EAPIL blog

The latest issue of the Journal of Private International Law contains the following articles:

Lachlan Forrester, Resulting trusts in the conflict of laws: an Australian perspective

The common law world continues to grapple with how to properly characterise equitable doctrines in private international law. There has been extensive criticism of the existing approach to characterisation and choice of law for equity which favours separately characterising equitable obligations and applying the lex fori. Within this broader discourse, a debate is beginning to emerge around issues involving both equitable obligations and immovable property. In this early debate, two schools of thought have developed with respect to the proper characterisation and choice of law for implied or resulting trusts over immovable property. The first approach, advanced primarily by the courts, characterises the trust as an equitable obligation governed by the lex fori. The second approach, primarily endorsed by commentators, characterises the trust as an issue of immovable property governed by the lex situs. This paper, upon evaluating the lex fori and the lex situs against the underlying objectives of choice of law, rejects both approaches as unfit for purpose. Instead, it advocates a new approach to the characterisation and choice of law for resulting trusts. This paper proposes that resulting trusts be governed by the proper law of the relationship. This conception would align with the approach taken to express trusts under the Hague Trusts Convention and most effectively provides for consistency and clarity while upholding the reasonable expectations of the parties.

María Mercedes Albornoz and Sebastián Paredes, No turning back: information and communication technologies in international cooperation between authorities

The usefulness of ICTs is on full display when it comes to international cooperation between authorities in civil and commercial litigation. The core international conventions on cross-border cooperation (currently in force) were drafted many decades ago, when the overwhelming growth of ICTs was unimaginable. Setting the focus on Latin America, where legal regional integration has not yet reached the level attained by the European Union, this article assesses whether the selected legal sources reject, tacitly accept, or encourage the use of ICTs in international cooperation. The analysis of international conventions, some soft law instruments and domestic PIL rules supports the argument that an adequate legal framework that accepts the use of ICTs in international cooperation is necessary. Indeed, there is no turning back from the use of technologies in this field, where modern and suitable regulation would strengthen legal certainty, of utmost importance for the parties involved in cross-border litigation.

Sirko Harder, The territorial scope of Australia’s consumer guarantee provisions

Australian Consumer Law provides for consumer guarantees, according to which the taking of a particular action (for example, the application of due care and skill) or the presence of a particular fact (for example, a particular quality) is deemed as guaranteed where goods or services are supplied to a consumer in certain circumstances. Remedies lie against the supplier or (where goods are supplied) against the manufacturer or both. Pursuant to its application provisions, Australian Consumer Law applies to conduct outside Australia if one of several alternative criteria is satisfied. One criterion is that the defendant carried on business within Australia. There is no express requirement that the defendant’s business activities in Australia include the transaction with the plaintiff. This article argues that comity requires an implied restriction on the territorial scope of the consumer guarantee provisions, and searches for the most appropriate criterion for that purpose.

Lance Ang, Party autonomy, venue risk and jurisdiction agreements – the Singapore position reappraised

Party autonomy is the defining principle of private international law today. Notwithstanding its broad acceptance, what does party autonomy mean in the context of jurisdiction agreements? The lack of commercial certainty in how the agreement to “submit” to the jurisdiction of the courts in the chosen forum will be interpreted and enforced by the courts defeats the very purpose of party autonomy itself, which is the management of venue risk by commercial parties in entering into cross-border transactions. In light of recent developments, the Singapore court has blurred the distinction between exclusive and non-exclusive jurisdiction agreements by holding that the same requirement of “strong cause” applies if a party reneges on its agreement to “submit”. This is premised on the same strict contractual analysis and enforcement of both types of agreements. It is against this background that the approach of the Singapore courts in determining the exercise of their own jurisdiction under the common law will be reappraised, along with a comparison with the practice of the English courts.

Marco Giacalone, Irene Abignente and Seyedeh Sajedeh Salehi, Small in value, important in essence: lessons learnt from a decade of implementing the European Small Claims Procedure in Italy and Belgium

This article examines the extent to which the European Small Claims Procedure (ESCP) has served the main purpose of the EU legislature to establish a legal framework to improve access to justice for creditors of cross-border small claims through a simplified, expedited and inexpensive redress mechanism. This article first analyses the implementation of the ESCP in Italy and Belgium. These two countries were chosen because of the authors’ research on the Small Claims Analysis Net (SCAN) Project (The SCAN Project was initiated in 2018 as a two-year project with the fundamental aim of evaluating the efficiency of the European Small Claims Procedure within several EU Member States (France, Belgium, Italy, Slovenia, and Lithuania), besides raising awareness of this procedure among consumers and other judicial stakeholders. For the conducted activities as part of the SCAN project, see http://www.scanproject.eu accessed on 24 February 2021). The second part of this article deals with the impact of this regulatory instrument on access to justice for citizens, in view of the principle of judicial efficiency. Finally, this article focuses on the possibility of using this instrument for collective redress, on the one hand, and linking this procedure to online dispute resolution, on the other.

Agne Limante, Prorogation of jurisdiction and choice of law in EU family law: navigating through the labyrinth of rules

This article focuses on the scope of party autonomy in EU family regulations, especially in cases of marriage dissolution with an international element. Through the lens of a case study, the author analyses whether provisions allowing party autonomy in EU family regulations are consistent and wide enough to enable parties to find a solution that best fits their interests. The paper concludes that the advantages of party autonomy in private international family law outweigh the associated risks which should be mitigated by safeguarding measures.

Jan L. Neels, Characterisation and liberative prescription (the limitation of actions) in private international law – Canadian doctrine in the Eswatini courts (the phenomenon of dual cumulation)

The via media technique of characterisation in private international law, as proposed by the Canadian author Falconbridge, was – over a period of three decades – gradually adopted by the courts in Lesotho, South Africa, Zimbabwe, and, more recently, Eswatini. In a particular dispute, which is used as angle of incidence for the discussion below, the High Court of Swaziland (now Eswatini) applied the rules of the lex fori pertaining to liberative prescription (the limitation of actions) against the background of the via media technique. The decision was overruled by the Supreme Court of Eswatini, which – using the same technique – applied the proper law of the contract in this regard. In this contribution, the Canadian doctrine and its application by the Eswatini and other Southern African courts is critically discussed. The scenario in the Eswatini cases provides an example of what the author calls the phenomenon of dual cumulation. He attempts to provide guidance for the development of Southern African private international law in this regard beyond the via media technique.

The Revista Electrónica de Estudios Internacionales (REEI), whose current editor-in-chief is Prof. de Miguel Asensio, a founding member of the EAPIL, is an open-access journal published by the Spanish Association of International Law and International Relations Professors (AEPDIRI). The journal exists since 2000; it is open to specialized research works on public international law, private international law and international relations. Those willing to submit a paper are invited to comply with the instructions available here.

The latest issue is number 41, of June 2021. The following contents are of direct interest for PIL:

José Ignacio Paredes Pérez, Contratos de suministro de contenidos y servicios digitales B2C: problemas de calificación y tribunales competentes (B2C contracts for the supply of digital content and digital services: problems of characterization and competent courts)

The purpose of this study is to analyse the characterization problems posed, for the purposes of the application of the European rules on international jurisdiction, by the legal actions available to the consumer in the new European regulation on improving consumer access to digital goods and services, and the possible fragmentation of litigation relating to the same infringing conduct under Directive (EU) 2019/770 and Regulation (EU) 2016/679. In the context of the Brussels I bis Regulation, the autonomous characterization of the legal actions available under the new regulation, and the way in which this is done, is decisive, depending on whether or not the contract falls within the scope of articles 17 to 19.

María del Carmen Chéliz Inglés, La Convención de Singapur y los acuerdos de mediación comercial internacional (The Singapore Convention and the international commercial mediation agreements)

The Singapore Convention on International Settlement Agreements resulting from mediation represents a milestone in the determined promotion of this dispute resolution mechanism and puts an end to the absence of a harmonized legal framework to regulate this issue. The most significant advance is that it gives a new legal status to the agreements resulting from international commercial mediation, which become directly enforceable in all the States that ratify the Convention. In this context, the objective of this work is to analyze the key issues of the Singapore Convention, highlighting its lights and shadows, and assess what repercussions the adherence to said normative instrument would have on the Spanish legal system.

Georgina Garriga Suau, Blockchain-based smart contracts and conflict rules for business-to-business operations (Blockchain-based smart contracts y normas de conflicto para operaciones entre profesionales)

In recent years, the irruption of blockchain technology has enhanced the impact of smart contracts in the international trade scenario, although not without raising some problems, particularly, in terms of Private International Law. This paper, thus, addresses such problems when it comes to determining the applicable law from a business-to-business perspective leaving aside the particular problems raised by the conflict-of-law rules oriented to protect the weaker party to a contract. The analysis, however, starts with a general approach to the two concepts which are the object of this paper: smart contracts and blockchain technology.

As usual, the journal contains as well a section commenting on selected relevant decisions on PIL delivered in the six months prior to its publication. Reviews on recent monographs or collective books follow.

The remaining contributions in this issue relate to public international law or international relations. Those (like me) with a specific interest in procedural law will surely find worth reading these two:

Laura Aragonés Molina, Unidad o fragmentación en el Derecho internacional procesal: la revisión de sentencias ante la Corte Internacional de Justicia y el Tribunal Europeo de Derechos Humanos (Unity or fragmentation in international procedural law: revision of judgments at the International Court of Justice and the European Court of Human Rights)

The increasing specialization of Public International Law and the diversity of international courts and tribunals with specific competences ratione materiae and personae in the multiple international normative sectors are still generating challenges for coherence, consistency and predictability of international jurisprudence. Procedural rules and principles may have a cohesive effect on judicial practice and foster a judicial dialogue and cross-fertilization at a procedural level. It may contribute to the unity of the international legal order through the formation of common rules of procedure. In this paper we explore this cohesive effect exhaustively, studying the interaction between the International Court of Justice and the European Court of Human Rights when they interpret and apply the revision provision.

Montserrat Abad Castelos, Rendición de cuentas por los crímenes cometidos durante el califato del Daesh: las pruebas como clave (Accountability for crimes committed during the ISIS caliphate: evidence as key)

This article seeks to determine if evidence can be a way to overcome the existing difficulties in the field of justice to hold Daesh members accountable for the atrocity crimes committed in Syria and Iraq during the armed conflicts that took place there. To get this, recent innovations are examined both the actors that collect and preserve evidence and the nature, characteristics and challenges that evidences pose. It will be concluded that the developments that are taking place are crucial and, consequently, have the capacity to trigger a paradigm shift that might be reflected in the outcome of pending prosecutions, in order to ensure the responsibility of the perpetrators of the crimes. Nevertheless, at the same time, it also shows how evidence is not the only key to take into account, since the problems related to the exercise of jurisdiction in domestic orders, which go far beyond the legal plane, will also be transcendental.

On 9 September 2021, the Court of Justice handed down its judgment in UM (C‑277/20), in which, for the first time, it sheds light on doubts concerning the applicability of the EU Succession Regulation to donations mortis causa. The preliminary questions originate from the Austrian Supreme Court (Oberster Gerichtshof). In the judgment, the Court of Justice shared the view presented earlier this year in the opinion delivered by Advocate General de la Tour. This post is a slightly modified version of an Op-Ed published on EU Law Life.

Facts of the Case

ZL, a German national, had entered into a contract with his son UM and UM’s wife XU in 1975. Under the contract, where Austrian law was chosen as applicable, it was provided inter alia that ZL undertakes to erect a house on his immovable property located in Austria which would transfer mortis causa to XU and UM in equal shares. The transfer would occur on the death of ZL, but not before the house has been completed. If UM and XU were to divorce, the transfer mortis causa would be construed as having been made to UM alone. ZL expressly declared that the immovable property was to be transferred as a donation mortis causa. ZL authorised the transfer of ownership to be recorded in the Austrian Land Register upon production of a death certificate and proof that the conditions listed in the contract were fulfilled. Prior to the death of ZL in 2018, UM and his wife had divorced, and she had subsequently died.

Succession proceedings were commenced in Germany, the place of ZL’s habitual residence. For the purposes of those proceedings, UM applied to the court in Austria to be registered as the owner of the immovable property in question. Before the case reached the Austrian Supreme Court, the courts of two instances took the view that Austrian law is applicable and, therefore, in the absence of proof of satisfaction of the conditions laid down in the contract, rejected UM’s application. The Austrian Supreme Court decided to submit a preliminary request to the Court of Justice to clarify whether the donation mortis causa might be classified as an agreement as to succession covered by the material scope of the Succession Regulation and, in the affirmative, whether the choice of Austrian law as applicable remains valid.

Donation Mortis Causa as an Agreement as to Succession

To understand the first question posed to the Court of Justice, it is important to recall that pursuant to Article 3(1)(a) of the Succession Regulation, “succession” is defined as “succession to the estate of a deceased person”. It covers “all forms of transfer of assets, rights and obligations by reason of death”. This transfer may be “through intestate succession” or “under a disposition of property upon death”. At the same time, a disposition of property upon death means, inter alia, an “agreement as to succession” (Article 3(1)(d)), which is “an agreement … which, with or without consideration, creates, modifies or terminates rights to the future estate or estates of one or more persons party to the agreement” (Article 3(1)(b)).

Having the above in mind, the Court of Justice noted that the notion of an agreement as to succession must be given an autonomous interpretation (para. 29) and that it “refers generally to any agreement which, inter alia, creates rights to the future” estate (para. 30). The Court of Justice further cited the definition of succession provided for in Article 3(1)(a) of the Succession Regulation to conclude that “a contract under which a person provides for the future transfer, on death, of ownership of immovable property belonging to him or her and which confers rights in his or her future estate on other parties to that contract, constitutes an “agreement as to succession” within the meaning of Article 3(1)(b)” of the Regulation (para. 32). Referring to its previous judgment in Oberle (C-20/17), the Court of Justice stated that its conclusion is supported by the principle of unity of the succession (para. 33).

The Court also recalled that Article 1(2)(g) of the Succession Regulation excludes from its scope assets transferred otherwise than by succession, for example gifts, but it noted that this exclusion should be interpreted strictly (para. 34). As a result, where “a disposition of property contained in an agreement relating to a succession consists (…) in a donation, but does not take effect until the death of the deceased”, it is covered by the scope of the Regulation (para. 35).

When it comes to the differentiation between donations inter vivos and mortis causa, the opinion is more elaborate than the judgement. It even refers to Article 1(2)(d) of the 1989 HCCH Succession Convention and its explanatory reportunderlying that even though the Convention never entered into force it inspired many provisions of the Regulations (para. 38 of the opinion). As a result, it plays an important role while interpreting the Regulation itself. The report states that the notion of “disposition of property upon death” excludes inter vivos dispositions having immediate proprietary effect. When it comes to disposition of property upon death “it is upon the death of the person so disposing, and not in any respect at any earlier time, that the disposition (or transfer) takes place” (para. 41 of the explanatory report).

The opinion indicates also that Article 1(2)(g) of the Succession Regulation should be read together with recital 14 thereof, which explains that the law applicable to the succession “determines whether gifts or other forms of dispositions inter vivos giving rise to a right in rem prior to death should be restored or accounted for the purposes of determining the shares of the beneficiaries” (para. 36 of the opinion). This suggests that donations excluded from the scope of the Regulation are only those that might be classified within a broader term of “dispositions inter vivos giving rise to a right in rem prior to death”. A contrario, dispositions giving rise to a right in rem after the death are not covered by the exclusion provided for in Article 1(2)(g) of the Succession Regulation. The Court of Justice seems to share this view but does not justify it in such detailed manner as the opinion.

Given the above, the Court of Justice concluded that “a contract under which a person provides for the future transfer, on death, of ownership of immovable property belonging to him or her to other parties to the contract is an agreement as to succession” within the meaning of the Succession Regulation. As a result, the agreement at hand should be covered by the material scope of the Succession Regulation.

Choice of the Applicable Law to the Donation Mortis Causa

Knowing that, the second question that the Court of Justice had to answer was whether it is possible to choose the law applicable to the succession of an asset indicated in the donation mortis causa, as in the contract at hand the Austrian law was chosen as applicable.

It must be noted that, in accordance with the Succession Regulation, the law applicable to succession is the law of the last habitual residence of the deceased (Article 21(1)), subject to the operation of the escape clause (Article 21(2)) unless the deceased has chosen the law applicable in the disposition of property upon death in accordance with Article 22. The Regulation contains also transitional provisions, as according to Article 84 thereof its rules apply from 17 August 2015 (Article 84) but only to the succession of persons who died from that date onwards.

Pursuant to Article 83(2) of the Regulation, where the deceased had chosen the law applicable to his succession prior to 17 August 2015, that choice remains valid if it meets the conditions laid down in the Regulation itself or in the rules of private international law which were in force, at the time the choice was made, in the state of either the “habitual residence” or (one of) “nationality” of the deceased.  That is the expression of favor validitatis principle, which aims to prevent the choice of applicable law to succession made in the past from becoming invalid due to the change in law, namely, replacement of domestic international succession rules by the Succession Regulation.

The doubt before the Court of Justice was whether Article 83(2) of the Succession Regulation may apply to the choice of the applicable law (namely, Austrian law) contained in the donation mortis causa contract signed in 1975. The answer was negative. The Court of Justice held that Article 83(2) concerns only “the validity of the choice of law applicable to the succession as a whole”, whereas (it seems that) “the choice of Austrian law concerned only the agreement as to succession concluded by the deceased in the main proceedings in respect of one of his assets and not the succession as a whole, with the result that the condition for applying Article 83(2) of that regulation cannot be considered satisfied in such circumstances (para. 39)”.

This seems a reasonable conclusion, provided that the Succession Regulation is built on the unitary principle, meaning that one single law governs succession. This principle applies functionally, meaning that one single law governs succession “from the opening of the succession to the transfer of ownership of the assets forming part of the estate to the beneficiaries” (recital 42 of the Regulation) and territorially, meaning that one single law governs succession “irrespective of the nature of the assets and regardless of whether the assets are located in another Member State or in a third State” (recital 37).

Additionally, it might be added that the choice of applicable law with respect to agreements as to succession (Article 25) relates only to the question of their admissibility, substantive validity, and their binding effects between the parties, including the conditions for their dissolution. This should not be equated with the choice of law applicable to succession as a whole (which governs succession in general, for example, the question of liability for debts – Article 23(2)(g)).

Conclusion

To conclude, it was rightly confirmed in the UM judgment that, in accordance with the Succession Regulation, a donation mortis causa giving rise to a right in rem after the death of the donor constitutes an agreement as to succession within the meaning of this regulation. Additionally, in general, in a succession case there might be more than one disposition of property upon death, including agreements as to succession providing for donations mortis causa of particular assets, but there can only be one single law applicable to succession as a whole, which governs “all civil-law aspects of succession to the estate of a deceased person” with respect to all the assets of the deceased.

I am delighted to announce the publication of the last edition of the Code de droit international privé luxembourgeois. The main purpose of the book is to gather all the norms applicable in Luxembourg in the field (international conventions, European regulations and national legislation).

A new feature of the book is to include references to case law. Now that Luxembourg courts have made many of their judgments publicly available, it was possible to identify many cases which have applied the most important of these norms and offered interesting interpretations. The book also identifies interesting cases in those fields where the law is entirerly judge made, such as choice of law in filiation or matrimonial matters (for anybody married before the entry into force of the Matrimonial Regulations).

The code is a perfect companion to my treatise on Luxembourg private international law. The first volume, which is dedicated to choice of law in the fields of obligations, property and corporations, was published a year ago (Droit international privé luxembourgeois, vol. 1 : Conflits de lois – Théorie générale, Obligations, Biens, Sociétés).

The next volume will be dedicated to international litigation and arbitration in Luxembourg, and will hopefully be published soon after the Luxembourg parliament will pass a new law on arbitration.

On 9 September 2021 the Court of Justice pronounced its judgment in the case RK (C-422/20) concerning the mechanism of the transfer of jurisdiction under the Succession Regulation. The judgement also gives an insight into transitional provisions of the regulation. The preliminary questions originate from the Higher Court in Cologne (Oberlandesgericht Köln). The opinion on the case was delivered earlier this year by Advocate General Szpunar. The case was already commented here by Matthias Weller.

Facts of the Case

A mutual will was drafted in 1990 in German language, in which CR and her husband (German national) designated each other as heirs. After the death of the husband, last habitually resident in Spain, CR applied to a German court for, inter alia, a European Succession Certificate. The jurisdiction of German courts was successfully contested by RK, the deceased’s brother. Hence, CR commenced proceeding in Spain. On CR’s request, the Spanish court decided not to hear the case noting that German courts are better placed to do so, due to practical circumstances, including CR’s residence and location of assets. CR filed another application to German court accompanying it with the decision of the Spanish court.

Transfer of Jurisdiction Mechanisms

It is worth reminding that pursuant to Article 4 of the Succession Regulation, the courts of the Member State of the last habitual residence of the deceased are competent in succession matters. Also, the law applicable is designated by this connecting factor (Article 21(1)), which allows for the coincidence of ius and forum so desired by the Regulation. It may happen however that the deceased has chosen (one of) national laws as applicable, which results in the distortion of the ius and forum principle. To avoid this (at least to certain extent), the Regulation, as explained by recital 27 “provides for a series of mechanisms”, which should restore the situation, in which the competent court applies its own succession law as applicable. These mechanisms are provided for in Articles 5 – 9 of the regulation and consist of the “transfer” of jurisdiction to the courts of the Member State the law of which was chosen as applicable by the deceased.

In accordance with one of the mechanisms, based on Article 6(a), the court seized pursuant to Article 4, may at the request of one of the parties, decline jurisdiction if a court of another Member State is “better placed to rule on the succession” given “practical circumstances of the succession, such as the habitual residence of the parties and the location of the assets”. In such case, pursuant to Article 7(a), the “national” courts “have jurisdiction to rule on the succession”, provided that “a court previously seised has declined jurisdiction in the same case” pursuant to Article 6.

Declining of Jurisdiction

In the RK case, the Oberlandesgericht Köln has doubts if it may assume that the Spanish court declined its jurisdiction pursuant to Article 6(a), given that this is not clearly stated in its decision. Answering this first question, the Court of Justice underlined that it is not crucial that the declining of jurisdiction is express, as long as refraining from hearing the case indicates that the court will not hear it, because another court was found to be better placed to do so (para. 37). This conclusion is justified by the aim of creating in the EU an area of freedom, security and justice based in the mutual trust between Member States (para. 37). The Court of Justice found that the regulation does not provide for the form, in which the declining of jurisdiction should be pronounced (para. 36). It also noticed that the Spanish court used the expression of the Spanish language version of the regulation, namely “to refrain from hearing” (abstenerse de conocer), instead of “to decline jurisdiction”, which is used in other language versions, including the German one. The difference in the wording in the language versions of the regulation and the resulting differences in the wording of decisions should not be relevant, when the intention of the declining court is clear enough.

Assuming jurisdiction after decline

The Oberlandesgericht Köln had also doubts if before assuming jurisdiction pursuant to Article 7(a) it may verify whether the prerequisites for declining jurisdiction pursuant to Article 6(a) were met. Namely whether a valid choice of applicable law was made, whether there was an application for “transfer” filed by one of the parties and whether it was examined if another court is in fact better placed to hear the case (para. 41).

Answering the second question, the Court of Justice underlined that no such verification may be exercised (para. 52). The Court of Justice classified the decision on declining jurisdiction as a “judgement” subject to automatic recognition in other Member States, without any possibility of reviewing it as to its substance (para. 45-47). Such conclusion is justified by the principle of mutual recognition of judgements and mutual trust (para. 48). It seems that as an effect of such recognition the court seized pursuant to Article 7(a) must assume jurisdiction (compare para. 58 in fine of the opinion).

The Court of Justice does not give clear response to the doubt that resonates in the opinion whether the decision on declining jurisdiction pursuant to Article 6(1) is binding the court seized pursuant to Article 7(1) as to the determination of law applicable, as declining jurisdiction assumes the exitance of a valid choice of applicable law made by the deceased. On one hand, the court of a Member State assuming jurisdiction pursuant to Article 7(1) should be able to assess independently, which law is applicable (para. 36 opinion). On the other hand, one should not differentiate between a choice of applicable law, which is valid for the purpose of declining jurisdiction and a choice, which is valid for the purpose of establishing applicable law (para. 46 of the opinion). The opinion seems to opt for the “stronger” effect of the judgement, including the determination as to applicable law (para. 46 in fine of the opinion).

Choice of Applicable Law Presumption

As already mentioned, the prerequisite for declining jurisdiction pursuant to Article 6(1) is that “the deceased had chosen as the law to govern his succession the law of a Member State of which he was a national (recital 27)”. In the case at hand, the mutual will of 1990 contained no such choice. As, pursuant to Article 84, the Succession Regulation applies from 17 August 2015 to the succession of persons who die starting from that day (Article 83(1)), it contains transitional provisions relating to dispositions of property upon death made before 17 August 2015 of a deceased person, whose succession is governed by the Succession Regulation.

Pursuant to Article 83(4), in case of a disposition of property upon death made prior to 17 August 2015, there is a presumption that the deceased has chosen as applicable the law, in accordance with which this disposition was made, provided that this law could be chosen pursuant to the regulation (namely, it is a national law of the deceased). For example, in the commented case, assuming that the mutual will was indeed made in accordance with German law (at least, as mentioned in the judgment, it was prepared in German language), German law is presumed to be chosen by the deceased, who was a German national at the moment of making the choice and/or at the moment of death. Unfortunately, the Court of Justice is silent on how to determine whether the disposition was made “in accordance with” a given succession law.

The answer to the third preliminary question posed by the Oberlandesgericht Köln concerns the above provision of Article 83(4). The Court of Justice stated that the choice of applicable law, which is the prerequisite for transfer mechanism of Article 6(1) may result from the operation of the above presumption (para. 61). However, as results from the answer to previous questions, the court assuming jurisdiction pursuant to Article 7(1) is not allowed to verify the existence of the prerequisite.

Conclusion

It seems that in RK the Court of Justice provides for practical solutions, considering specificities of procedural laws of Member States and understanding that declining jurisdiction may be pronounced in different forms. The conclusion that no control may be exercised over the decline decision pursuant to Article 6(1) also seems perfectly in line with mutual trust principle as implemented in the instruments on EU judicial cooperation in civil matters. It is not entirely clear however whether this decision has a binding effect on courts of other EU Member States also with respect to the determination of applicable law, as a valid choice made by the deceased is a prerequisite for such decision. Additionally, one may regret that the Court of Justice have not elaborated on what does it mean that a disposition of property upon death was made “in accordance with the law” of a given state for the purpose of Article 83(4).

Marketa Trimble (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted The Public Policy Exception and International Intellectual Property Law on SSRN.

The abstract reads:

Public international law affects private international law (conflict of laws) in a myriad of ways. This article discusses potential effects of international intellectual property (“IP”) law on the application of the public policy exception, which is used as a limitation on the application of foreign law and on the recognition and enforcement of foreign judgments. The article describes the function of the exception and its treatment in existing academic projects on IP law issues in private international law. It provides examples of the uses of the exception in IP cases and contemplates the frequency of the use of the exception in such cases. The article reviews international IP treaties, including IP chapters of free trade agreements, as possible sources of relevant public policies and evaluates whether a foreign IP law compliance with international intellectual property treaties could serve as a factor in the public policy exception analysis. The article suggests that courts give some weight in the public policy exception analysis to a finding of a foreign IP law’s compliance with international IP treaties but recognizes that the proposed approach would need to be nuanced and account for diverse circumstances.

The article is forthcoming in the Annali Italiani del Diritto D’Autore, Della Cultura e Dello Spettacolo.

It is not frequent that a request for a preliminary reference on matters concerning civil and commercial litigation is assigned to the Grand Chamber. It has happened though already several times in relation to Article 7 (2) Brussels I bis Regulation (or the corresponding provisions in the previous instruments). It will happen again in case C-251/20, where the French Cour de Cassation asks for help to determine the place where the damage occurred and, consequently, the competent court to adjudicate on an action for damages due to disparagement.

The opinion of AG Hogan has just been published. Long, but easy to follow in spite of the absence of subheadings, it provides a rich and accurate overview of the case law of the Court in relation to the infringement of rights -privacy, copyrights, intellectual property- on the internet in order to address (see at 42)

“whether, in view of the reasons given by the Court to justify the exclusive jurisdiction of certain courts in relation to the deletion or rectification of disputed content [published on the internet], it would be appropriate also to recognise the exclusive jurisdiction of those same courts in relation to compensation”,

a point which

“implicitly raises the question of whether, in the judgment of 17 October 2017, Bolagsupplysningen and Ilsjan (C‑194/16, EU:C:2017:766), rather than simply distinguishing earlier case-law in this manner, the Court further intended to effect a complete reversal of its case-law and thus abandon the mosaic approach with regard to claims for damages as well” .

Spoiler: he believes it did not; also, that it should not; at most, he would agree to have the mosaic solution combined with the “focalization” criterion that has been used in certain areas (reference is made, among other, to Football Dataco and Others, C‑173/11, EU:C:2012:642).

I see no point in summarizing here the many arguments put forward by AG Hogan, among which the “dialogue” with AG Bobek; an assessment of the mosaic solution in case of SLAPP; the same, in the light of the main objectives of the Brussels I bis Regulation, as dealt with in the case law of the Court on Article 7(2); all this, with support of scholars’ views, English or French. The original is in English, thus easily accessible – easier, in any event, for those not reading French.

It should be born in mind, in addition, that, in fact, according to the AG

“the present case is not the right one for the Court to take a position on whether or not the mosaic approach should be maintained, refined or even abandoned. Indeed, in the case in the main proceedings, the applicant is alleging not that the contents in question would constitute acts of defamation, but that those would instead violate French law relating to acts of dénigrement, which is a form of malicious falsehood”,

rather belonging to the domain of unfair competition rules (under French law). Eventually, the AG addresses the question referred as one related to the materialization of a damage of a strictly economic nature. He elaborates from this perspective in points 98 and ff, to conclude with this proposal to the Court:

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

Which of the contents of the opinion will be taken up by the Court is difficult to say. As we know it, the Court tends to remain cautious. In relation to a provision as slippery as Article 7(2) Brussels I bis Regulation, an interpretation focused strictly in the circumstance of the case at hand seems advisable, no matter how frustrating this may be for scholars and practitioners, and how much such approach endangers the consistency of the application of the rule itself. In any event, judging from experience there is little doubt that requests on the same provision will continue to be addressed to Court as long as its text remains unchanged.

The second issue of 2021 of the Dutch journal Nederlands Internationaal Privaatrecht is published. This includes the following articles:

K. Henckel on Rechtskeuze in het ipr-arbeidsrecht: enkele gedachten over het begunstigingsbeginsel (in English Choice of Law in PIL labour law: Some Thoughts on the Principle of Favourability). This article is available open access here.

This article discusses the preferential law approach that is enshrined in Article 8(1) Rome I Regulation. This provision limits the effects of a choice of law in the sense that the choice may not deprive the employee of the protection afforded to him by the mandatory provisions of the law that would have applied in the absence of a choice. It is generally accepted that the law that is most favourable to the employee merits application. The determination of this preferential law requires a comparison between the chosen law and the law that would have applied in the absence of such a choice. The article examines the method of comparison used throughout Dutch case law which shows that a preferential law approach is rarely applied. Instead, the majority of judgments apply the mandatory provisions of the objectively applicable, Dutch, law without further explanation. Since the application of the preferential law approach seems to be plagued by ambiguity, this article questions the desirability and practical feasibility of the comparison between the chosen law and the mandatory provisions of the law that would have applied in the absence of such a choice.

L.C.J. van Apeldoorn on Erkenning van internationale rechtspersonen in het Nederlandse privaatrecht (in English, Recognition of International Legal Persons in Dutch Private Law)

This article examines the grounds for the recognition of the legal personality of international legal persons in Dutch private law, focusing in particular on foreign states and international organizations. Based on an analysis of the decision of the Dutch Hoge Raad (Supreme Court) in UNRRA/Daan, it is argued that the legal personality of international organizations is recognised by means of the (analogous) application of a rule, codified in Article 10:119 of the Dutch Civil Code, according to which the legal personality of a corporation depends on its personal law. When considering the personal law of international organisations, which is public international law including the terms of the founding treaty, decisive is not whether the organisation is an international legal person, but whether it is granted, on the basis of public international law, legal personality in the legal orders of its member states. The rule governing the recognition of the legal personality of international organisations is not applicable to foreign states because public international law does not imply or require that states are afforded legal personality in municipal law. Rather, it is argued, the legal personality of foreign states is recognised on the basis of an unwritten rule of Dutch private international law, originating in international comity, that attributes legal personality to foreign states. The application of this rule coincides in practice with the application of another rule also originating in comity, requiring as a matter of public international law that foreign states are granted standing to be party to legal proceedings before municipal courts.

C. Okoli on An analysis of the Nigerian Court of Appeal’s decisions on Foreign Choice of Court Agreements in the year 2020

In Nigeria valid commercial contracts between parties are treated as sacrosanct and binding by Nigerian courts. It is however uncertain (unlike in the European Union) whether a valid foreign choice of court agreement, which is a term of the parties’ contract, will be enforced by Nigerian courts. In this connection, the decisions of Nigerian courts are not consistent. Nigerian courts have applied three approaches to the enforcement of foreign choice of court agreements – ouster clauses, the Brandon test, and the contractual approach. This article analyses the approach of Nigerian appellate courts to the enforcement of foreign choice of court agreements in light of three Court of Appeal decisions delivered in the year 2020.

Stuij on Iura novit curia en buitenlands recht. Een rechtsvergelijkend en Europees perspectief (in English Iura Novit Curia and Foreign Law. A Comparative and European Law Perspective) – PhD dissertation Erasmus University Rotterdam

The thesis was defended on 29 April 2021. The analysis is centred around the Latin legal maxim iura novit curia in relation to the application of foreign law in civil proceedings. The thesis is a result of a comparative research into Dutch, German, and English law, as well as European law. The European dimension focuses on the influence of the ECHR – in particular Article 6 – and Article 47 of the EU Charter of Fundamental Rights, as well as the influence that the EU law can have on national procedural law. The author analyses, evaluates and recommends several approaches to the problem of foreign law in civil litigation. From a supranational perspective, he concludes that parties should have the option to waive the applicability of foreign law, unless compelling interests are at stake. He also discusses the conditions under which the judges are authorized to require the parties to cooperate. Within this framework a proposal is made not to establishing a general duty to apply conflict of laws and foreign law ex officio at supra- or international level. If the application of the law has to be strengthened, the emphasis must be placed on knowledge of foreign law (novit). This means that strengthening access to foreign law should be prioritised, and preferably through an instrument that combines different ways of providing information, so as to be sufficiently effective. In this context attention can be given to the different phases of research into the content of foreign law and to the various actors that play a role in this.

More information about this NIPR issue can be found here.

This post was contributed by Fabienne Jault-Seseke, who is Professor at University Paris Saclay (UVSQ), and a member of GEDIP.

Decisions of the French Supreme Court on civil and criminal matters (Cour de cassation) on res judicata regarding foreign decisions are rare. The judgment in which, on 8 September 2021, its social Division (Chambre sociale) questions the Court of Justice of the European Union (ECJ) is all the more remarkable.

Background

In this case, the plaintiff, who had been hired by French bank BNP to work in the London branch under a contract subject to English law, was posted in Singapore, and had entered into a contract subject to French law for that purpose. He was then posted to London and dismissed for misconduct during his secondment to Singapore.

The employee brought an action before the Employment Tribunal in London. The English tribunal found that the procedure followed by the employer was, under English law, unfair and ordered BNP to pay the sum of £81,175. BNP did not challenge the decision. Almost a year later, the employee brought various claims before the Conseil de prud’hommes (the court of first instance in matter of labour law) in Paris relating to the termination of his employment contract. The French court declared the claims relating to his dismissal inadmissible, because of the res judicata effect of the English judgment.

On appeal, the judgment was overturned: the Court of Appeal followed the employee’s argument, considering that the res judicata effect of the English decision relates only to the unfairness of the dismissal and that the various claims for compensation had not been examined by the English tribunal. BNP appealed to the Court of Cassation: in its view, the res judicata effect of the English decision prevents the French judge from hearing the claims relating to the dismissal of the person concerned.

Reference

Interesting questions were put to the Cour of Cassation, which took the opportunity to make a reference for a preliminary ruling to the ECJ.

As a starting point, the Cour de cassation asserted that that recognition in general and res judicata in particular are autonomous European concepts, citing ECJ, 15 November 2012, C-456/11, Gothaer Allgemeine Versicherung AG in support for that proposition. But the court then noted that a foreign judgment which has been recognised under Article 33 of Regulation No 44/2001 must in principle have the same effects in the State in which recognition is sought as it does in the State of origin (ECJ 4 February 1988, Hoffmann, C-145/86).

After a long analysis, the Cour de cassation asked the following questions (see below for French version).

Firstly, do Articles 33 and 36 of Regulation No 44/2001 lead to the conclusion that, where the law of the Member State of origin of the decision prevents the same parties from bringing a new action to rule on claims that could have been made in the initial proceedings (this would be the case in English law, pursuant to the Henderson v. Henderson case of 20 July 1843 of the Court of Chancery, which was referred to French courts by BNP), the court of another Member State, whose law provided for a similar obligation of concentration of claims (as is the case in French law, in particular in labour law with Article R. 1452-6 of the Labour Code, which has now been repealed, but which was applicable at the time before the French court) to rule on such claims?

In other words, does the obligation to concentrate claims provided for by the legal system of the State from which the decision emanates prevent the court of another Member State, in which a similar obligation exists, from hearing the action brought between the same parties in order to rule on claims that could have been formulated in the proceedings in the court of origin?

Should the answer be positive, other questions will inevitably arise. What would be the solution if only one of the two legal systems provides such an obligation to concentrate claims? Indeed, as Gilles Cuniberti noted on this blog, “the vast majority of scholars in Europe debate whether res judicata should be governed by the law of the State of origin or the law of the requested State”.

Secondly, and more classically, the Social Chamber questions the Court of Justice on the notions of cause and subject-matter. There are already a number of decisions of the Court of Justice on these issues but they concern lis pendens and not res judicata. It would however be consistent to retain the same requirements to define lis pendens and res judicata. In this case, the question is whether an action for unfair dismissal in the United Kingdom has the same cause of action and the same subject-matter as an action for dismissal without real and serious cause in French law or an action for payment of bonuses or premiums provided for in the employment contract since these actions are based on the same contractual relationship between the parties?  The French Supreme Court wonders whether a distinction should be made between damages for dismissal without real and serious cause, which could have the same cause and the same subject-matter as the compensatory award, and the redundancy and notice payments which, under French law, are due when the dismissal is based on a real and serious cause but are not due in the event of dismissal based on serious misconduct.

The answers that the Court of Justice will give to these questions will not only have consequences on the further integration of the European judicial area, but also on its tolerance toward certain procedural strategies.

—

In the French original, the questions of the Cour de cassation read:

1°/ Les articles 33 et 36 du règlement (CE) n° 44/2001 du Conseil, du 22 décembre 2000, concernant la compétence judiciaire, la reconnaissance et l’exécution des décisions en matière civile et commerciale doivent-ils être interprétés en ce sens que, lorsque la loi de l’État membre d’origine de la décision confère à cette dernière une autorité telle que celle-ci fait obstacle à ce qu’une nouvelle action soit engagée par les mêmes parties afin qu’il soit statué sur les demandes qui auraient pu être formulées dès l’instance initiale, les effets déployés par cette décision dans l’État membre requis s’opposent à ce qu’un juge de ce dernier État, dont la loi applicable ratione temporis prévoyait en droit du travail une obligation similaire de concentration des prétentions statue sur de telles demandes ?

2°/ En cas de réponse négative à cette première question, les articles 33 et 36 du règlement n° 44/2001 du Conseil doivent-ils être interprétés en ce sens qu’une action telle que celle en « unfair dismissal » au Royaume-Uni a la même cause et le même objet qu’une action telle que celle en licenciement sans cause réelle et sérieuse en droit français, de sorte que les demandes faites par le salarié de dommages-intérêts pour licenciement sans cause réelle et sérieuse, d’indemnité compensatrice de préavis et d’indemnité de licenciement devant le juge français, après que le salarié a obtenu au Royaume-Uni une décision déclarant l’ « unfair dismissal » et allouant des indemnités à ce titre (compensatory award), sont irrecevables ? Y a-t-il lieu à cet égard de distinguer entre les dommages-intérêts pour licenciement sans cause réelle et sérieuse qui pourraient avoir la même cause et le même objet que le « compensatory award », et les indemnités de licenciement et de préavis qui, en droit français, sont dues lorsque le licenciement est fondé sur une cause réelle et sérieuse mais ne sont pas dues en cas de licenciement fondé sur une faute grave ?

3°/ De même, les articles 33 et 36 du règlement n° 44/2001 du Conseil doivent-ils être interprétés en ce sens qu’ont la même cause et le même objet une action telle que celle en « unfair dismissal » au Royaume-Uni et une action en paiement de bonus ou de primes prévues au contrat de travail dès lors que ces actions se fondent sur le même rapport contractuel entre les parties ?

The International Law Association will celebrate its 150th anniversary all along the year 2023 through a series of webinars and, hopefully, an event organised by the French branch of the ILA in Paris on 18 – 20 June 2023.

In order to prepare the scientific content of these events, a vast organization of working groups has already been launched, on the five continents, under the coordination of the Foresight Council, in order to feed back the ideas that will be developed during the webinars and during the June event. These working groups are primarily aimed at the younger generation (PhD students, PhDs, young professionals in all branches of international law). Companies, essential actors of the international society, will be full partners, as well as NGOs and public actors.

A series of thematic White Papers will be prepared on 24 themes, including Cities, Civil Status, Cultural Heritage, Dispute Resolution, Migration, Intellectual Property or Oceans, to name only a few.

Regular updates concerning the evolution of the work of the Working Groups and the preparation of the celebration will be given by a Newsletter. The first issue is available here.

The proceedings of the conferences held under the aegis of the French Committee of Private International Law for the period 2018-2020 have recently been published by Pedone.

The volume contains eleven contributions (in French) from experts of private international law, scholars or practitioners, complemented by the exchange of views which took place in the course of each session of the Committee.

• The UN Singapore Convention on the Efficiency of International Settlement Agreements Resulting from Mediation(La Convention de Singapour des Nations-Unies sur l’efficacité des accords en matière de médiation internationale), by Jean-Michel Jacquet

• The Matrimonial Property Regimes Regulation in the Perspective of a EU Private International Law Code (Le règlement Régimes matrimoniaux lu dans la perspective d’un code de droit international privé européen), by Marie-Christine De Lambertye-Autrand

• The Respective Roles of the Court and the Parties in Litigation Involving Foreign Nationals (L’office du juge judiciaire dans le contentieux des étrangers), by Stéphanie Gargoullaud

• The Care Relationship in Private International Law (La relation de soins en droit international privé), by François-Xavier Train

• The Principle of Effectiveness in the Case Law of the Court of Justice in the Field of Private International Law (L’effet utile dans la jurisprudence de la Cour de justice en matière de droit international privé), by Maciej Szpunar

• The Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters: What Can Be Expected? (La Convention de la Haye du 2 juillet 2019 sur la reconnaissance et l’exécution des jugements étrangers en matière civile ou commerciale : que peut-on en attendre ?), by Sandrine Clavel and Fabienne Jault-Seseke

• The Interplay between Duty of Care and Private International Law (Le devoir de vigilance et le droit international privé – Influences croisées), by Valérie Pironon

• Conflicting Standards in Investment Arbitration (Les conflits de normes en arbitrage d’investissement), by Isabelle Michou

• The Objective of Concentration of Litigation in EU Judicial Law (L’objectif de concentration du contentieux en droit judiciaire européen), by Olivera Boskovic

• Monegasque Private International Law (Le droit international privé monégasque), by Géraldine Gazo

• Panel Discussion on the Project of Codification of French Private International Law (Table ronde sur le projet de codification du droit international privé français), with Dominique Foussard, Jean-Pierre Ancel, Jean-Noël Acquaviva and Marie-Laure Niboyet

The table of contents of the book can be accessed here. More information is available here.

The University of Udine, in Italy, will host on 16 and 17 September an on-line conference under the title European Union and Third Countries: Issues on Jurisdiction and Recognition of Foreign Judgments.

Some of the presentations will be in English, others in Italian.

Speakers include Elisabetta Bergamini (University of Udine), Francesco Deana (University of Udine), Martin Gebauer (Eberhard Karls Universität Tübingen), Peter Kindler (LMU Munich), Fabrizio Marongiu Buonaiuti (Univ. of Macerata), Paolo Mengozzi (former Advocate General at the CJEU), Luca Penasa (University of Udine), Marcello Stella (University of Naples “Federico II”), Faidon Varesis (University of Oxford / Ethnikon kai Kapodistriakon Panepistimion Athinon) and Wolfgang Wurmnest (University of Augsburg).

The detailed programme and the registration form are available here.

This post was contributed by Vincent Richard, who practices with Wurth Kinsch Olinger in Luxembourg.

On 9 September 2021, the Court of Justice delivered its judgment in cases C-208/20 and C-256/20 Toplofikatsia Sofia e.a. on applying the Evidence and the Brussels I bis Regulations when the domicile of the defendant is unknown. Confronted once again with the recurring issue of defendants who moved away without leaving an address, the CJEU confirms that EU law is of no help at present.

Facts of the Cases

The district court of Sofia submitted two preliminary rulings in May and June 2020 related to four separate but similar cases dealing with classic debt recovery procedures. The first one is a civil claim aimed at recovering debts from an energy supply contract. The three others are payment order procedures.

In all cases, the court were not able serve the judicial documents to the debtors because they were not residing at the addresses they had previously indicated on the Bulgarian population register. When officers of the court tried to serve the statement of claim or the payment orders, they were informed by neighbours, relatives or building managers that the debtors did not reside at the address any longer and lived in France or Germany.

Under national Bulgarian law, when defendants cannot be found, Bulgarian courts are obliged to conduct further research in population and employer registers. None of these registers allow a Bulgarian citizen to register a specific address abroad. Therefore, the court is unable to reach Bulgarian citizens who have exercised their right to free movement and compel them to appear before it. Moreover, Bulgarian law draws severe consequences from registration in the population register. The defendant is deemed domiciled at the registered address except if the court receives direct evidence that his habitual residence is abroad. Indirect evidence such as information provided by neighbours or relatives is insufficient to establish such a habitual residence. Consequently, the court is competent to issue an order for payment that may become res judicata in the absence of opposition as long as the order is served to any person having the addressee’s registered address.

In doubt regarding the compatibility of these harsh consequences with European law, the district court of Sofia asked several questions to the CJEU.

Seeking the Address of a Defendant is not Taking Evidence

In its first question, the Bulgarian court essentially asks whether it should not be obliged under European law to conduct the same kind of investigation into the debtor’s actual residence as that which it is obliged to conduct if the debtor is domiciled in Bulgaria. The question is surprisingly based not only on the right to freedom of movement (Article 20(2) TFEU) read in conjunction with the right to a fair trial (Article 47 of the Charter), the principle of non-discrimination and the principle of equivalence but also on article 1 of the Evidence Regulation.

Regarding this last instrument, the answer of the court is quite logical. The CJEU declares that seeking the address of a person whom a judicial decision is to be served does not constitute taking evidence within the meaning of Article 1(1)(a) of the Evidence Regulation, which is therefore not applicable to the problem at hand.

However, the CJEU’s answer to the first part of the question is a rather puzzling. The court declares that “it is in no way apparent” from the order for reference that the disputes have any connecting factor with the aforementioned provisions. It declares the first question inadmissible. In other words, for the CJEU, the fact that a procedural rule applies differently to Bulgarian citizens habitually resident in Bulgaria and Bulgarian citizens habitually resident in another Member State, to the detriment of the latter, has no link with the freedom of movement, the right to a fair trial, the principle of non-discrimination or the principle of equivalence. One may admit that the question is not straightforward, but such an answer by the CJEU shows a lack of imagination and cooperation that is somewhat worrying.

The answer is all the more disappointing that it was given only a few months after the publication of the recast of the Service Regulation that will apply from 1 July 2022.  These cases constitute perfect examples of the kind of situation that the new Article 7 of Regulation 2020/1784 aims to address. It will oblige Member States to assist in determining the address of a person to be served with legal documents. The scope of application of the Regulation has been changed accordingly so that article 7 is applicable when the defendant’s address is unknown. In the present cases, article 7 would provide a clearly defined avenue for the Bulgarian court to ask the French and the German authorities about the defendants’ whereabouts.

Brussels I bis and the Concept of Domicile

The other questions of the Bulgarian court concerned Article 5(1) of the Brussels I bis Regulation, and they aimed to question the formalistic approach adopted by Bulgarian law regarding debtor’s domicile in payment order procedures. From the preliminary ruling, it seems that a defendant is deemed to be domiciled in Bulgaria if he is registered there except if there is clear and positive evidence that his habitual residence is situated abroad. This evidence may only be submitted by the claimant because the court may not investigate this point. The Bulgarian court was thus unsure that it might declare itself competent under the Brussels I bis Regulation based on this interpretation of the notion of domicile even though the concept of domicile is governed by national law according to article 62 of the Regulation.

The Court of Justice remains stoic and states that there is no need to answer the question because the Bulgarian court has already issued the payment orders. It had therefore necessarily recognised that it had jurisdiction before issuing them. Regarding the declaration of enforceability or the annulment of the payment orders, the CJEU considers that this also has no connection with Article 5(1) of Regulation 1215/2012, which does not deal with the conditions under which judicial decisions become enforceable. The fact that jurisdiction is only based on prima facie evidence or that the court could probably annul a payment order if it realises that it was not competent to issue it in the first place is never discussed. There is little doubt that the Bulgarian court was expecting a more constructive answer.

On 23 and 24 September 2021, the GLaw Research Network (Maastricht University) will host an “hybrid” workshop on Article 47 of the EU Charter and effective judicial protection: The National Courts’ perspective.

This will be the second part of a broader research on effective judicial protection in the EU legal order. The first part focused on the Court of Justice’s perspective and led to an online workshop last April (reported here). The second workshop will adopt a comparative law approach within the national legal orders of the EU Member States.

The principle of effective judicial protection is one of the cornerstones of the EU legal order. Mentioned by the Court of Justice for the first time in the 1980s, and originally emanating from Articles 6 and 13 ECHR, this principle had a pivotal role in ensuring access to adequate remedies to protect the rights deriving from Union law. Since its inception, this principle was linked also to the protection of the rule of law, one of the founding values of the EU. Effective judicial protection is therefore one of the facets of the EU constitutional identity. Following the entry into force of Lisbon Treaty, this principle has been constitutionalised in Article 19 TEU and Article 47 of the EU Charter of Fundamental Rights, the latter laying down the right to an effective remedy and to a fair trial. Currently, Article 47 of the EU Charter is the most invoked EU Charter provision before national and EU courts.

The workshop will offer a comparative overview of the national case law applying Article 47 Charter and the principle of effective judicial protection. The speakers will collectively evaluate the systemic impact of Article 47, its interplay with other domestic and European provisions guaranteeing effective judicial protection, as well as the level of convergence (or divergence) in the national courts’ approaches.

The papers presented at the workshop will be included in the second volume of the book project ‘Article 47 of the EU Charter and effective judicial protection’ led by Mariolina Eliantonio, Giulia Gentile and Matteo Bonelli, all members of the GLaw-Net Research Network.

The full program is available here and registration is open here.

The Permanent Bureau of the Hague Conference on Private International Law is seeking at least three interns to work on the following Conventions and projects during the first half of 2022:

• the 2000 Protection of Adults Convention and the 2007 Child Support Convention and Protocol
• the 1993 Intercountry Adoption Convention , and the Parentage / Surrogacy Project
• the 1980 Child Abduction Convention, the 1996 Child Protection Convention, the Family Agreements Involving Children Project
• the 1961 Form of Wills Convention and the 1970 Divorce Convention
• the 1961 Apostille Convention
• the Tourists and Visitors (Online Dispute Resolution) Project
• the 1985 Trusts Convention, the 2006 Securities Convention and the Digital Economy (inc. DLT) Project
• the 2005 Choice of Court Convention, the 2019 Judgments Convention, the Jurisdiction Project, the 2015 Choice of Law Principles, the 1965 Service Convention, the 1970 Evidence Convention and the 1980 Access to Justice Convention.

Applications will be accepted until 18:00 hours (CEST) on 24 September 2021.

See here for more details.

On 14 October 2021 an online roundtable will take place devoted to the private international law issues relating to the recognition and enforcement of foreign (mostly US) punitive damages judgments in countries outside of Europe.

The event is organised by the Maastricht University at the initiative of Lotte Meurkens and Cedric Vanleenhove.

An often-heard obstacle [to the recognition of judgments awarding punitive damages] is the public policy-exception. In a number of European countries, for example Italy, Spain and Germany, the supreme courts have rendered decisions on this matter.

Following the decision of the Italian supreme court of 2017, a conference was organised in Milan by the Department of Italian and Supranational Public Law of the University of Milan in 2018. A program of this conference, in which the organizers of this M-EPLI roundtable took part, can be found here. During the conference, the private international law question has been addressed from the perspective of several European countries.

We have decided to broaden this question and look into countries outside of Europe because extensive research into such jurisdictions has not been done yet. In this M-EPLI roundtable we bring together a group of experts who will reflect on the current position of their country (and surrounding countries). The insights gained through this research could be useful for the ongoing debate on the future of punitive damages in Europe.

Speakers include Cedric Vanleenhove (Ghent University / University of Liège), Béligh Elbalti (Osaka University), Wenliang Zhang (Renmin University of China), María Guadalupe Martínez Alles (IE University), Vsevolod Chernyy (Lomonosov Moscow State University) and Lotte Meurkens (Maastricht University).

More information available here.

The Scientific Committee of the European Association of Private International Law has approved the establishment of a Working Group on a future European Regulation on International Property Law.

Aims

The aims of the Working Group will be to exchange information on current legislation and case law in the field of international property law, with a focus on (but not limited to) the EU Member States and to draw up proposals for law reform and codification of international property law both on the level of the EU and on national/international levels.

Composition

The Working Group is chaired by Eva-Maria Kieninger.

It is composed of the following members: Janeen Carruthers (University of Glasgow), Gilles Cuniberti (University of Luxemburg), Morten Fogt (University of Aarhus), Teemu Juutilainen (University of Turku), Eva-Maria Kieninger (University of Wuerzburg), Teun Struycken (University of Utrecht), Jonathan Schenk (University of Antwerpen), Afonso Patrão (University of Coimbra), and Juliana Rodríguez Rodrigo (Madrid)

The Working Group is still considering applications for membership, especially from Eastern European Member States.

Consultative Committee

The Working Group will include a limited number of Members. Other Members interested in following its progress may join the Consultative Committee of the Working Group.

The Working Group wil report and seek comments from the Consultative Committee at least once a year.

Members intersted in joining the Consultative Committee may contact its chair, Gilles Cuniberti (gilles.cuniberti@uni.lu).

First Meeting

The Working Group will hold its first meeting in Wuerzburg in November 2021.

Further Information

Further information on the project can be found on the Working Group’s webpage and sought from its chair, Eva-Maria Kienienger (kieninger@jura.uni-wuerzburg.de).

The third issue of the Journal du droit international for 2021 has just been released. It contains two articles and several case notes relating to private international law issues.

In the first article, Guillaume Feld (Avocat, Paris bar) and Guillaume Sauvaget (Associé, PS Consulting) discusse the concept of “dispute boards” as ADR technique in an international context (Les “dispute boards”: originalité, évaluation et perspectives d’un mode alternatif de règlement des différends singulier). 

The English abstract reads:

Original alternative dispute resolution (ADR) technique, dispute boards (known in French as « comités de règlement des différends ») have been conceived in the construction industry in North America in the 1960s-1970s as an empirical answer to the infrastructure projects’ high propensity to disputes and their negative consequences for all involved parties. Initially designed as a permanent body comprising one or more knowledgeable neutrals set up at the project’s inception in order to assist the parties in avoiding and/or overcoming any disagreements and/or disputes which could arise under or in connection the underlying contract, the popularity of dispute boards has grown significantly over the past two decades well beyond the construction industry. Their dual preventive and curative functions as well as their undeniable efficacy explain to the uniqueness of dispute boards which sets them apart from other ADR techniques. While they are not without inconveniencies and risks, dispute boards offer to their users numerous advantages and opportunities which justify their adoption under major international projects in various industries. The purpose of this article is to present : the concept, genesis and development of dispute boards ; their originality, typology and operation ; their advantages and inconveniencies ; their risks and opportunities ; and their possible future.

In the second article, Charlotte Ankaoua (PhD, University of Versailles-St-Quentin-en-Yvelines) analyses the recent caselaw of the CJUE dealing with the ‘Actio Pauliana’ under Brussels I bis Regulation (L’assimilation de l’action paulienne à une action contractuelle selon la Cour de justice de l’Union européenne).

The English abstract reads:

Through two court rulings, the Court of Justice of the European Union rules that the Paulian action is a legal action of a contractual nature within the meaning of Article 7, §1, of the Brussels I bis Regulation, even though the parties are not bound by a freely accepted commitment. The latter thus enshrines the extension of contractual matters undertaken in recent years and which makes the « cause of action » the main criterion of this autonomous concept. While these rulings seem to clarify the Paulian action, a «chameleon » action, the article tends to show that, on the contrary, they can distort it, in particular by undermining the principle of the relative effect of contracts which characterises it.

A full table of contents can be downloaded here.

Ilaria Pretelli (Swiss Institute of Comparative Law; University of Urbino) has posted Three Patterns, One Law – Plea for a Reinterpretation of the Hague Child Abduction Convention to Protect Children from Exposure to Sexism, Mysogyny and Violence against Women on SSRN.

The abstract reads:

The 1980 Hague Convention must be read today in light of the 2011 Istanbul Convention that brings to full light that violence against women is a world-wide phenomenon, and “one of the most serious forms of gender-based violations of human rights in Europe that is still shrouded in silence”. The perspective proposed by this paper allows to break the silence and solve the conundrum of the dilemma on how the return mechanism should operate in practice, in order to ensure full compliance with the best interests of the child. Sexism, misogyny and violence against women may be the premise of child abductions carried out by taking fathers, permeated with a sexist culture, but also by taking mothers fleeing violence. The solution proposed here consists in re-establishing the original distinction of the 1980 Convention, between illicit transfers of a child’s residence and child abductions in the true sense.

In June 2021, the Committee on Legal Affairs of the European Parliament issued a Draft Report with recommendations to the Commission on Responsible private funding of litigation.

The Report was accompanied by a Study on Responsible private funding of litigation of the European Added Value Unit (authors: Jérôme Saulnier with Ivona Koronthalyova and Klaus Müller) of the European Parliament, issued in February 2021. Such studies are mandatory for proposals made by the European Parliament under Art. 225 TFEU.

The opinion of the Parliament is that, while Directive (EU) 2020/1828 on representative actions for the protection of the collective interests of consumers identifies certain safeguards relating to litigation funding, they are limited to representative actions on behalf of consumers taken under that Directive, and therefore exclude many other types of action or categories of claimants. The Parliament proposes to establish effective safeguards to all types of claims.

Regulatory Scheme

The Parliament proposes first to regulate the activities of litigation funders within the EU by establishing an authorisation system by supervisory autorities. Individual Member States could decide that funding litigation would be prohibited for proceedings in their Member State, or “for the benefit of claimants or intended beneficiaries resident within their Member State”.

Funders should conduct business from a registered office in a Member State, from which they would have to seek the authorisation.

Funding agreements entered into by unauthorised funders would be invalid.

Rules Governing Third Party Funding Agreements

The Parliament then proposes to adopt rules governing the content of third party agreements and disclosure obligations.

In particular, the following mandatory rules would apply:

• Any clause in third party funding agreements granting a litigation funder the power to take or influence decisions in relation to proceedings would have no legal effect.
• Agreements in which a litigation funder is guaranteed to receive a minimum return on its investment before a claimant or intended beneficiary can receive their share, would have no legal effect.
• Absent exceptional circumstances, where a litigation funding agreement would entitle a litigation funder to a share of any award that would dilute the share available to the claimant and the intended beneficiaries to 60% or below of the total award (including all damages amounts, costs, fees and others expenses), such an agreement should have no legal effect.
• Provisions that purport to limit a litigation funder’s liability for costs should have no legal effect.

Applicable Law

While the proposed directive does not include express choice of law rules, it provides that funders would commit to submit funding agreements to the law of the Member State of the intended proceedings “or , if different, of the Member State of the claimant or intended beneficiaries”.

Article 5(1) of the proposed Directive reads:

Member States shall ensure that supervisory authorities only grant or maintain authorisations, whether for domestic or cross-border litigation or other proceedings, to litigation funders who comply with the provisions of this Directive, and who meet, in addition to any suitability or other criteria as may be set out in national law, at least the following criteria: 

(b) they commit to concluding third-party funding agreements subject to the laws of
the Member State of any intended proceedings, or, if different, of the Member
State of the claimant or intended beneficiaries;

So, it seems that the law of the claimant (or intended beneficiaries) should always apply. Since the competence to allow the activity is attributed to the State where the claimant would be resident (see above), it seems that the intent of the drafters of Art. 5(1)(b) was to designate the law of the residence of the claimant (or intended beneficiaries).

The obvious problem with this rule is that there could be several claimant, and that the text expressly contemplates the possibility that there would be intended beneficiaries, who could also have their residence in a different State.

Another problem is that the rule seems to exclude claimants based outside of the EU (would at least a branch in the EU suffice?).

Finally, it would quite remarkable that a Member State prohibits third party funding, but then would have to accept it for claimant based in more permissive States, under the law of those other States.

Overall assessment on choice of law: peut mieux faire.