EAPIL blog

Pilar Jimenez Blanco (University of Oviedo) has published a monograph on cross border matrimonial property regimes (Regímenes Económicos Matrimoniales Transfronterizos).

The book is an in-depth study of Regulation 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes.

The author has kindly provided the following abstract in English:

Regulation (EU) No 2016/1103 is the reference Regulation in matters of cross-border matrimonial property regimes. This book carries out an exhaustive analysis of the Regulation, overcoming its complexity and technical difficulties.

The book is divided in two parts. The first is related to the applicable law, including the legal matrimonial regime and the matrimonial property agreement and the scope of the applicable law. The second part is related to litigation, including the rules of jurisdiction and the system for the recognition of decisions. The study of the jurisdiction rules is ordered according to the type of litigation and the moment in which it arises, depending on whether the marriage is in force or has been dissolved by divorce or death. The conclusions include an overview of the guiding principles of the Regulation and specific solutions for different problems related to matrimonial property regimes (such as the treatment of prenuptial agreements, effects in respect of third parties, the relationship between the matrimonial property regimes or the civil liability of the spouses).

The study merges the rigorous interpretation of UE rules with practical reality and includes case examples for each problem area. The book is completed with a lot of references on comparative law, which show the different systems for dealing with matters of the matrimonial property regime applied in the Member States. It is, therefore, an essential reference book for judges, notaries, lawyers or any other professional who performs legal advice in matrimonial affairs.

The table of contents can be accessed here.

Today, the Court of Justice has published its judgement in C 393/20, a request for a preliminary ruling from the Sąd Rejonowy dla Krakowa-Śródmieścia w Krakowie (Poland).

The subject matter of the proceedings in the joined cases concerns the claims of two commercial operators, T.B. and D. sp. z o.o., with seat in Poland, against the defendant G.I. A/S, which has its seat in Denmark. In each of the two joined cases, the applicant seeks compensation for the damage resulting from a road accident caused by persons who are insured by the defendant. In both cases the accident occurred in Poland, the vehicles involved in the collision were registered in the territory of Poland, and the drivers of the vehicles are Polish citizens.

T.B. is a businessman; he engages professionally in risk assessment and loss assessment activities. D. sp. z o.o. presents itself as a repair workshop offering vehicle repair services without payment and accepting claim assignment as settlement of repair costs. G.I. A/S contests the jurisdiction of the Polish courts seized in both cases.

The questions referred to the Court were:

(1)         Must Article 13(2), in conjunction with Article 11(1)(b), of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters be interpreted as meaning that it may be relied on by a person who, in return for services provided to a party directly injured in a road accident in connection with the damage caused, has acquired a claim for compensation, but does not carry out the professional activity of recovering insurance indemnity claims against insurance companies and who brought an action, in the court for the place where he is established, against the third-party liability insurer of the party responsible for that accident, which insurer has its seat in another Member State?

(2)         Must Article 7(2) or Article 12 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters be interpreted as meaning that it may be relied on by a person who acquired, under an assignment agreement, a claim from a party injured in a road accident in order to bring a civil-liability action before a court of the Member State in which the accident occurred against the insurer of the party responsible for that accident, which insurer has its seat in a Member State other than the Member State in which the accident occurred?

In a decision taken by the 8th Chamber (N. Wahl, F. Biltgen, L.S. Rossi as juge rapporteur), without prior opinion of the advocate general in charge, the Court has replied as expected. Regarding the first question, it states that (my translation) Article 13 (2) of Regulation 1215/2012, read in conjunction with Article 11 (1) (b) of that regulation,

“must be interpreted as meaning that it cannot be invoked by a company which, in return for the services it provides to the victim direct from a road traffic accident related to the damage resulting from this accident, has acquired from it the claim for insurance compensation, for the purpose of claiming payment from the insurer of the author of the said accident, without however exercising a professional activity in the field of recovery of such debts.”

On the second query, the answer reads:

“Article 7 (2) of Regulation No 1215/2012 must be interpreted as meaning that it may be invoked by a trader who has acquired, by virtue of an assignment contract, the debt of the victim of a road traffic accident, with the aim of bringing before the courts of the Member State of the place where the harmful event occurred, a tort or quasi-tort action against the insurer of the author of this accident, which has its registered office in the territory of a Member State other than that of the place where the harmful event occurred, provided that the conditions for the application of this provision are met, which is for the referring court to verify.”

On 20 October 2021, the Supreme Court of the United Kingdom delivered its judgment in FS Cairo (Nile Plaza) LLC (Appellant) v Brownlie (as Dependant and Executrix of Professor Sir Ian Brownlie CBE QC) (Respondent).

The most important issue before the court was whether English court should be able to retain jurisdiction in tort cases on the ground that an indirect damage was suffered in the United Kingdom. The applicable provision (CPR Practice Direction 6B) refers to “damage” suffered in England, and the court held that as it does not distinguish between direct and indirect damage, it should be considered as including both.

Interestingly, the argument was made that the English rule was drafted on the model of EU law, which limits jurisdiction to the court of the place of direct damage. It is rejected as an overgeneralisation.

So much for those who thought that EU law would continue to influence the development of English private international law.

Bye bye Brussels, bye bye Marinari.

Background

On 3 January 2010, Lady Brownlie’s husband was killed in a car accident in Egypt during an excursion booked through the Four Seasons Hotel Cairo, a hotel operated by FS Cairo. Lady Brownlie was injured in the same accident. The driver was convicted of involuntary manslaughter. In December 2012, Lady Brownlie brought claims in tort and contract in the High Court against Four Seasons Holdings Incorporated, a Canadian company, for damages for injury and losses suffered as a result of the accident.

In 2018 the Supreme Court held that the evidence showed that Four Seasons Holdings Incorporated was a non-trading holding company which neither owned nor operated the Hotel and that therefore the courts of England and Wales had no jurisdiction to try the claims against it. The Supreme Court remitted ancillary matters to the High Court and ordered that the Claimant had permission to apply to correct the name of the Defendant, to substitute or to add a party to the proceedings.

Lady Brownlie applied to the High Court to amend her claim so that it could be brought against FS Cairo instead. Permission to amend her claim was granted but, because FS Cairo is an Egyptian company, Lady Brownlie also requires permission to serve her claim out of the jurisdiction.

In order to serve her claim outside the jurisdiction, English law requires Lady Brownlie to show, in respect of each claim in contract and tort, that: (1) it falls within a ‘jurisdictional gateway’ under CPR Practice Direction 6B; (2) it is a claim that has a reasonable prospect of success; and (3) England and Wales is the proper place in which to bring the claim. The High Court and a majority of the Court of Appeal (Arnold LJ dissenting) decided that Lady Brownlie had met all three elements of this test in respect of her claims in tort and contract. Lady Brownlie was therefore granted permission to serve her claims on FS Cairo. FS Cairo appeals to the Supreme Court only against the decisions concerning the first two elements of the test.

Judgment The tort gateway issue

Before permission may be given for service of a claim form outside the jurisdiction, the claimant must establish that: (1) the claim falls within one of the gateways set out in paragraph 3.1 of Practice Direction (“PD“) 6B to the CPR; (2) the claim has a reasonable prospect of success; and (3) England and Wales is the appropriate forum in which to bring the claim [25]. Those conditions are the domestic rules regarding service out of the jurisdiction; they may be contrasted with the EU system [28-29].

Lady Brownlie submits that her tortious claims meet the criterion for the gateway in paragraph 3.1(9)(a) of PD 6B, namely that “damage was sustained… within the jurisdiction” [30]. The appellant submits that paragraph 3.1(9)(a) only founds jurisdiction where the initial or direct damage was sustained in England and Wales. Lady Brownlie instead maintains that the requirements of the gateway are satisfied if significant damage is sustained in the jurisdiction [33-34].

The Supreme Court considers that the word “damage” in paragraph 3.1(9)(a) refers to actionable harm, direct or indirect, caused by the wrongful act alleged [81]. Its meaning should not be limited to the damage necessary to complete a cause of action in tort because such an approach is unduly restrictive [49-51]. The notion that paragraph 3.1(9)(a) should be interpreted in light of the distinction between direct and indirect damage which has developed in EU law is also misplaced [81]. It is an over generalisation to state that the gateway was drafted in order to assimilate the domestic rules with the EU system. In any event, there are fundamental differences between the two systems [52-56]. The additional requirement that England is the appropriate forum in which to bring a claim prevents the acceptance of jurisdiction in situations where there is no substantial connection between the wrongdoing and England [77-79]. Lady Brownlie’s tortious claims relate to actionable harm which was sustained in England; they therefore pass through the relevant gateway [83].

Lord Leggatt dissents on this issue. He favours a narrower interpretation of paragraph 3.1(9)(a) [208]. He considers that Lady Brownlie’s tortious claims do not pass through the relevant gateway because Egypt is the place where all of the damage in this claim was sustained [209].

The Foreign Law Issue

It is common ground that Lady Brownlie’s claims are governed by Egyptian law [98]. One of the requirements for obtaining permission for service out of the jurisdiction is that the claim as pleaded has a reasonable prospect of success [99-100]. The appellant argues that Lady Brownlie has failed to show that certain of her claims have a reasonable prospect of success because she has not adduced sufficient evidence of Egyptian law. Lady Brownlie submits that it is sufficient to rely on the rule that in the absence of satisfactory evidence of foreign law the court will apply English law [102-103, 105-106].

The Supreme Court distinguishes between two conceptually distinct rules: the ‘default rule’ on the one hand and the ‘presumption of similarity’ on the other. The default rule is not concerned with establishing the content of foreign law but treats English law as applicable in its own right when foreign law is not pleaded [112]. The justification underlying the default rule is that, if a party decides not to rely on a particular rule of law, it is not for the court to apply it of its own motion [113-116]. However, if a party pleads that foreign law is applicable they must then show that they have a good claim or defence under that law [116-117]. The presumption of similarity is a rule of evidence concerned with what the content of foreign law should be taken to be [112]. It is engaged only where it is reasonable to expect that the applicable foreign law is likely to be materially similar to English law on the matter in issue [126]. The presumption of similarity is thus only ever a basis for drawing inferences about the probable content of foreign law in the absence of better evidence [149]. Because the application of the presumption of similarity is fact-specific, it is impossible to state any hard and fast rules as to when it may properly be employed (although some general observations may nonetheless be made) [122-125, 143-148].

Lady Brownlie’s claims are pleaded under Egyptian law. There is thus no scope for applying English law by default [118]. However, the judge was entitled to rely on the presumption that Egyptian law is materially similar to English law in concluding that Lady Brownlie’s claims are reasonably arguable for the purposes of establishing jurisdiction [157-160].

This post was contributed by Hans van Loon, a member of GEDIP and of the Institut de Droit International and a former Secretary General of the Hague Conference on Private International Law. 

The European Group for Private International Law at its annual – virtual – meeting in September 2021 adopted a Recommendation to the EU Commission concerning the PIL aspects of corporate due diligence and corporate accountability.

The GEDIP adopted this Recommendation although the Commission has not yet published its legislative initiative on mandatory human rights and environmental due diligence obligations for companies, to which EU Commissioner for Justice, Didier Reynders, committed on 19 April 2019. Meanwhile, however, on 10 March 2021 the European Parliament adopted a Resolution “with recommendations to the Commission on corporate due diligence and corporate accountability”.  As the Commission will likely draw inspiration from this document, the GEDIP considered the EP Resolution when drafting its Recommendation. The GEDIP also took into account various legislative initiatives taken by Member States such as the 2017 French Loi sur le devoir de vigilance and the 2021 German legislative proposal for a Sorgfaltsplichtengesetz (see II Background to the Proposal, 3), as well as recent case law in the UK and the Netherlands (See II Background to the Proposal 2).

The Recommendation starts from the premise that the future EU Instrument (whether a Regulation or a Directive) will have a broad, cross-sectoral scope, and will apply both to companies established in the EU and those in a third State when operating in the internal market. In order to accomplish its aim, the Instrument, in addition to a public law monitoring and enforcement system, should create civil law duties for the relevant companies. Since such duties may extend beyond Member States’ territories, they will give rise to issues of private international law. To be effective, the Instrument should not leave their regulation to the differing PIL systems of the Member States. Ultimately, the proposed rules may find their place in revised texts of EU regulations, including Brussels I recast, Rome I and Rome II. But since revisions of those regulations are unlikely to take place before the adoption of the Instrument, and as these rules are indispensable for its proper operation, the proposal is to include them in the Instrument itself.

The Recommendation therefore proposes that the Instrument extends the current provision on connected claims (Art. 8 (1) Brussels I) to cases where the defendant is not domiciled in a Member State, creates a forum necessitatis where no jurisdiction is available within the EU, determines that the Instrument’s provisions have overriding mandatory effect whatever law may apply to contractual and non-contractual obligations and companies, and extends the rule of Art. 7 of Rome II to claims resulting from non-compliance in respect of all matters covered by the Instrument, while excluding the possibility of invoking Art. 17 of Rome II by way of exoneration (The Annex to the Proposal contains suggestions concerning the form and the substantive scope of the future EU instrument).

On 15 October 2021, the two Rapporteurs of the European Parliament, Emil Radev and Nuno Melo (following a Joint committee procedure, i.e. Committee on Legal Affairs and Committee on Civil Liberties, Justice and Home Affairs) released a Report on the Proposal for a Regulation of the European Parliament and of the Council on a computerised system for communication in cross-border civil and criminal proceedings (e-CODEX system, already mentioned on the blog here and here), amending Regulation (EU) 2018/1726 eu-LISA (see the Regulation Proposal here).

The Explanatory Statement presenting the main reasons for the proposed amendments on the Regulation Proposal reads as follows:

Introduction

E-Justice is one of the cornerstones of the efficient functioning of judicial systems in the Member States and at the European level. It is an essential instrument to facilitate the access to justice and provide legal protection to European citizens and companies in the digital era. It is thus important that appropriate channels are developed to ensure that justice systems can efficiently cooperate in a digital way.

The Commission’s Communication on the digitalisation of justice, A toolbox of opportunities, of 2 December 2020, sets out a new approach to the digitalization of justice based on a comprehensive set of financial and IT legal instruments to be used by various actors in the judicial systems. The Commission also presented the “Proposal for a Regulation on a computerised system for communication in cross-border civil and criminal proceedings (e-CODEX system)”, the e-CODEX Regulation.

On 29 April 2021 it was announced that the file shall be dealt with jointly by two committees – the Civil Liberties, Justice and Home Affairs Committee (LIBE), and the Legal Affairs Committee (JURI). MEP Emil Radev (JURI) and MEP Nuno Melo (LIBE) were appointed rapporteurs for the referred Regulation. E-CODEX is a golden standard/key technological enabler for modernising, through digitalisation, the communication in the context of cross-border judicial proceedings. Since the start of the project in December 2010, e-CODEX has transformed from an ambitious project to an operational Digital Service Infrastructure (DSI) in the judicial domain. Currently, the focus lies on the transition of the e-CODEX project towards a long-term sustainable and secure solution for the maintenance of e-CODEX.

The Rapporteurs believe that this Regulation, as an instrument which is directly applicable in all Member States and binding in its entirety, will guarantee a uniform application of the rules on e-CODEX across the EU and their entry into force at the same time. They welcome the aim to offer legal certainty by avoiding divergent interpretations in the Member States, thus preventing legal fragmentation. By establishing the e-CODEX system, the adoption of the Regulation will contribute to the uptake of e-CODEX by more Member States for procedures in which the system is already used as well as for future ones. The E-CODEX project aims to improve the cross-border access of citizens and businesses to justice in European Union as well as to improve the interoperability between judicial authorities within the European Union. It is designed as a decentralized system based on a distributed architecture that enables connectivity between national systems.

The rapporteurs believe that the e-CODEX system should be seen as a preferred solution for the establishment of interoperable and secure decentralised communication networks between national IT systems in cross-border judicial cooperation in civil and criminal  matters. The Proposal aims to entrust the further development and maintenance of e-CODEX to the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA) as of July 2023.

1. Scope

The scope of this Regulation is the electronic exchange of data in the context of cross-border judicial cooperation in civil and criminal matters (Article 2). The e-CODEX system should be viewed as the preferred solution for an interoperable, secure and decentralised communication network between national IT systems in this field.  The rapporteurs are of the opinion that Annex I, containing a list of instruments providing for judicial procedures subject to eCodex, should be deleted. The scope of the Regulation should instead be established by reference to the judicial cooperation in civil and criminal matters (Article 2). This allows for avoiding any risk of leaving out of the scope judicial procedures for which it is appropriate to foresee the possibility to use e-Codex. Moreover, a simple reference to Article 81 and 82 TFEU would have not been sufficient as instruments predating the Lisbon Treaty would not have been covered. Finally, the Regulation should only deal with the use of e-Codex for procedures in civil and criminal matters. Other uses of e-Codex that may be established by future legislative acts should not be addressed by this Regulation as they would require adaptations that cannot be foreseen at present (Recital 11; Article 2).

2. Definitions

The Commission proposal does not contain clear and concrete provisions regarding the operating conditions of access points. The rapporteurs further developed the terminology of e-Codex to give more clarity to the following expressions: “authorised e-Codex Access point”, “e-Codex correspondents” and “digital procedural standards” (Article 3).

3. Allocation of responsibilities

It is necessary to ensure the long-term sustainability of the e-CODEX system and the efficiency of its governance while ensuring the independence of the national judiciaries; therefore, an appropriate entity for the operational management of the system is to be designated. The proposal provides for the creation of an e-CODEX Advisory Group and a Programme Management Board for e-CODEX (Article 12). Safeguards have been introduced for the independence of the judiciary that shall never be negatively impacted on by the e-CODEX system (recitals 7 and 9; Article 12a new). For a sound and clear operation of the eCodex system, further amendments have been tabled to precisely delineate the roles of the Commission, the Member States and eu-Lisa (Recitals 5, 12, 15, 21; Articles 3(1)b, 3(1)ba new, 6(4)a new, 7, and 16a new).

4. Optimisation of the e-CODEX system

The rapporteurs introduced, for the sake of efficiency of e-Codex, some specifications on the authorized access points and on the designation of correspondents by Member States (Article 3(1)b, Article 3(1)ba new and Article 7).

5. Delegation of powers to COM

Since the scope of the eCodex Regulation should be limited to the judicial cooperation in civil and criminal matters, but given that in the future it could be appropriate to make other procedures subject to the eCodex system, the two Rapporteurs are of the view that a certain flexibility is needed when it comes to the scoping of the Regulation itself. This is why provisions on delegated acts have been introduced. These provisions allow for further expanding the operation of eCodex while fully preserving the prerogatives of the Parliament on the scoping of the Regulation (Article 5(3a) new and 16a new). 

In the Commission Financial Statement, reference is made to the expansion of the eCodex system to other procedures via implementing acts (point 2.2.3). This would be neither desirable nor legally appropriate. However, since the Financial Statement cannot be amended by the co-legislators, the insertion of the provisions empowering the Commission to adopt delegated acts is sufficient to keep parliamentary scrutiny intact.

6. Private entities operating the access points and data protection

Judicial authorities and public prosecutors in many Member States usually have recourse to the services of contractors. Therefore, providing for the involvement of private entities and limiting it to the functioning of the e-Codex system does not set a dangerous precedent. However, safeguards should be in place given the sensitivity of the administration of justice and of the data and information dealt with by judicial authorities. This is the reason why the two Rapporteurs have foreseen that private entities can operate the access points only if authorised by Member Stated and provided that they fully comply, like public authorities possibly charged with that same task, with existing legislation on data protection (Recital 15, 15a new, 17; Article 12a new).

7. e-Justice Core Vocabulary

With a view to strongly and thoroughly encourage judicial cooperation and mutual trust, interoperability should be ensured not only as regards Information and Communication Technology, but also in relation to terminology. Otherwise, even the most efficient system of interconnection would not be sufficient to make judicial authorities, legal practitioners, citizens, businesses and stakeholders properly understand each other. It is in the light of this that the two rapporteurs have chosen to insert the reference to the e-Justice Core Vocabulary in the definition of the “digital procedural standard” (Article 3, paragraph 1, point ga, new).

Conclusion

The two rapporteurs find that the proposal put forward by the Commission goes in the right direction by putting the question of interoperability at the heart of the EU efforts to stimulate and enhance the judicial cooperation across the continent.The proposal itself can be considerably improved to find a delicate and vital balance between interoperability and judicial independence, efficiency and data protection, speed and fundamental rights, technology and the rule of law.

More information here.

On 12 October 2021, the European Court of Human Rights (ECtHR) delivered its judgment in J.C. and Others v. Belgium (only available in French, so far).

The case has been widely reported in the general media, as it is concerned with the immunity of the Holy See in a sexual abuse case brought in Belgian courts.

The ECtHR reiterates that it does not consider that the current state of public international law supports the proposition that sovereign immunities would not apply to severe violations of human rights. The Court confirms that it does not see itself as a progressive force in the field of sovereign immunities, but rather as an authority which will follow the development of public international law.

In this context, the claim against the Holy See was unlikely to succeed. There was no allegation that officials of the Vatican had perpetrated acts of sexual abuse themselves. Rather, it was argued that they should be responsible for failing to supervise adequately the Belgian Catholic Church. If the immunity would stand for the direct perpetrator, why would it not for an indirect one?

Background

The applicants were 24 Belgian, French and Dutch nationals. They allege that they were victims of sexual abuse by Catholic priests when they were children.

In July 2011 the applicants filed a class action in a Belgian first instance court, complaining of the structurally deficient way in which the Church had dealt with the known problem of sexual abuse within it. The action was brought against the Holy See as well as an archbishop of the Catholic Church in Belgium and his two predecessors, several bishops and two associations of religious
orders.

Basing their action on general tort law provisons (Articles 1382 and 1384 of the Civil Code), the applicants requested primarily that the defendants be held jointly and severally liable for the damage they claimed to have sustained as a result of the alleged sexual abuse by Catholic priests or members of religious orders. They also claimed that the defendants should be jointly and severally liable to pay compensation of EUR 10,000 to each of them because of the Catholic Church’s policy of silence on the issue of sexual abuse.

In October 2013 the Belgian court declined jurisdiction in respect of the Holy See. In February 2016 a Belgian Court of Appeal upheld the judgment. It found, in particular, that it did not have a sufficient jurisdictional basis to rule on the claimants’ action because of the Holy See’s immunity from legal proceedings. It also stated that Belgium’s recognition of the Holy See as a foreign sovereign with the same rights and obligations as a State was conclusively established. This recognition resulted from a series of commonly agreed elements of customary international law, foremost among which were the conclusion of treaties and diplomatic representation. The Holy See therefore enjoyed diplomatic immunity and all State privileges under international law, including jurisdictional immunity. The Court of Appeal also noted that the dispute did not fall within any of the exceptions to the principle of State immunity from jurisdiction.

In August 2016 a lawyer at the Court of Cassation gave a negative opinion on the chances of success of a possible appeal to the Court of Cassation.

Subsequently, all but four claimants who did not apply were able to obtain compensation through the arbitration centre for sexual abuse claims set up within the Catholic Church. Relying on Article 6 § 1 (right of access to a court), the applicants complained that the application to the Holy See of the principle of State immunity from jurisdiction had prevented them from asserting their civil claims against it.

Judgment

The Court noted that the Court of Appeal had found that the Holy See was recognised internationally as having the common attributes of a foreign sovereign, with the same rights and obligations as a State. The Court of Appeal had noted in particular that the Holy See was a party to some major international treaties, that it had signed agreements with other sovereign entities and that it enjoyed diplomatic relations with some 185 States worldwide. As regards Belgium, more specifically, diplomatic relations with the Holy See dated back to 1832 and it was recognised as a State.

The Court did not find anything unreasonable or arbitrary in the detailed reasoning which led the Court of Appeal to reach that conclusion. It pointed out that it had itself previously characterised agreements between the Holy See and other States as international treaties. Therefore the Holy See could be recognised as having characteristics comparable to those of a State. The Court of Appeal had thus been justified in inferring from those characteristics that it was a sovereign power with the same rights and obligations as a State.

The Court pointed out that it had also accepted that the granting of State immunity in civil proceedings pursued the legitimate aim of observing international law for the sake of comity and good relations between States, by ensuring respect for the sovereignty of another State.

As to the proportionality of the limitation sustained by the applicants in their right of access to a court, the Court found that the Court of Appeal’s approach corresponded to international practice in such matters. It had not noted anything arbitrary or unreasonable in the Court of Appeal’s interpretation of the applicable legal principles, or in the way it had applied them to the facts of the case, taking account of the basis of the applicants’ action.

The Court also noted that the question whether the case could fall within one of the exceptions to the application of the jurisdictional immunity of States had also been discussed before the Court of Appeal. The exception invoked by the applicants applied to proceedings relating to “an action for pecuniary compensation in the event of the death or physical injury of a person, or in the event of damage to or loss of tangible property”. The Court of Appeal had rejected this exception on the grounds, among others, that the misconduct of which the Belgian bishops were accused could not be attributed to the Holy See, as the Pope was not the principal in relation to the bishops; that the misconduct attributed directly to the Holy See had not been committed on Belgian territory but in Rome; and that neither the Pope nor the Holy See had been present on Belgian territory when the misconduct attributed to the leaders of the Church in Belgium had been committed. It was not for the Court to substitute its own assessment for that of the national courts, since their assessment on this point had not been arbitrary or manifestly unreasonable.

The Court also noted that the proceedings brought by the applicants in the Ghent Court of First  Instance had not been directed solely against the Holy See, but also against officials of the Catholic Church in Belgium whom the applicants had identified. However, the applicants’ claim on this ground was unsuccessful owing to the applicants’ failure to comply with procedural rules laid down in the Judicial Code and substantive rules concerning civil liability in summoning the other defendants. The reason why the applicants’ action had been totally unsuccessful had thus been the result of procedural choices that they failed to cure in the course of the proceedings in order to specify and individualise the facts submitted in support of their claims.

Consequently, the Court found that the dismissal of the proceedings by the Belgian courts in declining jurisdiction to hear the tort case brought by the applicants against the Holy See had not departed from the generally recognised principles of international law in matters of State immunity and the restriction on the right of access to a court could not therefore be regarded as disproportionate to the legitimate aims pursued. There had therefore been no violation of Article 6 § 1 of the Convention.

In the last decades, Spanish academia has seen a growing number of journals devoted, exclusively or not, to PIL issues. The editorial principles of them all have also quickly evolved and may are open access and downloadable from the very moment of publication, or only some months afterwards. Most of them follow a strict double-blind peer-review, almost all provide for a summary of the contributions in English, and some accept to publish in languages other than Spanish.

Cuadernos de Derecho Transnacional, of the University Carlos III of Madrid, has already a place in the EAPIL blog. In this and following entries I will present other relevant current Spanish PIL journals, starting with those belonging to the Asociación Española de Profesores de Derecho Internacional y Relaciones Internacionales (AEPDIRI): the Spanish Yearbook of International Law (SYbIL), the Revista Electrónica de Estudios Internacionales (REEI) and the Revista Española de Derecho Internacional (REDI).

The SYbIL, founded in 1991, provides an annual report on new developments in international law. From 1991 to 2012 (vols. 1-17), the Yearbook was published by Martinus Nijhoff/Brill. From vol. 18 onwards, the Editor decided to go entirely on-line under a complete open-access philosophy. The contents of volumes 1-17 in PDF format have been kindly made freely accessible by Brill to all readers, thus all them can be freely downloaded too.

Since its first volume, the Yearbook has endeavoured to make a significant academic contribution to the on-going development of international law, with a particular focus on Spanish doctrine and practice. The SYbIL is the only publication edited by AEPDIRI completely written in English in order to reach the largest possible international audience. Its rules of governance have been adopted by AEPDIRI (a résumé may be found here, in Spanish).

In 2013, with the election of a new Editorial Board, a new editorial plan was adopted and the SYbIL changed its purpose, structure and editorial model. This new website tries to offer the contents of this new epoch of the Yearbook. This editorial decision will enable the Yearbook to be accessible to the entire international readership, offering current research in Spanish academic institutions but other research of what Oscar Schachter labelled as the “invisible college of international law” as well.

Fully aware of the paramount importance of international practice, the Spanish Yearbook publishes contributions from active practitioners of international law on a regular basis. The Yearbook also includes critical comments on Spanish State practice relating to international and EU law, as well as international reactions to that practice.

The last issue of the SYbIL can be access here. The next one will be published in January 2022. Contributions for each forthcoming issue need to be sent by July 31 of the previous year at the latest to editor@sybil.es following the editorial guidelines.

Volume 415 of the Collected Courses of the Hague Academy of International Law published with Brill is dedicated to Mr. Trooboff’s Hague Academy general course lectures on ‘Globalization, Personal Jurisdiction and the Internet’.

The author reviews how courts in the United States, the European Union and a number of countries such as Canada, Japan, India and Latin America have responded to the challenge of adapting settled principles and precedents to cases arising from Internet usage. Trooboff examines the recent U.S. Supreme Court cases addressing general and specific personal jurisdiction and how U.S. appellate courts have applied the Court’s holdings in disputes arising out of the use of the Internet in Chapter 2. Eleven decisions of the European Union Court of Justice and related scholarship that interpret the jurisdictional provisions of Brussels I Regulation and its successor in the context of Internet usage and that arise from tort and contract claims (including infringement of intellectual property and related rights) are discussed in Chapter 3. Similarly selected decisions and scholarship addressing analogous personal jurisdiction issues in decisions of courts of Canada, Japan, China, Latin America and India are analysed in Chapter 4. The last part of the volume – Chapter 5 – is dedicated to an overview of the important projects that incorporate the principles emerging from the many judicial decisions and that have been undertaken by Hague Conference on Private International Law, the American Law Institute, the European Max Planck Group on Conflict of Laws in Intellectual Property, the International Law Association and the International Law Institute.

Further details about the volume are available here.

 

A new version of the Insolvency Registers Interconnection search interface is now available on the e-Justice Portal.

Background

The EU-wide interconnection of national insolvency registers (IRI 2.0) has been developed in accordance with article 25 of the Regulation (EU) 2015/848 on insolvency proceedings across EU borders. EU Member States are required to publish relevant information on cross-border insolvency cases in a publicly accessible online register (see here) and these registers shall be interconnected via the European e-Justice Portal.

The decentralised system allows searches for insolvent debtors, either natural or legal persons, within the EU Member States registers that completed the implementation according to the Insolvency Regulation. It aims at ensuring that creditors and national courts receive relevant information and at preventing parallel proceedings to be opened within the EU.

New Version

Since 1 September 2021, the new system has replaced the current version based on voluntary participation under the insolvency Registers Interconnection search (IRI 1.0) and applicable in the following Member States: Austria, the Czech Republic, Estonia, Germany, Italy, Latvia, the Netherlands, Slovenia and Romania (see here).

The new system applies (for now) in the following Member States: Belgium, Estonia, Spain, Croatia, Cyprus, Latvia, Lithuania, The Netherlands, Portugal, Romania, Slovakia, Finland, Sweden and Germany (see here).

More information here.

Ghent University (Belgium) and its Center for the Future of Dispute Resolution organise an online conference titled Transnational Dispute Resolution in an Increasingly Digitalized World, to be held on 24 March 2022.

A call for abstracts is open through 1 December 2021.

The concept is as follows:

The increased digitalization in the field dispute resolution, which received a boost from the Covid-19 pandemic, raises a number of important questions in terms of privacy, cybersecurity, data protection and artificial intelligence, going from rather practical concerns (how to protect the information exchanged, how to organize the taking of evidence, how to comply with the various obligations, etc.) to more fundamental inquiries (does it scare litigants off, does it foster or rather compromise efficiency, etc.).

The goal of the conference is to bring together academics, practitioners and policy makers with expertise in the field of dispute resolution (arbitration, transnational litigation, mediation, other ADR mechanisms) and technology law. That is why we are particularly (but not exclusively) interested in contributions that focus on :

• Obligations of the actors of justice
• Challenges and opportunities of (partial) online proceedings
• Evidentiary issues related to cybersecurity and data protection
• The (ab)use of these instruments as a dispute resolution strategy

and discuss these forward-looking dispute resolution topics in light of the various privacy, data protection, cybersecurity and AI regulations.

See here for more information.

The most recent issue of the Uniform Law Review contains a number of articles that are interesting from a PIL perspective.

The first, authored by Michiel Poesen, has the provocative title Is specific jurisdiction dead and did we murder it? An appraisal of the Brussels Ia Regulation in the globalizing context of the HCCH 2019 Judgments Convention (abstract here). It is basically a critique of the rigid application of Art 7 Brussels I bis Regulation by the CJEU. The author claims that the Hague Judgments Convention would not follow this approach but rather require a more flexible assessment of jurisdiction through its jurisdictional filters. He points in this context to Art 5(1)(g) Hague Judgments Convention, which makes indirect jurisdiction for contractual claims dependent on the caveat that “activities of the defendant in relation to the transaction clearly did not constitute a purposeful and substantial connection to that State”. This formula is indeed clearly inspired by the minimum contacts test under U.S. constitutional law. Still, in Art 5(1)(g) it is combined with a performance-of-the-obligation test, which is strongly reminiscent of Art 7(1) Brussels I bis. Rather than “murdering” special jurisdiction, the Hague Convention thus provides for a compromise of the EU and U.S. approaches, with the former defining the core and the latter the outer limit of contractual jurisdiction.

The second article, written by Garth J Bouwers, is titled Tacit choice of law in international commercial contracts: an analysis of Asian jurisdictions and the Asian Principles of Private International Law (abstract here). He points to an interesting Chinese practice direction which assumes a tacit choice of the lex fori where none of the parties has pleaded foreign law. This reminds of the approach under French law (for recent case-law and analysis see here and here). In the analysis of the other jurisdictions examined (Hong Kong, Japan, South Korea, Singapore), this possibility is not mentioned. It seems that the latter rather rely on an ex officio application of foreign law. The author thankfully describes their methods in detail.

Third, Johanna Hoekstra examines the Political barriers to the ratification of international commercial law conventions (free access to full article here). She takes the Swiss proposal to reform the CISG as an example of the obstacles that legal uniformisation may encounter. To this end, she relies on insights from political science, which she applies to the specific context of legal harmonisation. Her conclusion that “international private law can have low political priority” is sad but probably true. Equally important is her observation that lobbying and interest groups may change this setting.

There are also three articles written in French, one on the liability of an arbitrator for the damages caused by preliminary measures (abstract here), and two on legal harmonisation in West Africa under the auspices of OHADA (here and here).

A further article by the author of the present post is entitled National Blockchain Laws as a Threat to Capital Markets Integration (full free access here). It compares recent private law reforms concerning digital assets in France, Liechtenstein, the UK, the US (U.C.C.) and the (deviating) law of Wyoming. The comparison also encompasses the conflict-of-laws rules for the blockchain in these systems.

Of special interest is a presentation of the new Uruguay Act on PIL (Ley general de derecho internacional privado) (abstract here). The Act allows the choice of non-state law to the extent that it is generally recognised on the international level, neutral and balanced, and emanates from an international organisation to which Uruguay is a member (Article 45). Also of interest is the special place the Act gives to international commercial law (Article 13), which is reminiscent, but not identical to, old musings about the existence of a “lex mercatoria“.

Finally, this rich treasure of PIL insights also informs about new developments in the law of secured transactions in China (abstract here) and UNCITRAL’s 53d Commission session (abstract here).

Routledge published a new book by Johanna Hoekstra (lecturer in Law at the University of Essex, UK) on non-state rules entitled Non-State Rules in International Commercial Law. Contracts, Legal Authority and Application.

The blurb reads as follows:

Through further technological development and increased globalization, conducting business abroad has become easier, especially for Small and Medium Enterprises (SME). However, the legal issues associated with international commerce have not lessened in complexity, including the role of non-state rules.

The book provides a comprehensive analysis of non-state rules in international commercial contracts. Non-state rules have legal authority in the national and international sphere, but the key question is how this legal authority can be understood and established. To answer this question this book examines first what non-state rules are and how their legal authority can be measured, it then analyses how non-state rules are applied in different scenarios, including as the applicable law, as a source of law, or to interpret either the law or the contract. Throughout this analysis three other important questions are also answered: when can non-state rules be applied? when are they applied? and how are they applied? The book concludes with a framework and classification that leads to a deeper understanding of the legal authority of non-state rules.

Providing a transnational perspective on this important topic, this book will appeal to anyone researching international commercial law. It will also be a valuable resource for arbitrators and anyone working in international commercial litigation.

The book begins by giving an overview of non-state rules in international commercial contracts before focusing on the nature of non-state rules and how to assess their legal authority in Part 1. Part 2 analysis the application of non-state rules as governing law of a Contract. This part looks into the principle of party autonomy in international commercial contracts, and the interplay between non-state rules and Private International Law, and arbitration. The last part, Part 3, is dedicated to the application of the non-state rules by courts. The analysis covers various aspects ranging from the influence of non-state rules as sources of domestic law and interpretation of the law to lex mercatoria and ascertaining the legal authority of this type of rules.

On October 6th, 2021, the Court of Justice of the European Union delivered its ruling in Skarb Państwa Rzeczypospolitej Polskiej reprezentowany przez Generalnego Dyrektora Dróg Krajowych i Autostrad v. TOTO SpA – Costruzioni Generali and Vianini Lavori SpA (Case C‑581/20). The decision is currently only available in French and Bulgarian.

Although three questions were referred for a preliminary ruling, the Court asked the Advocate-General to focus only on one of them, which was concerned with parallel interim litigation under the Brussels Ibis Regulation. This post will also focus on this issue (for the answer of the Court to the other questions, see the post of  Krzysztof Pacula over at Conflictoflaws.net).

Background

In 2015, in order to guarantee obligations assumed under a public contract concluded in Poland for the construction of a section of expressway, the undertakings which had been awarded the contract provided to the Polish contracting authority a number of guarantees underwritten by a Bulgarian insurer.

Some years later, the contractors unsuccessfully applied to a Polish court for provisional, including protective, measures prohibiting the contracting authority from making use of those guarantees. The contractors made a similar application to the Bulgarian courts, which dismissed the application at first instance and granted it on appeal.

The Polish contracting authority appealed to the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria) which referred three questions to the CJEU for a preliminary ruling.

Jurisdiction of the Polish and Bulgarian Courts under the Regulation

The most interesting issue in the case arose out of the fact that the contractors had applied for protective measures in two Member States: Poland, then Bulgaria.

The relevant contract included a jurisdiction clause granting jurisdiction to Polish courts. Polish courts had thus jurisdiction on the merits. As a consequence, they had unlimited jurisdiction to grant any kind of protective measure available under Polish law.

In contrast, Bulgarian courts did not have jurisdiction on the merits. Their jurisdiction to grant provisional, including protective measures, could only be founded in Article 35 of the Brussels I Regulation, and was limited in a number of ways which will be familiar to the readers of this blog. It could be argued that their jurisdiction in this case was justified because the subject matter of the interim measure was the debt of a Bulgarian legal person.

How were then the Polish proceedings and decision to influence the power of Bulgarian courts to grant the interim measures applied for?

Proceedings or Decisions?

To answer this question, an important conceptual distinction was in order.

There are two different rules in the Brussels Ibis Regulation which address parallel litigation.

The first is lis pendens. If the same proceedings are brought in two different courts, the lis pendens doctrine requires that the court seised second decline jurisdiction. The rule, therefore, strips the court seised second from its jurisdiction.

The second is the recognition of foreign decisions. If recognised, foreign decisions are res judicata. They prevent relitigation of the claims. They have no impact on the jurisdiction of the forum. Res judicata makes the claims inadmissible.

So what was this case concerned with? Interim proceedings had been initiated first in Poland, and they had resulted in decisions. From the perspective of Bulgaria, was the issue the jurisdiction of Bulgarian courts, or the admissibility of claims which had been decided by Polish courts?

Unclear Question, Unclear Answer?

The Bulgarian court had formulated its question as follows:

After the right to make an application for provisional/protective measures has been exercised and the court having jurisdiction as to the substance of the matter has already ruled on that application, is the court seised of an application for interim relief on the same basis and under Article 35 of [Regulation No 1215/12] to be regarded as not having jurisdiction from the point at which evidence is produced that the court having jurisdiction as to the substance of the matter has given a ruling on that application?

Was the question concerned with the jurisdiction of Bulgarian courts?

Of course, the CJEU reformulated the question, as it always does. It is unclear whether this is always necessary to do so, but in this case, it would have been good to clarify what the case, or at least the judgment of the CJEU, was about.

Unfortunately, the CJEU did not clarify anything.

It reformulated the question by asking whether an Art 35 court was under the obligation to decline jurisdiction if the foreign court had already decided the same dispute.

It held that there is no hierachy between the two jurisdictional grounds for issuing provisional measures, Art. 35 and jurisdiction on the merits.

It thus concluded that an Art 35 court was under no obligation to decline jurisdiction if the foreign court had already decided the same dispute. It ruled:

L’article 35 du règlement no 1215/2012 doit être interprété en ce sens qu’une juridiction d’un État membre saisie d’une demande de mesures provisoires ou conservatoires au titre de cette disposition n’est pas tenue de se déclarer incompétente lorsque la juridiction d’un autre État membre, compétente pour connaître du fond, a déjà statué sur une demande ayant le même objet et la même cause et formée entre les mêmes parties.

Advocate-General Rantos had done a much better job. In his conclusions, he had distinguished between two hypotheticals: the foreign provisional measure could be recognised, or it could not. He had explained that he had to distinguish, because he could not assess in the present case whether the foreign provisional measure could be recognised.

Conclusion

What is the contribution of the answer of the Court to this question?

I am not sure.

This post was contributed by Thomas Mastrullo, who is an Associate Professor at the University of Luxembourg.

In a judgment of 3 March 2021, the French Court of Cassation allowed an appeal against the judgment of a court of appeal which had refused to declare the enforceability in France of a foreign decision rendered in insolvency proceedings by simply invoking a previous decision of the foreign court without analysing its content, nor finding that it was irreconcilable with the decision the enforcement of which was sought in France.

Decisions of the Court of Cassation on the enforcement of foreign decisions in insolvency proceedings are not frequent, which makes this decision interesting.

Background

In this case, the insolvency practitioner of insolvency proceedings opened in Germany had requested that a decision of the bankruptcy court of Ansbach – ordering the payment of a certain sum of money to the former manager of the debtor company – be declared enforceable in France. The application for enforceability was accepted by a declaration of the registrar, but rejected by the Court of Appeal. The insolvency practitioner appealed to the Court of Cassation. In particular, he criticised the Court of Appeal for refusing to declare the enforceability by simply referring – without any analysis – to an earlier decision of the Ansbsach District Court.

Irreconcilability of Decisions under the Brussels I Regulation

It is true that the enforcement of a decision can sometimes be excluded because of the existence of an earlier decision. But some conditions must be fulfilled.

For the enforcement of judgments, Regulation (EC) No 1346/2000 on insolvency proceedings refers to Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Regl. No 1346/2000, Art. 25. – Regulation No 1346/2000 actually refers to the Brussels Convention, the provisions of which are reproduced identically in Regulation (EC) No 44/2001). And Article 34(4) of Regulation (EC) No 44/2001 provides that a judgment shall not be recognised – and thus shall not be enforceable – only if “it is irreconcilable with an earlier judgment given in another Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State addressed”. As a consequence, a national judge cannot refuse to recognise and enforce a judgment merely by noting the existence of an earlier judgment: such a refusal demands that the earlier judgment was given “between the same parties” in a dispute “involving the same cause of action” as the judgment for which recognition is sought, that it is able of being recognised in the Member State concerned and that the two judgments are irreconcilable.

Therefore, by merely referring to the judgment of the Ansbach District Court, the Court of Appeal “deprived its judgment of a legal basis”, i.e. did not examine fully whether the requirements of the applicable provision were fulfilled. As the Court of Cassation states, under Article 25 of Regulation (EC) No 1346/2000 and Article 34(4) of Regulation (EC) No 44/2001, the Court of Appeal could not simply refer to the earlier decision without “analysing” its content or “establishing its irreconcilability” with the decision the enforceability of which was sought in France.

Even if it seems self-evident, this reminder of the national judge’s role in the recognition and enforcement of decisions related to insolvency proceedings is welcome.

In any case, one can wonder if the existence of an earlier irreconcilable judgment from the same Member State as the judgment the recognition and enforceability of which is sought, as in the present case, is effectively able to prevent such recognition. Indeed, in the Salzgitter judgment of 26 September 2013, the Court of Justice ruled that Article 34 (4) of the Brussels I Regulation doesn’t cover irreconcilable judgments given by courts of the same Member State.

On 4 October 2021, the Judicial Committee of the Privy Council held in Convoy Collateral Ltd (Appellant) v Broad Idea (Respondent) (British Virgin Islands) that the House of Lords’ decision in Siskina (Owners of cargo lately laden on board) v Distos Cia Naviera SA [1979] AC 210 (“The Siskina”) and the Privy Council decision in Mercedes Benz AG v Leiduck [1996] AC 284 were wrongly decided.

The first few sentences of Lord Leggatt in Convoy say it all:

1. In his dissenting judgment in Mercedes Benz AG v Leiduck [1996] AC 284 at p 314D, Lord Nicholls of Birkenhead said:

“The law took a wrong turning in The Siskina, and the sooner it returns to the proper path the better.”

The Siskina

In The Siskina, the House of Lords held that English courts have no power to grant freezing orders (Mareva injunctions, at the time) unless it is ancillary to a cause of action, in the sense of a claim for final, substantive relief which the court has jurisdiction to grant.

In other words, English courts, and courts of common law jurisdictions following the English common law, would only grant freezing injunctions if they had jurisdiction on the merits.

In contrast, the mere presence of assets within the jurisdiction was not an autonomous ground for granting freezing injunctions. Despite scholarly opinions to the contrary, such as the comments of Lord Collins in a case note in the Law Quarterly Review:

“Common sense would suggest that if proceedings are pending in one country, and the defendant’s assets are situate in another country, the plaintiff ought to be able to obtain protective or interim relief by way of attachment in the latter country. That is indeed the law in most countries …” L. Collins, “The Siskina again: an opportunity missed” (1996) 112 LQR 8

Convoy

Broad Idea is a company incorporated in the BVI. Dr. Cho is a shareholder and director of Broad Idea. In February 2018, Convoy applied to the BVI court for freezing orders against Broad Idea and Dr. Cho in support of anticipated proceedings against Dr Cho in Hong Kong. Convoy also sought permission to serve Dr. Cho out of the jurisdiction. Following a hearing held without notice to Broad Idea and Dr. Cho, the BVI court granted freezing orders restraining them from disposing of or diminishing the value of certain of their respective assets and gave permission to serve Dr. Cho out of the jurisdiction. Convoy commenced proceedings against Dr. Cho (but not Broad Idea) in Hong Kong shortly thereafter. The freezing orders issued against Dr. Cho by the BVI court and the order granting permission to serve Dr Cho out of the jurisdiction were subsequently set aside in April 2019 on the basis that the court did not have jurisdiction to make them. In the meantime, Convoy had made a further application for a freezing order against Broad Idea in support of the Hong Kong proceedings against Dr. Cho.

In July 2019, the judge continued the freezing order against Broad Idea indefinitely on the basis that the principle enunciated in TSB Private Bank International SA v Chabra [1992] 2 All ER 245 applied in the circumstances and that Broad Idea’s assets were at risk of dissipation. Broad Idea’s appeal against the judge’s decision was allowed by the Court of Appeal. Convoy then appealed to the Judicial Committee of the Privy Coucil.

The issues were:

(i) whether the BVI court has jurisdiction and/or power to grant a freezing order where the respondent is a person against whom no cause of action has arisen, and against whom no substantive proceedings are pursued, in the BVI or elsewhere, and if so
(ii) whether any such jurisdiction and/or power extends to the granting of a freezing order in support of proceedings to which that person is not a party.

Lord Leggatt concluded for the majority:

It is necessary to dispel the residual uncertainty emanating from The Siskina and to make it clear that the constraints on the power, and the exercise of the power, to grant freezing and other interim injunctions which were articulated in that case are not merely undesirable in modern day international commerce but legally unsound. The shades of The Siskina have haunted this area of the law for far too long and they should now finally be laid to rest.

Sir Goeffrey Vos wrote a minority opinion.

A Civil Law Perspective

Many lawyers from the civil law tradition found the Siskina quite remarkable. This is because, in most civil law jurisdictions, the proposition that protective measures could produce any extraterritorial effect has always been highly controversial. So, the idea that any other court than the court of the place where the assets might be situated could have jurisdiction to order, or supervise, their freezing, bordered the unthinkable.

True, protective measures in the civil law tradition are typically provisional attachments, which act in rem, while interim injunctions are equitable remedies which act in personam. But I would argue that this is a quite formalistic distinction. There is no fundamental reason why an in rem remedy could not reach assets situated abroad, and be enforced there.

If that is correct, then the issue is how to define the (extra) territorial reach of freezing injunctions/attachements. Jurisdiction on the merits is certainly a very reasonable one.

But, clearly, the location of the assets does also appear as a very reasonable ground for granting jurisdiction to freeze/attach them, if only for efficiency purposes (speed, in particular).

Only one judgment on PIL matters, namely the one in C-581/20, TOTO (first chamber: judges Bonichot, Bay Larsen, Safjan, Jääskinen and Toader, the latter as reporting judge) is scheduled so far for publication in October 2021. It will happen next Wednesday. In addition, two opinions are expected towards the end of the month.

Case C-581/20

The Varhoven kasatsionen sad (Bulgaria) referred the following questions to the Court of Justice:

1) Is Article 1 of [the Brussels I bis Regulation] to be interpreted as meaning that a case such as that described in this order for reference must be regarded in whole or in part as a civil or commercial matter within the meaning of Article 1(1) of that regulation?

2) After the right to make an application for provisional/protective measures has been exercised and the court having jurisdiction as to the substance of the matter has already ruled on that application, is the court seised of an application for interim relief on the same basis and under Article 35 of [the Brussels I bis Regulation] to be regarded as not having jurisdiction from the point at which evidence is produced that the court having jurisdiction as to the substance of the matter has given a ruling on that application?

3) If it follows from the answers to the first two questions referred that the court seised of an application under Article 35 of [the Brussels I bis Regulation] has jurisdiction, must the conditions for the ordering of protective measures under Article 35 of [the Brussels I bis Regulation] be interpreted independently? Should a provision which does not allow a protective measure to be ordered against a public body in a case such as the present one be disapplied?

In the case at hand, the State Treasury – Director-General for National Roads, Poland – commissioned the Italian companies Toto S.p.A Costruzioni Generali and Vianini Lavori S.p.A. to construct the S-5 expressway. Pursuant to clause 20.6 of the contract, the parties agreed on the jurisdiction of the Polish courts. Under the contract, guarantees were provided to ensure the fulfilment of the obligations. Furthermore, another guarantee was issued by an insurance company (ZD ‘Euroins’ AD) to secure payment of a contractual penalty in case of failure to complete the construction works in time.

Toto S.p.A Costruzioni Generali and Vianini Lavori S.p.A. brought actions in Poland against the State Treasury, seeking a declaration that the defendant is not entitled to demand payment of the contractual penalty agreed in the contract, since the conditions for such payment are not met. The Italian companies requested as well an interim measure obliging the defendant to refrain, in particular, from making use of guarantee provided by ZD ‘Euroins’ AD.

The Polish court considered the applications for an interim measure unfounded. The companies applied then to the Sofia City Court for an interim measure in connection with the actions brought before the District Court of Warsaw. The Sofia City Court rejected that application. The Sofia Court of Appeal reversed the decision and issued an attachment order against the receivable of the Ministry of Finance, Director-General for National Roads and Motorways, Poland, arising from the guarantees above mentioned.

The State Treasury of Poland appealed against the Supreme Court of Cassation (Bulgaria), which is the referring court in the main proceedings.

AG Rantos was asked to provide an opinion on the second question. It was published the 9th of September and can be consulted here – no English translation so far.

Case C-421/20

AG Szpunar’s opinion in C-421/20, Acacia, is due on 28 October. The request comes from the Oberlandesgericht Düsseldorf (Higher Regional Court Düsseldorf, Germany). It focuses on the interpretation (application?) of Article 82(5) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (CDR), whereby “Proceedings in respect of the actions and claims referred to in Article 81(a) and (d) may also be brought in the courts of the Member State in which the act of infringement has been committed or threatened.”

According to Article 81(a) and (d), “The Community design courts shall have exclusive jurisdiction: (a) for infringement actions and – if they are permitted under national law – actions in respect of threatened infringement of Community designs; … (d) for counterclaims for a declaration of invalidity of a Community design raised in connection with actions under (a)”.

The questions referred read as follows

1) In proceedings for an infringement of Community designs, can the national court dealing with the infringement proceedings having international jurisdiction pursuant to Article 82(5) of the CDR apply the national law of the Member State in which the court dealing with the infringement proceedings is situated (lex fori) to subsequent claims in relation to the territory of its Member State?

2) If Question 1 is answered in the negative: Can the ‘initial place of infringement’ for the purposes of the CJEU judgments in Cases C 24/16, C 25/16 (Nintendo v BigBen) regarding the determination of the law applicable to subsequent claims under Article 8(2) of [the Rome II Regulation] also lie in the Member State where the consumers to whom internet advertising is addressed are located and where goods infringing designs are put on the market within the meaning of Article 19 of the CDR, in so far as only the offering and the putting on the market in that Member State are challenged, even if the internet offers on which the offering and the putting on the market are based were launched in another Member State?

The case concerns a car manufacturer (the claimant in the main proceedings), who is, inter alia, the registered holder of Community design No 001598277-0002 (‘the Registered Design’). The defendant, an Italian company, manufactures rims for motor vehicles in Italy and sells them throughout the European Union. In Germany, it markets rims under the name ‘WSP Italy’, including the ‘Neptune GT’ model. The claimant considers that the distribution of the rims in Germany by the defendant constitutes an infringement of its Registered Design, whereas the defendant invokes the repair clause in Article 110 of the Council Regulation on Community Designs.

The Landgericht (Regional Court) ordered the defendant – geographically limited to the Federal Republic of Germany – to cease and desist, to provide information, to return documents and to surrender items for the purpose of destruction, and established the defendant’s obligation to pay damages. It based its international jurisdiction on Article 82(5) of the Community Design Regulation, assumed that the defendant had infringed the Registered Design, and applied German law to the subsequent claims asserted (damages, information, rendering of accounts, return of documents and surrender of items for the purpose of destruction) in accordance with Article 8(2) of the Rome II Regulation.

The defendant brought an appeal against that judgment. It continues to rely in particular on Article 110 of the CDR. In addition, it takes the view that under Article 8(2) of the Rome II Regulation Italian law is applicable to the subsequent claims asserted by the claimant

The case has been assigned to the fifth chamber (judges Regan, Lenaerts, Ilešič, Jarukaitis, Lycourgos, the latter as judge-rapporteur).

Case C-498/20

The opinion of AG Campos Sánchez-Bordona on C-498/20, BMA Nederland, is expected on the same day. The questions referred concern jurisdiction in tort matters in relation to a Peeters-Gatzen action, with an association defending collective interests intervening. The sixth chamber (Bay Larsen, Jääskinen and Safjan as reporting judge) will adjudicate.

The University of Strasbourg will host a conference on Mutual Trust in the Area of Justice, Freedom and Security (La confiance mutuelle dans l’Espace de liberté, de sécurité et de justice : crise(s) et perspectives) on 7-8 October 2021.

The conference will include sessions on European integration, the right to cross internal and external borders and cross border investments. It will also include several sessions more specifically dedicated to judicial cooperation, both with respect to Member States and Third States.

Speakers will include numerous PIL specialists, including some of the organisers of the conference (E. Farnoux, S. Fulli-Lemaire), and a number of external speakers (F. Marchadier, A. Marzal, E. Galland, J. Heymann, G.P. Romano, K. Parrot).

The full programme is available here. For registration, please write to jnyobe@unistra.fr.

Issue 5 of 2021 IPRax has been published recently. As usual, it contains a number of insightful articles and case comments. Here are the English abstracts.

Heiderhoff, International Product Liability 4.0

While the discussion on how liability for damages caused by autonomous systems, or “artificial intelligence”, should be integrated into the substantive law is well advanced, the private international law aspect has, so far, been neglected. In this contribution, it is shown that unilateral approaches – such as the EU Parliament has suggested (P9_TA-PROV(2020)0276) – are unnecessary and detrimental. It is preferable to develop a classical conflict of laws rule with connecting factors, which mirror the assessments of the substantive law. It is shown that a mere reinterpretation of the existing Article 5 Rome II Regulation might lead to legal insecurity, and that an addition of the provision is preferable. In particular, the notion of marketing, and its importance as a connecting factor, should be revised.

Vollmöller, The determination of the law applicable on claims for infringement of trade secrets in contractual relationships

The subject of the article is the determination of the applicable law in cross-border situations when a lawsuit is based on the violation of trade secrets within a contractual relationship. According to German Law, claims for infringement of trade secrets are regulated in the German Trade Secrets Act (Geschäftsgeheimnisgesetz – GeschGehG) that has implemented the European Directive 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure. The focus is on the question how tort claims are connected if the contracting partners have agreed on confidentiality terms, in particular under a non-disclosure agreement. In case the agreement of the parties is ruled by the laws of a Non-European state, it is doubtful whether the harmonized European trade secret law is applicable. The author comes to the conclusion that a secondary connection to the jurisdiction governing the agreement according to Art. 4 Paragraph 3 Rome II Regulation should be limited to relationships where the parties have assumed further contractual obligations beyond confidentiality. In this case, the law applicable on the contract overrides the harmonized European trade secret law regulations which cannot be considered as mandatory rules either.

Lutzi, Ruth Bader Ginsburg – Internationalist by Conviction

In Ruth Bader Ginsburg, the Supreme Court has not only lost an icon of gender equality and towering figure, but also a great internationalist. Ginsburg’s jurisprudence was characterised by her own academic background as a proceduralist and comparativist, a decidedly international perspective, and a firm belief in a respectful and cooperative coexistence of legal systems. An English version of this text can be found at http://www.iprax.de/de/dokumente/online-veroeffentlichungen/

Kohler, Dismantling the “mosaic principle“: defining jurisdiction for violations of personality rights through the internet

In case C-194/16, Bolagsupplysningen, the ECJ ruled that, according to Article 7(2) of Regulation (EU) No 1215/2012, a legal person claiming that its personality rights have been infringed by the publication of incorrect information on the internet and by a failure to remove comments relating to it can bring an action for rectification of that information, removal of those comments and compensation in respect of all the damage sustained before the courts of the Member State in which its centre of interests is located. On the other hand, an action for rectification of that information and removal of those comments cannot be brought before the courts of each Member State in which the information published on the internet is or was accessible. Thus, the ECJ’s decision in case C-509/09 and C-161/10, eDate Advertising a.o., also applies where the aggrieved party is a legal person. However, the “mosaic principle” defined in that judgment is inapplicable because an action for rectification and removal of information on the internet is “single and indivisible” and can, consequently, only be brought before a court with jurisdiction to rule on the entire damage. The author welcomes this limitation and advocates that the mosaic principle be given up entirely, particularly as it does not find resonance on the international level.

Mankowski, Consumer protection under the Brussels Ibis Regulation and company agreements

Company agreements pose a challenge to Articles 17–19 Brussels I bis Regulation; Articles 15–17 Lugano Convention 2007 since these rules are designed for bipolar contracts whereas the formers typically are multi-party contracts. This generates major problems, amongst them identifying the “other party” or answering how far a quest for equal treatment of shareholders might possibly carry. Arguments from the lack of a full-fledged forum societatis might weigh in, as do arguments from the realm of European private law or possible consequences for jurisdiction clauses in company statutes. The picture is threefold as to scenarios: founding and establishing a company; accession to an already established company; and derivative acquisition of a share in an already established company.

Wurmnest and Grandel, Enforcement of consumer protection rules by public authorities as a “civil and commercial matter“

In case C-73/19 (Belgische Staat ./. Movic) the European Court of Justice once again dealt with the delineation of “civil and commercial matters” (Art. 1(1) of the Brussels Ibis Regulation) when public authorities are involved. The Court correctly classified an action brought by Belgian authorities against Dutch companies seeking a declaration as to the unlawfulness of the defendants’ business practices (selling tickets for events at prices above their original price) and an injunction of these practices as a “civil and commercial matter”, as the position of the authorities was comparable to that of a consumer protection association. Furthermore, the Court clarified its case law on the thorny issue as to what extent evidence obtained by public authorities based on their powers may turn the litigation into a public law dispute. Finally, the judgment dealt with the classification of various ancillary measures requested by the Belgian authorities. Most notably, a request by the authorities to be granted the power to determine future violations of the law simply by means of a report “under oath” issued by an official of the authorities was not a “civil- and commercial matter” as private litigants could not be granted similar powers under Belgian law.

Wagner, Jurisdiction in a dispute with defendants in different member states of the European Union

The article discusses a court ruling of the Higher Regional Court of Hamm on jurisdiction concerning the “Diesel emission scandal”. The plaintiff had his domicile in Bielefeld (Germany). He bought a car in Cologne (Germany) where the seller had his domicile. Later on, the plaintiff brought an action for damages and for a declaratory judgment against the seller, the importer of the car (domicile: Darmstadt, Germany) and the producer of the car (domicile: in the Czech Republic) before the District Court of Bielefeld. The plaintiff argued that the producer of the car had used illegal software to manipulate the results of the emissions tests. He based his claim on tort. Against the first defendant he also claimed his warranty rights. In order to sue all three defendants in one trial the plaintiff requested the District Court of Bielefeld to ask the Higher Regional Court of Hamm to determine jurisdiction. In its decision the Court in Hamm took into account Article 8 No. 1 of the Brussels Ibis Regulation and § 36 I No. 3, II of the German Code of Civil Procedure.

Wolber, Jurisdiction for an Application opposing Enforcement in cross-border Enforcement of a Maintenance Decision

The question, whether the maintenance debtor should be entitled to raise the objection that he has predominantly discharged his debt in the Member State of enforcement is highly relevant in practice and disputed in the scientific literature. The European Court of Justice (ECJ) has decided on this question – upon a request for a preliminary ruling by a German court – in the case FX ./. GZ with judgment of 4th June 2020. The ECJ confirms the jurisdiction of the German court based on Article 41 of Regulation No 4/2009. This judgment has effects beyond the enforcement of maintenance decisions on other instruments of European Law of Civil Procedure. While this judgment deserves approval in the result, the reasoning of the court is not convincing. The ECJ judgment does not cover the question of the territorial scope of such a judgment.

Schlosser, Clarification of the service of documents abroad

In extending the term “demnächst” (“soon”) the judgment of the Bundesgerichtshof ruled that a person interested in serving a document to somebody (in particular the initial claim) must only request the court to care for the translation and pay immediately thereafter the estimated costs of the translation for correctly initiating the litigation and thus meeting the term of limitation. The rest of time needed for the translation is irrelevant. The author is developing the impact of this decision for the three variants of serving a document to someone abroad in the European Union: (1) Serving the document spontaneously in time together with the translation, (2) Serving the document belated together with the translation after the court has asked whether the respective person wants a translation, (3) Serving initially without a translation but serving the document again together with a translation after the addressee has refused to accept service without any translation.

Dutta, European Certificate of Succession for administrators of insolvent estates?

German law provides for a special insolvency procedure for insolvent estates (Nachlassinsolvenzverfahren) which is subject to the European Insolvency Regulation. The Oberlandesgericht Frankfurt am Main came to the conclusion that nevertheless the liquidator of such an insolvency procedure can apply for a European Certificate of Succession under the Succession Regulation being an “administrator of the estate”. The case note argues that the German Nachlassinsolvenzverfahren falls within the scope of the Insolvency and the Succession Regulation (section II & III) and that issuing a Certificate causes only indirect frictions between both instruments which are not grave enough to invoke the conflict rule in Article 76 of the Succession Regulation (section IV). The case shows that the model of the Certificate could be extended to other areas (section V).

Jayme, The restitution of the “Welfenschatz“ before the U.S. Supreme Court

The US Supreme Court, in a case involving the restitution of the treasure of the Guelphs and the question of state immunity of the Federal Republic of Germany, decides that the FSIA’s exception concerning property taken in violation of the international law of expropriation does not refer to property owned by German nationals (“domestic takings rule”). The heirs of German Jewish Art dealers who had acquired a large part of the art treasure of the Guelphs from the Ducal family of Braunschweig asked for the restitution of such parts of the treasure which they had sold to Prussia in 1935 alleging that they had been unlawfully coerced to sell the pieces for a third of its value. The defendants were the Federal Republic of Germany and the Stiftung Preußischer Kulturbesitz. The plaintiffs argued inter alia that the forced purchase of the treasure had been an act of genocide in violation of international law and, therefore, justified an exception to State immunity. The District Court denied Germany’s motion to dismiss, and the D.C. Circuit Court affirmed. The Supreme Court held that the phrase “rights in property taken in violation of international law” refers to violations of the international law of expropriation and thereby incorporates the domestic takings rule. The case was remanded to the D.C. Circuit Court of Appeals for further proceedings which inter alia will concern the question whether the Jewish art dealers were German nationals at the time of the sale of the treasure (1935).

The new issue of the Revue Critique de Droit International Privé (3/2021) is out. It contains 2 articles and numerous case notes.

The editorial by Horatia Muir Watt (Sciences Po), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on the Dalloz website (Éclectisme et gai savoir).

In the first article, David Sindres (Professor, University of Angers) analyses the control implemented by the judge responsible for the enforcement of pecuniary condemnations pronounced by foreign courts (Le contrôle par le juge de l’exequatur des condamnations pécuniaires prononcées par un juge étranger).

The control exercised by the enforcement judge over the amount of pecuniary condemnations pronounced by foreign courts, which was highlighted in France by the famous Fountaine Pajot decision, has different faces: as witnessed by recent decisions handed out by the French Cour de cassation on this matter, this control may concern the amount of damages, as in the Fountaine Pajot case, as well as the interests of a loan or the amount of a procedural indemnity granted by a foreign court. Although the reason for this control, which aims at ensuring the conformity of the foreign decision with the forum’s international substantive public policy, is clear, this clarity does not however extend, in recent case law, either to the exact perimeter of the control or to the criteria upon which it shall be based.

This article therefore seeks to instill clarity in this realm, by insisting especially on a double necessity: on the one hand, avoiding that this control degenerates in a review as to the substance of the foreign decision, and on the other hand, resorting to criteria specific to each hypothesis and reflecting essential principles of the lex fori on the issue at stake.

In the second article, Georgette Salamé (PhD Paris 1 Panthéon-Sorbonne, Lecturer at Saint Joseph University, Beyrouth) and Guillaume Kessler (Associate Professor, University of Savoie) discuss French law on international relocation of children in the context of parental separation, in the light of comparative law models (Séparation parentale et déménagement international de l’enfant).

The increased mobility of individuals combined with the frequency of divorce/separation cases has made the relocation of children a recurrent issue both in France and abroad and one that often triggers litigation. French law does not provide for specific rules that are tailored to address this matter. Therefore, the courts have settled relocation disputes using the general rules that govern child custody. This paper considers French law in the light of comparative law models. Whilst all legal systems claim to achieve the child’s best interest, some have addressed relocation by setting a general presumption (in favor of or against the move) whereas others have opted for a case-by-case approach. French law comes within the second category, which appears to have been the preferred choice of many Western States.

Beyond underlining this general trend to favor a settlement sought in concreto, a comparative law analysis highlights the positive outcomes that certain more sophisticated mechanisms elected by foreign laws can achieve and suggests adjustments to the French relocation settlement mechanisms. It also emphasizes the increasing importance of the parent-child relationship in (re)defining the family and sheds light on mechanisms that can fine tune and improve its protection in the context of the child’s relocation.

On another note, the comparative law analysis calls for a reassessment of the legal means that purport to secure effective outcomes for relocation in the globalization era. The paper thus examines both preventive and deterrence policies as well as policies that rely on mediation to redefine the aftermath of separation. While French law is familiar with such approaches, comparative law suggests reshaping certain strategies by developing or eventually reconsidering their relevance in the context of the child’s international relocation.

 The full table of contents is available here.

A partial renewal of positions, both of AGs and of judges, will take place next October at the Court of Justice. The reasons vary from retirement to normal rotation (the latter being the case of the so-called “smaller countries” in as far as AGs are concerned).

As a consequence some opinions and judgments have been or will be delivered before scheduled. In PIL this will the case of C-296/20, Commerzbank, a request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany) on the interpretation of Article 15 (1)(c) of the Lugano Convention 2007. The Opinion was delivered on September 9. AG Campos Sánchez-Bordona proposes that

‘Article 15(1)(c) of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed at Lugano on 30 October 2007, the conclusion of which was approved on behalf of the European Community by Council Decision 2009/430/EC of 27 November 2008, must be interpreted as meaning that it is not applicable in the case where, at the time when the contract is concluded, the parties to that contract are domiciled (within the meaning of Articles 59 and 60 of the Convention) in the same State bound by the Convention and the foreign component of the legal relationship arises only subsequently, when the consumer has transferred his or her domicile to another State also bound by the Convention.

In the alternative, Article 15(1)(c) of the Convention would be applicable in the case where the parties’ domicile at the time when the contract is concluded is situated in a single State bound by the Convention and the consumer subsequently relocates to another State also bound by the Convention, provided that the economic operator pursues in the State of the consumer’s new domicile a trade or profession such as that which gave rise to the conclusion of the contract.’

Should one or the other strands of the Opinion be followed, the Court would be taking a stance in favor of predictability both for the consumer and the other party to the contract, in line with C-585/08 and C-144/09 (Pammer and  Hotel Alpenhof). The contrary view will be more comfortable for the consumer, but deterrent for potential contractual parties (I would add: as things stand. Business counter-party will certainly try to develop strategies to reduce the impact of a consumer moving cross-border. A easy one: indiscriminate increase of the price of goods and services).

Our colleague Geer Van Calster provides a short accurate summary of the Opinion’s reasoning here, based on the provisional English translation. I would like to complete it by highlighting the following points:

First of all, according to the Opinion the ratio legis of Section 4 of Title II of the Convention is  to ensure adequate protection for the consumer against a very specific risk, namely that of internationality. Indeed, a process abroad entails costs and challenges an average consumer will not not willing or able to assume.

Secondly, consumer protection in the field of international jurisdiction is not an absolute goal in the Convention. Some requirements have been set up by the lawmaker delineating the scope of the Section, tending to ensure that the economic operator will be able to foresee where he or she may sue and be sued when entering into a contract with a consumer. It should be borne in mind that under Article 16 of the Convention the consumer has the choice between filing a claim with the courts of his or her own domicile – forum actoris– or those of the defendant.

By contrast, the other party to the contract is deprived of any choice: he or she can only file a claim with the counts at the consumer’s domicile. Like in a B2B case, the relevant domicile in this regard is the one at the date on which the court action is brought (see C 98/20, mBank). There is no doubt this rule always carries uncertainty with it, for no one can predict whether a potential defendant domiciled in a contracting State at the time a contract is concluded will move cross-border afterwards. The insecurity is the same no matter the type of contract, i.e, B2B or B2C. There is an important difference, however, in a B2B setting: because a choice of court is possible without any limitation, and also Article 5(1) remains available, the parties can figure out jurisdiction from the very beginning.

The logical inference from those two points would be that, in case the consumer moves to another contracting State after the conclusion of a contract which, at that point in time, was purely domestic, it is for him or her to cope with the risks and costs of cross-border litigation. In other words: if the consumer is the one transforming a domestic situation into an international one, he or she should stand the consequences of internationality (in terms of jurisdiction).

Thirdly, it is true that at first sight, Article 17(3) of the Convention makes it difficult to claim than Section 4 of Title II does not apply to situations lacking an international element (more precisely: an international element resulting from the domicile of the parties) when the contract is entered into. As a matter of fact, the provision endorses the premise that balance is needed between protecting the consumer and offering predictability to the professional. The Opinion explains why it would be neither sound nor advisable to infer that Article 15(1)(c) applies to situations of supervening internationality on the basis of the mere existence of Article 17(3). It recalls in this regard, among other, the fact that the mechanism the latter rule relies on – choice of court clauses- may not be admissible under the law of the contracting States.

This notwithstanding, one cannot simply ignore Article 17(3). Therefore, the AG will try to offer an interpretation of Article 15(1)(c) apt to conciliate both the objective of protecting the consumer from the inconveniences deriving from internationality (including one which the consumer him- or herself creates), and the objective of providing the other party to the contract with foreseeability as to the courts having international jurisdiction. To this aim, Article 15(1)(c) of the Convention could be interpreted as encompassing any situation in which the professional pursues its economic activity in, or directs it towards, States other than that where he or she is domiciled, including the State where the consumer is domiciled at the time when  proceedings are instituted.

In the past, the Court has rendered decisions which could be read as supporting the opposite hypothesis, that is to say, Article 15(1)(c) applies in any event, independently of whether the international element is present when the contract is entering into or appears at a later stage due to a change of domicile of the weaker party, who moves to another contracting State . Just like the referring national court, the AG considers those Court’s judgments and orders not categorical. He claims instead that the “weighty consequences which applying the consumer protection rules brings to bear upon a professional surprised by a change of domicile by the consumer which it was not expecting or could not have foreseen call for an explicit examination of this issue.” Whether this “explicit examination” will end up with the endorsement of the Opinion remains to be seen: to be clear, judging from the jurisprudence of the Court of Justice in consumer matters, the odds are against. The Court has steadily shown a clear pro-consumer tendency and it is unlikely that it will give it up now: at least, not without a sign from the lawmaker, which has already been suggested in the literature, see for instance here (or maybe, by making litigation more costly for the business party to the contract, the Court is indirectly pushing in support of ADR mechanisms).

In the meantime, should the Court decide not to follow the Opinion, I would like to add that a clause in a domestic contract with the consumer whereby he or she must communicate the change of abode does not provide for predictability as a factor to decide whether to engage or not in deals with a specific consumer. It will prove useful for other purposes, though, such as service of process (if the consumer complies with the obligation).