EAPIL blog

The EAPIL blog is reporting about the Association’s founding conference in Aarhus by dedicated posts published at the end of each conference day. Day one and two were covered by the posts that can be found here and here, respectively. Please follow us on Twitter (@eapilorg) and LinkedIn for updates as the conference unfolds. Check out our new Instagram account, too!

The founding conference of the European Association of Private International Law came to an end on 4 June 2022.

The first session saw the presentations of Gian Paolo Romano (University of Geneva, on-line) and Ralf Michaels (MPI Hamburg).

Gian Paolo Romano dealt with child abduction and custody cases. In light of the shortcomings on the current state of affairs, he made the case for the institution of supranational bodies charged with deciding cross-border disputes in this area, as a means to address, inter alia, concerns for lack of neutrality of national courts.

Ralf Michaels spoke about the relevance of religious law to European private international law in family matters. He discussed the challenges posed by religious rules, including those relating to their status as non-State rules, the challenges that surround the characterisation of religious legal institutions for the purposes of private international law, and the legal implications of referring to religious law for the respect for equality, specifically gender equality.

The final session of the conference consisted of two presentations.

Marta Pertegás Sender (University of Maastricht) talked about international property law. She began by recalling the impact of the rise of digitalised and globalised transactions to the principle of territoriality. She then addressed, in light of the case law of the Court of Justice, a selection of issues of property law that arise in connection with existing EU legislation, notably in matters of succession and the property regimes of couple. She finally discussed possible next steps in the harmonisation of the (substantive and) private international law in the field of international property.

Haris Pamboukis (University of Athens, on-line) discussed a number of issues regarding the interpretation of the EU Succession Regulation, in particular as regards characterisation and coordination with other legislative measures and as regards the notion of habitual residence, having regard to the case law of the Court of Justice.

 

As in previous sessions, the presentations prompted several questions and remarks from the audience.

 

 

Ralf Michaels and Cristina González Beilfuss (chair)

 

Angelika Fuchs during the debate on family law matters

 

Mateusz Pilich during the debate on family law matters

 

Ilaria Pretelli during the debate on family law matters

 

Jan von Hein during the debate on family law matters

 

Marta Pertegas Sender and Eva Maria Kieninger (chair)

 

Iryna Dikovska during the debate on property and succession law 

 

The General Assembly of the European Association of Private International Law met in Aarhus on 3 June 2022 in the framework of the Association’s founding conference.

Some sixty members attended in persons, while twenty more joined on-line.

Chaired by Dário Moura Vicente, the Assembly heard reports about completed and ongoing activities of the Association, namely those channelled through the EAPIL Working Groups, the EAPIL Young Research Network and the EAPIL blog. The Assembly was also informed of planned new activities, including a journal that the Association intends to launch in due course.

The Assembly also witnessed the presentation of the upcoming EAPIL conference, due to take place in Wrocław, in 2024, organised by Agnieszka Frąckowiak-Adamska.

The results of the election of EAPIL officers, which occurred online in the days preceding the Assembly, were then announced to members.

The new EAPIL board consists of six members: Apostolos Anthimos, Gilles Cuniberti, Morten M. Fogt, Agnieszka Frąckowiak-Adamska, Pietro Franzina and Giesela Rühl.

The following have been elected to the EAPIL Scientific Council: Apostolos Anthimos, Gilles Cuniberti, Pedro De Miguel Asensio, Morten M. Fogt, Agniezska Frąckowiak-Adamska, Pietro Franzina, Susanne Gössl, Thomas Kadner Graziano, Bettina Heiderhoff, Marion Ho-Dac, Alexander Layton, Vesna Lazić, Tobias Lutzi, Johan Meeusen, Ralf Michaels, Dário Moura Vicente, Marta Requejo Isidro, Giesela Rühl, Veronica Ruiz Abou-Nigm and Jan Von Hein.

Finally, the results were announced of the choice made by the members of the Association’s logo, to replace the provisional logo that has been used so far. The new logo is featured above in this post.

The EAPIL blog is reporting about the Association’s founding conference in Aarhus by dedicated posts published at the end of each conference day. Day one was covered by the post that can be found here. Please follow us on Twitter (@eapilorg) and Linkedin for updates as the conference unfolds. Check out our new Instagram account, too!

Nearly one hundred persons attended the second day of the founding conference of the European Association of Private International Law.

The morning session was devoted to the issues of private international law raised by digitalisation.

Marie-Élodie Ancel (University Paris II Panthéon-Assas) focused on online platforms. She critically analysed the current state of EU law in this area, as regards both issues of applicable law and issues of jurisdiction, and stressed the importance of private enforcement and access to effective judicial remedies.

Two presentations followed, by Matthias Lehmann (University of Vienna) and Burcu Yüksel Ripley (University of Aberdeen), which dealt with the legal challenges posed by blockchains and crypto assets from the standpoint of private international law. Matthias Lehmann focused on the issues raised by the characterisation of situations that occur on the blockchain and their localisation for conflict-of-laws purposes, whereas Burcu Yüksel Ripley addressed the questions that revolve around the transfer of crypto assets.

With Burkhard Hess (Max Planck Institute Luxembourg) the discussion turned on the use of digital tools in judicial cooperation in civil matters. He illustrated the developments towards digitalisation which occurred in the justice systems of Member States, notably in Germany, and examined the initiatives taken by the Union with respect to the digitalisation of judicial cooperation in civil matters, including, recently, Regulation 2022/850 on the e-CODEX system.

The topic of the afternoon session was fragmentation in private international law. Francisco Garcimartín-Alférez (Universidad Autonoma de Madrid) addressed the topic with reference to commercial matters, while Thalia Kruger (University of Antwerp) discussed the matter as concerns family law and the law of persons. The two presentations dealt with the challenges posed by the co-existence of sectorial instruments, the interplay of national, regional and international instruments and the dialogue between courts (the Court of Justice, the European Court of Human Rights, national courts). The risks associated with fragmentation (gaps, frictions, inconsistencies, etc.) were examined alongside the advantages that the diversity of the sources and the progressive development of the law may bring about in some circumstances. Strategies aimed at mitigating the above risks (such as analogy, the recourse to general principles and inter-textual interpretation) were also discussed.

A rich debate followed both sessions.

 

 

Jeremy Heymann chairing the morning session

 

Marie-Élodie Ancel

 

Matthias Lehmann

 

Burkhard Hess

 

Geneviève Saumier chairing the afternoon session

 

The afternoon session panel with Geneviève Saumier, Francisco Garcimartín Alférez, Thalia Kruger, Andreas Stein and Kermit Roosevelt III

 

Thomas Kadner Graziano during the debate on fragmentation

 

On 15 and 16 June 2022, the University of Zaragoza will host an online conference under the title Challenges of Private Law and the 2030 Agenda. Presentations will be held in in Spanish and in Italian. Several, among them, will address issues of private international law.

Topics include international surrogacy, child abduction, cross-border divorce, children born under irregular migration circumstances, international trade sanctions, climate change litigation and the role of Private International Law with respect to immigration.

Those interested in presenting a communication (in Spanish, English or Italian) are invited to submit an abstract of no more than 500 words by 10 June 2022.

More information is available here.

Regulation (EU) 2022/850 of the European Parliament and of the Council of 30 May 2022 on a computerised system for the cross-border electronic exchange of data in the area of judicial cooperation in civil and criminal matters (e-CODEX system), and amending Regulation (EU) 2018/1726, has been published on the Official Journal of 1 June 2022.

Marion Ho-Dac has reported on this blog on the procedures at the institutional level towards the adoption of the instrument (see here and  here).

The Regulation is based on the TFEU, especially on Article 81(2) and Article 82(1) thereof. It is thus meant to contribute to the overall objective of the EU’s Area of Freedom, Security and Justice of guaranteeing effective access to justice for citizens and businesses and facilitating judicial cooperation between the Member States. More specifically, it concerns communication between parties and courts, as well as between authorities in different Member States,  through the cross-border electronic exchange of data.

The underlying idea of the Regulation is quite basic and definitely not new: technology tools are key for the above-mentioned communication to be effective, but they need to be secure. In this context, e-CODEX (e-Justice Communication via On-line Data Exchange) was launched under the multiannual e-Justice action plan 2009-2013 to promote the digitalisation of cross-border judicial proceedings and to facilitate the communication between Member States’ judicial authorities; it has been working experimentally since then. Simply put, the e-CODEX system consists of a package of software products which can be used to set up an access point for secure communication. Access points using e-CODEX can communicate with other access points over the internet via a set of common protocols, with no central system involved.

During the last years e-CODEX has developed in a way allowing the Commission to define it as ‘the main tool and the gold standard for establishing an interoperable, secure and decentralised communication network between national IT systems in cross-border civil and criminal proceedings’ (COM (2020) 712 final). It could thus receive legislative blessing (and support). Moreover, the system has so far been managed by a consortium of Member States and other organisations, with funds from the participant Member States and from EU grants. For sustainability reasons, the model needed to be replaced.

In keeping with the above, the Regulation has been adopted to establish the legal framework for the e-CODEX system. It lays down rules on the definition, composition, functions and management of the system ; on the responsibilities of the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA), regarding the e-CODEX system ; on the responsibilities of the Commission, Member States and the entities operating authorised e-CODEX access points; and on a legal framework for the security of the e-CODEX system. It should be noticed that it does not provide for the mandatory use of e-CODEX.

The text, with EEA relevance, shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. It will nevertheless take some time until the institutional structure it sets up is into motion (for instance, eu-LISA is not expected to take over the e-CODEX system before July 2023). In as far as civil justice in cross-border cases is concerned, it is important to know that the European e-Justice portal will use e-CODEX to enable citizens to electronically sign and send applications for European payment orders and small claims to competent courts in the Member States. e-CODEX shall also work as digital channel to serve documents and to take evidence abroad under the new service and evidence Regulations, adopted on 25 November 2020.

The EAPIL blog will report about the Association’s founding conference in Aarhus by a dedicated post at the end of each conference day. Please follow us on Twitter (@eapilorg) and Linkedin for updates as the conference unfolds. Check out our new Instagram account too!

The founding conference of the European Association of Private International Law has started! More than ninety members have attended in person today’s session. Some others are on their way to Aarhus and will be taking part in the conference in the coming days. A warm welcome to all from the editors of the blog!

In his keynote speech, Peter-Arnt Nielsen (Copenhagen Business School) focused on the different institutional models whereby cooperation aimed at the harmonisation of private international law has taken place in Europe since the 1968 Brussels Convention, discussing the particular features and the implications of each model.

Andreas Stein (Head of Unit, European Commission) has offered a “Report from Brussels”. His overview covered measures that are currently being negotiated by the EU institutions (such as the accession by the EU to the Hague Judgments Convention), as well as proposals that are either in preparation or have just been presented (such as the proposal on the recent proposal for a directive on SLAPPs) and proposals which are scheduled for consideration at a later stage (such as the contemplated review of the Brussels I bis and Rome II Regulations).

Maciej Szpunar (Advocate General, Court of Justice of the European Union), has provided a “Report from Luxembourg”. Having regard to the case law of the Court of Justice, he discussed the relevance of fundamental rights, notably as enshrined in the Charter of Fundamental Rights of the European Union, to private international law in Europe.

A lively discussion followed the presentations.

 

Kermit Roosevelt III (chair), Peter Arnt Nielsen and Andreas Stein

Maciej Szpunar (online)

A view of the auditorium

 

June 2022 starts at the Court of Justice with the publication of two decisions of PIL interest this Thursday, 2 June.

The first one, in case C-617/20, T.N. and N.N., focuses on the interpretation of Articles 13 and 28 of the EU Succession Regulation. The Hanseatisches Oberlandesgericht in Bremen (Germany), sent the following questions to the Court of Justice:

1. 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)?
2. If Question 1 is to be answered in the negative: In addition to making a declaration before the court that has jurisdiction for the place of habitual residence of the party waiving succession which complies with all formal requirements, is it necessary, in order for the declaration concerning the waiver of succession to be valid, that the latter inform the court that has jurisdiction to rule on the succession that the declaration concerning the waiver of succession has been made?

3. If Question 1 is to be answered in the negative and Question 2 in the affirmative:

a. Is it necessary that the court that has jurisdiction to rule on the succession be addressed in the official language of the location of that court in order for the declaration concerning the waiver of succession to be valid and, in particular, in order to comply with the time limits applicable for making such declarations before that court?

b. Is it necessary that the court that has jurisdiction to rule on the succession receive the original documents drawn up in relation to the waiver by the court that has jurisdiction for the place of habitual residence of the party waiving succession and a translation thereof in order for the declaration concerning the waiver of succession to be valid and, in particular, in order to comply with the time limits applicable for making such declarations before the court that has jurisdiction to rule on the succession?

On 20 January 2022, Advocate General Szpunar had proposed to answer (the Opinion is not yet available in English) :

Articles 13 and 28 of Regulation (EU) No. 650/2012 (…) must be interpreted in the sense that the requirement, provided for in the law applicable to the succession, to submit the declaration regarding the waiver of succession to the competent court, that is to say the court of the habitual residence of the deceased at the time of death, constitutes a condition for the formal validity of the declaration. Therefore, in the event that the formal validity of said declaration is assessed in light of the law indicated in article 28, letter b), of the Regulation, non-compliance with that requirement does not entail invalidity of a statement made before the competent court pursuant to article 13 of Regulation No. 650/2012.

The deciding Chamber is composed by M. Ilešič (reporting judge) E. Regan, I. Jarukaitis, D. Gratsias, and Z. Csehi.

Also on 2 June 2022, a chamber of three judges (J. Passer, N. Wahl, and L. Arastey Sahún, the latter as reporting judge) will handle the judgment on case C-196/21, SR (Frais de traduction dans une procédure civile). The request for a preliminary reference, from the Tribunalul Ilfov (Romania), originates in a dispute concerning family and maintenance matters. The question arouse who has to bear the cost of translating into French the summonses or orders issued by the court with a view to service upon the interveners in the national proceedings: hence the need for the interpretation of Article 5(2) of the Service Regulation.

The next PIL hit of this month will be the hearing in C-291/21, Starkinvest. The background of the referral is a Belgian judgement ordering the Dublin-based company Soft Paris Parties Ltd, subject to a penalty payment of EUR 2 500 per breach, to cease all sales of products and services in the Benelux countries under a certain word mark. Some months after the judgment was served on the debtor, the claimant (Starkinvest Srl) issued an order for payment in the sum of EUR 86 694.22, which included EUR 85 000 in penalty payments. Starkinvest Srl has asked the Belgian court to make a European Account Preservation Order in the principal amount of EUR 85 000, over such sums as may be held in a French bank account of Soft Paris Parties Ltd.

For the referring court, it is unclear whether Starkinvest Srl is relying on an instrument ‘requiring the debtor to pay the creditor’s claim’ within the meaning of Article 7[(2)] of the EAPO Regulation. In addition, it has reservations based on Article 4 of the Regulation. According to the provision, a ‘claim’ is defined as ‘a claim for payment of a specific amount of money that has fallen due or a claim for payment of a determinable amount of money arising from a transaction or an event that has already occurred, provided that such a claim can be brought before a court’; in light of it, the question arises whether, bearing in mind that while the principle and basic amount of a penalty payment are established by judgment, the amount payable depends on possible future breaches by the debtor, such a payment can be regarded as a ‘claim’ in that sense. The national court has referred these questions to the Court of Justice :

1. 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 No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure?
2. 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 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order where there has been no final determination of the amount in accordance with Article 55 of Regulation 1215/12 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?

Advocate General Szpunar will announce the date of delivery of his opinion at the end of the hearing. The Chamber in charge is composed by judges A. Prechal, J. Passer, N. Wahl, L. Arastey Sahún and F. Biltgen, with the latter acting as reporting judge.

The same Chamber has been appointed to adjudicate in case C-265/21, AB and AB-CD (Titre de propriété sur des oeuvres d’art), with the support of Advocate General Szpunar’s opinion.

The request addresses the interpretation of ‘contract’ under Article 5 of the Brussels I Regulation, and in the Rome I Regulation. The national proceedings concern an action seeking the recognition of a title of ownership of works of art based on a double contract of sale, the first between the defendant and a seller and the second between this seller and the plaintiff. The referring court is at a loss regarding which the contract to consider in order to determine the place of obligation serving as the basis for the request, and to ascertain the substantive rules applicable to the merits:

1. Must the concept of ‘matters relating to a contract’, within the meaning of Article 5(1) of Regulation No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘the Brussels I Regulation’):

a. be interpreted as requiring the establishment of a legal obligation freely assumed by one person towards another, which forms the basis of the applicant’s action, and is that the position even if the obligation was not freely assumed by the defendant and/or towards the applicant?

b. If the answer is in the affirmative, what must the degree of connection between the legal obligation freely assumed and the applicant and/or the defendant be?

2. Does the concept of ‘action’ on which the applicant ‘relies’, like the criterion used to distinguish whether an action comes under the concept of matters relating to a contract, within the meaning of Article 5(1) of the Brussels I Regulation, or under ‘matters relating to tort, delict or quasi-delict’, within the meaning of Article 5(3) of that regulation (C‑59/19, paragraph 32), entail verification of whether the interpretation of the legal obligation freely assumed seems to be indispensable for the purpose of assessing the basis of the action?

3. Does the legal action whereby an applicant seeks a declaration that he or she is the owner of an asset in his or her possession in reliance on a double contract of sale, the first entered into by the original joint owner of that asset (the spouse of the defendant, who is also an original joint owner) with the person who sold the asset to the applicant, and the second between the latter two parties, come within the concept of matters relating to a contract within the meaning of Article 5(1) of the Brussels I Regulation?

a. Is the answer different if the defendant relies on the fact that the first contract was not a contract of sale but a contract of deposit?

b. If one of those situations comes within the concept of matters relating to a contract, which contract must be taken into consideration for the purpose of determining the place of the obligation which serves as the basis of the claim?

4. Must Article 4 of Regulation (EC) No 593/2008 of 17 June 2008 on the law applicable to contractual obligations (Rome I) be interpreted as applying to the situation referred to by the third question referred for a preliminary ruling and, if so, which contract must be taken into consideration?

Mukarrum Ahmed (University of Lancaster) authored a book titled Brexit and the Future of Private International Law in English Courts with Oxford University Press.

The author considers the Brexit impact upon classical private international law issues (jurisdiction, applicable law and recognition of foreign judgments) in civil and commercial matters. By providing an assessment on the main post-Brexit changes in England, comments included, an attempt at the future of private international law before English courts is offered. In addition to analysing the basic fundamentals of the discipline, suggesting adjustments and law reform are provided for.

Further info on the book are available here.

EAPIL has established a working group on Reforming Regulation (EU) No 1215/2012 (Brussels I bis). In the light of the evaluation of the Brussels I bis Regulation which is currently being conducted by the European Commission, the aim of the working group is to assess the functioning of the Regulation and make proposals for its improvement.

The Working group is chaired by Burkhard Hess and Geert van Calster.

The members of the group include Apostolos Anthimos, Katarina Burdova, Gilles Cuniberti, Andrew Dickinson, Tanja Domej, Aleksandrs Fillers, Pietro Franzina, Cristina González Beilfuss, Viktória Harsági, Boriana Musseva, Nikitas E. Hatzimihail, Christian Kohler, Xandra Kramer, Thalia Kruger, Alexander Layton, Vesna Lazic, Eva Lein, Peter Lysina, Ulla Liukkunen, François Mailhe, Chrisoula Michailidou, Dario Moura Vincente, Maire Ni Shuilleabhain, Anna Nylund, Paul Oberhammer, Alina Oprea, Krzysztof Pacula, Thomas Pfeiffer, Fausto Pocar, Marta Requejo Isidro, Vesna Rijavec, Camelia Toader, Peter F. Schlosser, Andreas Stein, Maciej Szpunar, Vigita Vebraite, Ilaria Viarengo, Francesca Villata, Jan von Hein, Hans van Loon and Eiríkur Elís Þorláksson.

The project is co-organised and generously funded by the Max Planck Institute Luxembourg.

Conference

The working group will present its results and discuss proposals for reform in a conference organized by the Max Planck Institute Luxembourg on 9 September 2022.

The conference will be held in an hybrid format and it will be possible to participate either in person or online.

Members Consultative Committee

Any EAPIL member interested in following the work of the working group is invited to join the Members Consultative Committee (MCC). The chair of the MCC is Gilles Cuniberti, who can be contacted at gilles.cuniberti@uni.lu.

Members of the MCC will be invited to make any suggestion of reform that they may have before 1 July 2022. The suggestions will be forwarded to the WG for discussion.

After the September conference, the working group will circulate in the MCC its preliminary report for comments.

The EAPIL founding conference is now just a few days away. As the readers of this blog know, the event will take place in Aarhus on 2, 3 and 4 June 2022.

On 2 June, Peter-Arnt Nielsen (Copenhagen Business School) will provide kick-off the event with a key-note speech followed by a Report from Brussels, by Andreas Stein (Head of Unit, European Commission), and a Report from Luxembourg, by Maciej Szpunar (Advocate General, Court of Justice of the European Union).

The conference itself will start on 3 June, and will feature three blocks: the first will discuss the digitalization in European Private International Law, the second will be about fragmentation in European Private International Law, while the third block will address the future challenges for European Private International Law.

Further information on the conference can be found here.

The first General Assembly of the European Association of Private International Law will be held on 3 June 2022, as part of the conference.

EAPIL members are called upon to elect the chair of the General Assembly, renew the Board of the Association and elect the members of Scientific Council. All three votes will occur online.

Three e-mails have recently been sent to all EAPIL members with instructions on how to cast their vote for each of the above positions, through a voting platform called Abstimmen Online. If you are member and you haven’t received such e-mails, please check your spam folder. Feel free to reach out to the Secretary General (secretary.general@eapil.org) if you need assistance.

The poll, which is currently open, ends on 2 June 2022 at 8 pm CET. The results will be announced during the General Assembly.

See you in Aarhus!

Edward Elgar has recently published the second edition of Gilles Cuniberti’s Conflict of Law – A Comparative Approach.

Now in its second edition, and with significant updates and new material, Gilles Cuniberti’s innovative textbook offers a comparative treatment of private international law, a field of great importance in an increasingly globalized world. Written by a leading voice in the field, and using a text and cases approach, this text systematically presents and compares civil law and common law approaches to issues primarily within the United Kingdom, United States, France and the EU, as well as offering additional updated insights into rules applicable in other jurisdictions such as Japan, China and Germany.

The second edition offers materials and comments on several topics which were not addressed in the first edition. They include the presentation of doctrines inspired from forum non conveniens adopted in the EU (Brussels II ter regulation), China and Japan, a discussion of the various doctrines founding the enforcement of foreign judgments (comity, reciprocity, doctrine of obligation, enforcement as a fundamental right) and a discussion of the distinction between torts and contracts under the EU and English laws of jurisdiction.

Another novelty is the establishment of a companion website for the book. The website offers additional materials which could not be included in the print version of the book in order to keep its size and price reasonable. At the present time, it includes a European Civil and Commercial Litigation Supplement and a Family Law Supplement.

More information available here.

Private International Law areas of knowledge of the Universities Rovira i Virgili (Tarragona), Barcelona and Lleida have organised the I International Seminar on rights in rem in the European Union: general aspects and international jurisdiction. The seminar will be held in presence on the 10 and 11 November 2022 at the Faculty of Ciencias Jurídicas, Universitat Rovira i Virgili in Tarragona; online access is also available upon request.

This seminar seeks, on the one hand, to define the concept of rights in rem in the framework of European Private International Law and of Comparative Law, and, on the other hand, to identify the problematic aspects arising from the characterisation of such a concept in terms of both the delimitation of the legal instruments applicable to this matter, and of its application in the Spanish legal system as the representative of a State in which several systems of law coexist. Moreover, in terms of jurisdiction, the Seminar will also address the problems of the delimitation of the rule of jurisdiction applicable under Regulation (EU) 1215/2012.

Those interested in presenting a communication are invited to write to mireia.eizaguirre@urv.cat before 12 September 2022.

For further information, see here.

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. As always, it contains a number of articles and case comments on issues of jurisdiction and applicable law (including one by me). The table of contents of the issue is available here. The following abstracts have been kindly provided to us.

Hay: On the Road to a Third American Restatement of Conflicts Law

American private international law (Conflict of Laws, “Conflicts Law”) addresses procedure (jurisdiction of courts, recognition of judgments) as well as the choice of the applicable law. The last of these has been a mystery to many scholars and practitioners – indeed, even in the United States. Since 2014 the American Law Institute now seeks to draft a new “Restatement” – the Third – of the subject, with the aim to clarify and perhaps to bring more uniformity to the resolution of conflict-of-laws problems. The following comments first recall the role of restatements in American law. The second part provides some historical background (and an assessment of the current state of American conflicts law, as it relates to choice of law) in light of the Second Restatement, which was promulgated in 1971. The third part addresses the changes in methodology adopted and some of the rules so far proposed by the drafters of the future new Restatement. Examples drawn from existing drafts of new provisions may serve to venture some evaluation of these proposed changes. In all of this, it is important to bear in mind that much work still lies ahead: it took 19 years (1952–1971) to complete the Second Restatement.

L. Hübner: Climate change litigation at the interface of private and public law – the foreign permit The article deals with the interplay of private international law, substantive law, and public law in the realm of international environmental liability. It focuses on the question, whether the present dogmatic solution for the cognizance of foreign permits in “resident scenarios” can be extended to climate change scenarios. Since there exists significant doubts as to the transferability of this concept, the article considers potential solutions under European and public international law. C. Kohler: Recognition of status and free movement of persons in the EU In Case C-490/20, V.M.A., the ECJ obliged Bulgaria to recognise the Spanish birth certificate of a child in which two female EU citizens, married to each other, were named as the child’s parents, as far as the implementation of the free movement of persons under EU law was concerned, but left the determination of the family law effects of the certificate to Bulgarian law. However, the judgment extends the effects of the recognition to all rights founded in Union law, including in particular the right of the mobile Union citizen to lead a “normal family life” after returning to his or her country of origin. This gives the ECJ the leverage to place further effects of recognition in public law and private law under the protection of the primary and fundamental rights guarantees of EU law without regard to the law applicable under the conflict rules of the host Member State. The author analyses these statements of the judgment in the light of European and international developments, which show an advance of the recognition method over the traditional method of referral to foreign law in private international law. W. Hau: Interim relief against contracting authorities: classification as a civil and commercial matter, coordination of parallel proceedings and procedural autonomy of the Member States After a Polish authority awarded the contract for the construction of a road to two Italian companies, a dispute arose between the contracting parties and eventually the contractors applied for provisional measures in both Poland and Bulgaria. Against this background, the ECJ, on a referral from the Bulgarian Supreme Court of Cassation, had to deal with the classification of the proceedings as a civil and commercial matter and the coordination of parallel interim relief proceedings in different Member States. The case also gave the ECJ reason to address some interesting aspects of international jurisdiction under Article 35 of the Brussels Ibis Regulation and the relationship between this provision and the procedural laws of the Member States. M. Thon: Jurisdiction Clauses in General Terms and Conditions and in Case of Assignment

Choice of court agreements are one of the most important instruments of international civil procedure law. They are intended to render legal disputes plannable and predictable. The decision under discussion comes into conflict with these objectives. In DelayFix, the CJEU had to deal with the question of whether (1.) Art. 25 of the Brussels Ibis Regulation is to be interpreted as precluding a review of unfairness of jurisdiction clauses in accordance with Directive 93/13/EEC and whether (2.) an assignee as a third party is bound by a jurisdiction clause agreed by the original contracting parties. The first question is in considerable tension between consumer protection and the unification purpose of the Brussels Ibis Regulation considering that the Member States may adopt stricter rules. For the latter question, the CJEU makes it a prerequisite that the assignee is the successor to all the initial contracting party’s rights and obligations, which regularly occurs in the case of a transfer of contract, but not an assignment. In this respect, too, the CJEU’s decision must be critically appraised.

C.F. Nordmeier: International jurisdiction and foreign law in legal aid proceedings – enforcement counterclaims, section 293 German Code of Civil Procedure and the approval requirements of section 114 (1) German Code of Civil Procedure

The granting of legal aid in cases with cross-border implications can raise particular questions. The present article illustrates this with a maintenance law decision by the Civil Higher Regional Court of Saarbrücken. With regard to international jurisdiction, a distinction must be made between an enforcement counterclaim and a title counterclaim. The suspension of legal aid proceedings analogous to section 148 of the German Code of Civil Procedure with pending preliminary ruling proceedings before the European Court of Justice in a parallel case is possible. When investigating foreign law in accordance with section 293 of the German Code of Civil Procedure, the court may not limit itself to “pre-ascertaining” foreign law in legal aid proceedings. In principle, the party seeking legal aid is not obliged to provide information on the content of foreign law. If the desired decision needs to be enforced abroad and if this is not possible prospectively, the prosecution can be malicious. Regardless of their specific provenance, conflict-of-law rules under German law are not to be treated differently from domestic norms in legal aid proceedings. R.A. Schütze: Security for costs under the Treaty of Friendship, Commerce and Navigation between the Federal Republic of Germany and the United States of America

The judgment of the Regional Court of Appeal Munich deals with the application of the German-American Treaty of Friendship, Commerce and Navigation as regards the obligation to provide security of costs in German civil procedure, especially the question whether a branch of plaintiff in Germany reliefs him from his obligation under section 110 German Code of Civil Procedure. The Court has based its judgment exclusively on article VI of the Treaty and section 6 and 7 of the protocol to it and comes to the conclusion that any branch of an American plaintiff in Germany reliefs him from the obligation to put security of costs.

Unfortunately, the interpretation of the term “branch” by the Court is not convincing.

The court has not taken into regard the ratio of section 110 German Code of Civil Procedure. The right approach would have been to distinguish whether the plaintiff demands in the German procedure claims stemming from an activity of the branch or from an activity of the main establishment.

P. Mankowski: Whom has the appeal under Art. 49 (2) Brussels Ibis Regulation to be (formally) lodged with in Germany?

Published appeal decisions in proceedings for the refusal of enforcement are a rare breed. Like almost anything in enforcement they have to strike a fine balance between formalism and pragmatism. In some respects, they necessarily reflect a co-operative relationship between the European and the national legislators. In detail there might still be tensions between those two layers. Such a technical issue as lodging the appeal to the correct addressee might put them to the test. It touches upon the delicate subject of the Member States’ procedural autonomy and its limits.

K. Beißel and B. Heiderhoff: The closer connection under Article 5 of the Hague Protocol 2007

According to Article 5 of the Hague Protocol 2007 a spouse may object to the application of the law of the creditor’s habitual residence (Article 3 of the Protocol) if the law of another state has a “closer connection” with the marriage. The Local Court of Flensburg had to decide whether there was a “closer connection” to the law of the state, in which the spouses had lived together for five years in the beginning of their marriage. The criteria which constitute a “closer connection” in the sense of Article 5 of the Protocol have received comparatively little discussion to date. However, for maintenance obligations, the circumstances at the end of marriage are decisive in order to ascertain the claim. Therefore, they should also have the greatest weight when determining the closest connection. This has not been taken into account by the Local Court of Flensburg, which applied the law of the former common habitual residence, the law of the United Arab Emirates (UAE).

The authors also take a critical stance towards the Court’s assessment of public policy under Article 13 of the Protocol. As the law of the UAE does not provide for any maintenance obligations of the wife (as opposed to maintenance obligations of the husband), the Court should not have denied a violation.

M. Lieberknecht: Transatlantic tug-of-war – The EU Blocking Statute’s prohibition to comply with US economic sanctions and its implications for the termination of contracts In a recent preliminary ruling, the European Court of Justice has fleshed out the content and the limitations of the EU’s Blocking Statute prohibiting European companies from complying with certain U.S. economic sanctions with extraterritorial reach. The Court holds that this prohibition applies irrespective of whether an EU entity is subject to a specific order by U.S. authorities or merely practices anticipatory compliance. Moreover, the ruling clarifies that a termination of contract – including an ordinary termination without cause – infringes the prohibition if the terminating party’s intention is to comply with listed U.S. sanctions. As a result, such declarations may be void under the applicable substantive law. However, the Court also notes that civil courts must balance the Blocking Statute’s indirect effects on contractual relationships with the affected parties’ rights under the European Charter of Fundamental Rights. E. Piovesani: The Falcone case: Conflict of laws issues on the right to a name and post-mortem personality rights

By the commented decision, the LG Frankfurt dismissed the action of two Italian claimants, namely the sister of the anti-mafia judge Falcone and the Falcone Foundation, for protection of their right to a name and the said judge’s postmortem personality right against the owner of a pizzeria in Frankfurt. The decision can be criticized on the grounds that the LG did not apply Italian law to single legal issues according to the relevant conflict of laws rules. The application of Italian law to such legal issues could possibly have led to a different result than that reached by the court.

M. Reimann: Jurisdiction in Product Liability Litigation: The US Supreme Court Finally Turns Against Corporate Defendants, Ford Motor Co. v. Montana Eighth Judicial District Court / Ford Motor Company v. Bandemer (2021)

In March of 2021, the US Supreme Court handed down yet another important decision on personal jurisdiction, once again in a transboundary product liability context. In the companion cases of Ford Motor Co. v. Eighth Montana District Court and Ford Motor Co. v. Bandemer, the Court subjected Ford to jurisdiction in states in which consumers had suffered accidents (allegedly due to a defect in their vehicles) even though their cars had been neither designed nor manufactured nor originally sold in the forum states. Since the cars had been brought there by consumers rather than via the regular channels of distribution, the “stream-of-commerce” theory previously employed in such cases could not help the plaintiffs (see World-Wide Volkswagen v. Woodson, 444 U.S. 286, 1980). Instead, the Court predicated jurisdiction primarily on the defendant’s extensive business activities in the forum states. The problem was that these in-state activities were not the cause of the plaintiffs’ harm: the defendant had done nothing the forum states that had contributed to the plaintiffs’ injuries. The Court nonetheless found the defendant’s business sufficiently “related” to the accidents to satisfy the requirement that the defendant’s contacts with the forum state be connected to the litigation there. The consequences of the decision are far-reaching: product manufacturers are subject to in personam jurisdiction wherever they are engaged in substantial business operations if a local resident suffers an accident involving merely the kind of product marketed in the forum state, regardless how the particular item involved arrived there. This is likely to apply against foreign corporations, especially automobile manufacturers, importing their products into the United States as well. The decision is more generally remarkable for three reasons. First, it represents the first (jurisdictional) victory of a consumer against a corporation in the Supreme Court in more than half-a-century. Second, the Court unanimously based in personam jurisdiction on the defendant’s extensive business activities in the forum state; the Court thus revived a predicate in the specific-in-personam context which it had soundly rejected for general in personam jurisdiction just a few years ago in Daimler v. Baumann (571 U.S. 117, 2014). Last, but not least, several of the Justices openly questioned whether corporations should continue to enjoy as much jurisdictional protection as they had in the past; remarkably these Justices hailed from the Court’s conservative camp. The decision may thus indicate that the days when the Supreme Court consistently protected corporations against assertions of personal jurisdiction by individuals may finally be over.

R. Geimer: Service to Foreign States During a Civil War: The Example of an Application for a Declaration of Enforceability of a Foreign Arbitral Award Against the Libyan State Under the New York Convention With the present judgment, the UK Supreme Court confirms a first-instance decision according to which the application to enforce an ICC arbitral award against the state of Libya, and the later enforcement order (made ex parte), must have been formally served through the Foreign, Commonwealth and Development Office under the State Immunity Act 1978, despite the evacuation of the British Embassy due to the ongoing civil war. The majority decision fails to recognize the importance of the successful claimant’s right of access to justice under Art 6(1) ECHR and Art V of the 1958 New York Convention.

Bälz: Arbitration, national sovereignty and the public interest – The Egyptian Court of Cassation of 8 July 2021 (“Damietta Port”)

The question of whether disputes with the state may be submitted to arbitration is a recurrent topic of international arbitration law. In the decision Damietta Port Authority vs DIPCO, the subject of which is a dispute relating to a BOT-Agreement, the Egyptian Court of Cassation ruled that an arbitral award that (simultaneously) rules on the validity of an administrative act is null and void. The reason is that a (private) arbitral tribunal may not control the legality of an administrative decision and that the control of the legality of administrative action falls into the exclusive competency of the administrative judiciary. This also applies in case the legality of the administrative decision is a preliminary question in the arbitral proceedings. In that case, the arbitral tribunal is bound to suspend the proceedings and await the decision of the administrative court. The decision of the Egyptian Court of Cassation is in line with a more recent tendency in Egypt that is critical of arbitration and aims at removing disputes with the state from arbitration in order to preserve the “public interest”.

This is the second of a series of posts on the French draft code of private international law of March 2022. The previous post in the series dealt with the issue of renvoi.

The draft code of private international law proposes to reform significantly the regime of choice of law rules before French courts. Unfortunately, the new provisions are silent on proof of foreign law.

Mandatory Application of Choice of law rules

Article 9, para. 1, of the draft code would establish an obligation for French courts to apply the applicable law. In other words, choice of law rules would become mandatory for courts.

Art. 9, para. 1: “L’application du droit internationalement désigné est impérative pour le juge.”

This would be a significant departure from the current regime. Since 1999, French courts have had the obligation to apply ex officio choice of law rules only in matters where the parties may not dispose of their rights (e.g. parenthood). In contrast, in matters where the parties may dispose of their rights (e.g. an international sale of goods), the application of choice of law rules was not mandatory for courts, unless one of the parties would raise their application.

The explanatory report makes clear that the drafters wanted to discard this regime and abandon the distinction based on whether the parties may dispose of their rights. It is explained that the goal is to make the law clearer and more coherent. The reference to coherence is likely a reference to the general principle that courts ought to apply applicable rules.

Readers might recall that the French Supreme Court for private and criminal matters (Cour de cassation) has initiated an evolution by ruling that it would consider certain EU choice of law rules mandatory (see the reports on this blog here and here). The precedent would obviously lose significance, as all choice of law rules would become mandatory.

Contrary Agreement of the Parties

However, the drafters propose to maintain the rule according to which the parties may agree to avoid the application of foreign law and apply French law instead in matters where they may dispose of their rights. The Cour de cassation has long ruled that such agreement could be reached implicitly by arguing the case under French law only.

In practice, such “agreement” was typically reached by parties (and counsels) unaware of the potential application of foreign law. This was more of a waiver mechanism. The drafters propose to strengthen the conditions for finding such agreement. Article 9, para. 2, provides that the agreement could either be express, or result from written pleadings which would be “concurring and non equivocal.” The explanatory report clarifies that, in this context, “non equivocal” would mean that it should be clear from the pleadings that the parties were aware that the case was international and that foreign law might apply. If the court is not satisfied that the parties were so aware, Article 9 para. 4 further provides that the court should raise the applicability of foreign law and, if necessary, apply it ex officio.

Finally, Article 9, para. 3, provides that such an agreement is valid in divorce cases if it is express. The rationale for this exception is to ensure compliance with Article 7 of the Rome III Regulation.

Art. 9:

(…)

Lorsque les parties ont la libre disposition de leurs droits, elles peuvent, par un accord procédural, soumettre leur litige au droit français. Cet accord est exprès ou résulte d’écritures concordantes et non-équivoques.

En matière de divorce, l’accord procédural doit être exprès.

Lorsque les parties s’abstiennent de s’expliquer sur le droit applicable, le juge les y invite et applique, au besoin d’office, la règle française de conflit de lois.

Proof of Foreign law

Most unfortunately, the draft code is silent on proof of foreign law in judicial proceedings. It includes one provision on proof of foreign law before judicial officers, which insists that the burden of proof lies with the party raising the applicability of foreign law.

One could think that the obligation in Article 9, para. 1, to apply the applicable law entails an obligation for the court to establish the content of foreign law. Whether or not this is true, it is unrealistic to expect that French courts would suddenly become able to conduct extensive research in foreign law. They do not, and thus likely will not in the future. The current judicial practice is to rely on litigants and the evidence that they can adduce. It is admissible for the parties to produce primary materials of foreign law (statutes, cases), or to produce opinions of private experts that they have hired (certificat de coutume).

A number of French scholars have argued that relying on private experts is highly unsatisfactory. The reason why is that such experts will never appear in court and be cross examined on their expert reports, for the simple reason that French courts do not hear anybody (parties, witnesses or experts) in civil and commercial cases. Experts have no serious incentive to faithfully report on the content of foreign law.

On the other hand, French courts routinely appoint judicial experts to report to the court on questions of fact. Such experts conduct investigations in the presence of the parties, hear them (and their private expert) and eventually write an independent expert report. The reason why French courts do not appoint judicial expert to establish the content of foreign law is unclear.

The future code would be a great opportunity to include a provision incentivising courts to appoint judicial experts for the purpose of ascertaining the content of foreign law.

On 23 and 24 February 2023, the fourth German Conference for Young Scholars in Private International Law will be held in person at the Sigmund Freud University in Vienna.

The theme of the conference will be the following:
Deference to the foreign – empty phrase or guiding principle of private international law?

As part of any legal system, rules of private international law are determined by the principles of the respective national jurisdiction, but they also open up the national system to foreign rules.

This creates the challenge of reconciling foreign law and foreign values with the national legal system. At the conference, an exploration whether and to what extent deference to the foreign is a pervasive principle in private international law is looked for. In doing so, the methods of private international law as well as interdisciplinary approaches to the justification and implementation of said principle are expected to be investigated and dealt with.

Speakers are invited to give a presentation of approximately 20 minutes (in either German or English). The written contributions will later be published in a conference volume with Mohr Siebeck. The conference programme will also include smaller discussion rounds in which short presentations of approximately 5-10 minutes can be given. These contributions will not be published, and the organizing committee is looking forward to abstracts for such short presentations too.

The deadline for the submission of proposals is 12 September 2022. Proposals should be sent to ipr@sfu.ac.at.

For further information on the conference and the subsmission requirements, see here.

Stephan Madaus (Professor at Martin-Luther-University Halle Wittenberg) has made available on SSRN an interesting paper under the title The Cross-Border Effects of Restructurings. Principles for Improved Cross-Border Restructuring Laws. The paper explores latest developments in insolvency and restructuring procedures in several countries and their cross-border effects in order to inform policymakers on possible considerations to be made when modernizing existing restructuring legislation.

The abstract reads as follows:

The laws in many countries have added (preventive) restructuring options in recent years, sometimes as part of pandemic relief measures as in Germany or the United Kingdom. The cross-border effects of such options, especially when they take the shape of court decisions and proceedings, are rarely ever regulated specifically. Often the cross-border insolvency framework is assumed to apply where a Gibbs Rule or the availability of secondary proceedings threaten to frustrate the effort and limit the use of the new option to domestic cases.

The approach of this paper is to take a fresh doctrinal and conceptual look at the matter. By disassembling the functions and effects of insolvency and restructuring proceedings, it opens the path for a fresh look and a new differentiated conceptual design for cross-border restructuring frameworks based on the established principles and connecting factors of Private International Law.

First, a taxonomy is established in the paper. The term ‘restructuring’ is taken from the pure insolvency law context and explained as a general phenomenon in the management of any business at any time. This includes any cross-border effects of restructuring measures like workouts, which are secured either by general choice of law rules or, if a court is involved, by means of judgment recognition if available.

Second, the paper explains that the general principles of Private International Law have been modified in the realm of insolvency, for good cause. Their court-based and debtor-centred nature made it necessary and easy to agree on a system based on judgment recognition for traditional liquidation-oriented bankruptcy procedures, which encompass both winding-ups and (prepacked) going-concern sales.

Third, the paper argues that these principles and assumption cannot work well for restructurings because these are not asset-oriented but debt-oriented procedures and thus trigger the weak spots in today’s cross-border insolvency framework.

Finally, the paper argues that an ideal cross-border restructuring regime should take the following shape: (1) Debt restructurings under the restructuring (and insolvency) law of the lex causae would be effective globally due to the principles of Private International Law for modifications of substantive rights. When such a debt restructuring is also confirmed by a court, the recognition of such judgments abroad should be facilitated (‘automatic recognition based on the closest connection’). (2) Any debt restructuring under other rules than the lex causae, in particular under a lex fori (concursus), should require a degree of connection to the lex causae. If only a sufficient connection is established between the state of proceedings and the state of the lex causae, jurisdiction is an option and recognition may be conditional (‘controlled recognition based on sufficient connection’). (3) Without even a sufficient connection, debt-oriented proceedings shall not commence and any debt modification cannot assume to be recognised.

The paper does not propose any specific legal reform. Its taxonomy aims at describing an ideal state of cross-border law for a global restructuring practice. The paper intents to inform policymakers when considering the introduction or modernisation of a cross-border restructuring framework, potentially as part of a general restructuring and insolvency law reform. The paper would particularly suggest that there should be more flexibility in a cross-border restructuring framework as it is not at all structurally bound to a COMI concept.

On 14 and 15 May 2022 the EAPIL Young Research Network has successfully held a conference on Jurisdiction Over Non-EU Defendants – Should the Brussels Ia Regulation be Extended? in Dubrovnik, Croatia.

The event, which was organized by Tobias Lutzi (University of Cologne), Ennio Piovesani (University of Torino), and Dora Zgrabljić Rotar (University of Zagreb), with the generous support of the Faculty of Law of the University of Zagreb, the Croatian Ministry of Science and Education, and the European Commission in Croatia, brought together around 30 scholars from all around Europe (and beyond) to discuss the findings from the Young Research Network’s third research project.

As such, the conference started with a presentation of the project’s Comparative Report, which the organizers had compiled on the basis of a total of 17 national reports on the domestic provisions on international jurisdiction in the EU Member States. It was followed by two panels, in which the national reporters discussed specific aspects of their respective national laws. The first panel, which was chaired by Tess Bens (Tilburg University), focused on the influence of the Brussels regime on the national laws of the Member States and included contributions from Stefano Dominelli (University of Genoa), Dafina Sarbinova (Sofia University “St. Kliment Ohridski”), and Benjamin Saumier (University of Paris 1 Panthéon-Sorbonne). The second panel, which was chaired by Vassiliki Marazopoulou (Hellenic Energy Exchange), on the other hand, focused on features of the national laws on international jurisdiction that are peculiar to only certain legal systems and contained contributions from Giedirius Ožiūnas (Mykolas Romeris University), Ioannis Revolidis (University of Malta), and Anna Wysocka-Bar (Jagiellonian University).

These first three panels, which were all focused on the comparative part of the project, provided the basis for a wider discussion of the desirability of extending the Brussels Ia Regulation to defendants not domiciled in the EU, potentially at the expense of the national rules on international jurisdiction. Professors Ronald Brand (University of Pittsburgh), Burkhard Hess (MPI Luxembourg), and Margherita Salvadori (University of Torino) all agreed that there was a lot to be said in favour of such an extension, albeit with different emphases. Johannes Ungerer (University of Oxford) and Marko Jovanović (University of Belgrade) were more cautious in their remarks, which focused on the prespectives of non-EU countries.

The conference concluded with a talk by Ning Zhao (HCCH), who presented the work of the Hague Conference on international jurisdiction and discussed its interplay with a possible extension of the Brussels Ia Regulation.

Over the two days of the conference, there appeared to emerge a strong consensus that although the comparative work of the research project provided an excellent basis for the necessary discussion of whether or not the Brussels Ia Regulation should be extended to non-EU defendants, more work needed to be done on the implications on recognition and enforcement of any reform of the Regulation. Thus, the Dubrovnik conference – the contributions to which will be published together with the comparative and national reports will be published later this year by Hart Publishing – marked not only the end of the current project of the Young Research Network but may have also already foreshadowed its next one.

On 12 May 2022, the Court of Justice handed down the judgement in the WJ case (C-644/20) interpreting the Hague Protocol of 2007 on the law applicable to maintenance. The case revolved around the determination of the habitual residence of a creditor in the context of a child abduction.

Background

AP and WJ are Polish nationals who were residing in the UK, where their two children were born. In 2017 AP went to Poland together with children. Later she has informed WJ that she wanted to remain with children in Poland. WJ did not agree. In 2018 the children, represented by AP, claimed monthly maintenance payments from WJ before the Polish court. WJ appeared before this court without objecting to its jurisdiction. That court ordered him to pay to each of his children a monthly maintenance payment in accordance with Polish law. WJ brought an appeal against the judgment before the regional court. In the meantime, the same court ordered the return of the children to the UK, pursuant to the Hague Child Abduction Convention, was as they have been retained unlawfully in Poland and that their habitual residence immediately before that retention was in the UK. EJ appealed the maintenance order.

Preliminary Question

In accordance with Article 3(1) of the Hague Protocol, maintenance obligations are governed by the law of the State of the habitual residence of the creditor. However, pursuant to Article 3(2) Hague Protocol, in the case of a change in the habitual residence of the creditor, the law of the State of the new habitual residence shall apply as from the moment when the change occurs.

The Polish court had doubts as to whether a child might be considered for the purpose of applying Article 3 of the Protocol as being habitually resident in Poland, a country in which the child was wrongfully retained as confirmed by the decision ordering child’s return to the UK. Hence, it decided to consult the Court of Justice of the EU on that matter.

It is worth noting that the creditor in this case, in accordance with domestic rules on civil procedure, is a child represented by one of parents, namely the mother. Similarly, for the purpose of Article 3(1) of the Protocol, the habitual residence of a child was being discussed. The question who is a creditor in case of a minor child is not uniformly understood in all EU Member States (for details see: the recent position paper of the EAPIL Working Group on Maintenance prepared at the request of the HCCH Special Commission on Maintenance, para. 15-17).

Reasoning of the Court of Justice

The Court of Justice made some general remarks on the notion of habitual residence serving as a connecting factor in many EU and HCCH instruments, as well as referring to its previous judgments (for example, in Mölk case, C‑214/17). Then, the Court decided to rely on the explanatory report to the Hague Protocol. Point 37 of this report, which was cited by the Court of Justice of the EU, reads as follows

This connection offers several advantages. The main one is that it allows a determination of the existence and amount of the maintenance obligation with regard to the legal and factual conditions of the social environment in the country where the creditor lives and engages in most of his or her activities. As rightly noted by the Verwilghen Report, “[the creditor] will use his maintenance to enable him to live”. Accordingly, “it is wise to appreciate the concrete problem arising in connection with a concrete society: that in which the petitioner lives and will live”.

Hence, in the view of the Court of Justice, the assessment of the habitual residence of a child must consider factual circumstances. Assuming that a return decision handed down pursuant to HCCH Child Abduction Convention might be an obstacle to the conclusion that a child is habitually resident in a state to which the child was abducted, would be contrary to the aim of Article 3 Hague Protocol, as well as principle of the best interest of a child.

Conclusion

Given the above the Court of Justice has rightly decided that a child may acquire a new habitual residence in the state in which the child was wrongfully retained, even if the court of that state orders the return of the child to the state in which the child habitually resided immediately prior to the wrongful retention.

In his PhD thesis Normen als tatsächliche Umstände (Rules as factual circumstances), published in 2021, Alexander Kronenberg analysis how overriding mandatory provisions (OMPs) can be considered at the level of substantive law and how this practice relates to Article 9 of the Rome I Regulation. The thesis examines this question against a comprehensive evaluation of case law and literature. It offers its own explanatory approach as well as a method for the consideration of OMPs within substantive law.

The question how non-forum OMPs should be dealt with has been keeping courts busy for quite some time. The highest judicial ruling on this issue came from the CJEU in Nikiforidis. A more recent case, decided by the Higher Regional Court of Frankfurt (16 U 209/17), concerned an airline’s refusal to carry an Israeli national through a Kuwaiti airport, which it the court’s view was not a breach of contract given the Kuwaiti boycott against Israel. The war in Ukraine and the accompanying sanctions imposed by various states equally raise the question of the extent to which sanctions adopted by other, friendly states can be taken into account under the applicable contract law.

The thesis is thus highly topical. The author describes the content as follows:

Foreign OMPs have been subject to academic debate for a long time. Under the regime of the Rome I Regulation on the law applicable to international contracts, the CJEU’s Nikiforidis judgment of 18 October 2016 (C-135/15) was an important milestone with respect to the interpretation of Article 9 Rome I Regulation, the central provision on OMPs in international contract law. The Court held that Art. 9(3) of the Rome I Regulation is to be interpreted as meaning that OMPs other than those of the forum or those of the lex loci solutionis can neither be applied nor be given effect, as legal rules, by the court of the forum. However, this does not preclude a Member State court from, in the words of the Court, taking such other OMPs “into account as matters of fact in so far as this is provided for by the [applicable] national law”.

This “substantive law level consideration” (“sachrechtliche Berücksichtigung”) is the subject of this dissertation. The CJEU did not deal with the issue in further detail, as it concerns the substantive law of each state and not the European private international law rules. The dissertation develops an overall concept for taking foreign OMPs into consideration as a matter of fact within German substantive contract law.

The book first gives a brief overview of the phenomenon of OMPs and of the provisions and interpretation of Art. 9 of the Rome I Regulation and then moves on to establish that the CJEU was right in considering that Art. 9(3) of the Rome I Regulation bars foreign OMPs not enacted by the state of performance from being taken into account on the conflict-of-law level.

Having stated that a conflict-of-law level consideration of these OMPs is not possible, the book then deals with the possibility of taking them into account as matters of fact on the substantive law level. This type of consideration is in a first step described as being aimed exclusively at the factual circumstances caused by the OMPs in question. These can consist in their enforcement by the enacting state, in third parties essential to the performance of the contract respecting them, or in the influence on the freedom of action of the parties themselves. Because of the factual nature of the consideration, these OMPs cannot influence the legal outcome of a given case in a normative way. It is then demonstrated what this means from a methodological perspective: While applying the substantive law designated by the Rome I Regulation with recourse to the legal syllogism, the OMPs may only form part of the minor premise, which is factual in nature, and must be excluded from the, normative, major premise.

Construed in this factual sense, the taking into consideration of OMPs within the applicable substantive law is not prohibited by the European Rome I Regulation. This is, inter alia, substantiated with the consideration that the opposite approach, i.e., outright ignoring the existence and factual consequences of foreign OMPs while applying the substantive law would violate European fundamental rights.

The work then goes on to show that although the Rome I Regulation neither prohibits nor imposes the substantive law level consideration, this consideration nevertheless is required from the perspective of substantive law. Ignoring factual circumstances exclusively because they are the result of foreign OMPs would lead to an impairment of the functioning of the abstract and general provisions of substantive civil law, and thus, ultimately, to a violation of the principle of equality (Gleichheitssatz). Also, it would violate the fundamental rights of the German Grundgesetz.

Following these considerations, the book develops how the substantive law level consideration is carried out. To achieve this, German case law from the period before the Rome I Regulation came into force is analysed in depth. German courts had already previously resolved cases involving foreign OMPs by taking these OMPs into account within provisions of the applicable contract law. For example, they held that the factual consequences of OMPs could amount to a liberation of the debtor from his obligation due to impossibility, or that a contract which can only be performed by violating a foreign OMP can be void due to immorality.

The dissertation then analyses the so-called datum theory and shows that it is conceived as a way of taking into account unapplicable foreign law provisions as such, i.e., as norms. This theory is therefore discarded as a possible theoretical basis for the substantive law level consideration of OMPs, as this consideration must be exclusively factual.

The analysed case law is then examined for transferability to the Rome I regime. It is shown that the consideration via the immorality provision (§ 138 of the German Civil Code) is in fact a normative consideration of foreign OMPs and can therefore not be applied in cases under the Rome I Regulation. Therefore, alternative ways of resolving these cases under today’s law are developed. The work concludes with the presentation of additional provisions of German contract law that are suited for the substantive law level consideration and, until now, have not been present in German case law.

Alfonso-Luis Calvo Caravaca (University Carlos III of Madrid) and Javier Carrascosa González (University of Murcia), together with the other authors Silvia Marino (University of Insubria), María Asunción Cebrián Salvat (University of Murcia) and Isabel Lorente Martínez (University of Murcia), have edited a book titled European Private International Law, published by Comares.

The editors Alfonso-Luis Calvo Caravaca and Javier Carrascosa González provided for the following preface:

This work presents the updated content of current European private international law. It is, in fact, a book of law written by several authors from Spain and Italy: professors Alfonso-Luis Calvo Caravaca, Javier Carrascosa González, Silvia Marino, María Asunción Cebrián Salvat and Isabel Lorente Martínez.

This book is intended for anyone interested in studying and learning about the private international law system of the European Union. In this sense, it attempts to clearly explain the fundamental structures of this fascinating branch of law as well as to convey a series of interesting, intuitive, constructive and brilliant ideas that may set the course for the future.

This book understands EU private international law as a product of the culture of European society. European private international law is not a mere set of rules, a series of European regulations that come out of nowhere: it is a very important part of the (legal) culture of Europe; it is a cultural product that is part of European civilisation. In this sense, the authors believe in Europe and in the values that Europe has represented for more than two hundred years. We believe in Europe as an ideal of a free and diverse society made up of free and diverse people. This book is a tribute to freedom – to freedom of movement of persons, families, goods, capitals, companies and services, and also a homage to business freedom in a market economy. It is a tribute to private international law, which makes all these freedoms possible. Additional materials for the study of these subject matters, such as European case law and legislation, may be found at http://www.accursio.com/documentos1.php. The book includes beautiful artwork by illustrator Alessandro Sánchez Pennaroli, which helps to convey some of the key ideas contained in each chapter.

The authors would like to thank Umberta Pennaroli for the meticulous revision and translation into English of this work during the four years of its production. Special mention is also due to Silvia Marino, Professor of International Law and European Union Law at the Università dell’Insubria (Italy), who enthusiastically accepted to participate in this hazardous project. Many thanks also to Brian Mc Menamin for all his wise teachings on life and on the English language.

Where we are going we don’t need roads, said Doc Brown in the movie “Back to the Future”. Europe is moving towards a freer society. To achieve a freer world and a freer Europe we do not need roads: we need European private international law. This book is, in short, a hymn to freedom for Europe and to freedom for all people.

The preface, the table of contents and the acknowledgements can be accessed here.