EAPIL blog

The fifth edition of the treatise of Horatia Muir Watt (Sciences Po Law School) and Dominique Bureau (Paris II University) on French private international law has recently been published.

The treatise, which is one of the leading texts on private international law in France, is divided into two volumes (over 800 p. each). The first volume focuses on the general theory of private international law, and distinguishes between conflits de juridictions (jurisdiction and judgments), conflits de lois (choice of law) and conflits d’autorités (international regime of the action of non judicial authorities and recognition of the acts that they issue).

The second volume is concerned with special rules applicable in the different fields of private law (persons, property, family, obligations, businesses). It ends with a long conclusion which discusses two innovative topics. The first is an attempt to build a general theory of special European law on jurisdiction, judgments and choice of law. The second is an enquiry into whether new forces will lead to a complete reorganisation of the field: environment, digitalisation and the impact of new forms of organisation of business on traditional conceptual categories.

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published.

It contains a number of insightful articles and case comments, whose abstracts are provided below.

 

E.-M. Kieninger, Climate Change Litigation and Private International Law

The recent Shell ruling by the District Court of The Hague raises the question whether Carbon Majors could also be sued outside the state of their corporate home and which law would be applicable to claims for damages or injunctive relief. In particular, the article discusses possible restrictions of the right to choose between the law of the state in which the damage occurred and the law of the state in which the event giving rise to the damage took place (Art. 7 No. 2 Brussels Ia Regulation and Art. 7 Rome II Regulation). It also considers the effects of plant permits and the role that emissions trading should play under Art. 17 Rome II Regulation.

 

S. Arnold, Artificial intelligence and party autonomy – legal capacity and capacity for choice of law in private international law

Artificial intelligence is already fundamentally shaping our lives. It also presents challenges for private international law. This essay aims to advance the debate about these challenges. The regulative advantages of party autonomy, i.e. efficiency, legal certainty and conflict of laws justice, can be productive in choice of law contracts involving artificial intelligence. In the case of merely automated systems, problems are relatively limited: the declarations of such systems can simply be attributed to their users. Existence, validity or voidability of choice of law clauses are determined by the chosen law in accordance with Art. 3(5), 10(1) Rome I Regulation. If, however, the choice of law is the result of an artificial “black box” decision, tricky problems arise: The attribution to the persons behind the machines might reach its limit, for such artificial decisions can neither be predicted nor explained causally in retrospect. This problem can be solved in different ways by the substantive law. Clearly, national contract laws will differ substantially in their solutions. Thus, it becomes a vital task for private international law to determine the law that is decisive for the question of attribution. According to one thesis of this article, two sub-questions arise: First, the question of legal capacity for artificial intelligence and second, its capacity for choice of law. The article discusses possible connecting factors for both sub-questions de lege lata and de lege ferenda. Furthermore, it considers the role of ordre public in the context of artificial choice of law decisions. The article argues that the ordre public is not necessarily violated if the applicable law answers the essential sub-questions (legal capacity and capacity for choice of law) differently than German law.

 

M. Sonnentag and J. Haselbeck, Divorce without the involvement of a court in Member States of the EU and the Brussels IIbis- and the Rome III-Regulation

In recent years some Member States of the European Union such as Italy, Spain, France, and Greece introduced the possibility of a divorce without the involvement of a court. The following article discusses the questions whether such divorces can be recognised according to Art. 21 Regulation No 2201/2003 (Brussels-IIbis), Art. 30 Regulation No 2019/1111 (Brussels-IIbis recast) and if they fall within the scope of the Regulation No 1259/2010 (Rome III).

 

W. Hau, Personal involvement as a prerequisite for European tort jurisdiction at the centre of the plaintiff’s interests

The case Mittelbayerischer Verlag KG v. SM gave the ECJ the opportunity to further develop its case law on the European forum delicti under Art. 7 No. 2 Brussels Ibis Regulation for actions for alleged infringements of personality rights on the internet. The starting point was the publication of an article on the homepage of a Bavarian newspaper, which misleadingly referred to “Polish extermination camps” (instead of “German extermination camps in occupied Poland”). Strangely enough, Polish law entitles every Polish citizen in such a case to invoke the “good reputation of Poland” as if it were his or her personal right. The ECJ draws a line here by requiring, as a precondition of Art. 7 No. 2, that the publication contains objective and verifiable elements which make it possible to individually identify, directly or indirectly, the person who wants to bring proceedings at the place of his or her centre of interest. While this approach allows for an appropriate solution to the case at hand, it leaves several follow-up questions open.

 

A. Hemler, Which point in time is relevant regarding the selection of a foreign forum by non-merchants according to § 38(2) German Code of Civil Procedure (ZPO)?

38(2) German Code of Civil Procedure (ZPO) permits the selection of a foreign forum only if at least one party does not have a place of general jurisdiction in Germany. In the case discussed, the defendant had general jurisdiction in Germany only when the claim was filed. However, there was no general jurisdiction in Germany when the choice of forum clause was agreed upon. The Landgericht (district court) Frankfurt a.M. therefore had to decide on the relevant point in time regarding § 38(2) ZPO. Given the systematic structure of § 38 ZPO and the law’s purpose of advancing international legal relations, the court argued in favour of the point in time in which the choice of forum clause was agreed upon. The author of the paper rejects the court’s view: He argues that the systematic concerns are less stringent on closer inspection. More important, however, is the fact that the law also calls for the protection of non-merchants. This can only be sufficiently achieved if the point in time in which the claim was filed is regarded as the crucial one.

 

D. Henrich, News on private divorces in and outside the EU

In two decisions the German Federal Court of Justice (“BGH”) had to deal with the recognition of private divorces (divorces without involvement of a state authority). In the first case (XII ZB 158/18) a couple of both Syrian and German nationality had been divorced in Syria by repudiation. While recognition of foreign public divorces (divorces by a state court or other state authority) is a question of procedure, private divorces are recognized if they are effective according to the applicable law, here the Rules of the Rome III Regulation (Article 17(1) Introductory Act to the Civil Code). Because the couple had no common ordinary residence, the Court applied Article 8 lit. c Rome III Regulation. German Law dominating, the Court denied recognition.

In the second case (XII ZB 187/20) the BGH made a reference for a preliminary ruling of the European Court of Justice regarding the recognition of a divorce in Italy in the register office in front of the registrar. The BGH follows the opinion that in such cases it is the consent of the parties that dissolves the marriage, the divorce being a private one. The BGH questions whether in spite of that the divorce could be recognized according to Sec. 21 Council Regulation (EC) No. 2201/2003 or, if not, according to Sec. 46 of the Council Regulation.

 

C. Budzikiewicz, On the classification of dowry agreements

Agreements on the payment of a bride’s dowry are a recurring topic in German courts. It usually becomes the subject of a legal dispute in connection with or after a divorce. This was also the case in the decision to be discussed here, in which the applicant demands that her divorced husband pay for the costs of a pilgrimage to Mecca. Since the case has an international connection due to the husband’s Libyan nationality, the Federal Supreme Court first addresses the controversial question of the characterization of dowry. However, since all connection options lead to German law in the present case, the Court ultimately refrains from deciding the question of characterization. It explains that the agreement on the payment of dowry is to be classified under German law as a sui generis family law contract, which requires notarization in order to be effective. The article critically examines the decision. In doing so, it addresses both the question of characterization of dowry and the need for form of agreements on the payment of dowry under German law.

 

E. Jayme and G. Liberati Buccianti, Private Divorces under Italian Law: Conflict of Laws

Divorce, under German law, is only permitted by a decision of a judge, even in cases where a foreign law is applicable which would allow a private divorce based on the agreement of the spouses. Italy, however, has introduced, in 2014, a divorce by private agreement in two procedures: the agreement of the spouses can be submitted to the public prosecutor who, in case he agrees, will send it to the civil registrar, or, secondly, by a direct application of the spouses to the civil registrar of the place where the marriage had been registered.

The article discusses the problems of private international law and international civil procedure, particularly in cases where Italian spouses living in Germany intend to reach a private divorce in Italy. The discussion includes same-sex-marriages of Italian spouses concluded in Germany which are permitted under German law, but not under Italian law, according to which only a “civil union” is possible. The Italian legislator has enacted (2017) a statute according to which the same-sex-marriage concluded by Italian citizens abroad will have the effects of a civil union under Italian law. The question arises of whether the Italian rules on terminating a civil union will have an effect on the spouses marriage concluded in Germany.

The article also discusses the validity of private divorces obtained in Third States which are not members of the European Union, particularly with regard to religious divorces by talaq expressed by the husband, and the problem whether such divorces are compatible with the principles of public policy. The authors mention also the specific problems of Italian law with regard to religious (catholic) marriages concluded and registered in Italy, where a divorce by Italian law is possible which, however, may be in conflict with a nullity judgment of the catholic church.

 

G. Mäsch and C. Wittebol, None of Our Concern? – A Group of Companies‘ Cross-border Environmental Liability Before Dutch Courts

The issue of cross-border corporate responsibility has been in the limelight of legal debate for some time. In its decision of 29 January 2021, the Court of Appeal of The Hague (partially) granted a liability claim against the parent company Royal Dutch Shell plc with central administration in The Hague for environmental damages caused by its Nigerian subsidiary. In particular, the Dutch court had to address the much-discussed question to what extent domestic parent companies are liable before domestic courts for environmental damage committed by their subsidiaries abroad, and whether domestic courts have international jurisdiction over the subsidiary. With this precedent, the number of cross-border human rights and environmental claims is likely to rise in the near future.

 

H. Jacobs, Article 4(2) and (3) Rome II Regulation in a case involving multiple potential tortfeasors

In Owen v Galgey, the High Court of England and Wales engaged in a choice of law analysis in a case involving multiple potential tortfeasors. The claimant, a British citizen habitually resident in England, was injured in France when he fell into an empty swimming pool. In the proceedings before the High Court, he claimed damages from, inter alia, the owner of the holiday home and his wife, both British citizens habitually resident in England, and from a French contractor who was carrying out renovation works on the swimming pool at the material time. The judgment is concerned with the applicability of Article 4(2) Rome II Regulation in multi-party tort cases and the operation of the escape clause in Article 4(3) Rome II Regulation. While the High Court’s view that Article 4(2) requires a separate consideration of each pair of claimants and defendants is convincing, it is submitted that the court should have given greater weight to the parties’ common habitual residence when applying Article 4(3).

 

The table of contents of the issue is available here.

Antonio Leandro (University of Bari) has posted Asset Tracing and Recovery in European Cross-border Insolvency Proceedings on SSRN.

Tracing and recovering assets amount to crucial means to preserve the estate in insolvency proceedings. The proceedings’ outcome may depend on a successful liquidation, which, in turn, can succeed insofar as the concerned assets are traced and recovered smoothly. Besides, insolvency-related disputes, such as the avoidance disputes, may benefit from instruments that help find debtor’ assets or recover payments.

Cross-border insolvency proceedings exhibit peculiar features in this respect because of the debtor’s assets and affairs being in touch with different States. Multiple laws and jurisdictions, with differing or even divergent underlying legal traditions, may in fact be concerned with tracing and recovery.

Moreover, tracing and recovery may affect individuals (e.g., debtors, directors, shareholders, secured creditors, third parties) whose interests clash with those of insolvency proceedings, especially that of satisfying creditors through the proceeds of liquidated assets. If such persons have connections (e.g., citizenship, seat, habitual residence, domicile, as well as affairs, rights, obligations, etc.) with different States, including other States than that in which the assets are located, the cross-border context gets wider.

Against this backdrop, intermingled problems of private international law arise, including assessing the courts having jurisdiction to issue tracing or recovering measures, the authorities that may apply and take action, the law governing the measures and the enforcement thereof, the recognition of foreign tools aimed at detecting and recovering the assets. All these problems lie on a terrain where issues of characterization, state sovereignty and cooperation between foreign authorities are interwoven.
The paper intends to explain how to melt this skein within the EU civil judicial space.

After the Christmas break the Court of Justice takes up again its public activity. Regarding judicial cooperation on civil matters, the first event in January 2022 is the hearing in case C-18/21, Uniqa Versicherungen, scheduled for Wednesday 19.

The request for a preliminary ruling comes from the Oberster Gerichtshof (Austria). It focuses on the impact of COVID-19 on procedural periods in civil proceedings in the context of Regulation (EC) No 1896/2006 creating a European order for payment procedure (here the consolidated text).

In the case at hand, the District Court for Commercial Matters of Vienna had issued a European order for payment on 6 March 2020, which was served on the defendant, a resident in the Federal Republic of Germany, on 4 April 2020. The latter lodged a statement of opposition thereto in a written submission posted on 18 May 2020. The court of first instance rejected the opposition on the ground that the objection had not been filed within the 30-day period foreseen in Article 16(2) of Regulation (EC) No 1896/2006.

The Commercial Court of Vienna, ruling on the appeal on the merits, set that order aside holding that the period for lodging a statement of opposition under Article 16(2) had been interrupted pursuant to the Federal Law on accompanying measures for COVID-19 in the administration of justice. According to that law, all procedural periods in judicial proceedings that had started to run on 22 March 2020 or thereafter, up until the end of 30 April 2020, are to be interrupted and are to begin to run anew on 1 May 2020. The applicant’s appeal on a point of law is directed against that decision, and seeks to have the order of the court of first instance restored.

The Austrian Supreme Court has referred the following question to the Court of justice:

Are Articles 20 and 26 of Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure to be interpreted as meaning that those provisions preclude an interruption of the 30-day period for lodging a statement of opposition to a European order for payment, as provided for in Article 16(2) of that regulation, by Paragraph 1(1) of the Austrian Bundesgesetz betreffend Begleitmaßnahmen zu COVID-19 in der Justiz (Federal Law on accompanying measures for COVID-19 in the administration of justice), pursuant to which all procedural periods in proceedings in civil cases for which the event triggering the period occurs after 21 March 2020 or which have not yet expired by that date are to be interrupted until the end of 30 April 2020 and are to begin to run anew from 1 May 2020?

K. Jürimäe is the reporting judge in a chamber composed, in addition, by N. Jääskinen, M. Safjan, N. Piçarra and M. Gavalec. Advocate General A. Collins will announce the date of his opinion after the hearing. For the record: the Court has interpreted Articles 16, 20 and 26 of the Regulation already several times, see case C-324/12, joined cases C‑119/13 and C‑120/13, C-94/14, C-245/14, C-21/17.

Advocate General Szpunar‘s Opinion in case C-617/20, T.N. and N.N., will be published the next day (that is, on Thursday 20). The questions have been referred by the Hanseatisches Oberlandesgericht in Bremen (Germany), in the context of an intestate succession, and relate to the interpretation of Articles 13 and 28 of the EU Succession Regulation:

(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?

The judgment will be handed down by judges E. Regan, I. Jarukaitis, M. Ilešič (reporting), D. Gratsias, and Z. Csehi.

Finally, another hearing of interest will be taking place at the very end of the month, on Monday 31. C-700/20, London Steam-Ship Owners’ Mutual Insurance Association, is a Grand Chamber case (K. Lenaerts, L. Bay Larsen, K. Jürimäe, C. Lycourgos, E. Regan, I. Jarukaitis, N. Jääskinen, M. Ilešič, J.C. Bonichot, A. Kumin, L. Arastey Sahún, M. Gavalec, Z. Csehi, O. Spineau-Matei, and M. Safjan as reporting judge), to be decided with the benefit of Advocate General A. Collin’s opinion. The request, from the High Court – Business and Property Courts of England and Wales Commercial Court, was lodged on 22 December 2020. The questions referred arose in the context of an appeal by The London Steam-Ship Owners’ Mutual Insurance Association Limited (the “Club”), pursuant to Article 43 of Regulation (EC) No 44/2001, against a registration order made by the Queen’s Bench Division of the High Court of Justice of England and Wales pursuant to Article 33 of the same regulation. The registered judgment that is the subject of the registration order is an auto de ejecución (execution order) of the Provincial Court of La Coruña, Spain, delivered following the proceedings related to the sinking of the Prestige (the “Vessel”) at the coast of Spain in November 2002. The Vessel was carrying 70,000 MT of fuel oil at the time she sank causing significant pollution damage to the Spanish and French coastlines. The execution order declares the Club liable in respect of 265 claimants, including the Kingdom of Spain in the sum of € 2.355 billion. Spain applied to register the Spanish judgment against the Club in England. The Club was the Protection & Indemnity (“P&I”) insurer of the Vessel and its owners (the “Owners”) at the time the Vessel sank, pursuant to a contract of insurance where an arbitration clause was included.

The background of the dispute can be summarized as follows:

In late 2002, criminal proceedings relating to the loss of the Vessel were commenced in Spain; civil claims were brought in those proceeding. On 13 November 2013, the Provincial Court of La Coruña handed down a judgment which was confirmed after first and second appeals. On 15 November 2017, the Provincial Court delivered a judgment on quantum concluding that the Club (and others) was liable to over 200 separate parties, including the Kingdom of Spain, in sums in excess of € 1.6 billion as a result of the casualty, subject in the case of the Club to the global US$ 1 billion limit of liability. On 1 March 2019, the Provincial Court issued an execution order (the Spanish judgment referred to above) setting out the amounts that each of the claimants were entitled to enforce against the respective defendants.

In January 2012, the Club had commenced London arbitration proceedings seeking declarations that, pursuant to the arbitration agreement in the contract of insurance, Spain was bound to pursue its claims under Article 117 of the Spanish Penal Code in London arbitration. The arbitral tribunal found that, as a matter of English law, although Spain was not a contractual party to the arbitration agreement in the Contract of Insurance, according to English equitable principles Spain could not be a “beneficiary” of the Owners’ contractual rights without respecting the “burden” of the arbitration agreement. The award declared as well that the Club was not liable to Spain.

In March 2013, the Club applied to the Commercial Court of the High Court of Justice of England and Wales for “leave” (permission) to enforce the Award in the jurisdiction. The application was granted on October 2013.

On 25 March 2019, Spain applied to the High Court of Justice in England and Wales for the registration of the Spanish judgment as a judgment of the High Court pursuant to Article 33 of Regulation Brussels I. The application was successful. One month later the Club lodged an appeal under Article 43 of Regulation No. 44/2001 against the Registration Order based on Article 34(3) and Article 34(4) of the same instrument.

In this context, the High Court is referring the following questions to the Court of Justice:

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

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

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

It’s been another busy year for the EAPIL blog. The 310 posts we have published in 2021 have attracted about 180.000 visits and some 190 comments.

Interactions on social media have been on the rise, too. We witnessed an increase in the number of followers on LinkedIn (they are more than 900 now), and in the intensity of their reactions. Meanwhile, the number of those following our Twitter account (@eapilorg) has reached 400: we are glad to see that our tweets are often retweeted and quote tweeted. Thank you!

Unsurprisingly, the impact of Brexit on existing instruments in the field of private international law ranked among the key topics of the year. Actually, one post of out ten, among those published in 2021 on the EAPIL blog, referred to Brexit in one way or another.

The case law of the Court of Justice relating to judicial cooperation in civil matters also attracted a consistent flow of visits, and so did Marta Requejo’s monthly posts on the upcoming Court’s judgments and the scheduled conclusions of the AGs.

The developments in domestic case law also proved to be of particular interest to our readers. Gilles Cuniberti’s post on a ruling of the French Supreme Court redefining territoriality of enforcement was the single most commented post of the year, with Gilles’ later post on the judgment of the UK Supreme Court in FS Cairo v Brownlie, on tort jurisdiction, ranking second in terms of comments.

Here are the blog’s five posts of the year, based on the number of visits received:

1. Brexit and the Brussels Convention: It’s All Over Now, Baby Blue? by Matthias Lehmann, published on 12 February 2021, part of an on-line symposium on the Fate of the 1968 Brussels Convention which attracted contributions from a number of scholars, including guest posts by Andrew Dickinson, Serena Forlati and Alex Layton
2. French Parliament Adopts Mandatory Law to Enforce Reserved Share in Succession Matters, a guest post by Christelle Chalas, published on 17 August 2021
3. Swiss Court Refuses Post-Brexit Application of the Lugano Convention – Even Good Cases Can Make Bad (Case) Law, a guest post by Rodrigo Rodriguez, published on 10 March 2021
4. Is the 2005 Hague Choice-of-Court Convention Really a Threat to Justice and Fair Play? A Reply to Gary Born, a guest post by Trevor Hartley, published on 30 June 2021
5. The Principle of Mutual Trust in EU law in the Face of a Crisis of Values, a guest post by Cecilia Rizcallah, published on 22 February 2021

The above ranking tells one thing the editors are well aware of: guest posts represent a crucial contribution to this blog.

So, here’s a message to both old and new guest bloggers out there: your submissions are welcome in 2022 as they have been in the past year. So don’t hesitate to get in touch with us: we are eager to read you!

With this post, the EAPIL blog takes a short Winter break. Blogging will resume on 3 January 2022.

All the best for the new year!

On 20 December 2021, the Supreme Court of the UK delivered its judgment in Maduro Board of the Central Bank of Venezuela v Guaidó Board of the Central Bank of Venezuela ([2021] UKSC 57).

The case was concerned with the conflicting instructions over reserves held in England issued by the boards of the Central Bank of Venezuela appointed respectively by Mr Maduro, who was reelected president of Venezuela in 2018, and by Mr Guaido, who is the president of the National Assembly of the country and claims to be its interim president because the 2018 elections were flawed.

The Supreme Court had to decide whether the UK Government has recognised Interim President Guaido as Head of State of Venezuela and, if so, whether any challenge to the validity of Mr Guaido’s appointments to the Board of the Central Bank of Venezuela is justiciable in an English court.

From the Press Summary issued by the Court:

Background

In May 2018, a Presidential election took place in Venezuela, which the incumbent, Mr Nicolás Maduro Moros, claimed to have won. Her Majesty’s Government in the United Kingdom (“HMG”) considered that this election was deeply flawed. On 15 January 2019, the Venezuelan National Assembly announced that Mr Juan Gerardo Guaidó Márquez was the interim President of Venezuela. On 4 February 2019, the then UK Foreign Secretary declared that the United Kingdom recognises Mr Guaidó “as the constitutional interim President of Venezuela, until credible presidential elections can be held”. That statement was reiterated by HMG in a subsequent letter and in statements made to the Court on behalf of the Foreign Secretary in these proceedings.

The Maduro Board and the Guaidó Board both claim to act on behalf of the Central Bank of Venezuela (the “BCV”). The Maduro Board claims to have been appointed to represent the BCV by Mr Maduro as President of Venezuela. The Guaidó Board claims to be an ad hoc board of the BCV, appointed by Mr Guaidó as interim President of Venezuela under a ‘transition statute’ passed by the Venezuelan National Assembly. The Venezuelan Supreme Tribunal of Justice (the “STJ”) has issued several judgments holding that the transition statute is null and void. The Maduro Board and the Guaidó Board both claim to be exclusively authorised to act on behalf of the BCV, including in arbitration proceedings in the London Court of International Arbitration and in respect of gold reserves of about US$1.95 billion held by the Bank of England for the BCV. The central issue in this appeal is which of these two parties is entitled to give instructions on behalf of the BCV.

The Commercial Court ordered a trial of two preliminary issues. The first (the “recognition issue”) is whether HMG recognises Mr Maduro or Mr Guaidó and, if so, in what capacity and on what basis. The second (the “act of state issue”) is whether courts in this jurisdiction may consider the validity under Venezuelan law of (among other things) the appointments to the BCV board made by Mr Guaidó and the transition statute passed by the Venezuelan National Assembly.

At first instance, Teare J held, in respect of the recognition issue, that HMG had conclusively recognised Mr Guaidó as Venezuela’s head of state. The judge further held that the validity of the transition statute and the appointments of Mr Guaidó engaged the act of state doctrine and were thus non–justiciable. The Maduro Board appealed successfully to the Court of Appeal on both issues. On the recognition issue, the Court of Appeal considered that HMG had recognised Mr Guaidó as the person entitled to be head of state (de jure) but had left open the possibility that it impliedly recognised Mr Maduro as in fact exercising some or all of the powers of head of state (de facto). It considered that this issue was best determined by posing further questions of the Foreign Commonwealth and Development Office and remitted the matter to the Commercial Court for this purpose. The Court of Appeal held that the act of state issue could not be answered at that stage without considering both whether HMG recognises Mr Guaidó as Venezuela’s head of state for all purposes and whether the STJ judgments should be recognised by courts in this jurisdiction.

Judgment The Recognition Issue

Under the United Kingdom’s constitutional arrangements, the recognition of foreign states, governments and heads of states is a matter for the executive [64]. Courts in this jurisdiction thus accept statements made by the executive as conclusive as to whether an individual is to be regarded as a head of state [69], [79]. This rule is called the ‘one voice principle’. Its rationale is that certain matters are peculiarly within the executive’s cognisance [78]. Historically, courts have drawn a distinction between the recognition of a government de jure and de facto [83]-[85]. This distinction is now unlikely to have any useful role to play before courts in this jurisdiction [99].

HMG’s statement was a clear and unequivocal recognition of Mr Guaidó as President of Venezuela, which necessarily entailed that Mr Maduro was not recognised as the President of Venezuela [92]. Under the one voice principle, it is therefore unnecessary to look beyond the terms of HMG’s statement [93]. No question of implied recognition thus arises, and the Court of Appeal was wrong to think it did [98]. The Court of Appeal’s reliance on the outdated concepts of de jure and de facto recognition was also misplaced [99]. The question of recognition in this case has also been unnecessarily complicated by the distinction between whom HMG recognises as Venezuela’s head of state and whom it recognises as head of government [106]. The relevant matter in these proceedings is the identity of Venezuela’s head of state, not its head of government [109].

It follows that courts in this jurisdiction are bound to accept HMG’s statements which establish that Mr Guaidó is recognised by HMG as the constitutional interim President of Venezuela and that Mr Maduro is not recognised by HMG as President of Venezuela for any purpose [110], [181(1)].

The Act of State Issue

There are two aspects of the act of state doctrine with which this appeal is concerned. The first (“Rule 1”) is that the courts of this country will recognise and will not question the effect of a foreign state’s legislation or other laws in relation to any acts which take place or take effect within the territory of that state. The second (“Rule 2”) is that the courts of this country will recognise, and will not question, the effect of an act of a foreign state’s executive in relation to any acts which take place or take effect within the territory of that state [113]. Although Rule 2 has been doubted, in light of the substantial body of authority in its support its existence should now be acknowledged [135]. Furthermore, there is no basis for limiting Rule 2 to cases of unlawful executive acts concerning property, such as expropriation or seizures [139]-[142].

Rule 2 thus applies to an exercise of executive power such as Mr Guaidó’s appointments to the BCV’s board [146]. However, there are several exceptions to the act of state doctrine, including for acts which take place outside a state’s territory, for challenges to acts which arise incidentally, and for judicial acts [136]. The extra–territorial exception does not apply in this case because the relevant acts of appointment were made within Venezuela and were not in excess of the jurisdiction of Venezuela in international law [149]. The incidental exception does not apply either, because these proceedings involve a direct attack upon the validity of Mr Guaidó’s appointments to the BCV’s board [152]. However, judicial rulings of a foreign state are not subject to the act of state doctrine [157]-[161]. For a court in this jurisdiction to decide whether to recognise or to give effect to the STJ judgments would therefore not engage the act of state doctrine. This is a matter which falls outside the preliminary issues and must therefore be remitted to the Commercial Court for further consideration. However, courts in this jurisdiction will refuse to recognise or give effect to foreign judgments such as those of the STJ if to do so would conflict with domestic public policy. The public policy of the United Kingdom will necessarily include the one voice principle which is a fundamental rule of UK constitutional law. As a result, if and to the extent that the reasoning of the STJ leading to its decisions that acts of Mr Guaidó are unlawful and nullities depends on the view that he is not the President of Venezuela, those judicial decisions cannot be recognised or given effect by courts in this jurisdiction because to do so would conflict with the view of the United Kingdom executive [170].

The transition statute is foreign legislation. Its validity may thus fall within Rule 1. There is no doubt about the existence of Rule 1, which would ordinarily prohibit challenges to the transition statute [172], [174]. However, the validity of the STJ judgments impugning the transition statute is not subject to the act of state doctrine [177]. In any event, Rule 1 is not necessary to the analysis because, subject to the effect to be given to STJ judgments, Rule 2 precludes questioning Mr Guaidó’s appointments to the BCV’s board [180].

Courts in this jurisdiction will therefore (subject to the effect to be given to the STJ judgments) not question the lawfulness or validity of the appointments to the BCV board made by Mr Guaidó [181(2)]. However, it remains necessary to consider whether the STJ judgments should be recognised or given effect in this jurisdiction. The proceedings are remitted to the Commercial Court for it to do so [181(3)].

The periodical Polski Proces Cywilny [Polish Civil Procedure] devoted a whole issue (2021/4) to the Brussels II ter Regulation. The issue is published in open access. Below are the abstracts of (and the links to) the various contributions.

D. Martiny, New efforts in judicial cooperation in European child abduction cases

Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (Recast) contains new and extensive provisions on international child abduction. The 1980 Hague Convention on International Child Abduction is complemented mainly by chapter III (Arts. 22 to 29). The paper examines the interplay of these two legal sources in the closer intra-EU cooperation that is intended. The author analyses jurisdiction and the procedure for the return of a child in the case of wrongful removal or retention. Amendments in recognition and enforcement of ‘privileged’ decisions ordering the return of a child are also addressed.

B. Hess, Towards a Uniform Concept of Habitual Residence in European Procedural and Private International Law?

In the private international and procedural laws of the European Union, habitual residence has become an often-used concept to determine jurisdiction and applicable law. However, its broad usage does not entail that the concept is based on a uniform understanding. The paper explores the different areas where the principle is being applied. It concludes that a uniform concept of habitual residence does not exist in European law although the concept is primarily based on objective factors. Furthermore, from a regulatory perspective, it does not seem desirable to develop this concept in a uniform way. In this regard, the case law of the European Court of Justice, distinguishing different applications of the concept, appears to be balanced.

M.A. Lupoi, Between parties’ consent and judicial discretion: joinder of claims and transfer of cases in Regulation (EU) 2019/1111

Regulation no. 2019/1111 has introduced new rules and mechanisms in order to ensure that a parental responsibility case is decided by the court more conveniently placed to protect the best interest of the child. Thus, while no general provision on the joinder of related claims is provided for, the recast regulation grants the interested parties a limited possibility to choose the competent forum. More significantly, the judge is granted discretionary powers as concerns the exercise of its jurisdicton and the decision to transfer the case to a more appropriate forum. These new powers and procedural mechanisms enforce the European space of justice and implement cooperation and collaboration between the Courts of different Member States.

M. Szpunar, K. Pacuła, Forum of necessity in family law matters within the framework of EU and international law

The forum of necessity revolves around the idea that a court may be called upon to hear a case, though it lacks jurisdiction under the normally applicable rules. The justification of its jurisdiction lies in the fact that the claimant cannot bring the proceedings before another forum or cannot be reasonably required to do so in a given situation. The present paper constitutes an attempt to contextualize and to position the forum of necessity within the framework in which it operates in the Member States, namely the framework of EU and international law. It juxtapositions three legal concepts (forum of necessity, forum non conveniens and universal civil jurisdiction) in order to determine the boundaries of necessity jurisdiction as it is known under EU law. It also benchmarks the necessity jurisdiction against international law and takes into account the influences of human and/or fundamental rights in an attempt to determine whether international law places on the Member States any constraints or obligations as to ensuring a forum of necessity. Taking into account those findings, the paper presents the spectrum of influences that the doctrine of forum of necessity may produce across various instruments of EU private international law, in particular those pertaining to family law matters.

O. Bobrzyńska, Brussels II ter Regulation and the 1996 Hague Convention on Child Protection – the interplay of the European and Hague regimes in the matters of parental responsibility

The article discusses the issue of the application of the conflict-of-laws rules contained in the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children in matters of parental responsibility heard by the courts of EU Member States when jurisdiction is based on the provisions of EU Regulations. This issue is discussed in the context of the relationship between the 1996 Hague Convention and the new Brussels II ter Regulation (Council Regulation (EU) 2019/1111 of 25 June 2019 on Jurisdiction, the Recognition and Enforcement of Decisions in Matrimonial Matters and the Matters of Parental Responsibility, and on International Child Abduction), including the demarcation of the application of the jurisdictional norms of the Convention and the Regulation. The new Regulation seeks to address the problems that arose in this regard under the Brussels II bis Regulation.

F. Gascón Inchausti, P. Peiteado Mariscal, International child abduction in the case law of the Court of Justice of the European Union: learning from the past and looking to the future 

Council Regulation (EU) 2019/1111 of 25 June 2019 on Jurisdiction, the Recognition and Enforcement of Decisions in Matrimonial Matters and the Matters of Parental Responsibility, and on International Child Abduction (Recast) sets up the basis for the treatment of international child abduction among Member States and, for the last fifteen years, some of its most complex elements have been interpreted and developed by the Court of Justice of the European Union. This paper aims to explain this approach and the case law, focusing on the changes and on the challenges that the forthcoming entry into force of Council Regulation (EU) 2019/1111 brings to this delicate issue. 

Z. Kubicka-Grupa, A review of the Polish Supreme Court case law in international family law matters (from January 2015 to April 2021)

 The powers of the Polish Supreme Court include, inter alia, hearing cassation appeals and issuing resolutions. However, in matrimonial matters and matters regarding parental responsibility the jurisdiction of the Supreme Court is strongly limited by law. This also applies to cases with a cross-border element. In the period from January 2015 to April 2021, the Supreme Court issued eleven decisions concerning jurisdiction in matters of parental responsibility under the Brussels II bis Regulation, the civil aspects of international child abduction as well as the recognition and enforcement of judgments in family law matters. The article provides a review of this case law. It contains a concise description of the facts of the cases, the legal assessment expressed by the Supreme Court and a brief commentary by the author.

The Journal of Private International Law and the Singapore Management University will hold a virtual conference on 23 to 24 June 2022, divided into four sessions, on the conflicts of jurisdiction issue. The conference is aimed at assisting with the ongoing work of the Hague Conference on Private International Law (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. Specifically, the first session, devoted to the common law approaches to conflicts of jurisdiction, chaired by Jonathan Harris, will include an opening by the dean of Yong Pung How School of Law from Singapore Management University and presentations by Campbell McLachlan, Ardavan Arzandeh, Ronald Brand and Mary Keyes; the second one, on the other, focused on civilian approaches to conflicts of jurisdiction, chaired by Kei Takeshita, will involve Tanja Domej, Geert Van Calster, Nadia De Araujo, Marcelo De Nardi and Zheng Sophia Tang; the third will follow, which, based on the work at the Hague Conference on Private International Law and chaired by Paul Beaumont, will be dealt with by Fausto Pocar, David McClean, João Ribeiro-Bidaoui and Matthias Lehmann; finally, continuing on the same topic, the forth chaired by Adeline Chong, including Trevor Hartley, Yeo Tiong Min, Franco Ferrari and Anselmo Reyes, concluded by closing remarks. Each session, with a break in between, will feature a dedicated Q&A moment.

Registration to attend the conference will open nearer the time. The programme for the conference is available here.

Furthermore, the biennial Journal of Private International Law Conference has been delayed until 2023 in order to enable it to take place in person at the Singapore Management University. This conference will be based on a call for papers. Similarly, further details will be announced in due course.

John F. Coyle from the University of North Carolina has published on SSRN an article titled The Mystery of the Missing Choice-of-Law Clause.

The abstract reads as follows:

There is widespread agreement among experienced contract drafters that every commercial contract should contain a choice-of-law clause. Among their many virtues, choice-of-law clauses facilitate settlement and reduce litigation costs. While most modern contracts contain these provisions, some do not. In many instances, the absence of these clauses may be attributed to outdated forms, careless drafting, inattentive lawyers, or some combination of the three. In a few instances, however, it appears that sophisticated contract drafters purposely omit choice-of-law clauses from their agreements. If these clauses add value to a contract—and there is near-universal agreement that they do—then this decision raises a perplexing question. Why would any experienced contract drafter ever consciously choose not to write a choice-of-law clause into an agreement?
This Article seeks to answer this question with respect to one type of agreement where choice-of-law clauses are routinely omitted—insurance contracts. All of the available evidence suggests that most insurance contracts lack choice-of-law clauses. This is surprising because insurance companies are the epitome of the sophisticated contract drafter. To unravel the mystery of why so many insurance contracts do not contain choice-of-law clauses, the Article draws upon more than thirty interviews and email exchanges with industry experts. It argues that the absence of these provisions is attributable to a complex amalgam of legislative and regulatory hostility, judicial skepticism, standard forms, and strategic maneuvering on the part of insurers. The Article argues further that manuscript policies—which are negotiated between insurers and policyholders—sometimes lack choice-of-law clauses due to a perceived first-mover disadvantage and the absence of any body of truly neutral insurance law within the United States.
Solving the mystery of the missing choice-of-law clause in insurance contracts unlocks three important insights. First, it informs the efforts of state legislators and insurance commissioners called upon regulate the terms of insurance policies. Second, it suggests that insurance companies should adopt a differentiated approach to drafting choice-of-law clauses that accounts for the relative favorability of the law in the policyholder’s state. Third, and most importantly for contract scholars, solving the mystery sheds light on the nature of the contract production process, the drafting acumen of insurance companies, and the stickiness of absent contract terms.

This post was contributed by Olivera Boskovic, who is a Professor at the Université de Paris.

The situation of victims of environmental damages or human rights violations caused in non-EU countries by subsidiaries or subcontractors of companies established in the EU (but the issue can be extended to companies merely operating in the EU) trying to bring actions before the courts of EU Member States is well known. The Shell case, in which victims of serious environmental damage in Nigeria sued the Dutch parent company and its Nigerian subsidiary before the Dutch court, is quite emblematic in this respect. (The last decision in this case has been issued on 29th of January 2021 by the Hague Court of Appeal. See Shell Nigeria liable for oil spills in Nigeria). The need to modify certain rules of private international law in order to address these actions in a satisfactory manner has been debated for some time now. The purpose of this post is to provide an update and examine the current state of the debate. Difficult questions may arise both concerning jurisdiction and concerning the determination of applicable law.

Jurisdiction

Jurisdiction, first of all, remains problematic although the situation has somewhat improved in recent years. From a European perspective, as the law stands today, a first fundamental distinction is between cases in which the defendant is domiciled in an EU Member State and those in which the defendant is domiciled in a third country.

Where the action is brought against a defendant domiciled in an EU Member State (i.e, in our context, actions brought directly against the parent company or the ordering company), jurisdiction is based on the Brussels Ia Regulation. This regulation always allows a defendant to be sued in the court of his domicile, so that jurisdiction should not be a problem in this case. (For example, in the Shell case the jurisdiction of the Dutch court to hear the action against the Dutch company did not pose any problem). Instead, the obstacles are of a substantive nature and relate to the difficulty of holding companies liable for the actions of their subsidiaries or subcontractors.

The situation is more problematic when the defendant is domiciled outside the EU, (i.e. in our context when the action is brought against subsidiaries or subcontractors who are direct perpetrators of the damage or simply against companies domiciled outside the EU). These actions are excluded from the scope of the Brussels Ia Regulation. They are subject to the national laws of the Member States, and the rules may therefore differ considerably from one country to another. Generally speaking, it is quite difficult to establish the jurisdiction of a Member State court in this type of case. One can therefore consider that there is a problem of access to justice, in so far as the rules of jurisdiction do not take account of economic links, or even the economic unity of groups of companies. Nevertheless, there are avenues available and in particular two worth mentioning: the co-defendants’ rule and the forum necessitatis (or jurisdiction based on the risk of denial of justice) Indeed, several Member States have rules based on one or other of these mechanisms, or even both. As a reminder, the co-defendants’ rule makes it possible, when an action is brought against several defendants, one of whom is domiciled in the forum State and the other outside the EU, to sue all the defendants before the court of the domicile of the one domiciled in the forum State, provided of course that the claims are related. The forum necessitatis, on the other hand, allows the court of the forum to be seized when no foreign court can be seized by the claimant, who therefore risks a denial of justice. More than the issues raised by the application of each of these rules what is noteworthy is the lack of unification at the European level. As regards the forum necessitatis, its introduction into the Brussels I Regulation was proposed in 2010 and again recently in 2020, but without success. As for the co-defendants rule (involving a defendant domiciled outside the EU), its introduction in the Regulation has never been proposed.

New Grounds of Jurisdiction in the Brussels Ibis Regulation

Nevertheless, it appears that the introduction of these two rules into the Regulation would be a real improvement. Of course, this opinion is not shared by all writers. There are divergent views among scholars. Some are hostile to the introduction of the forum necessitatis. (see Ch. Tomale, On the EP draft report on corporate due diligence) They consider there is no need for such a rule, especially at a time when the Supreme court of the United States is moving in the opposite direction and has adopted a very strict position. However, contrary to what can sometimes be read, the idea is not to allow member state courts to hear cases with no connection whatsoever to the EU. A minimum link with the legal order of the court seized is required by all proposals (see the GEDIP proposal concerning the private international law aspects of the future European instrument on corporate due diligence and corporate accountability, October 2021; draft treaty on business and human rights, August 2020; Sofia guidelines for international civil litigation for human rights violation, 2012 adopted by the ILA). Of course, the question is then whether this minimum link should be defined by the rule or left for the court to decide. Taking into account the diversity of situations that may occur, it is preferable to leave the definition of the minimum link to the courts. This seems to be the approach adopted by recent initiatives. On the contrary, other scholars consider that situations where a real risk of denial of justice can be characterised are the only situations in which European courts should rule on this type of dispute. The concern that home state courts should not consider that it is always better for them to decide this type of case and that they should assert jurisdiction only when it is really necessary because the host state courts cannot handle the litigation in a satisfactory way has been voiced by many commentators during debates. Even the Court of Appeal in the famous Vedanta case decided in the UK commented that ‘there must come a time when access to justice in this type of case will not be achieved by exporting cases, but by the availability of local lawyers, experts, and sufficient funding to enable the cases to be tried locally”. Scholars who hold this position are implicitly hostile to the co-defendants rule. These differences raise the question of relations between these two grounds of jurisdiction and whether one should be preferred. In the opinion of the present writer the answer is no. These rules are complementary. (The opinion according to which the forum necessitates rule is a second-best solution and an activity-based rule could be imagined is also worth mentioning. This question was discussed during the interesting webinar on “The recommendation of GEDIP concerning the private international aspects of the future EU instrument on corporate due diligence and corporate accountability” organised by the Italian Interest group on Private international law on December 10 2021 featuring as speakers H. Van Loon and Giulia Vallar.)

Therefore, the minimum solution would be to introduce into the Brussels Ia Regulation the forum necessitatis which allows victims to bring an action in front of the court of a EU Member State, irrespective of the existence of a co-defendant domiciled in an EU Member State, but on condition that they can show that it is impossible to bring the case before another court. The rule is devised as an exceptional rule. If the European legislator wanted to go further, (it is the present writer’s opinion that this is desirable), they should introduce, in addition, the co-defendants rule, which makes it easier to bring an action, without the need to show the impossibility of seizing another court, but provided that a European defendant is also involved in the proceedings and that the claims are related. This approach has been adopted by several recent initiatives. The latest version (August 2020) of the draft binding treaty on business and human rights negotiated within the UN framework contains both rules. The same is true of the GEDIP recommendation to the European Commission. Considering the fact that England has often been described as a magnet forum for this type of litigation, it is interesting to note that in all these proposals, contrary to the English system, the two grounds of jurisdiction (presence of a forum-based co-defendant and the risk of denial of justice) are two separate grounds of jurisdiction. This indeed seems to be a better solution. Another difference lies in the fact that the English system takes into account the risk of substantial denial of justice whereas the forum necessitatis focuses on the impossibility to seize another court. However, the two systems might be closer than they seem at first sight. The impossibility to seize another court can be characterized if the claimant can not “reasonably” seize another court. This is an open door for consideration of a risk of substantial denial of justice. In a nutshell, it appears that the attractivity of the English forum does not lie in rules on jurisdiction.

Parallel Litigation

Another important question relating to jurisdiction is the question of parallel proceedings. The Mariana Dam case recently brought in front of the English courts shed light upon this question. In the aftermath of the worst environmental disaster in the history of Brazil, an action was brought in the UK against the Anglo-Australian mining multinational BHP. It was initially rejected, but has been reopened in July 2021 under exceptional appeals legislations (CPR 52.30) in order to “avoid real injustice”. The way lis pendens and the related actions exceptions are treated is very important. In addition to the problem of parallel litigation brought by victims both in the host and in the home country, It is vital to make sure that they are not transformed into weapons by potential defendants seeking declarations of non-liability in non-member States and then invoking the lis pendens or related actions exception. However, one may consider that the tools that already exist in the Bia regulation are satisfactory and that no legislative reform is needed on this point. Although relying on the conditions of recognition and the concept of “good administration of justice” can seem a bit vague, it is submitted that a certain degree of judicial discretion is inevitable.

Applicable Law

After jurisdiction, the second question concerns the determination of the law applicable to these actions. As the law stands today, a difficulty arises from the fact that choice of law rules often designate the law of the place of the damage, which in these cases is frequently the law of a country outside the EU with a less developed legal system. In reality, to understand the current situation, a twofold distinction must be made, firstly according to whether or not the defendant is domiciled in the EU, and secondly according to whether it is a question of environmental damage or a human rights violation. With regard to actions against defendants domiciled outside the EU, (i.e. in current litigation, actions against subsidiaries and subcontractors), they will always be governed by the law of the place where the damage occurred, which corresponds to the law of their activity. (It is important to note that this does not necessarily mean impunity for these defendants. For example, in the Shell case the Dutch court held the Nigerian subsidiary liable by virtue of Nigerian law). On the other hand, with regard to actions against parent companies or ordering companies established in the EU, as the law stands today, a distinction must be made between cases involving environmental damage and cases involving a violation of human rights. The former are covered by Article 7 of the Rome II Regulation, which allows the claimant to choose between the law of the place of the event giving rise to the damage and the law of the place where the damage occurred. The latter are covered by Article 4, which designates exclusively the law of the place of the damage. This last rule, in our context, is problematic. This problem is at the origin of the proposal by the European Parliament’s Committee on Legal Affairs to insert an Article 6a on “Actions for breach of human rights in commercial matters” which would have allowed the victim to choose between several laws.

The first question that arose upon publication of the proposal was: do we need a new choice of law rule? Some scholars consider that we do not and that it is sufficient to classify the rules of the future European instrument as overriding mandatory provisions (see. the post of G. Rühl here). However, a different view is possible. It is the opinion of the present writer that a choice of law rule would indeed be useful. Indeed, by definition, only a limited number of provisions can be characterised as overriding mandatory provisions. The rules on limitation, for example, will not be considered as such. However, they can be quite decisive in litigation. The action may be dismissed because, for example, the law of the place of the damage, which is a law of a non-EU country, contains a very short limitation period. Therefore, a choice of law rule would protect the victims more than the overriding mandatory rules method and consequently contribute to the public interest objective of making companies more responsible. In any event, the two methods can be combined. The adoption of a new choice of law rule for human right abuses, would not make the overriding mandatory rules approach irrelevant. This is also the position of the GEDIP. In its recommendation it combines the two approaches.

Extending the Scope of Article 7 Rome II

Going back to the European Parliament’s Committee on Legal Affairs’ proposal, although it is the opinion of the present writer that a special choice of law rule is indeed desirable, the provision as proposed was not immune from criticism (See. O. Boskovic, « La loi applicable aux « actions pour violations des droits de l’homme en matière commerciale », Recueil Dalloz 11 fév. 2021, p. 252). Firstly, having two provisions, one applicable to environmental damage and the other applicable to human rights violations would cause very difficult boundary problems (bearing in mind, for example, that according to some estimates one third of human rights violations involve environmental offences). Secondly, the connecting factors used in the proposed article 6a raised many questions. For this reason, it appears more appropriate to have a single choice of law rule for human rights violations and for environmental damage. Article 7 should therefore be rewritten to include human rights violations. The victim would then be able to choose between the law of the place of the damage and the law of the place where the event giving rise to the damage occurred, which would increase their chances of success. (This is also the position of the GEDIP proposal. However, one should note that the scope of the GEDIP proposal is wider and applies, just like the future European instrument, not only to human rights and environmental damages but also to good governance. The precise definition of this last concept is difficult and the desirability of having the same rule is debatable. This very interesting question was discussed during the above-mentioned webinar organised by the Italian interest group on private international law.) However, this idea then gives rise to another question: How should the “event giving rise to the damage” be interpreted in this context? Obviously, for the text to achieve its objective, it must be accepted that the event giving rise to the damage can, at least if the factual circumstances are appropriate, be located at the place where the decisions were or were not taken, i.e. at the domicile of the parent company (a recital could be inserted to encourage such an interpretation) (I have developed these ideas in O. Boskovic, « La loi applicable aux « actions pour violations des droits de l’homme en matière commerciale », Recueil Dalloz 11 fév. 2021, p. 252.). The Hague Tribunal in the Shell case ruled along these lines in its decision issued on May 26th 2021, which has already been characterised as historical. It is interesting to note that a similar question arose in the Arica v. Boliden case decided by the Swedish courts in 2019. In this case under Swedish choice of law rules, applicable rationae temporis, the lex loci delicti commissi applied. In determining the locus delicti commissi, the court held that the center of gravity should be found and that ‘This center may be established with regard to where the qualitatively important elements have their focus rather than according to quantitative criteria’. Therefore, in this case concerning the export of toxic waste from Sweden to Chile, contrary to the first instance decision, the court of appeal held that the event giving rise to the damage was localized in Sweden. It is certain that agreeing on an adequate choice of law rule is not enough. The localization of the connecting factors is of paramount importance. (A similar question arose in the Nestlé v. Doe case. The Supreme Court explained that, because the ATS does not apply extraterritorially, in order for the court to have jurisdiction “plaintiffs must establish that conduct relevant to the statute’s focus occurred in the United States”. This was not the case because the only relevant alleged domestic conduct by the defendants consisted of general corporate activity-like decisionmaking- which  is insufficient to establish domestic application of the ATS. Contrary to the emerging trend in the EU, the Supreme Court of the US has shown continuous caution on this matter, apparently considering that it is not a matter for judicial lawmaking)

Revising Article 17 Rome II

Another important question concerns situations where poor performance of contractual obligations causes damage to third parties. The Kik case in Germany or Begun v. Maran case in the UK come to mind. A very important step in the fight for corporate accountability would be to facilitate actions brought by these third parties The aim is to ensure that the ethical and environmental clauses contained in international contracts do not remain a dead letter. Indeed, as the Court of Appeal observed in Begun v. Maran, often all protagonists know that theses clauses will be totally ignored. A revision of Article 17 of the Rome II Regulation could thus be envisaged in the form of the addition of a sentence: “Account shall also be taken of the ethical clauses contained in the contracts whose breach has caused the damage.” (on this problem see our forthcoming article « Contrats internationaux et protection de l’environnement », in actes du colloque du 15 juin 2021, Le droit économique, levier de la transition écologique ?)

Finally, it appears that the possibility of applying more widely foreign overriding mandatory provisions would contribute to the pursuit of these global governance goals. A modification of Rome I and Rome II along these lines would be welcome.

As these few remarks show, the debate on private international law aspects of corporate social accountability is far from over.

The jugdment on C-251/20, Gtflix, will be published on Tuesday 21. The request for a preliminary reference of the French Cour de Cassation, focused on Article 7(2) of the Brussels I bis Regulation, had triggered a long opinion by M. Hogan (the Irish Advocate General at that point in time). Although he favoured the characterization of the act at stake as a form of malicious falsehood – thus falling under the scope of unfair competition rules-  and indicated expressly that “the present case is not the right one for the Court to take a position on whether or not the mosaic approach should be maintained” (point 95), the actual relevance of the case lies precisely there. He himself devoted his opinion to it, providing the Grand Chamber (K. Lenaerts, L. Bay Larsen, A. Arabadjiev, A. Prechal, I. Jarukaitis, N. Jääskinen, T. von Danwitz, L.S. Rossi, A. Kumin, N. Wahl, and M. Safjan as reporting judge) with arguments and counterarguments. It would be disappointing if the Court does not take a stance.

Eagerly waiting.

Quick reminder:

The question was:

‘Must Article 7(2) of Regulation (EU) No 1215/2012 be interpreted as meaning that a person who, considering  that his or her rights have been infringed by the dissemination of derogatory comments on the internet, brings proceedings not only for the rectification of information and the removal of content but also for compensation for the resulting non-material and material damage, may claim, before the courts of each Member State in the territory of which content published online is or was accessible, compensation for the damage caused in the territory of that Member State, in accordance with the judgment in eDate Advertising (paragraphs 51 and 52), or whether, pursuant to the judgment in Svensk Handel (paragraph 48), that person must make the application for compensation before the court with jurisdiction to order rectification of the information and removal of the derogatory comments?’

Advocate General Hogan proposed the following answer:

“Article 7(2) of Regulation No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that a claimant who relies on an act of unfair competition consisting in the dissemination of disparaging statements on the internet and who seeks both the rectification of the data and the deletion of certain content and compensation for the non-material and economic damage resulting therefrom, may bring an action or claim before the courts of each Member State in the territory of which content published online is or was accessible, for compensation only for the damage caused in the territory of that Member State. In order, however, for those courts to have the requisite jurisdiction it is necessary that the claimant can demonstrate that it has an appreciable number of consumers in that jurisdiction who are likely to have access to and have understood the publication in question.”

Ilaria Queirolo (University of Genova), Salvatore Patti (University of Rome La Sapienza), Carlos Esplugues Mota (University of Valencia), Boriana Musseva (Sofia University), Dana Rone (Turiba University, Riga), Laura Carpaneto (University of Genova) and Francesca Maoli (University of Genova) have edited Children’s Right to Information in EU Civil Actions, published by the Italian publisher Pacini.

The volume collects the results of the EU co-funded Project Minor’s Right to Information in EU civil actions – Improving children’s right to information in cross-border civil cases – MiRI, European Union Justice Programme 2014-2020, JUST-JCOO-AG-2018-831608. It critically addresses the fundamental right of the child to receive information during the course of civil proceedings affecting him or her, with particular reference to the peculiarities characterizing cross-border proceedings in family matters. In this context, the right to information is coinceived not only as a corollary of the right of the child to be heard during the course of the proceedings, but also in the light of the possible developments as an autonomous procedural right. The volume rationalizes the main criticalities emerging from the current practice in several EU Member States and offers a set of Guidelines, aimed at improving the situation of children involved in cross-border family proceedings, in order to enhance and protect their fundamental rights.

The contributors include Roberta Bendinelli, Leontine Bruijnen, Laura Carpaneto, Carlos Esplugues Mota, Samuel Fulli-Lemaire, Maria González Marimón, Sara Lembrechts, Francesca Maoli, Boriana Musseva, Vasil Pandov, Francesco Pesce, Ilaria Queirolo, Pablo Quinzá Redondo, Geraldo Rocha Ribeiro, Dana Rone, Tine Van Hof, Daja Wenke.

The book is fully accessible here.

On 25 November 2021, the Court of Justice handed out its judgement in IB (C-289/20), in which it followed the earlier Opinion of AG Sánchez-Bordona. The preliminary question referred to the Court in this case concerned the jurisdictional rules of Article 3(1)(a) of the Brussels II bis Regulation and was aimed at clarifying whether a spouse might have his or her ‘habitual residence’ in more than one country, which could result in courts of both Member States having jurisdiction in proceedings relating to matrimonial matters. This post was published previously on EU Law Live.

Background

The background to the case concerns the applicant IB, who wanted to institute divorce proceedings at forum actoris pursuant to the sixth indent of Article 3(1)(a) of the Brussels II bis Regulation, having strong ties to two countries, Ireland due to family and social interests and France due to professional and patrimonial interests.

CJEU’s Analysis

Referring to Mikołajczyk (C-294/15), the Court of Justice recalled that Article 3 of the Brussels II bis Regulation provides for very generous grounds of jurisdiction, which are alternative, but exclusive. The rules of the fifth and sixth indents of Article 3(1)(a) were designed considering interests of the spouse who, after the breakdown of the marriage, decides to move back to his or her home country nad wants to institute proceeding there (paragraph 35). The concept of ‘habitual residence’ is not defined in the Brussels II bis Regulation; however, it is consistently used in a singular form. The use of the adjective ‘habitual’ suggests that on the one hand the residence should have a stable and regular character and on the other the transfer of habitual residence to another country should reflect the willingness of remaining there with the intention of establishing there the stable center of one’s life interests. The assimilation of the habitual residence of a person, in this case a spouse, to the permanent or habitual centre of his or her interests does not militate in favour of accepting that a number of residences may simultaneously have such a character (paragraphs 40-44).

The objective of Article (3)(1)(a) of the Brussels II bis Regulation is to reconcile legal certainty with the reality of the mobility of persons within the EU. Assuming that one might have multiple habitual residences would definitely undermine this legal certainty and predictability as to which court might hear the case. It would also create a risk that the concept of ‘habitual residence’ would be equated with simple residence. Additionally, such interpretation of the concept of habitual residence under the Brussels II bis Regulation would have repercussions for other EU instruments, namely the Maintenance Regulation and the Matrimonial Property Regulation, which provide for jurisdictional basis dependent on the jurisdiction in matrimonial matters (paragraph 48).

CJEU’s Conclusion

As a result, a person might have only one habitual residence within the meaning of Article 3(1)(a) of the Brussels II bis Regulation (paragraph 51). Having concluded the above, the Court of Justice clarified the meaning of the concept of ‘habitual residence’. Its judgements concerning habitual residence of a child, in HR (C-512/17) for example, were used as a starting point. Then the Court underlined the specificities of the situation of an adult, namely the will of returning to the home country after the marriage breakdown, as well as the more diverse nature of the environment, which is composed of different activities and diversified interests – professional, sociocultural, patrimonial, and familial (paragraph 56). Habitual residence is characterized by two elements, namely the willingness of fixing one’s center of interests in a given place and the presence of sufficiently stable character (paragraph 57). The Court of Justice thus seemed to suggest that IB might have indeed changed his place of habitual residence (paragraphs 59-61) but noted that it is for the referring court to ascertain.

Overall, the judgement is not a surprising one, as it stands in line with previous jurisprudence of Court of Justice, for example in EE (C-80/19), when it states that the habitual residence of the deceased must be established in a single Member State (paragraph 40).

The European Commission (EC) set out an initiative Recognition of parenthood between Member States. As underlined by the EC, the initiative aims to ensure that parenthood, as established in one EU country, is recognised across the EU, so that children maintain their rights in cross-border situations, in particular when their families travel or move within the EU. Currently, in certain circumstances they might see the parenthood not recognised, which in turn might result in adverse consequences for the child (for example, obstacles in obtaining a passport or an identity card).

These problems might be easily illustrated by the background of the case, which resulted in a very recent judgement of the Court of Justice in Stolichna obshtina, rayon “Pancharevo” (C-490/20). See posts on this blog on the attitude of administrative authorities of some Member States, on the example of Bulgaria and AG Kokott’s opinion as to its implications in EU law, especially the Charter of Fundamental Rights of the EU – respectively – here and here.

Inception Impact Assessment

As reminded in the inception impact assessment published in Spring 2021, there is currently no instrument on the recognition of parenthood at the international level. The Hague Conference on Private International Law (HCCH) is engaged in exploring the possibilities of tackling this issue (information about these works might be found at HCCH website here). In the EU, each Member State applies its own law on the recognition of civil status records/judgements on parenthood handed down in another Member State. On the one hand, under EU treaties, substantive family law falls within the competence of Member States. Their substantive rules on the establishment and recognition of parenthood differ. On the other hand, the EU has competence to adopt measures concerning family law with cross-border implications pursuant to Article 81(3) TFEU. These measures can include the adoption of common conflict rules and the adoption of common procedures for the recognition of judgments issued in other Member States. The EC plans to present a proposal of the regulation by the third quarter of 2022.

Public Consultation

The EC has also lunched a public consultation. The outcome of the consultation was recently published (and is available here). Although collected answers are not necessary representative for the whole EU (interestingly, out of 389 answers 112 come from Slovakia), they indicate that indeed there are instances where parenthood was not recognised as between Member State.

(…) the cases mainly involved a child born out of surrogacy (37% or 116 responses), followed by a child born out of assisted reproductive technology (ART) (23% or 73 responses) and second parent adoption by the partner of the biological parent (21% or 65 responses). Other cases in which parenthood was not recognised included parenthood established by operation of law (14% or 45 responses) and adoption by two parents (10% or 30 responses). Adoption by one single parent and establishment of parenthood over an adult were not recognised according to 6% (or 18 responses) and 3% (or 8 responses) respectively.

As specified by respondents, the primary reason for not recognising parenthoods established in another Member State is that the recognition of parenthood is contrary to the national law of the Member State [or rather a public policy of that Member State? – AWB] where recognition is sought (72% or 184 responses) (…)

Expert Group

The Expert Group was set up to advise EC on the preparation of this new legislative initiative. The Group has met already on several occasions. As  minutes of these meeting reveal (see here for details), the Group was discussing, inter alia, the very notion of “recognition” with respect to parenthood, which often is confirmed by an administrative document, for example the birth certificate.

(…) existing Union instruments address the circulation of authentic instruments under three possible forms: acceptance, only enforcement and recognition and enforcement, and that by definition enforcement is not applicable to the status of persons. The group considered that acceptance may refer only to the evidentiary effects of the facts recorded in the document but not to the existence of a legal relationship, such that only recognition would be relevant for the purposes of the planned regulation on parenthood. 

It was thus agreed that the term ‘recognition’ should be used in the proposal as it refers not only to the factual elements but also to the legal effects of the authentic instrument. 

Enhanced Cooperation?

It might be added that adoption of a regulation under Article 81(3) TFEU requires unanimity. As a result, so far regulations aimed at unifying international family law were adopted within enhanced cooperation, due to lack of such unanimity (for example, the Divorce Regulation). The side effect is that these regulations are applied only in participating Member States, which undermines the unification efforts of the EU. Hence, there is a risk that non-participating Member States could be the ones, in which the problem of non-recognition of parenthood established in another Member State is more pressing than in other ones.

This post was contributed by Dr. Vito Bumbaca, who is Assistant Lecturer at the University of Geneva.

In a ruling of 2 August 2021 (A v. B, C-262/21 PPU), the CJEU clarified that a child who is allegedly wrongfully removed, meaning without consent of the other parent, should not return to his/ her habitual residence if such a removal took place as a consequence of the ordered transfer determining international responsibility based on the Dublin III Regulation. The judgment is not available in English and is the first ever emanating from this Court concerning the Brussels IIA-Dublin III interplay.

The Brussels IIA Regulation complements the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, and is applicable to 26 EU Member States, including Finland and Sweden. The Regulation (EU) No 604/2013 of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) (Dublin III), is pertinent for asylum seekers’ applications commenced at least in one of the 31 Member States (EU/EFTA), comprising Finland and Sweden, bound by this Regulation.

Questions for a CJEU Urgent Preliminary Ruling

The CJEU was referred five questions, but only addressed the first two.

(1) Must Article 2(11) of [Regulation No 2201/2003], relating to the wrongful removal of a child, be interpreted as meaning that a situation in which one of the parents, without the other parent’s consent, removes the child from his or her place of residence to another Member State, which is the Member State responsible under a transfer decision taken by an authority in application of Regulation [No 604/2013], must be classified as wrongful removal?

(2) If the answer to the first question is in the negative, must Article 2(11) [of Regulation No 2201/2003], relating to wrongful retention, be interpreted as meaning that a situation in which a court of the child’s State of residence has annulled the decision taken by an authority to transfer examination of the file, and to take no further action since the mother and child have left the State of residence, but in which the child whose return is ordered, no longer has a currently valid residence document in his or her State of residence, or the right to enter or to remain in the State in question, must be classified as wrongful retention?

Background

In 2019, a married couple, third-State nationals (Iran), both with regard to Brussels IIA and Dublin III respective Member States, moved from Finland to settle in Sweden. Since 2016, the couple had lived in Finland for around three years. In 2019, a child was born in Sweden. The couple was exercising joint custody over the child in conformity with Swedish law. The mother was holding a family residency permit, in both Finland and Sweden, through the father’s employment rights. The approved duration of the mother’s residency right in Finland was around one year longer than in Sweden.

Two months after the child’s birth, the latter and the mother were placed under Swedish residential care (hostel). Essentially, the Swedish administrative decision to uphold this care protective measure was the result of the father’s violence against the mother, so to protect the child from the risks against his development and health, as well as to prevent his wrongful removal to Iran possibly envisaged by his father. Limited contact rights were granted to the father. A residency permit was requested, individually, by the father and the mother based on the family lien – request respectively filed on 21 November and 4 December 2019.

In August 2020, the mother submitted an asylum request, for the child and herself, before the Swedish authorities. The same month, the Finnish authorities declared themselves internationally responsible over the mother’s and child’s asylum request by virtue of article 12(3) of Dublin III – based on the longer duration of the residency permit previously delivered according to Finnish law. In October 2020, the Swedish authorities dismissed the father’s and rejected the mother’s respective residency and asylum requests, and ordered the transfer of the child and his mother to Finland. Taking into account the father’s presence as a threat against the child, the limited contacts established between them, and the father’s residency right in Finland, the Swedish authorities concluded that the child’s separation from his father was not against his best interests and that the transfer was not an obstacle to the exercise of the father’s visitation right in Finland. In November 2020, the mother and the child moved to Finland pursuant to article 29(1) of Dublin III. In December 2020, the father filed an appeal against the Swedish court’s decisions, which was upheld by the Swedish Immigration Tribunal (‘Migrationsdomstolen i Stockholm’), although it resulted later to be dismissed by the Swedish Immigration Authorities, and then rejected by the Immigration Tribunal, due to the child’s relocation to Finland (CJEU ruling, § 23-24).

In January 2021, the father filed a new request before the Swedish authorities for family residency permit on behalf of the child, which was still ongoing at the time of this judgment (CJEU ruling, § 25). During the same month, the mother deposited an asylum application before the Finnish authorities, which was still ongoing at the time of this judgment – the mother’s and child’s residency permits were withdrawn by the Finnish authorities (CJEU ruling, § 26). In April 2021, the Swedish Court (‘Västmanlands tingsrätt’), notwithstanding the mother’s objection to their jurisdiction, granted divorce, sole custody to the mother and refused visitation right to the father – upheld in appeal (‘Svea hovrätt’). Prior to it, the father filed an application for child return before the Helsinki Court of Appeal (‘Helsingin hovioikeus’), arguing that the mother had wrongfully removed the child to Finland, on the grounds of the 1980 Hague Convention. The return application was rejected. On the father’s appeal, the Finnish authorities stayed proceedings and requested an urgent preliminary ruling from the CJEU, in line with article 107 of the Luxembourg Court’s rules of procedure.

Judgment

The Court reiterated that a removal or retention shall be wrongful when a child holds his habitual residence in the requesting State and that a custody right is attributed to, and effectively exercised by, the left-behind parent consistently with the law of that State (§ 45). The primary objectives of the Brussels IIA Regulation, particularly within its common judicial space aimed to ensure mutual recognition of judgments, and the 1980 Hague Convention are strictly related for abduction prevention and immediate obtainment of effective child return orders (§ 46).

The Court stated that, pursuant to articles 2 § 11 and 11 of the Brussels IIA Regulation, the child removal to a Member State other than the child’s habitual residence, essentially performed by virtue of the mother’s right of custody and effective care while executing a transfer decision based on article 29 § 1 of the Dublin III Regulation, should not be contemplated as wrongful (§ 48). In addition, the absence of ‘take charge’ request following the annulment of a transfer decision, namely for the purposes of article 29 § 3 of Dublin III, which was not implemented by the Swedish authorities, would lead the retention not to being regarded as unlawful (§ 50). Consequently, as maintained by the Court, the child’s relocation was just a consequence of his administrative situation in Sweden (§ 51). A conclusion opposing the Court reasoning would be to the detriment of the Dublin III Regulation objectives.

Some Insights from National Precedents

In the case ATF 5A_121/2018, involving a similar scenario (cf. FamPra.ch 1/2019), the Swiss Federal Court maintained that a child born in Greece, who had lived for more than a year with his mother in Switzerland, had to be returned to Greece (place of the left-behind parent’s residence) based on the established child’s habitual residence prior to the wrongful removal to Switzerland, notwithstanding his pending asylum application in the latter State. Indeed, the Greek authorities had been internationally responsible over the child’s asylum request on the basis of his father’s residence document. However also in that case it was alleged that the father had been violent against the mother and that a judgment ordering the child’s return to Greece, alone or without his mother (§ 5.3), would not have caused harm to the child under the 1980 Hague Convention, art. 13.

In the case G v. G [2021] UKSC 9, involving a slightly different scenario in that no multiple asylum requests were submitted, the UKSC judged that a child, of eight years old born in South Africa, should not be returned – stay of proceedings – until an asylum decision, based on an asylum application filed in England, had been taken by the UK authorities. The UKSC considered that, although an asylum claim might be tactically submitted to frustrate child return to his/ her country of habitual residence prior to wrongful removal or retention, it is vital that an asylum claim over an applicant child, accompanied or not by his/ her primary carer, is brought forward while awaiting a final decision – in conformity with the ‘non-refoulement’ principle pursuant to article 33 of the 1951 Geneva Convention relating to the Status of Refugees.

Comment

The CJEU ruling is momentous dictum in that it holds the not any longer uncommon intersection of private international law and vulnerable migration, especially with regard to children in need of international protection in accordance with both Brussels IIA and Dublin III Regulations (cf. Brussels IIA, § 9, and Dublin III, article 2 lit. b). The Luxembourg Court clarifies that a child who is allegedly wrongfully removed, meaning without consent of the other parent, should not return to his/ her habitual residence if such a removal took place as a consequence of the ordered transfer determining international responsibility based on the Dublin III Regulation. It is emphasised that, contrary to the Swiss judgment, the child in the instant case did not have any personal attachments with Finland at the time of the relocation – neither by birth nor by entourage – country of destination for the purposes of the Dublin III transfer. Moreover, the ‘transfer of responsibility’ for the purposes of Dublin III should be contemplated as an administrative decision only, regardless of the child’s habitual residence.

It is observed as a preamble that, according to a well known CJEU practice, a child should not be regarded as to establish a habitual residence in a Member State in which he or she has never been physically present (CJEU, OL v. PQ, 8 June 2017, C-111/17 PPU; CJEU, UD v. XB, 17 October 2018, C-393/18 PPU). Hence, it appears procedurally just that the Swedish courts retained international jurisdiction over custody, perhaps with the aim of Brussels IIA, article 8 – the child’s habitual residence at the time of the seisin, which occurred prior to the transfer to Finland. On that procedural departure, the Swedish courts custody judgment is substantially fair in that the father’s abuse against the mother is indeed an element that should be retained for parental responsibility, including abduction, merits (CJEU ruling, § 48; UKSC judgment, § 62).

However, it is argued here that, particularly given that at the relevant time Sweden was the child’s place of birth where he lived for around 14 months with his primary carer, the Swedish and the Finnish authorities might have ‘concentrated’ jurisdiction and responsibility in one Member State, namely Sweden, ultimately to avoid further length and costs related to the asylum procedures in line with the same Dublin III objectives evoked by the CJEU – namely “guarantee effective access to the procedures for granting international protection and not to compromise the objective of the rapid processing of applications for international protection” (§ 5, Dublin III). Conversely, provided that the child’s relocation was not wrongful as indicated by the Finnish authorities, and confirmed by the CJEU ruling, the Swedish authorities may have opted for the ‘transfer of jurisdiction’ towards the Finnish authorities on the basis of Brussels IIA, article 15(1) lit. b, indicating the child’s new habitual residence (cf. Advocate General’s opinion, § 41) following the lawful relocation (cf. article 15.3., lit. a).

Importantly, concentration of jurisdiction-responsibility over a child seeking international protection in one Member State, in light of the Brussels IIA-Dublin III interplay, would essentially determine a coordinated interpretation of the child’s best interests (cf. Brussels II, § 12, and Dublin III, § 13), avoiding two parallel administrative-judicial proceedings in two Member States whose authorities may not always come to similar views, as opposed to the present case, over such interests (AG’s opinion, § 48). This is particularly true, if the child (non-)return to his/ her habitual residence might likely be influenced, as stated in the CJEU ruling, by his/ her administrative situation, which would potentially have an impact on the international custody jurisdiction determination. An example of controversial outcome, dealing with child abduction-asylum proceedings, is the profoundly divergent opinion arising from the UK and Swiss respective rulings, to the extent of child return in a situation where the mother, primary carer, is or could be subject to domestic violence in the requesting State.

Similarly, the UKSC guidance, in ‘G v. G’, affirmed: “Due to the time taken by the in-country appeal process this bar is likely to have a devastating impact on 1980 Hague Convention proceedings. I would suggest that this impact should urgently be addressed by consideration being given as to a legislative solution […] However, whilst the court does not determine the request for international protection it does determine the 1980 Hague Convention proceedings so that where issues overlap the court can come to factual conclusions on the overlapping issues so long as the prohibition on determining the claim for international protection is not infringed […] First, as soon as it is appreciated that there are related 1980 Hague Convention proceedings and asylum proceedings it will generally be desirable that the Secretary of State be requested to intervene in the 1980 Hague Convention proceedings” (UKSC judgment, § 152-157). Clearly, the legislative solution on a more efficient coordination of child abduction-asylum proceedings, invoked by the UK courts, may also be raised with the EU [and Swiss] legislator, considering their effects on related custody orders.

 

— Cross posted at Conflictoflaws.net.

Ralf Michaels, Veronica Ruiz Abou-Nigm and Hans van Loon have edited The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law, recently published by Intersentia.

In 2015, the United Nations formulated 17 ambitious goals towards transforming our world – the Sustainable Development Goals (SDG 2030). Their relation to public international law has been studied, but private law has received less attention in this context and private international law none at all. Yet development happens – not only through public action but also through private action, and such action is governed predominantly by private law and private international law. This book demonstrates an important, constructive role for private international law as an indispensable part of the global legal architecture needed to turn the SDGs into reality. Renowned and upcoming scholars from around the world analyse, for each of the 17 SDGs, what role private international law actually plays towards these goals and how private international law could, or should, be reformed to advance them. Together, the chapters in the book bring to the fore the hitherto lacking private side of transforming our world.

An open access online version of this book is also available, thanks to financing by the Max Planck Institute for Comparative and International Private Law. It is available here through Intersentia Online.

The book comes with a chapter for each Sustainable Development Goals, i.e.: No Poverty; Zero Hunger; Good Health and Well-Being; Quality Education; Gender Equality; Clean Water and Sanitation; Affordable and Clean Energy; Decent Work and Economic Growth; Industry, Innovation and Infrastructure; Reduced Inequalities; Sustainable Cities and Communities; Sustainable Consumption and Production; Climate Action; Life below Water; Life on Land; Peace, Justice and Strong Institutions; Partnership for the Goals.

Contributors include Eduardo Álvarez-Armas (Brunel University London), Vivienne Bath (University of Sydney), Gülüm Bayraktaroğlu-Özçelik (Bilkent University), Klaus D. Beiter (North-West University), Sabine Corneloup (University Paris II Panthéon-Assas), Klaas Hendrik Eller (University of Amsterdam), Nikitas E. Hatzimihail (University of Cyprus), Thalia Kruger (University of Antwerp), Ulla Liukkunen (University of Helsinki), Benyam Dawit Mezmur (University of the Western Cape), Ralf Michaels (Max Planck Institute for Comparative and International Private Law / Queen Mary University, London), Richard Frimpong Oppong (California Western School of Law), Fabricio B. Pasquot Polido (Universidade Federal de Minas Gerais), Verónica Ruiz Abou-Nigm (University of Edinburgh), Jay Sanderson (University of the Sunshine Coast), Tajudeen Sanni (Nelson Mandela University / One Ocean Hub), Geneviève Saumier (McGill University), Anabela Susana de Sousa Gonçalves (University of Minho School of Law), Drossos Stamboulakis (Monash University), Jeannette M.E. Tramhel (Organization of American States), Hans van Loon (Institut de droit international; former Secretary General Hague Conference) and Jinske Verhellen (Ghent University).

Kazuaki Nishioka (visiting Research Fellow at the Law Faculty of the University of Zurich) and Yuko Nishitani (Professor of International Private and Business Law at Kyoto University Graduate School of Law) published a new book on Japanese Private International Law with Hart Publishing series – Studies in Private International Law – Asia.

The volume seeks to be a leading reference on Japanese private international law in English. The chapters systematically cover all the areas of Japanese private international law: commercial matters, family law, succession, cross-border insolvency, intellectual property, competition (antitrust), and environmental disputes.

The analysis does not look only into the traditional conflict of law areas of jurisdiction, applicable law (choice of law), and enforcement, but addresses also the conflict of law questions arising in arbitration and assesses Japanese involvement in the global harmonisation of private international law.

In addition to summarising relevant principles and scholarly views, the authors discuss case law whenever possible, identify deficiencies and anticipate difficulties in the existing law.

The book presents the Japanese conflict of laws through a combination of common and civil law analytical techniques and perspectives, providing readers worldwide with a more profound and comprehensive understanding of the subject.

A table of contents is available here and an extract here.

On 9 December 2021, the CJEU delivered its judgment in HRVATSKE ŠUME d.o.o., Zagreb v. BP EUROPA SE (Case C-242/20).

The main issue before the Court was whether a claim for unjust enrichment fell necessarily within the scope of the jurisdictional rule for contracts (Article 5(1) Brussels I Regulation, today Article 7(1) Brussels I bis Regulation) or the jurisdictional rule for delicts and quasi-delicts (Article 5(3) Brussels I Regulation, today Article 7(2) Brussels I bis Regulation), or whether it could fall in neither and thus fall within the scope of the general rule granting jurisdiction to the courts of the defendants of the domicile.

The Court followed the Advocate-General Conclusions and ruled that a claim for unjust enrichment which was not contractual in nature would not fall necessarily within the scope of the jurisdictional rule for delicts.

Background

The request was referred by the Visoki trgovački sud Republike Hrvatske (Cour d’appel de commerce, Croatie). The questions, still on the Brussels I Regulation, were asked in the context of a dispute between a company incorporated under Croatian law, and a company established in Hamburg (Germany), over a sum of money seized on the bank account of the first company and transferred to the assets of the second as part of an enforcement procedure. As this procedure was subsequently invalidated, the applicant in the main proceedings sought restitution of the sum in question on the basis of unjust enrichment.

The first question referred by the Croatian court was:

1. Do actions for recovery of sums unduly paid by way of unjust enrichment fall within the basic jurisdiction established in Council Regulation (EC) No 44/2001 … in respect of ‘quasi-delicts’, since Article 5(3) thereof provides inter alia:: ‘A person domiciled in a Member State may, in another Member State, be sued … in matters relating to … quasi-delict, in the courts for the place where the harmful event occurred or may occur’?

Judgment

The CJEU ruled that the claim was neither contractual, nor delictual, and thus fell within the scope of the general jurisdictional rule of the domicile of the defendant.

The reasons given by the Court are essentially based on the language of the relevant provisions and, perhaps also on its structure.

First, the Court recognises that claims for unjust enrichment could be related to a contract, and thus be characterised as contractual in character.

The most interesting part of the judgment relates to those claims which are not related to a pre-existing contractual relationship. The Court rules that such claims do not fall within the scope of Article 5(3) / 7(2) either. The main reason given by the Court is that Article 5(3) / 7(2) refers to ‘harmful events’ and thus should be interpreted as applying only where such events are concerned. Yet,

55. A claim for restitution based on unjust enrichment is based on an obligation which does not originate in a harmful event. That obligation arises irrespective of the defendant’s conduct, with the result that there is no causal link that can be established between the damage and any unlawful act or omission committed by the defendant.

A widely shared view, which was defended by the Commission in this case, was that Article 5(3) / 7(2) was a residual rule, and that all claims based on obligations which would not fall within the scope of Article 5(1) / 7(1) should be considered as delictual for jurisdictional purposes. The view is clearly rejected.

The result is indeed the opposite. While it seemed before this case that most claims based on unjust enrichment would fall within the scope of Article 7(2), the Court suggests that it will amost never be the case. It explains that a claim for unjust enrichment could be related to a contract and characterised as contractual,

Another potential argument supporting the conclusion of the Court is mentioned at the outset, but it is unclear whether it genuinely considers it as important. The Court reiterates that special rules of jurisdiction should be interpreted restrictively. Thus, if a particular claim does not clearly fall within the scope of any of the special rules (e.g. Article 7(1) and (2) Brussels I bis), they should not apply.

The case was also concerned with the scope of the exclusive rule in Article 22(5) Brussels I. The Court found that:

36. In the absence of any application for enforcement, an action for restitution based on unjust enrichment does not come within the scope of Article 22(5) of Regulation No 44/2001.  

Koji Takahashi from Doshisha University Law School published on SSRN an article titled Blockchain-based Negotiable Instruments (with Particular Reference to Bills of Lading and Investment Securities). The article will be included as a chapter in the book: A. Bonomi, M. Lehmann (eds), Blockchain & Private International Law to be published by Brill.

The abstract reads as follows:

This paper will consider what should be the choice-of-law rules for the issues pertaining to blockchain-based negotiable instruments.

The concept of “negotiable instruments” refers to instruments representing relative rights (namely, entitlements that may be asserted against a certain person) such as rights to claim the performance of obligations and corporate membership rights. It depends on the applicable law which instrument qualify for this description. It covers, for example, “Wertpapier” defined by the Swiss Code of Obligations (Obligationenrecht) as any document with which a right is linked in such a way that it can neither be asserted nor transferred to others without the document (Article 965). The concept of “negotiable instruments” as used in this paper is broader than the same expression as ordinarily understood in English law. Under the latter, “negotiable instruments” ordinarily mean the instruments which allows a bona fide transferee to acquire a better title than what the transferor had. In this narrow sense, bills of lading are not negotiable instruments under English law though they are under German and Japanese law. As this paper will examine negotiable instruments in the wider sense, it will cover bills of lading and investment securities within its scope of analysis.

The concept of “blockchain-based negotiable instruments” refers to tokens issued on a blockchain which are meant to serve as negotiable instruments. This paper’s main focus is on blockchain-based bills of lading and blockchain-based investment securities (called crypto-securities). This paper will not make any particular mention of promissory notes, bills of exchange or cheques since no notable trend for issuing them on blockchains is observed as of the time of writing (August 2021) but they are not excluded from its scope. Intrinsic tokens (namely, tokens of self-anchored value) such as crypto-currencies are outside the scope of this paper since they do not represent any relative rights.