things’. ‘The question is’, said Humpty Dumpty, ‘which is to be master — that’s all’.

And that question is the one that counts. An English court may, and surely will, say that if the answer summarised above is the answer resulting from one international instrument by which it is bound, the answer required by another one, the New York Convention, by which is it is also bound, is the one which counts, for the latter is master. And in spite of this output from the European Court, the Brussels lawmaker would seem to agree: along with Article 1, one will find confirmation in the second sentence of the third paragraph of Recital 12 to Regulation 1215/2012. That will mean that the decision of the European Court is, for the United Kingdom, a letter whose deadness has nothing to do with Brexit. It will be for those working in legal systems which remain tied by the jurisprudence of the European Court to explain to their colleagues working in the field of international arbitration how the principle that the Brussels regime does not apply to and does not prejudice the law of arbitration has had such a dramatic effect on their business: good luck with that. For those in the United Kingdom who lamented our separation from the Brussels and Lugano regime, it will be a real struggle to look at the judgment in Case C-700/20 not to regard it as a stunt which shames those who set their hand to it. Others will not need to struggle.

The Singapore-based Asian Business Law Institute (ABLI) has been engaging in work related to judgments recognition and enforcement in Asia for some time. This blog reported about the Institute’s publication of 2020 on the Asian Principles for the Recognition and Enforcement of Foreign Judgments.

ABLI is now joining hands with the Permanent Bureau of the Hague Conference on Private International Law for a joint webinar that will take place on on 27 July 2022 between 3 to 6pm (Singapore time).

Titled Cross-border Commercial Dispute Resolution – HCCH 2005 Choice of Court and 2019 Judgments Conventions, the webinar will comprise two sessions to take a holistic look at the Choice of Court and Judgments Conventions.

Attendees have the option of attending one or both sessions.

Invited speakers Sara Chisholm-Batten (Partner, Michelmores LLP), the David Goddard (Court of Appeal, New Zealand), Anselmo Reyes (International Judge, Singapore International Commercial Court), Nish Shetty (Partner, Clifford Chance LLP) and Dr Ning Zhao (Senior Legal Officer, HCCH) are expected to talk about the practical operations of the two Conventions, how they complement each other and whether the recent debate of the Choice of Court Convention is justified.

For more information or to register, click here. Early bird discount is available till 26 June. Queries about the webinar should be addressed to info@abli.asia.

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

Ralf Michaels, Peter Mankowski *11.10.1966 †10.2.2022

Katharina Pistor, Rechtsvergleichung zwischen Rechts- und politischer Ökonomie: am Beispiel des Unternehmensrechts (Legal and Political Economics in Comparative Perspective: the Case of Corporate Law)

Hardly another area of the law has seen as much interest in comparative analysis as corporate law, in particular the publicly traded corporation. The dialogue among legal academics from different legal systems was facilitated by the use of a non-legal language – that of transaction economics. It offered a unified standard for analyzing the pros and cons of different legal rules and models of corporate governance. Legal details remained largely under the radar. More recently, political scientists have discovered the corporation as an object of analysis and have emphasized the political economy that is represented by the establishment, development and function of the “corporation as a legal person”. This literature pays closer attention to the role of the state in corporate law but has neglected questions of comparative law. This paper argues that comparative law could and should assert itself between these two social sciences as a field that is devoted to describing and explaining the similarities and differences of legal institutions as a part of social systems.

Stefan Grundmann, Pluralistische Privatrechtstheorie – Prolegomena zu einer pluralistisch-gesellschaftswissenschaftlichen Rechtstheorie als normativem Desiderat (»normativer Pluralismus«) (Pluralist Private Law Theory: Prolegomena to a Pluralist and Social Science Oriented Legal Theory as a Normative Desideratum (“Normative Pluralism”))

Just how legal scholarship and legal practice should address the social sciences and other fields of inquiry is a vital question whose answer is informed by concerns of innovation, logic, and an understanding of law and jurisprudence. Law and economics is an efficient vehicle in this regard, an approach that in the USA is perhaps even dominant. The present article distinguishes between a monist interdisciplinary openness – vis-à-vis a neighbouring discipline that may indeed already have a particular goal and benchmark in mind – and a pluralist interdisciplinary openness. It identifies in the latter a disproportionately greater heuristic potential (in terms of all societal views). In a pluralist society, one that moulds pluralism into a constitutional requirement, the author sees a pluralist interdisciplinary openness as, above all, normatively superior and even mandated. It also seems better suited to the logic of jurisprudence: a discipline seeking balance in society. The article also addresses the biggest “drawback” of the approach, the unanswered and difficult question of how to determine hierarchizations. Adopting a value-tracking approach, the author proposes a mechanism embracing constitutionality and democracy as guiding legal principles.

Rolf Stürner, The ELI / UNIDROIT Model European Rules of Civil Procedure – An Introduction to Their Basic Conceptions

This contribution introduces the basic conceptions of the Model European Rules of Civil Procedure, which were affirmed by the European Law Institute, Vienna, and by UNIDROIT, Rome, in 2020. In its first part it describes the prior history of the project (ALI/UNIDROIT Principles of Transnational Civil Procedure, Storme Commission) and the history of the emergence of the Model Rules between 2013 and 2020. The following parts depict the organization and coordination of the common work in the various groups, an analysis of methodological questions arising in the context of harmonization of procedural law, a detailed presentation of important results of harmonization in fields of far-reaching convergence of national procedural laws, considerations about strong future trends of procedural design and their significance for different areas of civil procedure, and finally some remarks on innovative procedural developments taken into account by the Model Rules, with important examples in fields like collective proceedings and the financing of proceedings, or in the use of modern means of communication or artificial intelligence. The contribution also contains some cautious remarks on internal conditions associated with the emergence of the Model Rules that may have influenced its results.

Igor Adamczyk and Jakob Fortunat Stagl, Der Eigentumserwerb an Fahrnis im polnischen Recht (Transfer of Ownership in Movable Property under Polish Law)

This essay deals with the transfer of ownership under Polish law. The main question is whether Poland simply adheres to one of the classical models historically significant for this country – that of Austria, Germany, or France – or whether its system can be considered an original solution. The authors are convinced that one cannot analyse the transfer of ownership without considering the underlying contract. In particular, the passing of risk has to be considered in unison with the rules for the passing of ownership. These rules as a whole may seem syncretistic or “mixed”, yet they have to be understood as a genuine – Polish – system for the transfer of ownership.

The table of contents in German is available here.

As announced on this blog, the final conference of the DXB – Identities on the move – Documents cross borders will be held in Italy on 23-24 June 2022 and will be hosted at A.N.U.S.C.A.’s Academy in Castel San Pietro Terme (Bologna, Italy).

All interested scholars and registrars, public authorities and officials, lawyers and students are invited to take part to it for the outcomes of the research. This final event will offer an opportunity to become aware of the Regulation (EU) 2016/1191 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union and to discover the strengths and the challenges of this still relatively unknown instrument. The conference will connect the scientific and applicative dimension of the Regulation, sharing, inter alia, the Commentary on the Regulation and an EU-wide Comparative Survey placing the Regulation into the context of daily national practice.

The event will be held in person, in compliance with health safety regulations, and will also be broadcast online in live streaming for free. Deadline registration for on-line attendance is 21 June 2022 and working languages of the conference will be English, German and Italian.

The Conference programme is available here and includes as speakers Maria Caterina Baruffi, Elsa Bernard, Giacomo Biagioni, Laura Calafà, Matteo Caldironi, Renzo Calvigioni, Cristina Campiglio, Giacomo Cardaci, Gregor Christandl, Mădălina Cocoșatu, Diletta Danieli, Sanjay Dharwadker, Ester di Napoli, Ornella Feraci, Caterina Fratea, Marco Gerbaudo, Susanne Gössl, Paride Gullini, Steve Heylen, Marion Ho-Dac, Fabienne Jault-Seseke, Eva Kaseva, Dafni Lima, Balwicka-Szczyrba Małgorzata, Francesca Maoli, Claudia Elena Marinică, Martina Melcher, Dominik Damian Mielewczyk, Nicolas Nord, Guillermo Palao Moreno, Lina Papadopoulou, Paolo Pasqualis, Paul Patreider, Cinzia Peraro, Stefania Pia Perrino, Marco Poli, Camille Reitzer, Simon Rijsdijk, Alexander Schuster, Sharon Shakargy, Nicole Sims, Thomas Stigari, Anna Sylwestrzak, Marie Vautravers, Rob van der Velde, Jinske Verhellen and Brody Warren.

If you have any questions or inquiries, please write an email to info@identitisonthemove.eu.

In the context of the Vici project Affordable Access to Justice at Erasmus School of Law (financed by the Dutch Research Council – NWO), the project team has organised a series of seminars titled Trends and Challenges in Costs and Funding of Civil Justice.

The concluding seminar in the series will take place on 22 June 2022, on the Future Regulation of Third-Party Litigation Funding.

The seminar, opened by Xandra Kramer and Geert Van Calster, will feature two sessions. The first session, on the current status and the need for further regulation, will include a stakeholder roundtable moderated by Xandra Kramer with the participation of Paulien van der Grinten, Johan Skog and David Greene. The second session, on modes and levels of regulation, chaired by Eva Storskrubb, will include a panel discussion involving Kai Zenner, Tets Ishikawa, Victoria Sahani and Albert Henke.

Attendance is possible in person and online. The programme is available here.

This is an update on my monthly post on the Court of Justice of the European Union, in order to announce the publication today (Monday 20) of the decision in case C-700/20,  The London Steam-Ship Owners’ Mutual Insurance Association.

I reported on the facts and the questions referred by the High Court of Justice Business and Property Courts of England and Wales, United Kingdom here, but I believe it worth reproducing them again. The main proceedings are based on a dispute between London Steam-Ship Owners’ Mutual Insurance Association Limited (‘the Insurer’), having its registered office in the United Kingdom, and the Kingdom of Spain; it concerns claims for damages arising from the sinking off the coast of Spain of a vessel carrying fuel oil – the Prestige. The insurance contract contained, inter alia, an arbitration agreement governed by English law.

The Kingdom of Spain asserted its rights to receive compensation from the Insurer under the insurance contract, in the context of criminal proceedings instituted in Spain in 2002. Following a first-instance decision in 2013 and several appeals, the Spanish proceedings culminated in a finding that the Insurer was liable for the loss caused by the shipping accident subject to the limitation of liability provided for in the insurance contract. The Spanish court issued an execution order on 1 March 2019. On 25 March 2019, the Kingdom of Spain applied for recognition and enforcement of that order in the United Kingdom in accordance with Article 33 of the Brussels I Regulation. That application was granted. The Insurer appealed against that decision in accordance with Article 43 of the Brussels I Regulation.

The Insurer, for its part, initiated arbitration proceedings in London in 2012. In the resulting award it was established that the Kingdom of Spain would have to initiate arbitration proceedings in London in order to assert claims under the insurance contract. The Commercial Court of the High Court of Justice of England and Wales, before which enforcement of the award was sought under section 66 of the Arbitration Act 1996, entered a judgment in the terms of the award against the Kingdom of Spain in October 2013, which was confirmed on appeal. The Kingdom of Spain took part neither in the arbitration proceedings nor in the judicial proceedings in the United Kingdom.

The referring court asked the Court of Justice the following questions:

(1) Given the nature of the issues which the national court is required to determine in deciding whether to enter judgment in the terms of an award under Section 66 of the Arbitration Act 1996, is a judgment granted pursuant to that provision capable of constituting a relevant “judgment” of the Member State in which recognition is sought for the purposes of Article 34(3) of EC Regulation No 44/2001?

(2) Given that a judgment entered in the terms of an award, such as a judgment under Section 66 of the Arbitration Act 1996, is a judgment falling outside the material scope of Regulation No 44/2001 by reason of the Article 1(2)(d) arbitration exception, is such a judgment capable of constituting a relevant “judgment” of the Member State in which recognition is sought for the purposes of Article 34(3) of the Regulation?

(3) On the hypothesis that Article 34(3) of Regulation No 44/2001 does not apply, if recognition and enforcement of a judgment of another Member State would be contrary to domestic public policy on the grounds that it would violate the principle of res judicata by reason of a prior domestic arbitration award or a prior judgment entered in the terms of the award granted by the court of the Member State in which recognition is sought, is it permissible to rely on Article 34(1) of Regulation No 44/2001 as a ground of refusing recognition and enforcement or do Articles 34(3) and (4) of the Regulation provide the exhaustive grounds by which res judicata and/or irreconcilability can prevent recognition and enforcement of a Regulation judgment?

An opinion by AG Collins was published on May 5, 2022. He proposed the Court of Justice to answer that

“A judgment entered in the terms of an arbitral award pursuant to section 66(2) of the Arbitration Act 1996 is capable of constituting a relevant ‘judgment’ of the Member State in which recognition is sought for the purposes of Article 34(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, notwithstanding that such a judgment falls outside the scope of that regulation by reason of Article 1(2)(d) thereof.”

In practical terms, if followed by the Court of Justice, the Spanish decision would not be recognized in the UK under the Brussels Regulation. Very bad news for the Spanish government and also for all those, many, affected by the heavy oil spill, the worst marea negra ever experienced in Galicia.

The Grand Chamber, with M. Safjan acting as reporting judge, has decided otherwise in a decision already available  in English and French.

On the first and second questions, that she addresses together, the Court of Justice has decided

“Article 34(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that a judgment entered by a court of a Member State in the terms of an arbitral award does not constitute a ‘judgment’, within the meaning of that provision, where a judicial decision resulting in an outcome equivalent to the outcome of that award could not have been adopted by a court of that Member State without infringing the provisions and the fundamental objectives of that regulation, in particular as regards the relative effect of an arbitration clause included in the insurance contract in question and the rules on lis pendens contained in Article 27 of that regulation, and that, in that situation, the judgment in question cannot prevent, in that Member State, the recognition of a judgment given by a court in another Member State.”

And on the third

“Article 34(1) of Regulation No 44/2001 must be interpreted as meaning that, in the event that Article 34(3) of that regulation does not apply to a judgment entered in the terms of an arbitral award, the recognition or enforcement of a judgment from another Member State cannot be refused as being contrary to public policy on the ground that it would disregard the force of res judicata acquired by the judgment entered in the terms of an arbitral award.”

I expect the judgement and its reasoning to be very much commented in academic circles.

For the record, Prof. Adrian Briggs very kindly provided this piece of information in a comment to my post: “So far as concerns C-700/20, it should be noted that on March 1, the Court of Appeal, in The Prestige (No 5) [2022] EWCA Civ 238, ruled that the reference should not have been made as a matter of European law, and (in effect) remitted the matter to the judge with its advice that he should withdraw the reference. On March 31 the Supreme Court gave permission to appeal against the decision of the Court of Appeal.” If I am not wrong, the UKSC decision on the issue will be known this week as well.

Lydia Lundstedt (University of Stockholm) has posted Gtflix TV V Dr: ‘Same Ole Same Ole’ or Has the CJEU Broken New Ground? on SSRN.

In Gtflix Tv v DR, the Grand Chamber of the Court of Justice of the European Union (CJEU) handed down an important decision confirming the mosaic approach and the accessibility approach to the application of the damage head of jurisdiction to infringements of personality rights on the internet pursuant to Article 7(2) of the Brussels Ia Regulation. Pursuant to the mosaic approach, an injured party can bring proceedings in every Member State where the damage occurs but only with respect to the damage taking place in that Member State’s territory. Pursuant to the accessibility approach, the sole criterium for the occurrence of damage in a Member State is that the content that is placed online ‘is or has been accessible’ in that Member State. Both these approaches have been criticised by commentators and resisted by the Member States courts. Nevertheless, the CJEU arguably forges new ground as the decision seems to expand the mosaic and accessibility approaches into the realm of unfair competition law. Lastly, questions remain concerning whether the courts of the Member State where the damage occurred have jurisdiction to order other territorially limited remedies such as geo-blocking measures, in addition to compensation for damage.

For previous reports on this case, see here, here and here.

The JUDGTUST Project (Regulation BIa: a standard for free circulation of judgments and mutual trust in the EU) conducted by the T.M.C. Asser Instituut in cooperation with Universität Hamburg, University of Antwerp and Internationaal Juridisch Instituut has come to its completion. The findings of the this research are available online here.

The project was animated by the aim to identify best practices and provide guidelines in the interpretation and application of the Brussels I-bis Regulation (also known as Brussels Ia). For this the analysis carried across the EU Member states sought to evaluate to what extent the changes introduced (compared to the Brussels I Regulation) achieved their objective, what are the remaining shortcomings, and how can these be overcome by considering future useful changes. Together with this, the research has analysed how legislative projects at global level – e.g. the Hague Judgment Convention – and political developments – e.g. Brexit – influence the way the Brussels I-bis is applied.

In analysing the interaction between the Brussels I bis Regulation and the other EU private international law instruments, the project combines a primarily comparative legal approach with the use of empirical research methods. The comparative legal research relies on the analysis of legislation, case law of national courts in EU Member States and the Court of Justice of the European Union (CJEU), and scholarly writings. This endeavour identifies the difficulties in the application of the Brussels I-bis provisions and best practices in applying the provisions of the Regulation. This is done without neglecting the outcomes of the previous regulation – the Brussels I – and other closely related private international law sources. The empirical research relies on various methods, both qualitative and quantitative. On the basis of a dedicated Questionnaire, the national reporters from EU Member States provided information on relevant domestic case law and legal literature.

With its findings the JUDGTRUST project seeks to enhance the general understanding of the autonomous nature of the EU legal sources. Further it looks to contribute to the uniform interpretation and application of the Regulation and consequently promotes mutual trust and efficiency of cross-border resolution of civil and commercial disputes. Furthermore, the analysis provides suggestions on how to reach a greater degree of consistency of the EU private international law legislation.

The outputs of the Project include various materials available online such as the National Reports, a Consolidated Report, and materials of the Final Conference.

Together with these open access materials a Handbook on the Interpretation and Application of the Brussels I bis is expected in the coming period.

In addition to the comparative and analytical research, the project also contributed to the development of a Moot Court Competition (PAX Moot) for law students. With this the project seeks to contribute to the education of a new generation of practitioners dealing with EU private international law.

Michael Karayanni (Bruce W. Wayne Professor of International Law at the Hebrew University of Jerusalem) published the special course he gave at the Hague Academy on The Private International Law of Class Actions: A Functional Approach in Volume 422 of Collected Courses of the Hague Academy of International Law

According to Professor Karayanni, a transnational class action raises fundamental questions of Private International law with regard to the class action court’s jurisdiction over the defendant and the class members, on how to choose the applicable law, and ultimately on how to deal with the judgment if and when it comes up for enforcement or recognition before a foreign court. At times these questions and the complications they give rise to, become part and parcel of the class action court’s consideration whether to certify the class action as such.

In his lectures, Professor Karayanni identifies the major private international problems that are endemic to transnational class actions and discusses how these are handled, principally by courts in the US, Canada, and Israel. In this he offers an analytical legal framework that can better assist us in dealing with the private international law questions pertaining to transnational class action. He does so by identifying three different categories of class actions, with each of them demanding a separate and more surgical treatment: Insubstantial individual claims and negative incentive for individual litigation; Significant individual claims and positive incentive for individual litigation; Significant individual claims and negative incentive for individual litigation – the class action of the disempowered.

The volume also includes the course of Said Mahmoudi (Professor of International Law at Stockholm University) on Self-Defence and “Unwilling or Unable” States.

Further details on the volume are available here.

The author of this post is Etienne Farnoux, who is a professor of law at the University of Strasbourg. He has recently published his doctoral thesis on the policy considerations that underlie the rules of international jurisdiction, with a special focus on torts (Les considérations substantielles dans le règlement de la compétence internationale des juridictions – Réflexion autour de la matière délictuelle).

The thesis proposes to question the classical locational or proximity-based analysis of international adjudicatory jurisdiction in tort disputes. It is a commonplace idea – one that can be found both in European and national (French) private international law – that the rules of international jurisdiction are based on the geographical localization of the dispute, also known as the principle of proximity. If one thinks of international adjudicatory jurisdiction as being a question of territorial limitation of a State’s adjudicatory authority, it makes sense to rely on the localization of the dispute (or elements thereof) to organize it in a neutral way. The specific jurisdiction rule in matters relating to tort based on the location of the harmful event (art. 7 para. 2 of Brussels I recast regulation) perfectly embodies this locational approach to international judicial jurisdiction.

However, this proximity-based approach is faced with dire difficulties, namely the growing virtualization of entire swathes of human activities and the rise in crossborder private relations. More fundamentally, the vision of international jurisdiction as being based on the principle of proximity pays little attention to the notion that international jurisdiction is an organization by the State of its duty to render justice, be it with regards to crossborder private relations. The thesis opposes the locational analysis with a new approach to international jurisdiction that puts forward the substantive considerations specific to the underlying issue of the dispute, considerations that have remained at least partly hidden until now. In this perspective, the rules of international jurisdiction should reflect policy considerations which can be observed at two levels: at the level of procedural justice and at the level of substantive justice. It is the goal of this work to study the influence of these policy considerations on the rules of international jurisdiction with regards to crossborder tort cases.

As the subtitle indicates, the demonstration focuses on tort matters. Indeed, international litigation relating to civil liability, such as actions for damages against international polluters, transnational corporations responsible for human rights violations, corporations issuing securities on the financial markets, as well as cyber-torts, highlight in a particularly striking manner the need to base jurisdiction on something other than the location of the material elements of the dispute. Although the demonstration focuses particularly on the rules of jurisdiction in tort, it is not limited to them: it allows itself more general incursions into the system of jurisdiction in civil and commercial matters (in French, American and European Union private international law).

The thesis is articulated in two parts: the demonstration of the inadequacy of proximity as a basis for international jurisdiction (first part) leads to an outline of a concept of international jurisdiction based on substantive considerations (second part).

A Critical Assessment of the Principle of Proximity

The first part is devoted to a critical approach of the principle of proximity both from a historical point of view and a functional point of view. It examines each of the objectives pursued by the jurisdiction rules, based on the principle of proximity: evidential effectiveness; foreseeability; administrability of solutions. The weaknesses of the objectives of evidential efficiency and predictability leads to doubts about the role of the location operation in determining international jurisdiction. A study of the case law of the European Court of Justice on the subject of article 7(2) of the Brussels I bis Regulation reveals an instrumentalization of the location of the material elements of the dispute. This instrumentalization can be observed from the very beginnings of European case law on torts in the solutions given for complex torts with monolocalized harm (hypothesis of the Mines de Potasse judgment) and plurilocalized harm (hypothesis of the Fiona Shevill judgment) and for torts with continuous harm (hypothesis of the Dumez, Marinari and Kronhofer judgments). In all these cases, territorial location is manipulated, for purely argumentative purposes, so as to arrive at a solution which is not in any way dictated by location. This phenomenon is further accentuated by the growing immateriality of human activities, which can be observed in economic matters and through the figure of cyber-crimes. The loss of materiality of at least part of the elements of the dispute reveals the artificiality of the territorial localization operation and brings to light the balancing of interests at the heart of the jurisdictional question, between the interests of the alleged victim and those of the alleged perpetrator of the harm.

Substantive Considerations Underlying Rules of Jurisdiction

The second part is devoted to the study of this balancing of interests, apprehended through the notion of substantive considerations and made possible by the deconstruction of the principle of proximity. These considerations can be considered at two levels: that of procedural justice and that of truly substantive justice.

At the level of procedural justice, the most striking phenomenon is the decline of the traditional objective of jurisdictional protection of the defendant, around the principle of forum rei, and its progressive reversal in favor of the plaintiff, resulting in the rise of forum actoris. This phenomenon is complex and sometimes ambiguous because of the contradictory orientations adopted, as shown by the contradictory case law interpreting Article 7(2), as well as the difficult question of the regime of international jurisdiction, and in particular the forum non conveniens. At the level of substantive justice, the rise of the promotion of the interests of the plaintiff can be understood when set against the traditional normative and remedial functions of civil liability, both of which militate in favor of the alleged victim (which presupposes the exclusion of actions denying liability). As the case law of the Court of Justice still explicitly refuses to recognize such a protective function to forum delicti, this clarification is necessary and allows to look realistically at avenues for reform.

Looking prospectively, the risk of giving in without restraint to this favor for the claimant, seen in substantive terms as the alleged victim, is to open the way to anarchic forum shopping. A middle way would be to abolish the forum delicti and open a forum victimae instead, the jurisdiction of the alleged victim’s domicile. This forum can be envisaged in two ways. It could be constructed as an ordinary forum in tort, provided that a plausibility check on the alleged victim’s claims is introduced to combat procedural harassment. If this proposal were to be considered too bold, given the persuasive force that the consideration of the defendant’s jurisdictional protection continues to exert, it is possible to conceive of this forum victimae as a forum for the protection of the allegedly weak party. To a certain extent, this seems to be the path taken, albeit implicitly, by the case law of the Court of Justice, notably in the eDate and Kolassa judgments.

This substantive reading of the rule of jurisdiction is transversal and not exclusive of more occasional and more salient incursions of a substantial interest of the forum which will make the rule of jurisdiction subject to the pursuit of a substantive policy. This substantive interest of the forum may take the form of legislative policies (loi de police) or fundamental values (public policy) of the forum. To study the influence of overriding mandatory provisions on the rules of jurisdiction, it is necessary to go beyond the dogma of the independence of legislative and judicial jurisdictions, affirmed in a Monster Cable decision by the French Cour de Cassation. The outcome may be twofold. It may open the possibility, in some cases, of a purposeful correspondence between legislative competence and jurisdictional competence. It also militates in favor of the imperative nature of adjudicatory jurisdiction when an overriding mandatory rule is applicable. However, mandatory rules are not the only substantive elements that have an influence on the determination of international jurisdiction. The fundamental values of the forum are also likely to leave their mark on the rules of jurisdiction. The emergence of the forum of necessity is a cross-cutting example as it concerns access to justice, but other fundamental rights may be affected, notably personal freedom. The violation of such a right could give French courts universal civil jurisdiction to entertain a possible action for damages.

Finally, the thesis moves to draw the consequences of the demonstration beyond the rules of direct international jurisdiction, in the relations between the jurisdictional organizations of different States. In this perspective, the substantive approach to the rules of jurisdiction calls into question the international fungibility of courts, a precondition to a jurisdictional system such as the Brussels system. Whether this fungibility really exists or not is open to debate, and the ambiguous role of the forum delicti – merely justified by location but playing the part of a tool of protection of the claimant – should be put in this context. In this perspective the substantial approach to jurisdiction also helps to conceptualize the debate around the universalization of the Brussels system and the coexistence of several systems of jurisdiction for a single judicial system (Brussels I and national law), as well as the meaning and relevance of the control of indirect jurisdiction.

Some of the conclusions of this thesis have been summarized in English in an article entitled ‘Delendum est Forum Delicti? Towards the jurisdictional protection of the alleged victim in cross-border torts’ published in B. Hess, K. Lenaerts and V. Richard (ed.), The 50th anniversary of the European law of civil procedure, Baden-Baden: Nomos 2020, (259) p. 263 et seq.

On 2 June 2022, the Court of Justice of the EU handed down another judgment interpreting the EU Succession Regulation. In the T.N., N.N. case (C-617/20) provisions on the declaration of the waiver of succession were analyzed for the first time. The Opinion to the case was delivered by the AG Szpunar.

Background

The deceased was habitually resident in Germany. When he died, his wife has initiated succession proceedings in Germany, the country of his habitual residence within the meaning of Article 4 of the Succession Regulation. German law, as applicable pursuant to Article 21(1) of the Regulation, perceived the wife and two nephews, resident abroad, namely in the Netherlands, as heirs. The nephews were informed about the succession proceeding by a letter from the German court dated of 19 June 2019. In September 2019 the nephews made a declaration of waiver before the court in the Netherlands. They have informed the German court about these declarations by a letter written in Dutch in December 2019. Copies of declarations were attached.

In January 2020, the German court informed them that it had not been possible to take account of their declaration as documents should have been accompanied by a translation into German. At this stage of the proceeding, pursuant to Article 1944 Bürgerliches Gesetzbuch (the German Civil Code), the nephews were deemed to have accepted the succession, as the six months period applicable to cross-border cases, has elapsed before the originals of the declarations were presented.

The higher instance court had doubts whether this is correct and has asked, inter alia, the following preliminary question:

Does a declaration concerning the waiver of succession by an heir before the court of a Member State that has jurisdiction for the place of his or her habitual residence, which complies with the formal requirements applicable there, replace the declaration concerning the waiver of succession to be made before the court of another Member State that has jurisdiction to rule on the succession, in such a way that when that declaration is made, it is deemed to have been validly made (substitution)?

Provisions Subject to Analysis by the CJEU

Along the general rules on jurisdiction and applicable law which apply to “the succession as a whole”, as indicated in Articles 4, 10, 21, 22, 23, the Succession Regulation contains specific rules with respect to declarations which might be made by the heirs or legatees (namely, concerning waiver of the succession, acceptance of the succession and designed to limit the liability of the heir). These rules are analysed by the CJEU in the commented case.

In accordance with Article 13, in addition to the court having jurisdiction in the succession case in general, the courts of the Member State of the habitual residence of any person who, under the lex successionis, may make, before a court, such a declaration, has jurisdiction to receive such declarations where, under the law of that Member State, such declarations may be made before a court. Then, pursuant to Article 28, such declaration is valid as to form where it meets the requirements of either lex successionis (Article 28(a)) or the law of the habitual residence of the heir making this declaration (Article 28(b)).

Reasoning of the Court

The Court of Justice explains the very practical solution provided for in Article 13 which considers the situation of the heirs or legatees in cross-border cases, in particular that it may well happen that they live in another Member State than the one, with which the deceased was connected and therefore has jurisdiction in succession proceedings (based on habitual residence – Article 4, or location of assets – Article 10 and other circumstances). Not to force the heir to travel abroad in order to, for example, simply waive the succession, this Article provides for “an alternative forum of jurisdiction which aims to enable heirs (…) to make their declarations concerning the acceptance or waiver of succession before a court of the Member State in which they have their habitual residence” [para. 37].

Additionally, the rule on alternative jurisdiction is “complemented by a conflict-of-laws rule contained in Article 28” [para. 38], which is “conceived in such a way as to recognise the validity of a declaration concerning the waiver of succession either where the conditions laid down by the law on succession are satisfied (…) or where the conditions laid down by the law of the State of the habitual residence of the heir are satisfied (…)” [para. 39]. The way this rule is construed remine other private international law rules contained in numerous instruments and aimed at favoring a validity (favor validitatis) of a juridical act, for example Article 11(1) of the Rome I Regulation on formal validity of a contract or Article 1 of the HCCH Convention on Form of Wills on formal validity of dispositions of property upon death. Article 28 of the Succession Regulation provides that the declaration made by the heir is valid as long as it conforms with requirements provided for in one of the listed laws (and not cumulatively by both of them)

The Court of Justice also noted that “there is a close correlation between those two provisions, with the result that the jurisdiction of the courts of the Member State of the habitual residence of the heir to receive declarations concerning the waiver of succession is subject to the condition that the law on succession in force in that State provides for the possibility of making such a declaration before a court. If that condition is satisfied, all the steps to be carried out before a court of the Member State of the habitual residence of the heir wishing to make such a declaration are determined by the law of that Member State” [para. 40]. Any other understanding of the provision would deprive it of its practical effect.

As the Succession Regulation does not provide for a mechanism for the communication of declarations to the court having jurisdiction, it is the heir or a legatee that should “assume the burden of communicating the existence of those declarations to the authorities responsible for the succession” [para. 47], and therefore, such declaration will “produce legal effects before the court having jurisdiction to rule on the succession, provided that that court has become aware of the existence of that declaration” [para. 39]. It seems however that there is no requirement as to the originality or translation of the declaration that must be strictly applied.

Taking all the above into account the CJEU ruled that:

a declaration concerning the waiver of succession made by an heir before a court of the Member State of his or her habitual residence is regarded as valid as to form in the case where the formal requirements applicable before that court have been complied with, without it being necessary, for the purposes of that validity, for that declaration to meet the formal requirements of the law applicable to the succession.

Conclusion

The understanding of the Succession Regulation presented by the Court of Justice in this judgement is practical and very much in line with the idea of facilitating the lives of heirs and legatees in cross-border cases. As usually happens we tend to be accustomed to rules and procedures of our domestic succession laws, whereas the application of the Regulation requires much more flexibility.

This post was contributed by Francesco Pesce, who is a professor at the University of Genoa.

The very first meeting of the Hague Conference on Private International Law’s (HCCH) Special Commission (SC) on the Practical Operation of the 2007 Child Support Convention and 2007 Maintenance Obligations Protocol was held from 17 to 19 May 2022. The event was attended by over 200 delegates representing HCCH Members, Contracting Parties and Observers from all regions of the world.

Following an invitation coming from the Secretary General of the HCCH, for the first time EAPIL participated as an Observer to a meeting of the Hague Conference.

The meeting resulted in the adoption of over 80 Conclusions & Recommendations, providing guidance on a wide range of issues relating to the implementation and practical operation of these instruments.

Among other things, the Special Commission took into a specific consideration some issues raised in the Position Paper on Child Support and Maintenance Obligations prepared by the EAPIL Working Group specifically created for that purpose.

More in detail, HCCH Members and Contracting Parties discussed some problems concerning the effective access to legal assistance for children under the Convention, for the recovery of maintenance obligations arising from a parent-child relationship.

Firstly, the interpretation of the concept of ‘residence’ (Article 9) was reaffirmed to be necessarily consistent with Article 53, which prescribes uniformity in the interpretation and application of the Convention, due to its international character. In this perspective, it has been recalled that the intention behind the use of (simple) ‘residence’ is to provide the easiest and the widest access to Central Authorities and make it is as easy as possible to apply for international recovery of child support, so that a child has the possibility to require financial support wherever he or she may be living and should not have to satisfy a strict residence test in order to apply for assistance to receive it (cf. Borrás-Degeling Report, para. 228). Based on this assumption, the SC confirmed that Article 9 does not always indicate a single national Central Authority: when the creditor/child is permanently living in two different Contracting States, then it does not prevent a choice of most appropriate (State, and subsequently) Central Authority to submit the application. The creditor may take into account many factors in making this decision, bearing in mind that support is usually needed for a prolonged period of time. Such a case is considered under para. 7 of the Conclusions & Recommendations, expressly referred to the situation of a child studying abroad, when the debtor habitually resides or has assets in another Contracting Party than the State of either the residence or habitual residence of the creditor.

Secondly, the SC noted that some doubts were raised by the responses to the Questionnaire of August 2019 on the practical operation of the 2007 Child Support Convention, on the concept of ‘creditor’ with reference to the existing difference between those systems where it is the child him/herself who qualifies as ‘creditor’ acting for the protection of his/her own interests (even if procedurally through an adult (parent) acting on his/her behalf) and, on the other hand, those States providing that a dependent child cannot be the creditor, so that the action for the maintenance recovery is brought by the parent on his/her own In this respect, the SC recalled that, in the case where the child is an applicant, information concerning the name of the non-debtor custodial parent should be written under “Other information” in Section 10 of the Recommended Form (cf. Conclusions & Recommendations, para. 8);

Lastly, the SC addressed the issue of family status, with a specific reference to recognition and enforcement of maintenance decisions concerning relationships not provided by the law of the requested State. On this matter, para. 24 of the Conclusions & Recommendations simply reaffirms that, in accordance with Article 19(2) of the 2007 Convention, maintenance obligations arising from these relationships can still be recognised and enforced without recognising such relationships per se. The specific issue of (same-sex) marriages and other relationships – such as cohabitations – that could be equated to marriage in the national law of the State of origin was raised by the Position Paper, but it was not deepened during this first meeting of the SC: in fact, spousal support was not considered a priority at this stage (cf. para. 67).

Ilaria Pretelli, a legal adviser at the Swiss Institute of Comparative Law, has recently posted on SSRN her paper titled Filiation between Law, Language, and Society

The paper was presented this May at a conference on Family Status, Identities and Private International Law. A Critical Assessment in the Light of Fundamental Rights organized by the Swiss Institute of Comparative Law, European Law Institute and Università di Pisa. The post about the conference may be found here.

The abstract reads as follows:

The legal problems around contractual filiation are often presented as creating an opposition between rainbow family and traditional ones but they conceal, underneath, an opposition between two distinct visions of filiation. In patriarchal societies, control over his genealogy by the patriarch is functional in the protection of the social position of the family. These societies are characterised by substantial social immobility. The wealth of sons and daughters depends entirely on the ancestors. Children have duties vis-à-vis their parents, who maintain power and control over them. The importance of lineage can on the other hand be scaled back whenever, in a given society, it is possible to acquire wealth through one’s own efforts in life, rather than only by retaining wealth from ancestors or acquiring it through marriage. Today, the wealth of the children of middle-class families, assisted from the educational and economic point of view by the welfare state, also depends on their ability to integrate into the social fabric through their personal contribution. Children have rights vis-à-vis their parents, and law must assist them, as they are vulnerable persons, in enjoying their rights.

On 2 June 2022, the CJEU ruled in Case C-196/21 that courts are not ‘applicants’ in the meaning of Article 5(2) of the 2007 Service Regulation and should thus not bear the costs of translating documents sent to foreign based third parties seeking to intervene in the court proceedings.

The reasons given by the CJEU are quite narrow and formalistic. Unfortunately, the decision does not address broader questions such as whether courts may impose translation of documents that they intend to serve, and whether third parties applying for intervening in judicial proceedings may benefit from a right to translation.

Background

Two parents who, it seems, were both residents in Romania, started proceedings in Romania for the dissolution of the marriage and various issues relating to parental responsibility over their child.

During the proceedings, various members of the family (siblings of the child, paternal grand father) residing in France applied for leave to intervene in the proceedings in support of the husband/father of the child.

The issue arose as to whether certain judicial documents to be served on the interveners by the court ought to be translated in French, and most importantly who should pay for it.

Burden of Translation Costs

Art. 5(2) of the 2007 Service Regulation, which has now become Article 9(2) the 2020 Service Regulation Recast, provides:

1.   The applicant shall be advised by the transmitting agency to which he forwards the document for transmission that the addressee may refuse to accept it if it is not in one of the languages provided for in Article 8.

2.   The applicant shall bear any costs of translation prior to the transmission of the document, without prejudice to any possible subsequent decision by the court or competent authority on liability for such costs.

In this case, the Romanian court had ruled that the parties to the original proceedings (ie the parents of the child) should bear the costs of translating the documents to be served on the interveners. The parents refused, and argued that they were no “applicant” in the meaning of Art. 5(2), but that the court was the “applicant”, since it had ordered transmission of the relevant documents to the addressees (here, the interveners).

Decision of the CJEU

The CJEU rules that a court cannot be considered as “the applicant” in the meaning of Art. 5(2).

The CJEU puts forward a number of arguments based on the wording of the Service Regulation, which distinguishes between courts and applicants.

It also refers to legislative history, and points to the explanatory report to the 1997 Service Convention, which stated with respect to a similar provision:

“applicant” means in all cases the party interested in transmission of the document. It therefore cannot refer to the courts.

Finally, the CJEU explains that courts are responsible for ensuring fairness of the service process, and that it would be weird if they were themselves applicants, as they would not be impartial in serving this function.

Assessment

This decision is a bit surprising in the narrowness of its focus. One wonders whether the most important issues raised by the case were not missed.

First, there is no obligation to translate documents under the Service Regulation. Art 5(2) addresses the issue of the burden of the costs of translation if the applicant chooses to translate the relevant document. The applicant is free to serve judicial documents without any translation, as the addressee may never use his right to refuse service on the ground of language. In this case, it seems likely that the addressees were all Romanian emigrés, and it may well be that they did not need any translation. So the first problem in this case was that the Romanian court had decided to impose immediate translation, and then was looking for someone to pay.

Indeed, isn’t the rationale of Art. 5(2) to put the burden of paying the costs of translation on anybody insisting on such translation at a stage where it is unclear whether it will be needed? In other words, Art 5(2) aims at avoiding an externality. It was much easier for the Romanian court to impose the (non existing) obligation in the first place if it knew it would not pay it.

The second issue raised by this case is that the ‘addressee’ was a third party applying to intervene in foreign proceedings. The critical question was therefore whether a party choosing to participate in judicial proceedings (as opposed to a defendant) should have any right of receiving a translation of judicial documents, and if so whether it would extend to documents exchanged by the original parties beforehand.

The University of Bretagne – Loire, France, is seeking to recruit a doctoral candidate to conduct research on ex officio application of private international law rules under the supervision of Prof. David Sindres.

The doctoral thesis is to be written in French. The issue of ex officio application of choice of law rules is a hot topic in France at the present time (see our posts here, here and here), but the topic would not be limited to these particular PIL rules.

Définir l’« office du juge » consiste, de manière générale, à cerner le rôle du juge dans la direction du procès, ce qui implique de préciser ses pouvoirs et leurs limites (Lexique des termes juridiques, Dalloz 2021-2022). En droit international privé, la question de l’application d’office, par le juge, des règles de droit international privé se pose de manière extrêmement fréquente, dans tous les domaines couverts par la discipline. Ainsi s’interroge-t-on sur le point de savoir si le juge doit ou non vérifier d’office sa compétence internationale, s’il doit d’office mettre en œuvre la règle de conflit de lois, soulever d’office une exception de fraude ou d’ordre public international, vérifier d’office les conditions de régularité d’un jugement étranger dans le cadre de la procédure d’exequatur etc…

Nonobstant sa très grande importance pratique et la qualité des écrits qui lui ont été consacrés, la question de l’application d’office par le juge des règles de droit international privé demeure grevée de nombreuses incertitudes : les solutions en la matière varient considérablement d’un domaine à l’autre, n’obéissent à aucune logique d’ensemble et s’avèrent très évolutives.

Dans ce contexte, l’objectif premier de la recherche proposée consiste à déterminer s’il serait possible d’instiller davantage d’homogénéité et de clarté en la matière, en identifiant plus précisément les critères qui devraient présider à l’application d’office par le juge des règles droit international privé. Ne pourrait-on pas, en particulier, faire usage de critères analogues s’agissant de la détermination de la compétence internationale, de la résolution des conflits de lois, et de la reconnaissance et d’exequatur des jugements étrangers ? A supposer que la délimitation de l’office du juge quant à l’application de ses règles de droit international privé puisse reposer sur des critères semblables d’un champ à l’autre, ces critères devraient-ils reposer sur l’origine, interne, internationale ou européenne, des textes applicables ? Sur la nature, disponible ou non, des droits litigieux ? Sur l’appartenance à l’ordre public des règles applicables ? Sur d’autres critères ?

L’intérêt du sujet tient notamment au fait qu’il présente à la fois un grand enjeu pratique et une dimension théorique très marquée, empruntant à divers domaines du droit : droit international privé, droit processuel, droit européen, théorie générale du droit etc…

Le sujet présente par ailleurs une forte dimension internationaliste et européenne et constitue de surcroît un terreau fertile pour une approche comparatiste : dans une mesure qu’il incombera au candidat de déterminer précisément, la question de l’office du juge dans la mise en œuvre de ses règles de droit international privé relève en effet de l’autonomie procédurale des Etats membres, de sorte que la pratique sur ce point des différents Etats, membres et non membres, n’est pas uniforme et gagnerait à être comparée.

Le sujet pourra au surplus donner lieu à une approche innovante dans la mesure où il visera à établir un trait d’union entre les différents pans du droit international privé, alors que les travaux publiés jusqu’ici sur la question s’inscrivent dans une approche très compartimentée du droit international privé, envisageant séparément l’office du juge en matière de conflit de lois, de compétence internationale et de reconnaissance des décisions.

Enfin, le sujet, même s’il est ample, est bien délimité, si bien qu’il donnera au candidat la possibilité de terminer sa thèse dans un délai raisonnable, n’excédant pas cinq ou six ans.

Applications are to be filed here by 15 June 2022.

For more information, see here and contact Prof. Sindres at david.sindres@univ-angers.fr

Matthias Weller (University of Bonn) has published the special course that he gave at the Hague Academy in Volume 423 of Collected Courses of the Hague Academy of International Law.

The title of the course is “Mutual Trust”: A Suitable Foundation for Private International Law in Regional Integration Communities and Beyond?

Professor Weller reflects on how ‘mutual trust’ has become the central justification of the EU to drive its private international law forward. For this, he explores the theoretical potential of trust perspective on private international law. As a first step of the analysis, the concept of trust is deconstructed based on an interdisciplinary analysis. Then, the results are connected with fundamentals of private international law. The central finding is that private international law builds on the dichotomy of trust and control: how far should foreign judgments, foreign law and other foreign judicial acts be integrated – “trusted” – within the domestic administration of justice? This question must be answered by each and every legislator and each and every court, in particular by those that strive for economic and complementing judicial integration. Recurring tools of trust management can be identified. How do regional integration communities use and finetune these tools for their private international law and what are potential explanations from their history, their economics, and their legal cultures? Four communities, selected from different parts of the world, are presented under this perspective, ordered in a series towards growing intensities of mutual trust: the ASEAN, the CEMAC, the MERCOSUR, and the EU. In his contribution Professor Weller comes to the conclusion that trust is, must, and can be managed and dosed according to the respective conditions and contexts, but no matter where we are: to trust or not to trust – that is the question of private international law, for regional integration communities and beyond.

The volume also includes the course of Meg Kinnear (Vice president of the World Bank Group) on The Growth, Challenges and Future Prospects for Investment Dispute Settlement.

Further details about the volume are available here.

The second issue of the Journal du droit international for 2022 has just been released. It contains two articles and several case notes relating to private international law issues, including a chronique on international judicial cooperation (authored by Kamalia Mehtiyeva, University of Paris-Est Créteil).

In the first article, Sara Godechot-Patris (University of Paris-Est Créteil) discusses the new French provision on the right of withdrawal in international succession law ( Le prélèvement est mort… Vive le prélèvement ! De quelques réflexions sur l’article 913, alinéa 3 du Code civil)

The English abstract reads :

The status of the reserved portion of an estate in private international law is a sensitive issue because it relates to the State’s conception of the family. While the Cour de cassation had refused to see the reserve as an essential principle of French law, the legislator has chosen to revive the right of withdrawal with the adoption of the law of August 24, 2021 reinforcing the respect of the principles of the Republic. The existence of the European regulation of 4 July 2012 on international successions, which has unified the rules in this area, has not dissuaded him from doing so. While it is not certain that such a mechanism will withstand future review by the Court of Justice of the European Union, the fact remains that for the time being practitioners must apply it. The text’s grey areas are no less numerous. The aim of this study will be to propose keys to the interpretation of this text.

In a second article, Pierre Mayer (University of Paris 1, Avocat, Paris Bar & Arbitrator) analyses important questions of (French) international arbitration law based on recent case law (À propos de deux arrêts récents de la cour d’appel de Paris rendus dans les affaires Monster Energy et Accessoires Company).

The English abstract reads :

The present article deals with two subjects which have both been addressed in two recent judgments of the International Chamber of the Paris Court of Appeal. The first subject is whether it is possible, for a party which cannot afford to pay the costs of an arbitration, to bring its claim before a French court, although it is bound by an arbitration clause. Both decisions, in identical terms, pave the way to a positive answer, and the article examines approvingly the consequences of that position. The second subject is whether a foreign award, which is alleged to have ignored a French loi de police, can be recognized in France. The article sets out a few precisions on the relationship between lois de police and public policy

A full table of contents can be downloaded here.