EAPIL blog

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.

The first meeting of the Special Commission on the practical operation of the 2007 Child Support Convention and on the 2007 Maintenance Obligations Protocol is due to be held on 17, 18 and 19 May 2022.

The purpose of the meeting, which is only open to delegates or experts designated by the Members of the Hague Conference on Private International Law, invited non-Member States and International Organisations that have been granted observer status, is to discuss a range of issues surrounding the interpretation of the two instruments mentioned above and their implementation in the domestic legal systems.

The Hague Conference, through its Permanent Bureau, has recently invited the European Association of Private International Law to take part in the meeting as an observer.

A Working Group has been immediately created for this purpose, formed by Alexandre Boiché (lawyer in Paris), Tena Hoško (University of Zagreb), Anna Nylund (University of Bergen), Francesco Pesce (University of Genova, Chair), Ian Sumner (Tilburg University), Lara Walker (Warwick University), and Anna Wysocka-Bar (Jagiellonian University).

In the space of just a few weeks the Working Group has prepared a position paper focusing on a selection of issues that the Special Commission plans to discuss. The provisional version of the paper, pending a review by the Scientific Council of EAPIL, is available here.

The conclusions reached by the Working Group are as follows:

I. The concept of marriage/spouse, being de jure included in the scope of application of the Convention, unlike other family relationships to which the Convention might apply by virtue of declaration under Art. 63 of the Convention, has a pivotal role in determination of the Convention’s scope. The main problem arises with reference to same-sex marriages. However, other relationships that could be equated to marriage in the national law of the State of origin, such as cohabitation, should also be considered. There are two potential options: (i) allow each Contracting State to define the concept based on its national law (so that differences between the law of the State of origin and the requested State can be faced accordingly) or (ii) find an autonomous definition of the concept; 

II. The concept of creditor: based on domestic experiences, it is clear that there are two opposing models concerning the formal ownership of the legal action. On the one hand, 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. On the other hand, some State laws provide that a dependent child cannot be the creditor, so the action for the maintenance recovery is brought by the parent on his/her own behalf. It seems that a preference should be (uniformly) given to always granting a direct indication of the real creditor, even in case of a child.

III. The concept of residence: a more precise explanation seems to be appropriate on (i) the “minimum threshold” which can be requested (in addition to the negative definition which is fixed by the second sentence of Art. 9); and/or (ii) the fact that it should be possible for the applicant to be considered as resident in more than just one Contracting State, making him/her able to apply before different Central Authorities under Art. 9. 

IV. the (uniform) interpretation of Art. 4 of the Protocol, considering that the CJEU has explained how this provision should be interpreted when a maintenance debtor applies on the basis of a change in his income, for a reduction in the amount of maintenance awarded by a decision that has become final (see Mölk, C-214/17): considering that the CJEU’s interpretation is only binding for those Contracting States which are EU Member States, it would be necessary to discuss it with non-EU Contracting States, in order to understand how do they interpret this provision; 

V. The relationship between the 2007 Child Support Convention and the Lugano II Convention, as all EU Member States and Norway are parties to both instruments: the instruments seem to suggest different solutions, each pointing to the other one. Considering that Article 52 of the 2007 Child Support Convention allows creditors to select an instrument or arrangement that has more effective rules than the Convention, this could also be interpreted as giving the creditor the right to choose between the 2007 Child Support Convention and the Lugano II Convention. The principle of favor executionis should undoubtedly guide the choices of the court, where the convention to be applied is not directly indicated by the creditor/claimant. In the writers’ opinion, it would be appropriate to provide for a specific duty to inform creditors of the possibility to choose between the two instruments, in certain situations. 

The EAPIL blog will report in the coming days about the meeting of the Special Commission.

Guido Westkamp (Queen Mary Intellectual Property Research Institute) has posted In it for the Money? Academic Publishing, Open Access and the Authors’ Claim to Self-Determination in Private International Law on SSRN.

The abstract reads:

Open access research platforms are increasingly becoming the target of academic publishers claiming copyright infringement. Applicable law considerations are pivotal in such circumstances. The law governing the initial publishing agreement decides, ultimately, the extent to which rights have been transferred and the degree to which courts can exercise judicial control. Academic publishing differ significantly from standard copyright contracts. Academic authors remain customarily unremunerated and concurrently are expected to transfer all rights on an exclusive basis. Exclusivity thus eradicates the proliferation of open access platforms altogether. The article discusses the most relevant concerns that arise in private international contract law under the Rome I-Regulation as a matter of material justice. German substantive copyright contract law and the general principles affording protection to authors underpinning it, most importantly as regards the fundamental principle of equitable remuneration and its limits. The article dismisses the conventional approach as regards both contractual choices of law and the closest connection analysis and proposes, based on more subtle considerations of material justice as a relevant factor in modern EU private international, the application of special conflict rules so as to alleviate the problematic effects of uninhibited contractual freedom of contract, as a mechanism to avoid the designation of, particularly, a common law copyright jurisdiction imposed by way of predetermined terms governs the agreement. The article demonstrates, ultimately, that author’s claims to self-determination must outweigh the commercial interests of publishers, inadvertently providing open access platforms with legal certainty and freedom to republish.

The Ravenna Campus of the Department of Juridical Sciences of the University of Bologna (Italy) has organised in Ravenna (and online), between 18-23 July 2022, a Summer School on Transnational litigation: between substance and procedure.

The program of the School looks at cross-border litigation from a wide perspective, embracing not only civil and commercial matters but also matter as diverse as family law, succession law and climate change litigation. At the core of the program lies the European space of justice, with its private and procedural international law regulations; the comparative and international perspectives are also considered, with several lecturers from Third States. The approach is both theoretical and practical: as a matter of fact, the whole Saturday 23 July session is dedicated to workshops which will involve the participants in the solution of cases and problems.

The Faculty of the Summer School is composed of experts from different jurisdictions with very diverse professional backgrounds. The Director of the School is Prof. Michele Angelo Lupoi, who teaches Civil Procedural Law and European Judicial Cooperation at the University of Bologna. The Vice-Director of the School is Marco Farina, Adjunct Professor of Civil Procedural Law at LUISS University of Rome.

The Summer School is aimed at law students as well as law graduates and law practitioners who want to obtain a specialised knowledge in this complex and fascinating area of international civil procedure. The lectures will be held in a blended way, both in presence and online. In order to download the pre-registration form, please refer to here. An application will be made to the Bar Association of Ravenna to grant formative credits to Italian lawyers who participate in the Summer School.

The Summer School program is available here and includes as speakers Apostolos Anthimos, Caterina Benini, Giovanni Chiapponi, Michael S. Coffee, Elena D’Alessandro, David Estrin, Marco Farina, Francesca Ferrari, Pietro Franzina, Albert Henke, Priyanka Jain, Melissa Kucinski, Claudio Pezzi, Emma Roberts and Anna Wysocka-Bar.

It is possible to register until 2 July 2022. The registration fee is 200,00 €. For further info, please refer here or write and email to micheleangelo.lupoi@unibo.it. 

Paul Beaumont and Jayne Holliday have edited A Guide to Global Private International Law. The book has just been published by Hart / Bloomsbury in its Studies in Private International Law.

The guide provides a substantial overview of the discipline of private international law from a global perspective. It is divided into four sections: (i) Theory; (ii) Institutional and Conceptual Framework Issues; (iii) Civil and Commercial Law (apart from Family Law); (iv) Family Law.

Each chapter addresses specific areas/aspects of private international law and considers the existing global solutions and the possibilities of improving/creating them.

The authors are experts coming from Europe, North America, Latin America, Africa, Asia and Oceania, and include – in addition to the editors – Ardavan Arzandeh, Maria Caterina Baruffi, Giacomo Biagioni, Ron Brand, Janeen M Carruthers, Carmen Otero García-Castrillón, Adeline Chong, Giuditta Cordero-Moss, Mihail Danov, Nadia de Araujo, Albert Font i Segura, Pietro Franzina, Francisco Garcimartín Alférez, Richard Garnett, David Goddard, Chiara Goetzke, Ignacio Goicoechea, Susanne L. Gössl, Uglješa Grušic, Jonathan Harris, Trevor Hartley, Michael Hellner, Paul Herrup, Maria Hook, Costanza Honorati, Mary Keyes, Ruth Lamont, Matthias Lehmann, Jan Lüttringhaus, Brooke Marshall, Lucian Martinez, Laura Martínez-Mora, David McClean, Johan Meeusen, Ralf Michaels, Reid Mortensen, Máire Ní Shúilleabháin, Marta Pertegás, Marta Requejo Isidro, Nieve Rubaja, Verónica Ruiz Abou-Nigm, Sara Sánchez, Rhona Schuz, Symeon C. Symeonides, Koji Takahashi, Zheng Sophia Tang, Paul Torremans, Karen Vandekerckhove, Lara Walker, Brody Warren, Matthias Weller and Abubakri Yekini.

For more details, see here.

A conference on the location of damage in private international law will be held at Paris Cité University on 30 and 31 May 2022.

The conference is convened by Olivera Boskovic and Caroline Kleiner. Speakers include Laurence Idot, Ugljesa Grusic, Aline Tenenbaum, Dmitriy Galuschko, Etienne Farnoux, Veronica Ruiz Abou-Nigm, Ludovic Pailler, Symeon C. Symeonides, Tristan Azzi, Zhengxing Huo, Yuko Nishitani, Yves El Hage, Matthias Lehmann, Sandrine Clavel, François Mailhé, Cyril Nourissat, Sarah Laval, Maud Minois and Pascal de Vareilles-Sommières.

The conference is structured in two parts. The first will be dedicated to the location of damage in specific field of the law (competition law, financial law, personality rights, environment, etc.). The second will address general topics such as party autonomy or cyber torts

The full programme of the conference and details about location and registration can be found here.

Through a comfort letter, one party promises to indemnify a creditor if the latter’s debtor does not pay. This is a means for improving the credit of another party. Particularly widespread are comfort letters issued by a parent company for its subsidiary or vice versa.

But where can the creditor sue if the comfort letter is not honoured? And which law applies to these instruments?

These questions were addressed in a decision by the Court of Appeal of Brandenburg dated 25 November 2020 (reprinted in IPRax 2022, pp. 175 et seq., with a comment by Maximilian Pika, id. pp. 159 et seq.).

Facts

A company incorporated under Danish law and headquartered in Copenhagen had provided a comfort letter for one of its subsidiaries in Germany who operated an airport there. Subsequently, insolvency proceedings over the subsidiary were opened in Germany. The insolvency administrator sued the Danish parent company in a German court on the basis of the comfort letter.

In deciding whether it has jurisdiction to hear the case, the Court of Appeal of Brandenburg first discards the insolvency exception in Art 1(2)(d) Brussels I bis Regulation. It argues – quite correctly – that this exception only covers claims that are grounded in insolvency law, but not those under general civil and commercial law. The present claim was one under general civil and commercial law, independently of the fact that it was brought by the insolvency administrator, and thus fell inside the scope of the Brussels Ibis Regulation.

How to Characterise a Comfort Letter?

The Court toys with the idea to characterise the comfort letter as a contract for the “provision of services”, which could potentially lead to the Court’s jurisdiction under Art 7(1)(b) Brussels I bis. However, the Court underlines that in this case, the place of performance would not be in its district, but in that of the debtor’s domicile, as the obligation arising from the comfort letter would have to be paid there.

The same would be true, according to the Court, if the comfort letter were to be considered as a simple contract for payment, which would fall under Art 7(1)(a) Brussels Ibis. This provision requires to determine the place of performance under the applicable law (see on its forerunner, Article 5(1) Brussels Convention, CJEU, Tessili, para. 15).

In this context, the Court takes the view that the comfort letter, regardless of whether it is seen as a unilateral declaration of the creditor or a contract, falls under the Rome I Regulation.

In the opinion of the court, the comfort letter had been submitted to German law, as clearly demonstrated by the circumstances of the case, in particular the choice of the German language, the fact that it was issued for the benefit of a German debtor, and that it was submitted to German air traffic authorities to maintain the license of the debtor. Under German substantive law (sec. 269 German Civil Code), payment obligations have to be performed at the creditor’s domicile. Hence, Danish and not German courts would have jurisdiction under Art 7(1)(a) Brussels I bis as well.

Assessment

Under an autonomous European interpretation, the notion “contracts of services” has to be defined broadly. The Court could have been courageous and just applied Art 7(1)(b) Brussels Ibis. This would have made things much simpler.

However, there is little to quarrel with the result the court has reached. Comfort letters are performed at the domicile of the issuer, or one of the three places mentioned in Art 63(1) Brussels Ibis in case of a company as an issuer, and actions based on them have to be brought there.

This result will be little comfort for those who have received a comfort letter. They should make sure that the letter states a suitable place of performance. Even better is to insist on the insertion of a choice-of-forum clause.

This is the first in a series of posts on the French draft code of private international law of March 2022.

The draft code of private international law contains one single provision on renvoi.

The Proposed Rule

Article 8 of the draft code reads:

Unless provided otherwise in this code, the designation of foreign law includes its rules of private international law. However, French courts and authorities have the obligation to apply those rules only if one party requests it.

The explanatory report explains that the working group debated whether to “maintain” renvoi. The doubts of the working group were based on “comparative law” and the facts that the Hague conventions typically exclude renvoi. Nevertheless, the report explains, it was decided to maintain renvoi, because the Cour de cassation has recently applied it, and because the doctrine has benefits when it leads to the application of a law which is easier to apply for French courts (the explanatory report then gives the example of art 34 of the Succession Regulation).

Assessment

According to the explanatory report, the working group considered that the purpose of its work was to improve accessibility and intelligibility of the law. Article 8 is not fully satisfactory in this respect.

Article 8 suggests that French courts should always apply foreign choice of law rules. It does not explain whether this should only be the case where the foreign choice of law rule refers to the law of the forum, and, when it does not, whether the law of the third state designated by the foreign choice of law rule should accept renvoi.  In other words, Article 8 does not distinguish between first degree renvoi and second degree renvoi, and does not clarify whether whether second degree is allowed even if it is third or fourth degree renvoi. In fact, a literary interpretation of Article 8 could lead to the conclusion that the provision introduces the English foreign court theory where foreign choice of law rules are applicable without any further requirement.

The explanatory report suggests that the working group conducted a comparative study which revealed that renvoi is typically excluded. It is true that some modern PIL legislations have excluded it, such as Article 15 of the Belgian Code of Private International Law. Yet, many other legislations in the civil law world allow renvoi broadly. If the working group was going to maintain renvoi, maybe it would have been useful to take a look at these other legislations and see with which precision they regulate the issue.

To only take one example, the working group could have looked at the Italian 1995 Private International Law Act, which allows renvoi, and defines its regime much more precisely.

Article 13 Renvoi

1 Whenever reference is made to a foreign law in the following articles, account shall be taken of the renvoi made by foreign private international law to the law in force in another State if:

a) renvoi is accepted under the law of that State.

b) renvoi is made to Italian law.

2 Paragraph 1 shall not apply: a) to those cases in which the provisions of this law make the foreign law applicable according to the choice of law made by the parties concerned; b) with respect to the statutory form of acts; c) as related to the provisions of Chapter XI of this Title.

3 In the cases referred to in Articles 33, 34 and 35, account shall be taken of the renvoi only if the latter refers to a law allowing filiation to be established.

4 Where this law makes an international convention applicable in any event, the solution adopted in the convention in matters of renvoi shall always apply.

Article 34 of the Succession Regulation is also much more detailed than the draft provision of the French code. Whether it was the perfect example to justify the adoption of first degree renvoi is unclear, however, since Article 34 does not require that the law of a third state refers back to the law of the forum, but to the law of another Member State, and that it will not always be easier for a French court to apply the law of another Member State (say Finland) than the law of a third state (say Switzerland).

In July 2018, the French Minister of Justice invited Jean-Pierre Ancel, a former judge of the Cour de cassation (French supreme court for private and criminal matters) to establish a working group for the purpose of reflecting on the codification of French private international law.

In March 2022, the working group handed its work to the Ministry of Justice. It includes a draft code of private international law of 207 provisions, and an explanatory report.

The working group was essentially composed of judges and academics. It included very few members of the bar, and no corporate lawyers (whether from the bar or in house).

National Codification in a Context of EU Harmonisation

As all readers will know, the private international law of EU Member States is dominated by EU legislation. EU Regulations are of universal application in the field of choice law. They occupy a large part of the field of jurisdiction and enforcement of foreign judgments.

Of course, the working group and the draft code recognise this fact, and the working group has abstained to propose rules on issues clearly regulated by EU law.

Nevertheless, one wonders whether it is really worth codifying private international law at national level, and whether it would not be more useful to promote codification at EU level (GEDIP has been reflecting on this for a while and EAPIL has also established a working group).

Interestingly, the Minister of Justice alluded to the issue in its letter inviting judge Ancel to establish the working group (reproduced in annex to the explanatory report). The Minister insisted that a French code would help promoting French law in European and international circles where, the Minister stated, more modern and accessible foreign legislations prevail. This likely explains why the explanatory report states that codification of French private international law will improve the attractiveness of French law.

Presentation of the Code

On 21 October 2022, the French Committee of Private International Law will organise a conference aimed at presenting the draft code.

In the coming weeks, the EAPIL Blog will publish presentations and commentaries of the most salient provisions of the draft code by French and European scholars. The Editors invite readers interested in contributing to this debate to contact them.

A web conference regarding the role of the internet and other technologies within the EU and the international legal order will take place on 13 May 2022, organised by the editorial team of Lex & Forum, a quarterly on Private International Law and International Civil and Commercial Litigation.

Symeon Symeonides (Willamette University) will chair the conference. He will also deliver a presentation in English on the infringement of personality rights via the internet.

The conference will be opened by Dan Svantesson (Bond University) with a presentation on Private International Law and the Internet.

The remaining presentations, in Greek, will be delivered by Ioannis Delicostopoulos (University of Athens), on Personality infringements via internet publications within
the EU legal order, Ioannis Revolidis (University of Malta), on International Jurisdiction and the Blockchain – Time for new rules on international jurisdiction?, Nikolaos Zaprianos (Solicitor) on Smart contracts: Selected issues of civil and private international law, and Konstantinos Voulgarakis (Solicitor), on ICOs: Selected issues of jurisdiction and law applicable.

For registration, click here.

As announced on this blog, the Journal of Private International Law-Singapore Management University Virtual Conference on Conflicts of Jurisdiction will be held online on 23 to 24 June 2022 (6.00 pm to 10.20 pm Singapore time, 11.00 am to 3.20 pm British Summer Time on each day). The event is supported by the Hague Conference on Private International Law (HCCH).

The conference is intended to support the ongoing work of the HCCH on Jurisdiction.

The speakers are leading private international law scholars and experts, many of whom are directly involved in the ongoing negotiations at the HCCH.

Attendance at the conference is complimentary for academics, government and international organisation officials, Journal of Private International Law Advisory Board members and students. Registration is required.

More information on the conference and the link to register can be found here.