EAPIL blog

The author of this post is Ségolène Normand, Postgraduate Student in Private Law at the University of Valenciennes.

Digital technology has been investing all areas of society and its potential seems unlimited. At the global level, public institutions are progressively transforming in favour of eGovernment which involves rethinking both organisation and process, so that public services can be delivered online, quickly and at a lower cost for individuals and businesses (see for instance here). States are also investing massively in the digitisation of their justice system and national courts have to adapt to this new paradigm, irrespective of the type of disputes – domestic or cross-border – they are dealing with. Digitalisation has no borders.

Against this backdrop, the use of new technologies can facilitate the resolution of cross-border disputes, as it helps justice being faster, more accessible and efficient. The distance between courts and litigants may be removed by online hearings and proceedings. Digitalisation also makes cross-border judicial cooperation easier, in particular through the dematerialisation of circulation of procedural documents between courts, legal professionals and litigants. This trend has recently been illustrated by the recast of the Taking of evidence and Service Regulations (announced here) within the European Union (“EU”) and is one of the axioms of the modernisation of the European judicial area in civil matters (see here).

A seminar on Digital technology in family matters organised by the Academy of European Law (ERA) on 27 January 2021 gives me the opportunity to focus on digital justice in cross-border dispute resolution. What are the main tendencies of digital justice for international families worldwide? Does digitalisation lead to different ways and results in the legal and judicial treatment of family matters, as in other fields of private law?

On the one hand, digitalisation can contribute to promoting family mobility and ease dispute resolution. For instance, the translation of judgements by artificial intelligence (AI) may simplify the recognition of families’ documents in the receiving States. On the other hand, family legal issues often involve vulnerable parties and, therefore, deserve a specific attention within the process of digitalisation of justice.

This ERA seminar gave interesting insights on digitalisation of family justice, that I propose to share with the readers of the blog. The seminar brought together practitioners (professors, judges, lawyers, mediators…) from different jurisdictions, in order to present their national, as well as international experiences on digitalisation of family justice (1), the use of e-Codex in European cross-border procedures (2) and finally on legal tech and AI in family matters (3). The report is limited to some aspects of their contributions, with a private international law perspective.

1. Digitalisation of Family Justice

Several speakers presented various national digital progress in family law.

First, Annette Kronborg (Southern University of Denmark) screened the “mandatory digital application” and the “recovery of maintenance obligation” in Denmark. Unlike other Members States, Denmark introduced early the digitalisation in the family justice system. In fact, the first policy paper on digitalisation was introduced in 2001. The establishment in 2014 of a “mandatory digital application” introduced a digital communication between citizens and public authorities through a software application. And since 2015, a new digital authority has been centralising maintenance debts. But, according to the speaker, it must be reformed to be more efficient.

Second, Bregje Dijksterhuis (Molengraaff Institute for Private Law) explained the online divorce proceeding in the Netherlands. Thanks to “Rechtwijzer”, spouses can divorce online. It is up to them to decide what type of measures for their divorce they want. The project is a success for the user; nevertheless, lawyers criticise the lack of information on spouse’s rights.

Third, Yuko Nishitani (Kyoto University) presented the project of online marriages and divorces in Japan. Indeed, since the pandemic, Japan’s authorities plans to digitalise marriage and divorce as well as replace traditional administrative (paper) documents. Moreover, Japanese authorities envisage a legislative reform following the Resolution of European Parliament of 8 July 2020 on the international and domestic parental abduction of EU children in Japan. Since there is no possibility under Japanese law to obtain shared or joint custody, there is a significant number of unsolved parental child abduction cases where one of the parents is an EU national and the other is a Japanese national.

2. E-CODEX and Cross-border Proceedings

Joanna Guttzeit (Judge at the District Court Berlin & Liaison Judge of the International Hague Network of Judges and the EJN in Civil and Commercial Matters) focused on cross-border family procedures and online hearings.

In the EU, the general statutory duty to hear in-person the participants to the proceeding (especially children) for family courts can lead to the refusal of recognition for judgements in the field of parental responsibility in case of online hearings. This results from Article 23 of the Brussels II bis Regulation. Traditionally, families travelled to the courts to be heard. But with the advent of new technologies, family courts could proceed to online hearings if a family member is unable to travel. However, some EU Member States might refuse to recognise the judgment in such circumstances.

The pandemic speeds up online-hearing in many European countries, such as Spain, Poland and Germany. However, online hearing should be exceptional and never become the “normal rule”, in particular within proceedings implying children. The procedures have to guarantee the welfare of children. Some States, like Germany, are really strict on this point. This is the reason why the EU Members States should harmonise their procedures by following European guidelines.

Then, Cristina Gonzàlez Beilfuss (University of Barcelona) discussed digitalisation of cross-border judicial procedures.

Undeniably, the pandemic shows that digital development in Europe could be a real opportunity to improve cross-border judicial cooperation. This is why the European Commission promotes national reforms in the field. The use of new technologies is, according to the Commission, the more efficient way to encourage exchanges between competent authorities in the area of mutual legal assistance. A vast majority of participants during the seminar, thought this communication should be predominantly digital in the future, while a minority thought it should be exclusively digital.

Actually, the main issue is the assessment of the legal effect or admissibility of the electronically determined document and the applicable law. It should be governed by the law of the requesting State. Pr. Gonzàlez Beilfuss proposed to harmonise the diffusion methods of electronic documents between the courts of the EU Member States to have a more predicable cross-border proceeding for international families. Regarding the legal effect, it cannot be denied on the sole ground that it is an electronic means of obtaining a judgment.

To conclude this session, Xavier Thoreau (Council of the European Union) presented e-CODEX and the new EU initiatives for the digitalisation of justice systems (here and here).

E-CODEX is a project established by the European Commission, in order to facilitate secure exchanges of data between legal professionals and litigants in different EU Member States. It consists of a package of software components that enable the connectivity between national systems. In cross-border proceeding, e-CODEX allows to establish a bridge between national systems. For the Commission, e-CODEX is the reference for secure digital communication in cross-border legal proceedings.

More than half of the participants rarely or never received in the context of their legal practice requests in electronic format by e-CODEX. According to Xavier Thoreau, this is problematic and shows that EU ambition to use the e-CODEX system to support national digitalisation of cross-border as well as domestic justice may take a long time. This is also supported by the fact that the EU has only a “subsidiary jurisdiction” in domestic family procedure.

3. Legal Tech and Artificial Intelligence in Family Matters

Markus Hartung and Ulrike Meising (lawyers) presented with Alan Larking (Family Law Patners, Brighton) the potential of AI and legal tech in the lawyer’s work.

AI and legal tech are great tools to help lawyers. From now on, they have an unlimited access to the law. In particular, they have an easier access to the law of other Member States, which is useful in the presence of foreign components in legal disputes. Increasingly, online applications with algorithms rank the dispute resolution models. For example, some law firm websites provide clients with a form to fill in online and an algorithm proposes a legal solution. Digital cross-border dispute resolution is possible since online applications are capable to adapt to each family model. However, a lawyer should always control the solution introduced by the algorithm.

Finally, Bérénice Lemoine (Council of the European Union) concluded with some thoughts on legal tech in family matters. Yet, the development of digitalisation of family justice in Europe is still far from uniform. For instance, only 24% of EU Member States integrate the issuance of “multilingual standard forms” of the Regulation on Public Documents, whereas in 54% of Member States, the possibility does not exist. Indeed, European citizens are not required to provide an official translation of family documents. They can ask the authorities of the EU country that issued their document to provide a “multilingual standard form” to facilitate its recognition in the receiving State. In the same vein, in 15% of Members States, official court documents cannot be served electronically on citizens and businesses. And for a third of them, evidence submitted in digital format is not deemed admissible. According to Bérénice Lemoine, it is not only necessary to encourage Member States to use already available legal tech and quickly develop them, but also to start the digital Justice transformation in those States which are less advanced, with the aim of having a more efficient resolution cross-border family procedure. For that, the EU offers a financial support (see Tool 1 of COM/2020/710 final).

 

 

The post below was written by Andrew Dickinson, Fellow of St Catherine’s College and Professor of Law, University of Oxford. It is the the first contribution to an on-line symposium devoted to the fate of the 1968 Brussels Convention: further contributions will be published on this blog in the coming days.

The symposium follows a lively exchange prompted by a post by Matthias Lehmann (Brexit and the Brussels Convention: It’s All Over Now, Baby Blue?), which attracted comments by Eduardo Álvarez-Armas, Apostolos Anthimos, Gilles Cuniberti, Burkhard Hess, Costanza Honorati, Alex Layton, François Mailhé and Fabrizio Marongiu Buonaiuti.

Readers are encouraged to share their comments to the contributions. Those wishing to submit a full contribution to the on-line symposium are invited to get in touch with Pietro Franzina at pietro.franzina@unicatt.it.

In recent months, rumours have circulated in social media and the blogosphere that the Brussels Convention (*see below) is to launch a “Brexit revival tour” in the courts of its Contracting States. This appears, in part at least, to be an exercise in wishful thinking by supporters of closer judicial cooperation in civil and commercial matters between the EU’s Member States on the one hand and their former partner, the UK, on the other.

More recently, the permanent representative of the UK Government, the operator of the UK venues, has written to the Secretary-General of the EU Council to deny their involvement in any revival. Although other members have hitherto remained silent, their longstanding representative, the European Commission, has already expressed its own opinion that there is no role for the Convention in the post-Brexit landscape. In its view, “EU rules on enforcement will not apply to judicial decisions where the original proceedings have been instituted after the end of the [Brexit] transition period”. In the preceding paragraph of its statement, the Commission makes clear that its reference to “EU rules on enforcement” includes the 1968 Brussels Convention, and that the Withdrawal Agreement concluded between the EU and UK should be read in that light.

This appears an opportune moment, as a longstanding afficionado of the Convention, to express my own view: that a comeback tour would as undesirable as it is improbable. Before summarising my reasons for reaching that conclusion, two important points are worth clarifying.

First, despite speculation to the contrary, the Convention has not been “terminated”. As Recital (23) and Article 68 of the Brussels I Regulation make clear, the Convention still applies to the territories of the Member States that fall within Convention’s territorial scope while being excluded from the Regulation by Article 299 of the EC Treaty (now TFEU, Article 355 – see Recital (9) and Article 68 of the Recast Brussels I Regulation. Performances have continued, for example, in Aruba and New Caledonia.

The question which presents itself, therefore, is whether the arrangements put in place by the Convention no longer (from 1 January 2021) apply to relations between the UK, on the one hand, and the other Contracting States or whether the Convention applies with renewed vigour to those relationships now that the EU treaties and the Brussels Regulations no longer apply to the UK. That is a question of modification or suspension, not of termination.

Secondly, although Convention is a treaty, it is not one that is removed from the EU’s legal system: instead, it exists as a satellite and, like a moon orbiting a planet, is subject to the gravitational pull of EU law. Although formally concluded outside the framework of the original EEC/EC Treaty, the Convention is inexorably linked to that Treaty (and the treaties that replaced it):

• through Article 293 (ex-Article 220) of the EC Treaty (which inspired and justified the Convention);
• through its role in strengthening the legal protection of persons in the context of the common, later internal, market: as the Commission stated when it proposed the formation of the Convention between the EEC’s original members, “a true internal market between the six States will be achieved only if adequate legal protection can be secured” (Jenard Report, [1]);
• through the role of the European Court Justice in interpreting its provisions under the 1971 Protocol: from the outset, the ECJ has treated the Brussels Convention as an instrument within the province of EC law and not merely as a standalone international treaty falling to be interpreted according to the rules and principles of public international law: see eg Mund & Fester v Hatrex International Transport, [11]-[12].

If interpretation of the Brussels Convention does fall within the province of EU law, there is no need to treat questions concerning its modification or suspension differently. Indeed, as the question of the Brussels Convention’s status depends upon the interpretation and effect of the EU treaties and of the Brussels Regulations (see below), it is not difficult to see the matter as having its centre of gravity in European Union’s own (autonomous) legal order rather than in public international law (see Wightman v Secretary of State for Exiting the European Union, [44]-[46]). Principles of customary international law, and of the Vienna Conventions insofar as they describe or establish those principles, accordingly, take on a subsidiary role as part of the set of general principles of EU law (Wightman, [70]-[71]).

With these points in mind, let me identify briefly the main reasons for opposing the renewed application of the Brussels Convention to govern jurisdiction and the recognition and enforcement of judgments in matters involving the UK and the other Contracting States from 1 January 2021 onwards:

1. As a matter of first impression, the argument in favour of the “Brexit revival tour” is not a promising one. It involves two linked propositions: (i) the Brussels Convention automatically springs back to occupy the legal domain formerly controlled by the Brussels Regulations, which themselves no longer apply to the UK following the UK’s withdrawal from the EU resulting in the cessation of the EU treaties (TEU, Article 50(3)); and (ii) it does so because the Brussels I Regulation (and Recast Brussels I Regulation) merely suspended the Convention’s operation as between the (then) Member States (subjection to the exceptions expressly set out) for the period in which the Regulations remained in force.
2. The first proposition seems counterintuitive: a convention expressly contemplated by the EC Treaty, concluded to achieve close co-operation in the field of civil justice between Member States and to facilitate the functioning of the common (internal) market supposedly acquires new vigour when one of the participating Member States chooses to remove itself from the EU on terms that bring an end to its participation in the internal market and that make no provision for continued co-operation in civil justice matters.
3. Although the Brussels Convention was, admittedly, concluded for an unlimited period (Article 67), this was done at a time when the EC Treaty did not (at least expressly) contemplate that a Member State might withdraw from the Community. As its Preamble emphasises, the parties to the Convention acted in their capacity as parties to the EC Treaty.
4. The Preamble to the 1978 Convention of the Accession of the UK, alongside Denmark and Ireland, to the Brussels Convention records that the three States had “in becoming members of the Community” undertaken to accede to the Brussels Convention (see Article 3(2) of the Accession Treaty). Article 39 of the 1978 Convention refers to the UK as a “new Member State”. This highlights the awkward nature of the proposition that the Convention should spring back on the occasion of the UK becoming a former Member State.
5. As to the second proposition, the Brussels I Regulation was also adopted at a time when the EC Treaty (amended by the Treaty of Amsterdam) did not (at least expressly) contemplate that a Member State might withdraw. Its recitals refer to the progressive establishment of the area of freedom, security and justice to facilitate the internal market (Recital (1)), to the work done within the EU’s institutions to revise the Brussels Convention (Recital (5)), to the need to replace the Convention with a Community legal instrument (Recital (6)) and to the desire to ensure continuity between the Convention and the Regulation (Recital (19)). These matters, as well as the explicit reservation of the Convention’s application to overseas territories to which the Regulation did not apply (Recital (23)), point overwhelmingly to a movement in one direction only, with the Regulation permanently overriding the Convention within the Regulation’s sphere of operation.
6. Although the language of Article 68 of the Brussels I Regulation (in the English language version: “supercede”, “replaces”; in the French, “remplace”; in the German, “tritt … an die Stelle”, “ersetzt”) is not unambiguous, a contextual and teleological interpretation of this provision strongly favours the conclusion that the intention of the EU and of its Member States was that the Regulation would permanently replace the Convention in relations between the Member States (rather than suspending its operation for the period in which the Regulation remained in force).
7. Admittedly, if one reaches that conclusion, it rather begs the question why (if Article 68 of the Regulation adopted in 2000 had overridden the Convention once and for all), the legislator considered it necessary to carry that provision forward into Article 68 of the Recast Brussels I Regulation. This can, however, be explained as a sensible measure to account for the relationship of the three instruments and the need for continuity from the original Convention, via the original Regulation to the recast Regulation (see Recitals (7)-(9) and (34) of the recast Regulation). (In any event, for reasons of legal certainty, the relationship between the Convention and the original Brussels I Regulation should be determined without reference to the later, recast Regulation.)
8. Understandably, the thirteen Member States who joined the EU after the enactment of the Brussels I Regulation were not required in their accession treaties to join the Brussels Convention. A reading of Article 68 of the Regulation that merely suspended the Convention in relations between the UK and the other Contracting States would produce an arbitrary and unsatisfactory schism between “old” and “new” Member States. It would also undermine the exclusive external competence of the EC/EU in this field generated by the adoption of the Regulation.
9. Although its supporters still rightly endorse its virtues, the Brussels Convention is, uncontroversially, “old technology”. Recital (5) of the original Brussels I Regulation accepted the need to update it, and the EU’s approach to questions of jurisdiction and the recognition and enforcement of judgments evolved further with the recast Regulation.
10. At a time when parties to the Lugano Convention are pressing for an update to bring it into line with the recast Regulation and a review of the Regulation lies in the not too distant future, it offends common sense to suggest that the EU’s acquis should be interpreted in a way that produces the result that fourteen of the EU’s Member States and its one former Member State are required to re-establish close (but outdated) treaty relations in the field of civil justice, while the others must deal with the UK on the basis of national law rules alone.
11. The UK and the Commission are right to reject the revival of the Brussels Convention. It is best for all of us that we live with our warm memories of its back catalogue, and use them to press for closer civil justice cooperation in the future between the legal systems of the UK and the EU. The 2007 Lugano Convention is the right place to start.

 

(*) The Brussels Convention (or to use the full title Convention on jurisdiction and the enforcement of judgments in civil and commercial matters), initially formed in 1968, and reformed on a number of occasions since (most recently in 1998, has 15 members (“Contracting States”) being the first fifteen Member States of the European Communities. Member States joining the European Union after 1998 (13 in total) are not members of the Convention.

As announced earlier on this blog, the Private International Law Interest Group of the Italian Society of International Law and EU Law organises a series of webinar titled Private International Law in Europe: Current Developments in Jurisprudence.

The webinar scheduled to take place on 19 February 2021 on State Immunity and Jurisdiction in Civil and Commercial Matters in Recent Court of Justice Rulings, with Alexander Layton and Lorenzo Schiano di Pepe has been rescheduled. It will take place on 1 March 2021, 4 to 6 PM (CET).

To attend the webinar, please write an e-mail to sidigdipp@gmail.com.

The first 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. Both articles deal with the topical issue of corporate social responsibility.

In the first article, Bernard Teyssié (University of Paris II – Panthéon-Assas) discusses the legal scope of the OECD Guidelines for multinational enterprises (“Les principes directeurs de l’OCDE à l’intention des entreprises multinationales”)

The English abstract reads:

The OECD Guidelines for multinational enterprises carry rules of conduct which, on a literal reading, are not binding. The recommendations made are designed to identify, prevent, exclude or, at least, mitigate the negative impacts generated by the activity of multinational enterprises or their suppliers and subcontractors in the social and corporate social responsability area. However, the reach of these recommandations is increased by the obligation imposed on any State, which has acceded to the Guidelines, to establish a national Point of contact to deal with complaints alleging a breach of the laid down Principles. The role of these Points of contact in fact confers a binding effect upon the enacted rules, contrary to what it is officially declared.

In the second article, Catherine Kessedjian (University of Paris II – Panthéon-Assas) analyses the Hague Rules on Business and Human Rights Arbitration drawn up under the auspices of the Center for International Legal Cooperation (CILC) (“The Hague Rules on Business and Human Rights Arbitration ou comment l’arbitrage et la médiation peuvent renforcer le respect des droits de l’homme par les entreprises“).

The English abstract reads:

Many recognize that access to justice is the Achilles’ heel of corporate respect for human rights. This is why, at the end of 2019, a group of jurists from various backgrounds proposed a set of arbitration rules specific to this area, which mixes public and private interests. The exercise was not easy. The purpose of the article that follows is to evaluate these rules in the light of the particularities of the subject matter and the concrete findings that have been made thanks to the procedures conducted before national courts in a few countries, some of which are still ongoing. Certain points are identified that could justify amendments to the rules when and if a revision is initiated. 

A full table of contents can be downloaded here.

Paul Lorenz Eichmüller (University of Vienna) has kindly provided the following post.

Austria is one of the few European countries that still retains the institution of fault divorce, which means that a court will have to examine the grounds for a separation. With an increasing number of States abolishing this type of divorce (England and Wales being one of the most recent examples), conflicts problems may arise due to the incompatibility between the different systems. This is well illustrated by a recent decision of the Austrian Supreme Court from 10 December 2020.

Facts

The parties of the underlying case were both Austrian citizens who got married in Austria and later moved to Belgium for professional reasons. Subsequently, they got divorced there under Belgian law in accordance with Article 8(a) of the Rome III Regulation. Belgium had abolished fault divorce in 2007. Thus, no statement on fault for the divorce was issued in the judgment.

After the divorce, the former wife moved back to Austria and brought an action for a supplementary pronouncement of fault in Austrian courts to improve her situation in subsequent maintenance proceedings under Austrian law. The former husband had in the meanwhile relocated to Guinea.

The Decision by the Austrian Supreme Court

After the court of first did not discuss the applicable law at all and the court of second instance ruled that pursuant to Article 8(c) of the Rome III Regulation, Austrian law was applicable to the issue of determining fault in a marriage, the Supreme Court of Austria decided that Austrian law was indeed applicable. According to the Supreme Court, the supplementary pronouncement of fault serves primarily for the purposes of maintenance, as it determines the amount of maintenance that a divorced spouse receives. As such, it is a preliminary question for the maintenance claim and hence governed by the maintenance statute, rather than the divorce statute. This would also be in line with the Rome III Regulation, which excludes matters of maintenance from its sphere of application in Article 1(2)(g). The Hague Protocol on the Law Applicable to Maintenance Obligations, which determines the maintenance statute in Austria (Article 15 of the Maintenance Regulation), stipulates in Article 3 that the applicable law is the law at the habitual residence of the creditor, which in this case was Austria. However, in order to give the former husband the opportunity to argue for the possible application of a law with a closer connection according to Article 5 of the Hague Protocol, the court referred the dispute back to the court of first instance.

Assessment

The decision of the Supreme Court is overall not very convincing, leaving many open questions that have not been dealt with in the reasoning of the judgment.

First of all, the decision is insofar remarkable as it unnecessarily brought confusion to an issue that had previously been settled in well-established case law. Given the unclear qualification of fault in a divorce in private international law, a referral of the case to the ECJ for a preliminary ruling would have thus been preferrable, as the scope of application of the Rome III and Maintenance Regulations is concerned. The previous rulings of the Austrian Supreme Court had always determined the supplementary pronouncement of fault according to the divorce statute (RS0077266; approving also in literature: Nademleinsky, EF-Z 2019, p. 139).

Apart from this procedural issue, the Supreme Court surprisingly broke with precedent (1 Ob 340/58) stating that it is not a preliminary question for the award of maintenance whether there was fault, but rather a mere question of fact, whether the divorce judgment contains a pronouncement of fault. That approach is also followed in literature (Zankl/Mondel in Schwimann/Kodek, ABGB4 § 69 EheG Rz 1). But even if it is classified as a preliminary question in the exception of international cases (as supported by Nademleinsky, EF-Z 2019, p. 139), the law applicable to preliminary questions nevertheless has to be determined separately in accordance with the applicable rules of private international law. Therefore, this would in itself not provide any additional value for the scope of application of the abovementioned regulations or for the applicable law.

Now, what actually is the applicable law determining fault in a divorce? At a first glance, the argumentation of the Supreme Court seems plausible: As the pronouncement of fault after a finalised divorce only serves the purpose of creating a better position for the maintenance creditor, it might be regarded as an issue of the Maintenance Regulation. However, a question is not automatically within the scope of the Maintenance Regulation, solely because its main relevance lies in maintenance law. In a fault divorce, the question who bears fault for the end of the marriage falls without the shadow of a doubt under the divorce statute. Yet, in maintenance proceedings following a no-fault divorce the exact same question would be determined by another statute, just because the law applicable to the divorce under Art 8 Rome III does not know a fault divorce. It is not convincing that the classification should depend on the type of proceedings initiated, as this undermines the aim of the European private international law regulations, namely to uniformly determine the applicable law.

Additionally, the rules of the Hague Protocol are designed in such a way that they protect the creditor by referring to the law at the creditor’s habitual place of residence. This is appropriate given that the creditor has to make a living at that place. However, the question whether there was fault in ending the marriage is not at all connected to the place of the creditor’s habitual residence. It is much more closely connected to the marriage and its dissolution. Thus, it should be determined according to the divorce statute.

Contrary to the Supreme Court’s ruling, Belgian law is thus relevant for fault in divorce in the present case. Does that, however, mean that the former wife necessarily receives a lower maintenance and the husband’s fault cannot be taken into account? Not necessarily. If there is no pronouncement of fault in the divorce judgment, the maintenance is determined according to equity (§ 69(3) EheG) rather than by a fixed percentage, as when there is a pronouncement of fault. Up to the present decision, this was also the case for any foreign judgment from a jurisdiction without fault divorce (RS0114475).

According to some opinions (Zankl/Mondel in Schwimann/Kodek ABGB4 § 69 EheG Rz 18; LGZ Wien 11.6.1984, 44 R 1049/84), the fault of a spouse can then be weighed in this equitable evaluation. Although the Supreme Court seems to disagree with this interpretation – for good reasons if both the divorce and the maintenance proceedings were held under Austrian law – this line of jurisprudence should not be followed in an international context, since a failure to consider fault would lead to a qualitative discrepancy of norms.

If the Supreme Court were to remain adamant in its position that the fault may in principle not be weighed in cases of § 69(3) EheG, the legal norms in the foreign divorce statute and the Austrian maintenance statute would be in qualitative discrepancy to each other, as the latter simply assumes that fault will be pronounced in the divorce judgment if there is any. Based on this assumption, it assigns lower maintenance to divorces where no fault is pronounced. However, this assessment does not have foreign judgments in mind where there is no possibility for a pronouncement of fault according to the divorce statute. While Austrian maintenance law requires the existence of this legal institute, its absence in many jurisdictions results in the connection of this question ending up nowhere. Hence, the incompatibility of the two legal systems has to be remedied by the means of adaptation.

While adaptation can be conducted both on the level of private international law (as Gitschthaler in Gitschthaler, IntFamR Art 11 HUP Rz 2 seems to suggest) and on the level of substantive law, the choice between the two should depend on which one is the less invasive.

As maintenance after divorces without the pronouncement of fault is under Austrian law determined on the basis of equity anyway, the adaptation on a substantive level – by allowing the weighing of fault – is relatively non-invasive compared to applying a different statute altogether. The application of Austrian law on the determination of fault can therefore not be considered the preferred option.

Thus, the Supreme Court should have dismissed the action for a supplementary pronouncement of fault, so that the maintenance court could weigh the fault in its equitable evaluation – if not by default, then at least by the means of adaptation. Also from a point of procedural economy, this would be a desirable outcome, as the additional supplementary proceedings could be avoided.

Irit Mevorach (Professor of International Commercial Law at the University of Nottingham and Co-Director of the University of Nottingham Commercial Law Centre) has wriiten an interesting article on Overlapping International Instruments for Enforcement of Insolvency Judgments: Undermining or Strengthening Universalism?. that has been just published in the European Business Organization Law Review.

The abstract reads as follows:

In recent years modified universalism has emerged as the normative framework for governing international insolvency. Yet, divergences from the norm, specifically regarding the enforcement of insolvency judgments, have also been apparent when the main global instrument for cross-border insolvency has been interpreted too narrowly as not providing the grounds for enforcing judgments emanating from main insolvency proceedings. This drawback cannot be overcome using general private international law instruments as they exclude insolvency from their scope. Thus, a new instrument—a model law on insolvency judgments—has been developed. The article analyses the model law on insolvency judgments against the backdrop of the existing cross-border insolvency regime. Specifically, the article asks whether overlaps and inconsistencies between the international instruments can undermine universalism. The finding is mixed. It is shown that the model law on insolvency judgments does add vigour to the cross-border insolvency system where the requirement to enforce and the way to seek enforcement of insolvency judgments is explicit and clear. The instrument should, therefore, be adopted widely. At the same time, ambiguities concerning refusal grounds based on proper jurisdiction and inconsistencies with the wider regime could undermine the system. Consequently, the article considers different ways of implementing the model law and using it in future cases, with the aim of maximizing its potential, including in view of further developments concerning enterprise groups and choice of law.

On 5 February 2021, the Universities of Amsterdam, Maastricht and Tilburg, in collaboration with the Open University, organized an online seminar on The Netherlands, a forum conveniens for collective redress?

A group of experts in the field addressed both procedural and private international law aspects of collective actions under the Dutch and European frameworks. The first panel of the seminar discussed whether the current private international law instruments need specific rules on collective actions and settlements. Burkhard Hess and Alexia Pato drafted some preliminary statements that sparked interesting discussions. The questions related to standing to sue under the Directive on representative actions (2020/1828), which where discussed in the third panel of the day, will also be published on the EAPIL blog. Finally, a brief account of the whole seminar will be published in the Dutch journal on PIL, NIPR.

 

Panel 1. Statement: The instruments of European private international law (Brussels I, Rome II) are in need of specific rules for collective action and collective settlements. 

AP: The proposed statement for the present panel is that EU instruments on Private International Law need specific rules on collective redress. I believe that this statement is true as far as the Brussels I bis Regulation is concerned.

BH:  First, I would like to thank the organizers of this webinar for the thorough preparation of today’s event. The explanation of the Dutch case law and the small films on the structural issues of jurisdiction, pendency and applicable law are very much appealing. I assume that the audience expects this panel to be a little bit controversial. In this respect, I would like to state that I am less optimistic regarding the enactment of a specific EU instrument on cross-border collective redress. However, we will come back to this issue in the course of our common reflections.

1. AP: Let us start with Article 4 of Regulation Brussels I bis, the general head for international jurisdiction. One might question whether litigation in the defendant’s domicile should be promoted in all cases. In that sense, it is interesting to note that the Directive on representative actions implements the mutual recognition of representative entities’ standing to sue, so that access to courts of other Member States is facilitated. Coupled with the fact that the Directive leaves Private International Law questions to the Regulations already in force, one cannot help but conclude that litigation in the domicile of the defendant should remain the general rule, according to the European legislator. Nevertheless, that forum might not be always accessible, especially where small-value claims are involved. In consumer law cases, for example, consumer associations have tried to use the alternative forum of Article 7(2) of Regulation Brussels I bis, which opens a forum on the market they are active in. This could be a mere strategic move or the evidence that cross-border litigation is uneasy. Either way, I believe that this question should be further examined.

BH: The basic principle of the Brussels I bis Regime is actor sequitur forum rei. It corresponds to the basic idea that a party should primarily defend against the lawsuit brought against her or him at home. There might be a home advantage, especially when a large enterprise is facing a high value lawsuit and the compensation sought may impact on employment. However, as collective redress usually empowers the plaintiff(s), at first sight there is no (compelling) need to further privilege collective redress with regard to jurisdiction. Article 79(2) GDPR is an example where the EU lawmaker enlarged the grounds of jurisdiction in favour of the plaintiffs. However, I have the impression that this provision shall strengthen the extraterritorial application of EU data protection law vis à vis third state defendants.

2. AP: Second, even though the Dutch case law on collective actions involving environmental harms recalls that the mandatory nature of Article 4 of Regulation Brussels I bis must be respected, this idea has been challenged before the English courts. In particular, in Vedanta, the UK Supreme Court seemed to admit that an exception to Article 4 of Regulation Brussels I bis is conceivable, when “the claimant has no genuine intention to seek a remedy against the anchor defendant”. Additionally, cases such as Trafigura and Petrobras pose the question whether party autonomy could supplant the application of Article 4 of Regulation Brussels I bis.

BH: This issue seems to me to be more related to Article 8(1) of Regulation Brussels I bis. This provision was generously interpreted when the CJEU in case C-352/13, CDC, permitted actions against co-defendants to move on. In this case, the plaintiff and the anchor defendant had settled the case even before the lawsuits against the co-defendants had been served. However, the CJEU held that a control of abuse might be possible in the realm of Article 8(1) of Regulation Brussels I bis.

3. AP: In cases such as Milieudefensie v. Shell, the Dutch courts had to assess whether jurisdiction could be asserted over the foreign subsidiary of a Dutch mother company, based on Article 7 of the Dutch Code of Civil Procedure, which corresponds to Article 8(1) of Regulation Brussels I bis at the EU level. This kind of scenario obliges us to determine whether jurisdiction should be exercised when the dispute involves foreign plaintiffs, a foreign co-defendant, a foreign harm, and the application of a foreign law. The tension between access to justice and the private international law principles, according to which jurisdiction is allocated where some relevant connecting factors link the court to the dispute is particularly visible in those kinds of cases. Having a look at the case law of other jurisdictions, such as the US, one observes that the tendency is to restrict the assertion of jurisdiction in foreign-cubed cases. In all cases, a redefinition of our policy objectives (e.g. avoid the risk of irreconcilable judgments, provide access to justice, etc.) might be necessary in order to better frame what the general rule on the attraction of co-defendants and its exception should be.

BH: Objectively, jurisdiction over co-defendants may amount to an exorbitant head of jurisdiction when the relationship between the main defendant and the co-defendant appears to be superficial and loose. However, when it comes to tortious behaviour, the decision-making in the board of a mother company related to the foreign subsidiary may amount to tortious conduct. Yet, these are facts easy to assert but very difficult to prove. In the context of Article 7(2) of Regulation Brussels I bis, the CJEU has been very reluctant with regard to co-perpetrators (cf. case C-228/11, Melzer).

4. AP: As regards the WCAM procedure, asserting international jurisdiction to declare collective settlement agreements binding has been controversial as well. In Shell and Converium, the Amsterdam Court of Appeal considered that the victims located in the Netherlands were the defendants and declared that it had jurisdiction according to Article 4 of Regulation Brussels I bis. Victims domiciled in other EU Member States were included within the collective settlement thanks to Article 8(1) of Regulation Brussels I bis. This means that the presence of one shareholder in the Netherlands allocates jurisdiction to Dutch courts. Of course, this has to be mitigated by the fact that both petitioners freely chose to submit to the jurisdictional power of those courts. However, would that situation be sustainable if all Member States had a WCAM mechanism and hence, the ability to declare EU-wide settlements binding? Put differently, the question is whether Private International Laws rules on jurisdiction should adapt (and if so, how?) or remain unchanged.

BH: The problem related to WCAM relates to the applicability of the Brussels I bis Regulation: Does the “homologation” of an out of court settlement really amount to a dispute litigated in courts? (here, I would like to add that the same concerns relate to schemes of arrangement). Just to put it differently: Are non-contentious proceedings in the material scope of the jurisdictional regime of Brussels I bis? The difficulties start with the determination of the role of the parties: who is the plaintiff, who is the defendant? To my opinion, jurisdiction in these cases should be based on articles 25 or 26 in case one agrees that the Brussels I bis Regulation applies to this constellation.

5. AP: As regards the application of the special and protective fora of Regulation Brussels I bis, it is commonly acknowledged that collective redress actions, which protect a general interest, such as the environment or the market as a whole, may be brought in the place where the damage occurred, as case C-167/00, Henkel, shows. When the collective redress action bundles many individual claims, the centralisation of those claims in a place other than the defendant’s domicile is trickier. As the CJEU ruled in C- 498/16, Schrems, multiple claims cannot be bundled in the forum of one consumer’s habitual residence (section IV of the Regulation Brussels Ibis). Even though such a result is bad news for access to justice, I believe that the current text of the Regulation would not have allowed the CJEU to come up with another solution. The centralisation of claims at the place where the damage occurred is difficult as well, as Article 7(2) of the Regulation Brussels I bis allocates not only international but also territorial jurisdiction, and the place of the damage will hardly ever be exactly the same for all victims. In the case C-709/19, VEB, the AG seems to open the door to the centralisation of claims for victims who are located within the same Member State. He says (I quote) ‘the problems of territorial fragmentation arising from a strict application of Article 7(2) Brussels I bis could be solved by arguments in support of a specialised court in a particular local jurisdiction’. However, I doubt that Article 7(2) of Regulation Brussels I bis actually allows domestic procedural law to modify the venue designated by the Regulation.

BH.: As far as consumer claims are concerned, Articles 16 and 17 of Regulation Brussels I bis only apply to contractual claims – but this may be the case when private shareholders sue the company. In his Opinion on case C-498/16 AG Bobek clearly and correctly stated that the introduction of a new head of jurisdiction for consumer collective claims is a matter for the EU lawmaker, the argument has been taken up by AG Campos Sánchez-Bordona in case C-709/19, VEB.

According to the case law of the CJEU as it stands today, the application of Article 7(2) requires more than a pure pecuniary loss to fix the locus damni. In this regard, the Opinion in case C-709/19, VEB, clearly (and correctly) indicate that neither the location of an investment account, nor the status as consumers of some of the investors establish a sufficient connection with the Netherlands. In the case of a declaratory action, followed by (individual) actions for damages, the place of the damage is difficult to assess when there is no clear indication of the place of the damage in the first phase of the proceedings.

On the other hand, I do not see a problem in setting up a specialised court in a Member State having particular jurisdiction for a specific type of claims. In case C-400/13, Huber and Sander, the CJEU has already decided that the concentration of venue in one court by the MS is not excluded by the specific heads of jurisdiction of the Maintenance Regulation which equally address both: international jurisdiction and venue. A good example could be follow-on actions related to cartel law violations; let’s see what is decided in the pending case C-30/20, Volvo.

6. AP: My last point concerns parallel litigation. The emergence of multiple proceedings in several states may give rise to potential ‘overlaps’ between actions. Those overlaps represent a waste of judicial resources and may generate inconsistent judgments, as well as overcompensation. At the same time, we have to accept that parallel litigation is a by-product of our jurisdictional system, which provides for alternative fora. To some degree, parallel litigation will therefore take place. Within the Brussels regime, the lis pendens rule of Article 29 of the Regulation Brussels Ibis should hardly ever apply in collective redress cases as the formal (or even material) identity of parties in parallel proceedings will usually not be met. As for Article 30 of the Regulation, on related actions, this provision could theoretically apply to parallel proceedings in collective actions. However, potential delays in the resolution of the dispute and possible disparities between the claims will more often than not militate against the stay of proceedings. Both the Steinhoff and Libor cases illustrate the difficulties that parallel ligation generates.

In all cases, a clear-cut rule on stay of proceedings does not seem to be an option, as collective redress mechanisms vary from state to state. As regards the difficulty to determine which court is seised first, one could imagine implementing a communication channel between courts in the manner of Article 29(2) of Regulation Brussels I bis or setting up an EU-wide register of collective redress actions, as the Commission’s Recommendations of 2013 suggest. These proposals are no panacea, but they might nevertheless bring more clarity to this complex legal landscape.

BH: As long as collective actions are based on opt in, the problems of pendency and relatedness are manageable. The moment, a person opts in a collective lawsuit should be the moment of pendency for this person as he or she becomes by registration a party to the (collective) proceedings. I am happy to see that the new Directive on Collective Redress for Consumers is based on the basic idea that in cross-border settings only opt in is possible, see Article 9(3) of Directive (EU) 2020/1828. However, the Directive addresses problems of cross-border litigation rather randomly and Article 3(7) provides for a strange definition of a cross-border representative action, whereby a cross-border situation is present ‘where a qualified entity in another EU Member State brings an action in another EU Member State than that in which the qualified entity was designated.’ This definition is not in line with the concept of the Brussels regime and demonstrates that the Directive primarily provides for the mutual (but limited) recognition of the standing of qualified entities in the courts of other EU Member States. I addressed these issues in my book on Europäisches Zivilprozessrecht (2nd ed., 2021) ch. 11, at paras 11.78 -11.87.

However, the Directive only intends to achieve procedural minimum harmonisation. Consequently, Member States may go further and expand collective redress mechanisms based on opt out also to cross-border settings. In these constellations only Article 30 of Regulation Brussels I bis applies to parallel proceedings. As Alexia has explained, this provision is based on judicial discretion and, therefore, is not suited to effectively coordinate overlapping opt out proceedings pending in several EU Member States. An additional weakness is that this provision only permits the first proceedings to move forward – this might not be an optimal solution in the case of competing, overlapping collective actions.

When it comes to the certification of the class, Article 32 of the Brussels I bis Regulation is difficult to apply. This is well explained in the video of Ianika Tzankova. To my opinion, the decisive moment should be either the filing of the lawsuit or the filing of the application to permit the collective case to proceed. This flexibility corresponds to the aims of Article 32 of Regulation Brussels I bis.

7. AP: To conclude, the application of Private International rules on jurisdiction to collective redress cases is uneasy and forces us to reconsider what kind of policy objectives should be promoted. On the one hand, we could encourage litigation at the defendant’s domicile, which would limit parallel litigation to a certain extent. However, we would probably have to think about creating extra-incentives for representative entities to be able to reach that forum. We would also have to think about potential exceptions to the application of this general rule in light of the case-law involving environmental matters. On the other hand, if a closer forum is to be offered and promoted, access to justice would be fostered, but parallel litigation would probably increase, and more coordination measures would be required. In all cases, recent mass harm situations have stretched the interpretative limits of the Brussels I bis provisions and we have been forced to create extravagant interpretations, so that the system could hold. I believe that now is a good time for a change and I support the enactment of a truly appropriate regulatory regime for cross-border collective redress.

BH: Should the EU lawmaker intervene? To my opinion, this would be a considerable political challenge, as there is currently a clear competition among Member States either to promote their judicial systems to attract collective litigation (as in the Netherlands) or to protect their industries from collective redress (as it is still the case in Germany). Against this background, the chances of a binding EU instrument on the coordination of the different cross-border collective redress instruments in the EU Member States appear to be limited. Member States might strongly oppose to such a zealous project. They already did it when the Recast of the Brussels I Regulation was negotiated.

When enacting Directive 2020/1828, the EU lawmaker intentionally avoided to set a clear framework for the different instruments on collective litigation in the Member States (cf. Article 1(2)). The Directive only requires that Member States provide for an instrument of collective redress corresponding to the main features of the Directive. However, it is worth noting that most of the mandatory provisions of the Directive apply to cross-border settings and require an opting in. Nevertheless, it remains to be seen whether the CJEU will interpret the Regulation Brussels I bis and the Directive in a systematic way. This might finally entail that only opt in instruments will be included into the Brussels regime.

The post below was provided by Catherine Shen, Project Manager at the Asian Business Law Institute.

Readers of the EAPIL blog are well aware that in Europe, harmonisation in the field of private international law has been enormously successful with efforts encompassing both the civil and commercial, as well as family, spheres. In relation to foreign judgments in civil and commercial matters, the Brussels I bis Regulation is a double convention comprising of rules on both jurisdiction and foreign judgments. Apart from harmonising the rules under which a court in one European Union (“EU”) Member State would assume jurisdiction, it enables the free circulation of judgments from one EU Member State within the EU.

In Asia, however, harmonisation efforts in this field have been relatively lacking. That was until recently. The Asian Business Law Institute (“ABLI”), set up in 2016 with the aim of promoting the convergence of business laws in Asia, identified among its first batch of projects an undertaking to advance the convergence of foreign judgments recognition and enforcement rules in Asia (“Foreign Judgments Project”).

ABLI released its first publication, Recognition and Enforcement of Foreign Judgments in Asia (“Judgments Compendium”) in the beginning of 2018. This compendium contains 15 short and concise country reports which provide lawyers and businesses with an overview of how foreign judgments in civil and commercial matters are recognised in different jurisdictions in Asia and the requirements which would need to be met for a foreign judgment to be enforced in those jurisdictions. The jurisdictions studied are all ten member states of the Association of Southeast Asian Nations or ASEAN (i.e., Brunei, Cambodia, Indonesia, Lao, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam) and their major trading partners, including Australia, China, India, Japan and South Korea.

In fact, the Judgments Compendium marks the first time when the rules of several ASEAN member states on the recognition and enforcement of foreign judgments are made available in the English language. Its release concluded the first phase of ABLI’s Foreign Judgments Project and set the stage for the second phase where both the similarities and the differences of the rules of these 15 jurisdictions are distilled to formulate a set of common principles.

That set of principles has now been released under the title of Asian Principles for the Recognition and Enforcement of Foreign Judgments (“Asian Principles”). This ambitious piece of work is a sequel to the Judgments Compendium and includes a total of 13 principles that among other things, cover the rules on international (or “indirect”) jurisdiction, reciprocity, the enforcement of non-monetary judgments, public policy, due process and inconsistent judgments. Each principle is accompanied by a commentary which fleshes out how the various countries apply that principle and also includes a way forward section, where applicable, to suggest the desired directions of law development.

A detailed write-up on the Asian Principles and the Foreign Judgments Project in general can be found at Adeline Chong, “Moving towards harmonisation in the recognition and enforcement of foreign judgment rules in Asia” (2020) 16 Journal of Private International Law 31-68. Associate Professor Chong is the general editor of both the Judgments Compendium and the Asian Principles.

ABLI is delighted to offer all members of EAPIL and all readers of this blog an exclusive discount to purchase both the Judgments Compendium and the Asian Principles. Interested members and readers can enjoy 10% off by following the steps listed at the end of this post.

Both the Judgments Compendium and the Asian Principles are available in PDF softcopies. Three hardcopies remain in stock for the Judgments Compendium. Please contact Catherine Shen, Project Manager of ABLI, for any query at catherine_shen@abli.asia.

How to enjoy your 10% discount as an EAPIL member or EAPIL blog reader (offer ends on 1 March 2021): (1) Go to https://payhip.com/b/e0md (for Judgments Compendium) or https://payhip.com/b/hACJ (for Asian Principles); (2) Click on the purple icon “buy now”; (3) After entering your name and email address, click on “Have a coupon code? Add coupon“ (right below the data protection terms) and enter promo code “EAPIL”, and then proceed to check out; (4) Once payment is processed by PayPal, an email will be sent to your indicated address for you to download the purchased copy instantly.

Please contact Catherine Shen if you wish to pay by credit card instead of PayPal.

The judgment of the Court of Justice of the European Union (CJEU) in Supreme Site Services v. Shape (Case C‑186/19) did not only raise the issue of the impact of the immunity of enforcement of international organisations on the definition of civil and commercial matters in the meaning of the Brussels I bis Regulation. The main question asked to the CJEU was that of the jurisdiction to lift cross-border provisional attachments under the Brussels I bis Regulation.

Background

The case was concerned with a dispute relating to the supply of fuel by a group of private companies to the headquarters of NATO in Europe (the Supreme Headquarters Allied Powers Europe, or SHAPE), for the purpose of a mission in Afghanistan. SHAPE is established in Belgium, but it has a regional headquarter in the Netherlands, the Allied Joint Force Command Brunssum (‘JFCB’). In order to guarantee the payment of all the costs related to the supply contracts, JFCB and the private companies signed an escrow agreement, whereby funds were deposited in a bank in Brussels.

After a dispute arose between the parties, the private companies sued JFCB and SHAPE on the merits in a Dutch court in 2015.

In 2016, the plaintiffs applied ex parte to the same Dutch court for an authorisation to carry out a provisional attachment on the monies held by the bank in Brussels. The application was granted and, two days later, was carried out in Brussels by a Belgian enforcement officer (huissier de justice) on the basis of a certificate issued on the ground of Art 53 of the Brussels I bis Regulation. In other words, the Dutch order was directly enforced under the Brussels I bis Regulation.

Jurisdiction to Issue a Cross-Border Attachment

After SHAPE was notified, it challenged the order before the court of origin. Interestingly enough, it does not seem that JFCB was notified, and that it was a party to the interim proceedings. The debate essentially revolved around the immunities of NATO, but there was also an issue of jurisdiction. On which ground could a Dutch court authorise the attachment of monies in Belgium? When the Dutch court of appeal considered the issue, it referred to Article 35 of the Regulation. Is that because, in the absence of JFCB, it considered that it did not have jurisdiction on the merits? If so, its jurisdiction should have been restricted to Dutch territory (see Recital 33 of the Preamble to the Regulation).

Enforcement in Belgium

In addition to the jurisdictional issue, there was an obstacle for enforcing the Dutch order in Belgium. It had been issued ex parte. It was therefore not a decision in the meaning of Article 2 of the Regulation, and it could not benefit from the enforcement regime of the Regulation.

But after the abolition of exequatur, the enforcement of foreign judgments is only to be challenged ex post for grounds listed in Art 45. Violation of the scope of Art 35 is not one of them. Issuance of protective measures ex parte is not either. Was there a remedy for SHAPE in Belgium? Maybe Adrian Briggs is right when he writes that Art 45 should not be read literally, and that other grounds for opposing enforcement should be admissible.

It must be underscored that ex parte provisional measures may not benefit from the Brussels regime, but the Brussels I bis Regulation expressly recognises that national law might allow their enforcement. In this case, after Dutch courts lifted the authorisation on the ground that NATO benefited from an immunity, SHAPE sought a declaration of enforceability of the Dutch judgment on the ground of a 1925 bilateral treaty between Belgium and the Netherlands (that the Brussels instruments have replaced, but not terminated – rings a bell?), because the argument of SHAPE was that its immunity excluded the application of the entire regulation (the argument was rightly rejected by the CJEU).

Jurisdiction to Lift the Provisional Attachment

SHAPE applied to the Dutch court, and the Dutch court of appeal set aside the authorisation and lifted the attachment on the ground of the immunity of SHAPE. The creditors appealed, and, although the issue of jurisdiction was not raised, the Dutch supreme court wondered whether Belgian courts had exclusive jurisdiction to lift an attachment over assets situated in Belgium on the grounds of Article 24(5) (“enforcement of decisions”), and thus referred the case to the CJEU.

The question was framed narrowly, and the CJEU only answered that Article 24(5) did not apply, because the proceedings did “not concern per se the enforcement of judgements in the meaning of Article 24(5)”. The court had just insisted that the provision applies to “proceedings relating to recourse to force, constraint or distrain on movable or immovable property”, so it seems that it considered that an application to lift a provisional attachment could not be considered to relate to use of force.

One must also say that Article 24(5) applies to the enforcement “of decisions”, and that it is unclear which decision would have been enforced in this case, since the proceedings on the merits were pending.

Most unfortunately, the CJEU only answered the question as it had been framed and did not elaborate on the court which would have jurisdiction under the Regulation.

It is submitted that, for a number of reasons, it should be the court which issued the order in the first place. A first reason is that the process of lifting a provisional attachment requires to reconsider and, as the case may, set aside, a judicial order. Under the Regulation, it is hard to see how any other court than the court of origin could be entitled to do so. Another reason is that the court of origin will apply the same rules to decide whether the decision was rightly granted.

The University of Silesia in Katowice hosted in 2019 a conference on the the Application of the Succession Regulation in the EU Member States.

The papers presented at the conference have recently been published, under the editorship of Maciej Szpunar, in Problemy Prawa Prywatnego Międzynarodowego, a periodical specifically devoted to private international law.Below are the abstracts of (and the links to) the various contributions.

After the conference GEDIP held its meeting in Katowice and celebrated honorary doctorate awarded to Professor Paul Lagarde. The report from the conference is available here and from GEDIP’s meeting here.

Maciej Szpunar, Foreword

The current volume of “Problemy Prawa Prywatnego Międzynarodowego” — the leading Polish periodical in the field of private international law — is primarily devoted to the Regulation No 650/2012 of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (“the Succession Regulation”).

Paul Lagarde, La réserve héréditaire dans le règlement 650/2012 sur les successions

The article addresses the issues relating to the protection of forced heirs in international context with a particular focus on the provisions of the EU Succession Regulation pertaining thereto. It contrasts common law tradition with the solutions adopted in French law, whereby certain relatives are entitled to the hereditary reserve (la réserve héréditaire). The author discusses selected examples taken from a body of French case-law dealing with the issue in question. Amongst the cases touched upon by the author are those concerning the successions of Johnny Hallyday and Maurice Jarre, which were two cases widely discussed in the recent French jurisprudence.

Jürgen Basedow, “Member States” and “Third States” in the Succession Regulation

The author advocates a flexible approach with respect to the interpretation of the term “Member State” as employed in the Succession Regulation, allowing the differentiation between “participating” and “non-participating” States. It does not mean that the term “Member State” should always be interpreted in a wide sense including the three non-participating States: Denmark, the Republic of Ireland, and the United Kingdom. Whether a wide or a narrow interpretation is appropriate depends on the context and the purpose of the single provision. Most provisions contained in the chapter on jurisdiction refer to participating Member States only. But some articles such as the Article 13 of the Regulation, provide a counter-example. A uniform interpretation of the concept of Member State in all provisions of the Succession Regulation seems far too sweeping. It reminds of Begriffsjurisprudenz and does not take account of the purpose of the single provisions. In particular, it disregards the need for the cross-border protection of individual rights in a Union with open frontiers.

Christian Kohler, Application of the Succession Regulation by German courts — Selected Issues

The article concerns the notion of “court” in the Succession Regulation. This notion is used in the Brussels I and Brussels Ia Regulations, where it does not necessarily have the same scope. The author attempts to interpret the concept in the light of the recitals to the Succession Regulation (in particular Recital 20) and of the case law of the Court of Justice. The very general description of the concept contained in Article 3(2) of the Regulation might potentially embrace other authorities and legal professionals, where they exercise judicial functions by way of delegation of power from the court. In the author’s view, the European Court, especially in Oberle and WB v Notariusz Przemysława Bac correctly navigated its way through the Succession Regulation and ruled in a way which is both coherent as regards the operation of the Regulation and consistent with the intentions of the legislator. The above judgments are analysed also with regard to Poland’s omission to notify notaries as “courts” under Article 79 of the Succession Regulation. The European Court found that the criteria for determining whether an authority or a legal professional, in particular a notary public, constitutes a “court” are determined by Article 3(2) and not by Article 79. Consequently, Poland’s omission to notify was not conclusive, but was in any event correct in substance. The author expresses the opinion that the judgment is accurate on this point.

Michael Wilderspin, The Notion of “Court” under the Succession Regulation

The article concerns the notion of “court” in the Succession Regulation. This notion is used in the Brussels I and Brussels Ia Regulations, where it does not necessarily have the same scope. The author attempts to interpret the concept in the light of the recitals to the Succession Regulation (in particular Recital 20) and of the case law of the Court of Justice. The very general description of the concept contained in Article 3(2) of the Regulation might potentially embrace other authorities and legal professionals, where they exercise judicial functions by way of delegation of power from the court. In the author’s view, the European Court, especially in Oberle and WB v Notariusz Przemysława Bac correctly navigated its way through the Succession Regulation and ruled in a way which is both coherent as regards the operation of the Regulation and consistent with the intentions of the legislator. The above judgments are analysed also with regard to Poland’s omission to notify notaries as “courts” under Article 79 of the Succession Regulation. The European Court found that the criteria for determining whether an authority or a legal professional, in particular a notary public, constitutes a “court” are determined by Article 3(2) and not by Article 79. Consequently, Poland’s omission to notify was not conclusive, but was in any event correct in substance. The author expresses the opinion that the judgment is accurate on this point.

Stefania Bariatti, The Capacity and the Quality of Heir. Possible Interaction with Preliminary Questions

The article contains an overview of the rules relating to the scope of application of the EU private international law regulations. It addresses the treatment of the relevant preliminary questions, with special reference to the Succession Regulation. The issues are discussed in three steps. The first is connected with the way of interpreting the notions and concepts, such as marriage, adoption, legal capacity etc., where such matters as personal status, legal capacity or family relationship may come to the foreground as a preliminary question. The second is dealing with the law applicable to the preliminary question. The author compares pros and cons of the “independent reference” (lex fori) and the “dependent reference” (lex causae) solutions, considering the latter as less effective, producing more negative consequences. The third step embraces questions relating to the jurisdiction with respect to preliminary question.

Andrea Bonomi, The Regulation on Matrimonial Property and Its Operation in Succession Cases — Its Interaction with the Succession Regulation and Its Impact on Non-participating Member States

The Regulations on Matrimonial Property (No 2016/1103) and on the Property Consequences of Registered Partnerships (No 2016/1104) are new important pieces in the “puzzle” of European private international law. This article particularly focuses on the relationship between the Matrimonial Property Regulations and the Succession Regulation, two instruments which will often be applied in parallel because of the close connection between the two areas they govern. The author examines in particular the scope of those instruments as well as their interaction with respect to jurisdiction and applicable law. At the same time, an attempt is also made to assess the position of Poland and of those other Member States that are bound by the Succession Regulation, but not by the Matrimonial Property Regulation.

Piotr Rylski, The Influence of Bilateral Treaties with Third States on Jurisdiction and Recognition of Decisions in Matters on Succession — Polish Perspective

The aim of the study is to discuss the impact of bilateral international treaties concluded by EU Member States with third countries on jurisdiction and recognition of judgments in matters of succession from Polish perspective. The author discusses the main problems in the interpretation of Article 75 of Regulation 650/2012 and the possible conflict of this solution with the Treaty on the Functioning of the EU. The article indicates also practical problems related to the collision of bilateral treaties and Regulation No 650/2012 regarding, for example, the possibility of concluding choice-of-court agreements, recognition of foreign judgments in matters of succession and the possibility of issuing the European Certificates of Succession.

Krzysztof Pacuła, The Principle of a Single Estate and Its Role in Delimiting the Applicable Laws

This paper argues that the principle of unity of succession is one of the key concepts of the Succession Regulation. By operation of this principle on the jurisdictional level, the Regulation tends to favor a perspective of a single Member State when it comes to all issues related to succession. The principle of unity of succession does not of course eliminate the need to proceed to the characterization and to delimitate the scopes of conflict of laws rules at stake. However, this principle — aiming to promote a unitary vision of a single estate in all the Member States bound by the Regulation — sets a tone for some interpretative techniques that tend to favor succession-related characterization of the issues having some importance in the context of succession with cross-border implications. According to the Author, effet utile-driven characterization, on the one hand, and succession-friendly characterization of the issues falling within ‘gray areas’ created by the operation of Article 1(2) of the Succession Regulation, on the other hand, are among them.

Maksymilian Pazdan, Maciej Zachariasiewicz, Highlights and Pitfalls of the EU Succession Regulation

The EU Succession Regulation constitutes a remarkable achievement of unification of conflict of law rules at the European level. It has importantly changed the landscape for all those interested in succession law, in particular, the notaries and the estate planning practitioners. The present article takes up a number of selected issues that arise under the Regulation. The paper first identifies certain general difficulties that result either from the complex nature of the matters addressed or from a somewhat ambiguous wording of the rules adopted by the EU legislator. The attention is devoted to the exceptions to the principle of the unity of legis successionis, the dispositions upon death, and the intertemporal questions resulting from the change of the conflict of laws rules in the Member States which occurred on 17th August 2015 when the Regulation started to be applied. The paper then moves to some of the more specific issues arising under the Regulation. To that effect, it first looks at the Polish Act of 2018 governing the ”succession administration” of the enterprise, which forms part of the estate. The argument is made that the rules contained in the 2018 Act should be applied by virtue of Article 30 of the Succession Regulation because they constitute “special rules” in the meaning of this provision. Second, the notion of a “court” under Article 3(2) of the Regulation is discussed in light of the recent judgment of the CJEU in case C-658/17 WB, where the European Court found that a Polish notary issuing the deed of certification of succession is not a “court” for purposes of Article 3(2). The paper provides a critical account of the Court’s decision.

Brexit has dealt a major blow to judicial cooperation in Europe. With the end of the transition period, the Brussels I bis Regulation became inapplicable in the relation between the UK and the EU. Some authors, however, took the view that the Regulation’s predecessor, the Brussels Convention of 1968, would continue to apply (see e.g. here and here). The main argument was that the Brussels Convention is an international treaty and not an instrument of EU law. Moreover, and contrary to the Rome Convention on the law applicable to contractual obligations, the Brussels Convention had not been fully replaced by a regulation and continued to apply with regard to some overseas territories.

This debate seems now to come to a close. On 29 January 2021, the British government informed the European Council of its view that the Convention has ceased to apply to the UK and Gibraltar with the expiry of the transition period on 1 January 2021. The unofficial document was posted on Twitter by Steven (“Steve”) Peers from the University of Essex (thanks to Felix Krysa for sharing the tweet with me). It reads in relevant part:

The Government of the United Kingdom hereby notifies the Secretary-General of the Council of the European Union that it considers that the Brussels Convention 1968 and the 1971 Protocol, including subsequent amendments and accessions, ceased to apply to the United Kingdom and Gibraltar from 1 January 2021, as a consequence of the United Kingdom ceasing to be a Member State of the European Union and of the end of the Transition Period.

Does this finally close the argument? Not for sure. The communication merely reflects an opinion by the British government, which as such is of no legal consequence. The Vienna Convention on the Law of Treaties enumerates the cases in which an international convention is terminated. A unilateral denunciation is not among them. Absent an impossibility of performance, a fundamental change of circumstances or a breach by one party, an agreement by the parties is required to suspend the operation of a treaty.

Since the Brussels Convention bound the UK to no less than 14 EU Member States, it may take some time and effort to reach agreement that the Brussels Convention is all over. The mere information of the European Council by the British government is certainly not sufficient. Of course, the EU and the UK could also enter into a new treaty. The British government has lodged an application to join the Lugano Convention, but it is still awaiting an answer from the EU.

The new issue of International & Comparative Law Quarterly (Volume 70, Issue 1) is out. Some of the articles relate to private international law. Their abstracts are provided below. The whole issue is available here.

Roy Goode, Creativity and Transnational Commercial Law: From Carchemish to Cap Town

This article examines the creative aspects of a range of international commercial law instruments which have in common that they seek to bypass traditional doctrine in order to increase commercial efficiency and ease of transacting. In short, the purpose of the harmonising measure is functional in that it seeks to overcome a serious obstacle to cross-border trade by providing commercially sensible solutions to typical problems regardless whether this disturbs established legal theory, which should always the servant of the law, not its master. Creativity applies not only to the formulation of an instrument but also to its interpretation. Those entrusted with preparing a commentary on the detail of such an instrument are likely to face difficult issues of interpretation which may take years to surface and may only be resolved by a willingness to risk error in order to provide the reader with clear guidance rather than sheltering behind the presentation of alternative interpretations, while at the same time resisting the temptation to ascribe to words in a convention the meaning they would have under one’s own national law.

At least one of the instruments examined was conceptually flawed; it is mentioned to highlight the danger of over-ambition in delineating the sphere of application of the convention concerned. Undisciplined creativity comes at a cost. Another convention, and a highly successful one, is referred to only to demonstrate the value of creative ambiguity.

Enrico Partiti, Polycentricity and Polyphony in International Law: Interpreting the Corporate Responsibility to Respect Human Rights

Complex multi-actors and multi-level governance structures have emerged in areas that were traditionally exclusively the preserve of the State and treaty-making. The adoption of the United Nations Guiding Principles on Business and Human Rights (UNGP) affirmed a corporate responsibility to respect human rights to be implemented through human rights due diligence (HRDD), ie via management processes. The open-ended character of the UNGP generated the emergence of other soft instruments offering guidance to corporations in structuring HRDD. This contribution conceptualises the UNGP from the perspective of regulation as a principles-based exercise in polycentric governance reliant on regulatory intermediaries for interpretation. It then assesses the role of various sui generis normative instruments in providing interpretation to the UNGP and, how the presence of an additional layer of interpretative material contributes to the institutionalisation of responsible corporate conduct. The analysis of instruments drafted by international, non-governmental and business organisations reveals both a decentralising tension between different intermediaries due to disagreements and divergence concerning the precise extent of corporate human rights responsibilities, as well as attempts to centralise the interpretation of the UNGP. The article concludes by recommending some caution towards the employment of polycentric governance regimes and their lack of centralised interpretive authority in this domain of international law and suggests possible ways to formally establish centralised interpretation.

Vid Prislan, Judicial Expropriation in International Investment Law

This article examines the notion of judicial takings in international law and its reflection in the practice of investment tribunals. It takes stock of the already significant body of arbitral jurisprudence dealing with expropriation claims grounded in, or relating to, the acts or omissions of courts, with a view to developing a coherent theory of judicial expropriations. It is suggested that, due to the courts’ specific role in the determination of the underlying proprietary rights that are the very object of international legal protection, judicial measures warrant different conceptual treatment from measures by other State organs. Traditional approaches to expropriation analysis do not take this sufficiently into account and therefore do not provide adequate tools for distinguishing legitimate judicial measures from undue interferences with investors’ rights. It is argued that a sui generisapproach is hence needed: where proprietary rights are primarily affected by the impugned judicial action, it is first necessary to determine whether such action is itself wrongful under international law, for only then can it be treated as an act of expropriation. However, the proper analytical approach will ultimately depend on the circumstances of each case and traditional approaches, such as the sole effects doctrine, may still be appropriate where the judicial injury actually flows from wrongful legislative or executive conduct.

Mmiselo Freedom Qumba, Assessing African Regional Investment Instruments and Investor-State Dispute Settlement

This article examines the rejection of the International Investor–State dispute (ISDS) system across the African continent and its replacement with a range of domestic and regional alternatives. It assesses the advantages of the two principal options for African countries: retaining the current ISDS system, or using local courts and regional tribunals. To this end, the dispute resolution mechanisms proposed in the Pan-African Investment Code, the 2016 Southern African Development Community Finance and Investment Protocol, the SADC model BIT, the Common Market for Eastern and Southern Africa, Economic Community of West African States and East African Community investment agreements and domestic approaches are critically examined. The argument is then advanced that African countries should not abandon ISDS because replacing it with isolated domestic or regional mechanisms does not reduce any of the risks. In particular, for foreign investors, the risk associated with the adjudication of investment disputes in potentially biased, politically influenced domestic courts may prove too high. African host nations, in turn, risk sending out the wrong message concerning their commitment to the protection of foreign investments. Instead of veering off course, perhaps the time has come for African States to display the political will to remain within the ISDS system and contribute to its reform from within.

The issue also contains review, by Nahel Asfour, of Contract Law in Contemporary International Commerce: Considerations on the Complex Relationship between Legal Process and Market Process in the New Era of Globalisation by Gianluigi Passarelli, Nomos: Baden-Baden 2019. Other views on the book have been expressed by Chukwuma Okoli on the Conflictoflaws blog.

The author of this post is Estelle Gallant, professor of private law at the University of Toulouse 1 Capitole.

On 30 September 2020, the French Supreme Court for civil and criminal matters ruled on the respective scopes of the Brussels II bis Regulation and the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children in a parental conflict between France and Switzerland (Cass. 1st Civil Chamber, 30 Sept. 2020, no. 19-14.761). The difficulty arose following a change in the habitual residence of the child while proceedings concerning his custody were pending before French courts.

Facts and Legal Issues 

The dispute concerned the divorce proceedings of a multinational couple: the husband was of French-Swiss national while the wife was of Swiss, Irish and Danish national. They lived in Switzerland before separating and setting up a cross-border alternating residence between Switzerland and France for their children. It was at that time that a petition for divorce was filed in France. However, after the father’s imprisonment, and with his agreement, the children’s residence was transferred exclusively to the mother’s home in Switzerland. This created an issue with respect to the international jurisdiction of French court.

Judgment of the French Supreme Court

French lower courts had concluded that they had jurisdiction on the basis of the Brussels II bis Regulation. But, before the Supreme Court, the mother invoked the jurisdiction of the Swiss authorities on the basis of the 1996 Hague Convention applicable in both Switzerland and France. In accordance with Article 5 of the 1996 Hague Convention and Article 61 of the Brussels II bis Regulation, the Supreme Court set aside the decision of the Court of Appeal which had retained jurisdiction on the basis of the Brussels II bis Regulation. According to the Supreme Court, since habitual residence had been lawfully transferred to a third State of the European Union but a Contracting State to the 1996 Convention, only that Convention was applicable and French courts therefore had no jurisdiction.

Assessment

How can this conflict between the Brussels II bis Regulation and the 1996 Hague Convention be resolved?

The 1996 Hague Convention has been in force in France since 1 February 2011. The Brussels II bis Regulation has been applicable since 1 March 2005. The two competing instruments have a common material scope of application since they both deal with conflicts of jurisdiction in matters of parental responsibility and child protection. Since both are applicable in France, it is necessary to find out which one should be preferred over the other: a rule of compatibility is therefore necessary.

Article 61 of the Brussels II bis Regulation provides a specific rule on the respective scopes of the Regulation and the 1996 Hague Convention. The Regulation provides that it prevails over the Convention “where the child concerned has his or her habitual residence on the territory of a Member State”.

In this case, the whole question was therefore where the children resided and then to determine the applicable instrument. If the habitual residence was in Switzerland – a third State to the European Union but a party to the Hague Convention –, the 1996 Hague Convention applied; if it were in France, however, the Brussels II bis Regulation applied.

However, the determination of the children’s habitual residence in this case was complicated by the change of habitual residence during the proceedings. At the time of the divorce petition filed in France in January 2016, the habitual residence was a cross-border alternating residence between Switzerland and France. But, when the French Court of Appeal ruled, the habitual residence had been exclusively and lawfully transferred to Switzerland. This new residence was not under discussion. The discussion in this case is therefore not about the location of the children’s habitual residence (initially alternating between France and Switzerland and then transferred exclusively to Switzerland), but about the time at which it should be assessed.

Thus, while the distributive criterion used in Article 61 of the Regulation is perfectly clear – habitual residence in or outside a Member State of the European Union – it does not offer any temporal rule, which would have been eminently useful in this case.

The only area where temporal details can be found is that of the rules of jurisdiction. The latter, based in both texts on the criterion of the child’s habitual residence, resolve the change in the connecting factor.  In this respect, two situations must be distinguished, depending on whether the change of habitual residence occurs outside any pending proceedings or, conversely during the proceedings.

In the event of a “classic” change of habitual residence, outside of any pending proceedings, the two texts resolve the difficulty in favour of the child’s new habitual residence (explicit solution in the Hague Convention ; resulting from a combined reading of Articles 8, 9 and 10 of the Regulation).

If, on the other hand, there is a change of habitual residence in the course of proceedings, the solution is not identical. While the Regulation states that the habitual residence must be assessed “at the time the court is seised” (Article 8(1)), the 1996 Hague Convention provides for the jurisdiction of the authorities of the “new habitual residence”. The difference in wording means that under the Brussels II bis Regulation, once seised, the court retains jurisdiction, even if the child is subsequently lawfully moved to another Member State, whereas under the 1996 Hague Convention, a change of habitual residence during the course of proceedings entails an immediate transfer of jurisdiction to the authorities of the new habitual residence.

The temptation might have been great, in order to resolve the question of the location of the habitual residence in the context of Article 61, i.e. for the purposes of determining the applicable instrument, to use the temporal criterion contained in the rules of jurisdiction. This seems to have been the reasoning of the Court of Appeal, which ruled that although the children’s habitual residence has since been transferred to Switzerland, the habitual residence was in France at the time the first court was seised, thus maintaining the jurisdiction of French courts on the basis of the Brussels II bis Regulation. However, while the reasoning is strictly correct from the point of view of jurisdiction based on the Brussels II bis Regulation, it is not correct from the point of view of the implementation of Article 61.

The Supreme Court does not go down this road. The solution it favours can be summarised as follows: admittedly, under the Brussels II bis Regulation, the French court had jurisdiction, since the children’s habitual residence was in France at the time the French court was seised. However, at the time when the court ruled, the Brussels II bis Regulation was no longer applicable under Article 61 of the Regulation, since the children’s habitual residence was in Switzerland, a third State of the European Union but a Contracting State of the Hague Convention. Under that Convention, and on the basis of Article 5 thereof, French courts therefore no longer had jurisdiction; Swiss courts did.

At last, in order for the change of habitual residence to be effective, both in terms of the relationship between the Regulation and the Convention and in terms of jurisdiction, the judgment suggests that there are two conditions.

Firstly, the new habitual residence must of course be in a Contracting State to the Hague Convention, which is the case of Switzerland. If not, it is not certain that the Brussels II bis Regulation would have ‘lost’ its applicability, but the situation would certainly have led to a conflict of proceedings. The solution provided by the French Supreme Court thus illustrates one of the benefits of judicial cooperation between states.

Secondly, the change of habitual residence must be lawful. In the event of a wrongful change of habitual residence to Switzerland, the Brussels II bis Regulation would have remained applicable and thus led to the French authorities retaining jurisdiction (Article 10). If the abductor brought the case before a Swiss court, the Swiss court could have adopted the same solution and declined jurisdiction on the basis of Article 7 of the 1996 Hague Convention.

Finally, it may be objected that, by reasoning in this way, the Court added criteria to Article 61, which does not contain any: a temporal criterion and a criterion of lawfulness of the change of habitual residence. The solution must, however, be approved, as it is both the most pragmatic and the most consistent with the spirit of the compatibility clause contained in Article 61 of the Regulation. It avoids the – undesirable – diversion through the rules of jurisdiction and allows account to be taken of the reality of the children’s actual situation, to which the criterion of habitual residence adopted by all the texts, undoubtedly aspires.

In 2020, the Court of Justice of the European Union (CJEU) ruled twice on whether sovereign immunities are relevant to define the material scope of the European law of jurisdiction. The first case was concerned with the immunity from jurisdiction of the state of Panama (Rina, case C-641/18: see reports here, here and here). The second was concerned with the immunity from enforcement of an international organisation, the headquarters of NATO (SHAPE, case C-186/19: see reports here and here).

Since the 1968 Brussels Convention, the European law of jurisdiction and judgments has been limited to civil and commercial matters. Most other instruments of European civil procedure have incorporated the same limitation. Since the Eurocontrol case in 1976, the European Court of Justice has consistently defined civil and commercial matters as excluding actions by public authorities acting in the exercise of their powers, i.e. powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals. This definition has now been codified in Article 1(1) of the Brussels I bis Regulation, which refers to “the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii)”.

The test of acta iure imperii is also widely used to define the scope of sovereign immunities and, in particular, the scope of jurisdictional immunities. It was only logical, therefore, to ask whether the concept of civil and commercial matters should be defined by reference to the definition of sovereign immunities. As explained (but not endorsed) by AG Szpunar in the Rina case, one could argue “that the concept of ‘civil and commercial matters’ should coincide with the negative scope of jurisdictional immunity” (para. 43). The consequence of such an analysis would be that the scope of the Brussels Ibis Regulation would not be defined autonomously, but by reference to other norms which are external to the EU. Sovereign immunities are governed by customary international law but also, to a large extent, by national laws.

The Relevance of International Law: Rina

In Rina, the CJEU seemingly endorsed the idea that international law is relevant to define the scope of the Brussels Ibis Regulation.

The Court started by recognising that “the immunity of States from jurisdiction is enshrined in international law”, which nobody doubts.

The Court, then, reached the troubling conclusion that the test for defining civil and commercial matters should depend on international law. The Court held:

57 In the present case, as the Advocate General stated in points 108 to 128 of his Opinion, the immunity from jurisdiction of bodies governed by private law, such as the Rina companies, is not generally recognised as regards classification and certification operations for ships, where they have not been carried out iure imperii within the meaning of international law.

58  Accordingly, it must be held that the principle of customary international law concerning immunity from jurisdiction does not preclude the application of Regulation No 44/2001 in a dispute relating to an action for damages against bodies governed by private law, such as the Rina companies, on account of the classification and certification activities carried out by them, upon delegation from and on behalf of a third State, where the court seised finds that such bodies have not had recourse to public powers, within the meaning of international law.

The idea that international law should influence the definition of civil and commercial matters raises a number of issues, many of which were pointed out by the AGs in both the Rina and SHAPE cases. In this post, I would like to insist on two of them.

The first is that the content of international law is unclear. As pointed out by AG Szpunar, the international conventions which were adopted in this field were either ratified by few Member States, or never entered into force. A number of courts have stated that the 2004 UN Convention on on Jurisdictional Immunities of States and Their Property is representative of customary public international law, but as the International Court of Justice itself has pointed out, a number of its provisions were hotly debated during the negotiations, and thus cannot be considered as representing any form of international consensus. The truth of the matter is that the international law of sovereign immunities is, on many issues, vague and not clearly defined. In addition, states have long regulated sovereign immunities at national level, whether by statutes or by the courts. If the CJEU were to interpret international law to define civil and commercial matters, it might contribute to the development of international law, but it would also displace the law of sovereign immunities of the Member States and, in effect, engage into a process of harmonisation for which its competence is doubtful.

Conceptually Different Questions Need Not Receive the Same Answer

The second reason why the international law of sovereign immunities should not influence the interpretation of the European law of jurisdiction is that sovereign immunities and international jurisdiction are conceptually different questions. One is concerned with the power of the national courts to entertain actions against foreign states. The other is concerned with the allocation of international cases as between the courts of different states based on the subject matter of the dispute and the connections of the parties with the relevant states. A contractual case like the SHAPE case raises two separate questions. One is whether an international organisation can be sued in the courts of the forum. Another is whether the relevant obligation of the contract was performed on the territory of the forum, or the organisation can be considered to be domiciled there.

This conceptual difference is better perceived in those states where immunities and jurisdiction are sanctioned by different rules.  This is the case, for instance, under French law. A court does not lack jurisdiction to entertain a claim against a foreign state enjoying an immunity, it lacks power. Lack of power may be raised at any point in the proceedings, while objections to jurisdiction must be raised in limine litis.

The Relevance of International law: SHAPE

The SHAPE Court might have wished to deviate from Rina and endorse a different analysis. The Court continued to apply the same test to define civil and commercial matters. However, it refrained from stating “within the meaning of international law“.

Indeed, it referred to, and partly repeated paragraph 58 of the Rina judgment (see above), but omitted those words.

60 So far as concerns, secondly, the immunity from jurisdiction of bodies governed by private law, the Court has held that it does not preclude the application of Regulation No 1215/2012, where the court seised finds that such bodies have not had recourse to public powers (see, to that effect, judgment of 7 May 2020, Rina, C‑641/18, EU:C:2020:349, paragraph 58).

The Court also underlined that immunities and international jurisdiction are two separate questions:

64 In this connection, as the Advocate General observed in point 67 of his Opinion, the mere fact that the national court has assumed international jurisdiction, in the light of the provisions of Regulation No 1215/2012, does not adversely affect the protection of immunity under international law invoked by the international organisation that is party to that dispute.

Let’s forget about international law when interpreting the concept of civil and commercial matters for the purposes of European procedural law.

Immunity from Enforcement

The issue raised in SHAPE was that of the immunity from enforcement of an international organisation. The creditors of the headquarters in Europe of NATO had attached monies on a bank account. The international organisation argued that the funds were covered by its immunity from enforcement, and that the action fell outside of the Brussels I bis Regulation.

The SHAPE Court replied without distinguishing between immunity from enforcement and immunity from jurisdiction. It seemingly considered that both raise the same issue with respect to the influence of sovereign immunities on the definition of civil and commercial matters.

Yet, there are important differences between the two types of immunities. For present purposes, the most important is that the purpose of each immunity is different. Immunity from enforcement does not prevent courts from deciding disputes, it prevents enforcement over assets. In SHAPE, the issue was whether the creditors of NATO could freeze its assets.  The question, therefore, was not whether the action on the merits could be entertained by the forum, but whether it could issue a provisional attachment. The CJEU has consistently held, however, that the question of whether provisional measures in general and provisional attachments in particular fall within the scope of the Brussels I bis Regulation is defined by the substantive rights that the the measures aim to protect (see, in particular, the De Cavel and Van Uden cases). In other words, provisional measures are transparent for defining the concept of civil and commercial matters. If this is the case, specific obstacles to carry out such measures must be irrelevant as well.

The only immunity which could be logically relevant for defining civil and commercial matters is immunity from jurisdiction. And even immunity from jurisdiction should not be.

All the recent studies I am aware of on the application in practice of the EU private international law instruments claim that legal practitioners are not aware of the regulations/directives, or do not know how to apply them. They conclude there is a need for training.

Having been a University professor for now some years, my first spontaneous reaction to such assertion is always inward-looking: we (lecturers, professors) are being told that what is done at the Universities is not enough. Indeed, it would be naïve to believe law schools alone produce PIL experts. However, I can’t help wondering where higher education stands in the Commission’s pursuit of the “correct and uniform application of EU law” which should “built mutual trust in cross-border judicial proceedings, thus helping to develop the EU area of justice”.

The quotes belong to the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions Ensuring justice in the EU — a European judicial training strategy for 2021-2024, published in December 2020, which explains the focus and scope of training in EU law for the years to come: the rule of law (upholding fundamental rights), upscaling the digitalisation of justice (prepare justice professionals to embrace digitalisation and the use of artificial intelligence ), keeping pace with developing EU law. A strategy addressed to judges, but this time also to other stakeholders: mediators, legal interpreters and translators, court experts, court staff, lawyers, even probation officers.

Higher education is not mentioned once. It does not necessarily mean that the Commission has not it in mind. Surely there are other initiatives one could find digging further. And then, most probably there are also issues of competence; the responsibility of educating future professionals lies primarily with the Member States (which is why the Bologna process will, in my view, never achieve its ultimate goal).

Be it as it may: for PIL fans in general (ie., beyond the University crowd) there is in the Communication a further fact to worry about. Cross-border cooperation is expressly mentioned and reference made to key EU instruments for cross-border judicial cooperation, at p. 3:

European judicial training should enable justice practitioners to see the role of EU law in their daily practice, give it full effect and secure the respect of rights and obligations stemming from EU law in national judicial proceedings. It is also important that they keep up to date with the development of EU law. Any new legislation and CJEU case-law developments necessitate training if they are to have the intended effects and justice professionals are to have the requisite knowledge and skills. In particular, this applies to the key EU instruments for cross-border judicial cooperation.”

Great, except that thereafter only cross-border cooperation in criminal matters is referred to.

Has the Commission forgotten judicial training regarding the EU regulations in civil and commercial matters? What does this absence entail in terms of funding of training activities?

A look into the website of the European Judicial Training Network shows how little place is left for European private international law and procedural law. Until June there is no activity planned on any of our core topics. In June, there will be a seminar on “Cross-border civil cases” (program not available yet; which kind of cases are meant is therefore not clear); and another one entitled “Jurisdiction, recognition, enforcement of judgments and determination of the applicable law under Regulation 1215/2012 (sic). The new Insolvency Regulation 848/2015”. Nothing else afterwards.

Of course, the EJTN is not the only training service provider. Three other well-known ones are the Academy of European Law (ERA), the European Institute of Public Administration (EIPA), and the European University Institute (EUI). In addition, the Justice Programme of the European Union supports as well national projects, such as FRICoRE. It may be that one or some of those offer seminars covering cross-border cooperation in civil and commercial matters. After consulting the program at the ERA until June, I am not too optimistic, though: there are many interesting activities, but only two relate directly to “our” topics.

In addition, I am not sure about what it means to be a “service provider”, in terms of how much of the training is publicly funded and how much attendants have to pay themselves; if I am not wrong, the seminars and workshops of the EJTN are for free, while the rest are not. On the side of the training experts there is probably not much difference: at least in our field colleagues are called to teach both by the EJTN and by the other providers; hence the quality of the training should be the same. But access to training is definitely not.

The European judicial training strategy of the Commission for the years to come foresees as well the launch of the European Training Platform (ETP), defined as “a search tool put at the service of legal practitioners and justice professionals who want to train themselves on any practice area of EU law or related matters”. It is too early to have an opinion on the platform. However, as of today, it is not a promise of open-access, neither to the courses nor to the materials. According to the information on the website, “The training providers inform potential trainees about the training activities they organise everywhere in the EU and in different languages.” So, at first sight the ETP will just be a repository of activities planned and undertaken by the four institutions indicated above. Not much of a step further regarding access to training.

On a less pessimistic note, it is true that the message goes on saying “The European Commission contributes to the platform with ready-to-use training materials or handbooks produced notably thanks to EU financial support”. And later in the webpage one can read “You will find many training courses on EU law advertised on the European Training Platform as well as training material for self-learning”. Maybe this means that training packages and publications will at some point be available to all stakeholders as in a public library. To be seen but… let’s hope.

Cecilia Rizcallah (ULB & University of Saint-Louis, Belgium) has just published a monograph on the principle of mutual trust in EU Law, based on her doctoral thesis: Le principe de confiance mutuelle en droit de l’Union européenne – Un principe essentiel à l’épreuve d’une crise de valeur, Bruylant, 2020.

The author has provided the following abstract in English:

The legal structure of the European Union “is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the Union is founded, as stated in Article 2 TEU”, states the Court of Justice of the European Union. Among these common values, fundamental rights, the rule of law and democracy occupy a central position. This “premiss”, according to the Court, “implies and justifies the existence of mutual trust between the Member States”.

Yet, as we all know, the European Union is currently facing a “crisis of values”. This crisis results from the increasingly frequent questioning, in the European Union, of the values on which it is allegedly based. The semantics of mutual trust between Member States has nevertheless never been more present in official speeches. Like the dictum according to which “we never talk as much about water as in the desert”, should the rise of the discourses on mutual trust be seen as an “excess of vocabulary” symptomatic of the climate of mistrust between Member States?

 This question, prompted by the success of the principle of mutual trust at a time when the context reveals fundamental divisions between Member States as to the meaning of European integration and the values on which it is based, is at the heart of this book.

In order to provide some answers, the first part of the book proposes to “clear the ground” and offer a cross-cutting definition of the principle of mutual trust in Union law, which applies both to internal market law and to the law of the Area of freedom, security and justice. It is the presumptive mechanism that seems, in this respect, to offer the best description of the principle under consideration.

The book then analyses the apparently consubstantial link between this principle and the founding values of the Union. Constituting an uncertain foundation and an imperfect limit to mutual trust, the EU founding values have an ambivalent relationship with the principle under consideration.

Finally, this book concludes with a third part which analyses the essential role played by the principle of mutual trust in Union law, at the crossroads of the imperatives of unity, diversity and equality. Because of the risks entailed by this principle regarding EU founding values, the book, however, argues in favour of moving mutual trust from the rank of postulate to that of method.

More details are available here, including a foreword by Eleanor Sharpston (Former Advocate General at Court of Justice of the European Union).

Since mutual trust is of particular interest for EU Private international law experts, Cecilia will soon provide the readers of this blog with a special focus on the principle of mutual trust in the field of EU judicial cooperation in civil matters, based on her doctoral research.

On 22 February 2021, from 5 to 7 pm CET, the Catholic University of the Sacred Heart in Milan will host a webinar titled The Fundamental Rights of Persons with Cognitive Disabilities in Cross-border Situations – Time for Italy and Spain to Join the Hague Adults Convention.

The Hague Convention of 13 January 2000 on the International Protection of Adults is currently in force for thirteen States. As the Hague Conference on Private International Law is preparing to host a Special Commission to review the practical operation of the Convention, scheduled to take place in 2022, other States – including Italy and Spain – are considering ratification.

The purpose of the webinar is to give an account of the domestic rules of private international law governing the protection of adults in Spain and Italy, and explore the benefits that joining the Convention would entail in the two countries for the adults concerned, the competent authorities and legal practitioners, including notaries.

In carrying out this exercise, regard will be had, in particular, to the experience of Portugal, which became a party to the Convention in 2018.

The organisers also seek to collect the views of stakeholders, notably human rights organisations with a focus on the rights of those with cognitive disabilities, regarding the issues surrounding the protection of such rights in cross-border situations, and the role that the Convention may play in enhancing such protection.

Speakers include Philippe Lortie (First Secretary of The Hague Conference on Private International Law), Salomé Adroher Biosca (Comillas Pontifical University), Pietro Franzina (Catholic University of the Sacred Heart) and Geraldo Maciel Rocha Mendes Ribeiro (University of Coimbra).

Attendance is free. No prior registration is required.

For more information, including the link to access the webinar, see here.

Horatia Muir Watt, Lucia Biziková, Agatha Brandão de Oliveira, Diego P. Fernández Arroyo and Megan Ma (Sciences Po Law School) have edited Le tournant global en droit international privé, published by Pedone.

This is the French version of Global Private International Law – Adjudication without Frontiers, that the same team of authors had published in 2019 with Edward Elgar.

Global Private International Law is a groundbreaking casebook, combining the expertise of over sixty international and interdisciplinary contributors who analyze key legal proceedings in order to provide a comprehensive study of the impact of globalisation on the law.

Providing a unique and clearly structured tool, this book presents an authoritative collection of carefully selected global case studies. Some of these are considered global due to their internationally relevant subject matter, whilst others demonstrate the blurring of traditional legal categories in an age of accelerated cross-border movement. The study of the selected cases in their political, cultural, social and economic contexts sheds light on the contemporary transformation of law through its encounter with conflicting forms of normativity and the multiplication of potential fora.

Key Features:

• the specific global scope allows the reader to gain a contextualised understanding of legal transformation

• each case has two commentaries from different viewpoints, ensuring a nuanced perspective on the implications of the global turn in private international law and its importance for adjudication

• an astute combination of theory and practice ensures readers gain an understanding of the relevance of innovative legal theories in interpreting concrete cases in a changing world

• comparative material and ground-breaking analysis make this book eminently suitable for use with students and a useful tool for researchers and courts confronted with novel topics or issues.

The French book includes a foreword of Paul Lagarde and an introductory chapter of Horatia Muir Watt which are freely available here, together with the table of contents.

The first chapter of the English book can be freely accessed here.

The Court of First Instance of Thessaloniki ruled on 24 June 2020 that an application by a psychological (non biological) mother to recognize and declare enforceable a UK custody order concerning a child born by the applicant’s partner contravenes Greek public policy (Ruling No. 6175, unreported).

Facts

The applicant [A] is a woman of Greek and American nationality. Her partner was a woman of American nationality [P]. They registered their partnership in the UK on 20 August 2013. Nearly a month later, P. gave birth to a child. The partners married in January 2015.

A. filed an application for child custody and parenting arrangements order in the UK. The court granted the application, and ordered that the child stays with the psychological mother on the basis of previous decisions concerning parental responsibility rights issued in the same country. In addition, the court ordered that the child reside with A., and it issued an order to remove the child permanently to Greece. Finally, the same court arranged the contact rights of the biological mother [P]. The information given in the Greek judgment is that the UK order was issued by the High Court – Family Division in Chelmsford, and that it was final. A. filed an application for the recognition and enforcement of the UK order before the Court of First Instance in Thessaloniki.

The Ruling

The Court of Thessaloniki began by acknowledging its jurisdiction and venue for the case at hand. It then entered into an analysis of the public policy defence, culminating in the conclusion, that the forum judge is obliged to defend national public policy, while at the same time demonstrating respect towards the state’s international obligations. To that end, a proportionality test of the domestic public policy with Article 8 ECHR standards is imperative. Following the above introduction, the court rushed to declare that same-sex marriage, and any subsequent relations emanating thereof are not allowed in Greece.

Public Policy

The first point raised by the court was a contradiction of the English order with established perceptions of Greek family law. By invoking Article 33 Greek Civil Code, i.e. the public policy defence in domestic Private International Law, the court held that Greek family law grants parental responsibility rights to the mother, if the child was born out of wedlock. In addition, the court stated that in the given situation, it was the biological mother who should be granted custody rights.

The second point raised by the court referred to the fundamental choice made by the domestic legislator and the Supreme Court, i.e. the prohibition of same-sex marriage. The public policy defence is the guarantor of this premise: Hence, an ontological change of a legal relationship within the country of destination, caused by the recognition of a foreign decision, affects state sovereignty. For a domestic standpoint, it is not acceptable to grant maternity rights to two women. It is also unbearable for the court that the birth of the child is a product of a same-sex marital relationship, which does not produce any legal effects in Greece.

In addition, the court held that the best interests of the child may not guarantee the preservation of a parental relationship with the biological mother, the latter being a situation not protected under Greek law. The bond worthy of protection emanates from constitutional provisions (equality / personality rights), the Fundamental Rights Charter, EU and ECHR standards. Consequently, the court ruled that the recognition and enforcement of the UK order would distort the legal pace of the country, because it is contrary to core domestic values and perceptions.

Assessment

The judgment follows a hard line under the strong influence of the harsh position taken by the Greek Supreme Court against same-sex couples. The factual situation is obviously not shaking the court’s foundation; even the best interests of the child did not motivate the court to soften its position. Hence, the child will have two mothers in the UK, and no mother in Greece.

What is also striking is the omission of the court to approach the matter from its European point of view. Out of the abundant material of legal scholarship, European and domestic case law concerning the matter, I will focus on the Coman case, which decided as follows:

In a situation in which a Union citizen has made use of his freedom of movement by moving to and taking up genuine residence, in accordance with the conditions laid down in Article 7(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, in a Member State other than that of which he is a national, and, whilst there, has created or strengthened a family life with a third-country national of the same sex to whom he is joined by a marriage lawfully concluded in the host Member State, Article 21(1) TFEU must be interpreted as precluding the competent authorities of the Member State of which the Union citizen is a national from refusing to grant that third-country national a right of residence in the territory of that Member State on the ground that the law of that Member State does not recognise marriage between persons of the same sex.

The case, of course, was not concerned with recognition of foreign judgments, but the rationale seems to make it relevant in this respect as well.

There are two more instances available for the applicant to alter the landscape. A first sign of progress has been already reported. It will be interesting to follow the developments and to report in due time.

Mateusz Grochowski (European University Institute) and Katarzyna Południak-Gierz (Jagiellonian University) have posted EU Private International Law in Internet-Related Disputes: The Polish Case Law Approach on SSRN.

The abstract reads:

The paper examines the way Polish courts apply EU private international law (EU PIL) rules in the disputes concerning online context. The analysis seeks, in particular, to better understand the patterns recurring in the judicial reasoning and to map the typical circumstances of internet-related disputes pled before Polish courts. The paper attempts to cluster the existing case law and to trace the use made of EU PIL and CJEU decisions by Polish judges. It also aims to identify how the courts perceive specificity of internet-related disputes from the perspective of conflict of laws and how they understand specific goals of EU PIL (especially consumer protection). The text delves also into the cases where – despite encountering transnational elements – courts did not address conflict of laws issues. It attempts to indicate the most common instances of such omission and hence, to elucidate further the possible barriers to full application of EU PIL.