EAPIL blog

Kamalia Mehtiyeva (Paris I Panthéon-Sorbonne School of Law) has just published a monograph on the Concept of Judicial Cooperation based on her doctoral thesis (La notion de coopération judiciaire, LGDJ, coll. Droit privé, préf. L. Cadiet, vol. 597, 2020).

The author has provided the following abstract in English:

The diversity of legal orders and their multiplication have led to a growing need to articulate them. In addressing this need, mechanisms of coordination proper to private international law (rules of conflicts of laws and of jurisdictions, lis pendens), based on passive logic in which one legal order holds back in favor of another, reveal to be insufficient.

Parallel to these mechanisms emerged, in a disorganized manner, a whole heteroclite set of more active methods of interaction, both during judicial proceedings and upon their completion, such as mission rogatory, service of process, extradition, European arrest warrant, seizure of assets, Interpol red notices, enforcement of foreign judgments and arbitral awards. The doctoral thesis gathers these diverse mechanisms under the banner of judicial cooperation, not only in order to seek unity behind the apparent diversity, namely by distinguishing a common procedural foundation as well as similar, or at least consistent powers of judges mutually assisting each other, but also to suggest punctual improvements of certain instruments by analogy with features of other mechanisms.

The thesis first strives to analyze diverse mechanisms of judicial cooperation between judges of European Union member states (e.g. European arrest warrant, recognition and enforcement of civil and criminal judgments, European investigation order, obtaining evidence in the European Judicial Area), as well as outside of the European Union (e.g. letters rogatory, service of process, obtaining evidence, extradition, recognition and enforcement of judgements) and interactions between judges and arbitrators (e.g. assistance of the State judge – “juge d’appui”, recognition and enforcement of arbitral awards). The second part of the doctoral thesis is focused on unveiling the unity of the notion of judicial cooperation by defining its criteria and its essence. Thus, behind the analysis of diverse mechanisms of cooperation between national legal orders with each other and with arbitral legal order, as well as in the European order by virtue of the principle of mutual recognition, and the concrete proposals of improvement of some of them, the book reveals a profound unity of the notion of judicial cooperation.

The unity first appears in the criteria of cooperation in so far as it is defined as procedural act, freely accomplished in one legal order upon the request of another legal order for the needs of judicial proceedings with a cross-border element, pending or terminated in the latter. The thesis explains cross-border element not in a usual, geographical sense, characterized by territorial borders, but in a broader one, marked by the limits of jurisdiction of a legal order (national, European or arbitral legal order). Furthermore, the thesis allows to trace a common basis for all types of mechanisms of judicial cooperation, which is reciprocity of relations between legal orders. In that respect, the thesis shows that such reciprocity is rooted in interactions between legal orders, even if it may be stronger between national legal orders belonging to the European Judicial area, as their relations are characterized by mutual trust. Finally, the unity is found in the purpose of judicial cooperation which manifests differently for requesting and requested legal order. For requesting legal order, the purpose of judicial cooperation is obvious : it is to obtain aid from another legal order where the requesting judge is not allowed to act either because of foreign judicial sovereignty (foreign legal order) or its incompetence (arbitral order). As to the requested judge, the purpose behind its action is less clear. The thesis shows that judicial cooperation is a way for the requested judge to contribute to a better management of cross-border litigation.

The study thus reveals that judicial cooperation transforms the core of judicial powers which are no longer reduced to adjudicating cases falling into the scope of  competence of the legal order to which judges belong but is henceforth enriched to include cooperative function(“office coopératif des juges”). The requested judge’s cooperation allows the requesting judge to surpass a cross-border element in the proceedings and thus contributes to a better administration of justice of the requesting legal order.

More details are available here, including free access to the table of contents and the first few pages of the book.

Practice shows that we’re far away from a perfect world of cooperation between state authorities in the field of cross-border service of process. This post is not about a judgment dealing with the matter (yet). It is what we call a ‘true story’, and serves as a kind of case study, to understand the variety of unprecedented situations with which courts may have to deal with.

The Facts

A Greek company filed an action against a foreign company, situated in an EU Member State. The claim, its translation, and an application pursuant to Article 4 of the Service Regulation were duly sent by the Transmitting to the Receiving Agency. The latter forwarded the claim to a process server for the purpose of serving the action to its recipient. Following fruitless efforts, the bailiff returned the documents to the court of the state of destination, stating that the respondent was not found in the given address. In particular, so his report, there was no indication that the company had its office there, and no person representing the company or any employee was found in the building. In accordance with domestic law on civil procedure, a hearing took place in camera on the request for service. The court stated that, following official information received, the respondent’s registered seat and postal address was in fact the same with the one stated in the claim form. As a result, and pursuant to Article 50(2) of the Code of Civil Procedure, the documents must be attached to the file, and service shall be deemed as duly made.

On the basis of the above conclusions, the court ordered that a certificate of service in accordance with Article 10 Service Regulation be issued, which should be delivered to the Transmitting Agency, with a true copy of the process server report attached.

The Receiving Agency abided by the order, and issued the above certificate, by making use of the standardized version in Greek. The person in charge filled in the following data: The date and address of service [12.1] in the language of the State of destination, and the method of service [12.2.1.3], i.e. pursuant to Article 50(2) of the Code of Civil Procedure, again in the language of the State of destination. The above person ticked also the box under 12.3, which demonstrates that the recipient was informed in writing that he may refuse to accept the document if it is not translated in a language he understands or the official language of the place of service. Finally, the place, name and capacity under which the above person drafted and signed the document were again written in the language of the state of destination. No court stamp is visible in the certificate.

What Would You Do if You Were the Greek Judge?

As I mentioned before, the case is still pending, and the claimant’s lawyer is seriously apprehended whether the documents aforementioned suffice for proving that service has taken place in accordance with the Service Regulation.

There are a number of critical points to be discussed in this case.

1. Is the Greek court entitled to return the certificate, because it was not completed in the languages accepted by the Hellenic Republic (Greek / English / French)? It is true that the receiving Agency made use of the standardized document in its Greek version; however, the crucial data were completed in the language of the State addressed, which is different from the languages declared by Greece).

2. Is the Greek court entitled to challenge the service of process, even if the document was served by a method prescribed by the internal law of the Member State addressed for the service of documents in domestic actions upon persons who are within its territory? According to Greek law, if the process server does not find anything or anyone related to the recipient in the given address, service by publication must follow.

3. Is the Greek court entitled to ask at this stage for a particular method of service, because the one chosen by the foreign court is violating the rights of the defendant? Article 7(1) of the Service Regulation does not give a clear answer in this respect.

4. Is the Greek court entitled to ask at this stage for further scrutiny by the Receiving Agency, so that the document is actually served to the defendant or one of its representatives? I fear that this won’t be accepted by the Receiving Agency, simply because service has taken place in accordance with its domestic rules.

5. If the Greek court considers that service was proper, because it was served by a method prescribed by the internal law of the Member State addressed: was it effected in sufficient time to enable the defendant to defend? I anticipate that the Greek court will consider that service was not timely, and therefore order a stay of proceedings.

Finally, an additional and purely domestic problem comes to the surface for the claimant. According to Greek law, and with respect to cases tried in the so called ordinary proceedings, service of process abroad has to be completed within 60 calendar days following filing of the claim. Failure to do so leads to dismissal of the claim as inadmissible. Filing and service has to be repeated. In the case at hand, the claimant passed already through this ordeal, because service of the first claim was not timely completed, i.e. not within the 60-days term. Now comes the second challenge and the claimant’s lawyer is at a loss…

One consequence of the Europeanisation of private international law is the need to examine and characterise certain phenomena, which have already been classified under national law, by reference to new EU Regulations. Family law, in particular, raises the question as to whether existing characterisation under national private international law regimes can be maintained. The German Federal Court (Bundesgerichtshof, BGH) had the opportunity to consider this issue in a judgment dated 18 March 2020 (BGH XII ZB 380/19). 

Background

A mahr is a marriage gift, or dower, under Islamic law promised from the groom to the bride, which usually becomes due upon divorce. It has different functions, such as to secure the financial situation of the bride upon marriage, as well as to protect her against an arbitrary divorce. Because the institution is unknown in Western legal systems, and because the specific legal arrangements of a mahr may differ between jurisdictions, its characterisation raises difficult problems.

Facts

In 2006, a Libyan national married a German national who had converted to Islam. At an Islamic ceremony in Germany, they signed a document stating – in German –: “dower coverage: Hajj”. A Hajj is an Islamic pilgrimage to the Kaaba in Mecca. In the following year, the couple also celebrated a civil marriage in Germany, the country of their common domicile.

In 2016, the couple divorced – again in Germany, where they were still living. The former wife then asked for the Hajj she had been promised at the Islamic ceremony. As the former husband declined, she sued him in a German court.

Holding

The case ended up before the German Federal Court, which ruled that the promise should be characterised as a “general effect of marriage” and that, therefore, the conflicts rule of Article 14 of the Introductory Law to the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch – EGBGB) applied. According to this provision, German law governed the mahr, given the spouses’ common domicile in Germany.

The ruling is therefore consistent with previous case law of the Federal Court, which decided that a similar gift under Iranian law (a mehir) is to be characterised as a “general effect of marriage” within the meaning of Article 14 EGBGB (BGH NJW 2010, 1528). The present case, however, warrants special attention, because the Federal Court considered a number of alternative characterisations. Throughout the comprehensive judgment, the Court made some interesting comments about important acts of European Private International Law.

Contractual Promise?

The first characterisation that the Federal Court considered was contractual promise. As the mahr agreement was made before the Rome I Regulation (Article 28 Rome I) came into force and no law had been chosen, Article 28 EGBGBG, which corresponds to Art 4 of the European Convention on the law applicable to contractual obligations 1980 (ECC), would have applied. The Court highlighted that, as the party obliged to characteristic performance had his habitual residence in Germany, German law would had applied if Art 28 EGBGB governed the case. The result would therefore have been the same as that under Article 14 EGBGB, so that the Federal Court did not need to decide whether this characterisation was correct.

Matrimonial Property?

Second, the Federal Court analysed the mahr as matrimonial property and drew attention to the scholarly debate as to whether a dower fall within the Regulation on Matrimonial Property Regimes. Yet, it did not have to decide this question, as the Regulation applies only to spouses who marry, or who specify the law applicable to the matrimonial property regime, after 29 January 2019 (Art 69(3) Regulation on Matrimonial Property Regimes). Article 15 EGBGB, which would have therefore applied, uses the same connecting factors as Art 14 EGBGB, save for the possibility of a choice of law by the parties. As the parties had not chosen the applicable law of the promise, the result would again have been the same as that under Article 14 EGBGB: German law applies.

Maintenance Obligation?

Third, the Federal Court considered the mahr being characterised as a maintenance obligation under the Maintenance Regulation. The Court cited a CJEU decision for the proposition that a provision is ‘maintenance’ if it is designed to enable one spouse to provide for himself or herself, or if the needs and resources of each of the spouses are taken into consideration when determining its amount (Case C-220/95, Boogaard, margin no 22). While the Court opined that this would rarely be the case for a mahr, it considered that it did not need to decide the question. Since the spouse potentially entitled to the dower was domiciled in Germany, characterisation of the mahr as a maintenance claim would have resulted in the application of German law.

Consequence of Divorce?

Finally, the Federal Court also considered the obligation to deliver the mahr as a legal consequence of divorce. Article 17 EGBGB submits the property effects of divorce to the law applicable under the Rome III Regulation. Again, the Federal Court ducked the question of whether this characterisation is correct. It instead relied on the fact that, because of the common domicile of the parties, German law would be applicable according to Article 8(1)(a) Rome III.

Conclusion

Ultimately, this ruling may seem much ado about nothing. However, it serves as a reminder of the complex legal problems a mahr may create under European Private International Law, and provides a glimpse of the issues that the CJEU will have to deal with in the event of a request for a preliminary ruling, which will be inevitable should the precise characterisation require determination in a specific case. One only has to tweak the facts of the case slightly, for instance, by assuming that one of the spouses is domiciled abroad, to see the uncertainty about the characterisation breaking out into the open. The simple fact that the Federal Court examined four alternative characterisations is testimony to the difficulties, as well as the fascinating and complex challenges that legal institutions unfamiliar to us pose, not only for national, but also for European international private law.

The Court has delivered its ruling in Verein für Konsumenteninformation v Volkswagen AG (Case C-343/19) yesterday.

The court rules that a motor vehicle manufacturer whose unlawfully manipulated vehicles are resold in other Member States may be sued in the courts of those States, and that the damage suffered by the purchaser occurs in the Member State in which he purchases the vehicle for a price higher than its actual value.

See the Press Release of the Court here.

 

Toni Marzal (University of Glasgow) has posted From World Actor to Local Community: Territoriality and the Scope of Application of EU Law on SSRN.

The abstract reads:

This chapter offers a reconstruction of the case law of the Court of Justice of the European Union in relation to the territorial scope of application of EU law. Thus, it will focus on the manner in which the Court approaches the question of whether EU law should apply to cases that are at least partly connected to non-EU jurisdictions. This is a topic that has attracted significant interest in recent years from EU lawyers as well as experts in public and private international law, given in particular how EU law has been said to take the role of a ‘world actor’ in tackling problems that lack a clear geographical basis, such as the protection of personal data, environmental degradation or competition law. Under the most common understanding, the question of the territorial applicability of EU law is essentially a functional one: the scope of application of EU law will be that which is required by the effective pursuit of whatever goal is at stake, which may mean that in many instances it will apply ‘extraterritorially’. It will however be argued that this leaves aside an important dimension of the territorial applicability of EU law – its contribution to the construction of the EU legal system as a ‘local community’. Indeed, the EU legal system should not only be seen as an institutional tool in the promotion of certain objectives, but should also be understood as a space of inclusion and exclusion. It will not only be argued that this is a necessary dimension to EU law’s scope of application, but also that this dimension is already present in the case law. This will be seen through a study of three different lines of cases, where the Court deduces the applicability of EU law from the location of a legal relationship, the imperativeness of the particular EU legal regime, and the integrity of the EU legal system as a whole.

The paper is forthcoming in L. Azoulai (ed), European Union Law and Forms of Life. Madness or Malaise? (Hart Publishing, 2020).

In the last decade, the French law of diplomatic immunity has changed numerous times. This is not great for legal certainty, but it can get much worse if the different rules are applied in the same case. This should not be possible in a democratic State, but this is what happened in Commisimpex v. Republic of Congo.

Background

Commisimpex is a Congolese company which conducted serious construction work in Congo in the mid 1980s. It was headed by Lebanese businessman Mohsen Hojeij who was presented by the general press as a personal friend of the President of Congo, Denis Sassou-Nguesso, although Hojeij himself denies it. Commisimpex claimed that Congo did not pay some of the work and initiated arbitral proceedings which eventually led to two arbitral awards ordering Congo to pay various sums which total today over a billion euros. Since then, Commisimpex has been trying to enforce the awards over any assets of Congo that it may find.

To resist enforcement, Congo developed two strategies. The first was to generate a contradictory judgment which might bar the enforcement of the awards. The second was to challenge the enforceability of the waiver of its sovereign immunities.

A Timely Congolese Judgment

A few months after Commisimpex initiated enforcement proceedings of the arbitral awards in France (see below), the Congolese social security institution claimed that Commisimpex had failed to pay its contributions for decades and requested that insolvency proceedings be opened against the company. Two insolvency officials were appointed. French courts would later find that the first had represented the State of Congo, and the second was employed by the Presidency of the State of Congo.

In 2014, Congolese tax authorities also started to review the tax situation of Commisimpex, to eventually fid that Commisinpex owed over a billion euros of taxes to the Congolese State. Remarkably, the amount corresponded pretty much to the amounts of the arbitral awards.

At the end of 2014, the Congolese judge in charge of the liquidation issued an order whereby he ruled that a set off occurred between the claims resulting from the awards and the tax claims, and that the latter being higher than the former, a tax claim still remained. French courts would later find that Comminsimpex was neither informed about this particular aspect of the proceedings, and even less heard.

Congo then attempted to have the 2014 Congolese order declared enforceable in France. Its enforcement was denied by the Paris first instance court in 2015, and then by the Paris Court of appeal, on the ground of lack of impartiality of the insolvency officials and violation of the right to be heard.

The Evolving Law of Diplomatic Immunity in France

In a letter of 1993, the Republic of Congo had waived all jurisdiction and enforcement immunities in this case. A critical issue became whether the waiver covered assets protected by diplomatic immunity.

A New Rule of Customary International

In two cases of 2011 and 2013, the French Supreme Court for Criminal and Civil Matters (Cour de cassation) invented a rule of customary international law, allegedly grounded in the 2004 UN Convention on the Jurisdictional Immunities of States and their Property, providing that diplomatic immunity could not be waived by a general waiver of all sovereign immunities, whether of jurisdiction or enforcement, but that it could only be waived by a declaration which was both express and “special”, i.e. specifically mentioning diplomatic immunity.

Meanwhile, in the same year 2011, Commisimpex attached the bank accounts of the diplomatic mission of Congo and its delegation to UNESCO in Paris. French lower courts applied the new 2011 precedent of the Cour de cassation and set aside the attachements, as Congo has not expressly and specifically waived its diplomatic immunity.

A New Precedent

Commisimpex appealed to the Cour de cassation which, remarkably, overruled itself in a judgment of 13 May 2015 and held that customary international law only required an express waiver of diplomatic immunity. Indeed, that is all that the 1961 Vienna Convention on Diplomatic Relations ever required. The waiver of Congo did not mention diplomatic immunity and was thus not specific, but it was express. The Court allowed the appeal.

The case was thus sent back to the Paris Court of Appeal. In June 2016, the Paris Court of Appeal applied the new doctrine of the Cour de cassation and ruled that Commisimpex could attach the bank accounts of the Diplomatic Mission and UNESCO Delegation in Paris. Congo appealed to the Cour de cassation.

A New Law

However, the French Parliament got concerned that creditors of States could enforce too easily their awards (or judgments) in France and thus intervened in December 2016 to reinstate a requirement that diplomatic (and consular) immunities may only be waived by express and specific waivers (see today Article L. 111-1-2 and L. 111-1-3 of the French Code of Civil Enforcement Procedures). Of course, the new law could only apply to enforcement proceedings initated after its entry into force.

Two years later, the case came back before the Cour de cassation, which it seems, took very seriously the message sent by the Parliament that France should be more understanding with foreign states. In a judgment of 10 January 2018, the Cour de cassation ruled that, although the Cour of Appeal of Paris had perfectly applied the 2015 ruling, the law had changed, and a waiver of diplomatic immunity could only be enforced if express and specific. Of course, the Cour de cassation noted, the new law was not applicable to enforcement proceedings initiated 7 years earlier, but it still decided to apply the new requirements in the present case, because

it was absolutly necessary, in a field touching on the sovereignty of states and the preservation of their diplomatic representation, to treat like cases alike. Thus. the objective of legal consistency and certainly requires to come back to the previous case law [the 2011-2013 precedents] conforted by the new law.

And as if it was not enough, the Cour de cassation decided to close the case and thus, instead of sending it back to a lower court, to finally rule that the diplomatic monies attached in 2011 were protected by a diplomatic immunity which had not been waived.

Is this Constitutional? A New Rule of Customary International Law

The most remarkable part of the 2018 judgment was that the Cour de cassation decided to apply retroactively new rules in a case where it had taken an entirely different position a few years earlier. At first sight, that looks contrary to the most basic principles of the rule of law.

Commisimpex lawyers decided to create a situation to allow them to bring the matter before the French constitutional council. They attached again diplomatic funds. Lower courts ruled that they could not, as per the 2018 judgment of the Court de cassation. Commisimpex appealed to the Cour de cassation, and requested that the issue of the constitutionality of the retroactive application of the new rules (whether judge made or statutory) be put to the Contitutional Council.

In a judgment of 2 October 2019, the Cour de cassation ruled that there was no issue, and thus no need to petition the Constitutional Council, on the ground that the 2018 judgments had not applied the new law, but only Articles 22 and 25 of the 1961 Vienna Convention and customary international law.

The French reconstruction of customary international law continues.

Meanwhile, Commisimpex has attached Falcon 7X business jet belonging to the presidency of Congo. Is it covered by diplomatic immunity? Stay tuned.

On 7 July 2020, the Members of the Committee on Legal Affairs will vote on the provisional agreement resulting from the interinstitutional negotiations on representative actions for the protection of the collective interests of consumers. The text is available here.

Here are some points of interest (and a few on-the-spot comments).

1. The resulting document will be a directive not intended to replace the enforcement mechanisms contained in previous legal acts listed in Annex I, among which the GDPR.

2. The Directive will cover both domestic and crossborder infringements, in particular when consumers affected by an infringement live in one or several Member States other than the Member State where the infringing trader is established.

3. As announced in the Commission’s proposal (referred to here), the Directive should not affect the application of nor establish rules on private international law regarding jurisdiction, the recognition and enforcement of judgments or applicable law (NoA: how long have academics and the CJEU, AGs included, been warning about the PIL rules being utterly inadequate for collective redress? Apparently not enough).

4. Qualified entities should be allowed to bring representatives actions in the Member State where they have been designated as well as in another Member State.

5. When a qualified entity brings a representative action in another Member State than the one of its designation, that action should be considered a cross-border action.

6. When a qualified entity brings a representative action in the Member State where it is designated, the action is considered a domestic representative action even if that action is brought against a trader domiciled in another Member State or even if consumers from several Member States are represented within that action. (NoA: if I am understanding this correctly, the action against a trader domiciled in another Member State is domestic for the purposes of the Directive, although from a PIL perspective it is definitely not domestic).

7. Principle of origin: for the purpose of cross-border representative actions, qualified entities should comply with the same criteria across the Union. It should be for the designating Member State to ensure that the qualified entity designated for the purpose of cross-border representative actions fulfils the criteria, to assess whether it continues to comply with them and, if necessary, to revoke the designation of the qualified entity.

8. Legal standing: Member States should ensure that cross-border representative actions can be brought in their courts (or administrative authorities) by qualified entities designated for the purpose of such representative actions in another Member State.

9. Qualified entities from different Member States should be able to join forces within a single representative action in front of a single forum, subject to relevant rules on competent jurisdiction (NoA: usually who the claimant is has no impact on jurisdiction, so the caveat has to refer to something different. In any event, is this a lost opportunity to reflect on extended rules for related claims?).

10. The mutual recognition of the legal standing of qualified entities designated for the purpose of cross-border representative actions should be ensured

11. When bringing a representative action, the qualified entity should provide sufficient information on the consumers concerned by the action to the court or the administrative authority. The information should allow the court (or the administrative authority) to establish its jurisdiction and the applicable law.

12. Cooperation and exchange of information between qualified entities from different Member States have proven to be useful in addressing in particular cross-border infringements (NoA: has it?). There is a need for continuing and expanding the capacity-building and cooperation measures to a larger number of qualified entities across the Union in order to increase the us representative actions with cross-border implications.

13. The Commission should draw up a report, accompanied if appropriate by a relevant proposal, assessing whether cross-border representative actions could be best addressed at Union level by establishing an European Ombudsman for collective redress (NoA: not sure what his/her role would be).

Peer Zumbansen edited The Many Lives of Transnational Law – Critical Engagements with Jessup’s Bold Proposal, published by Cambridge University Press.

The blurb reads:

In 1956, ICJ judge Philip Jessup highlighted the gaps between private and public international law and the need to adapt the law to border-crossing problems. Today, sixty years later, we still ask what role transnational law can play in a deeply divided, post-colonial world, where multinationals hold more power and more assets than many nation states. In searching for suitable answers to pressing legal problems such as climate change law, security, poverty and inequality, questions of representation, enforcement, accountability and legitimacy become newly entangled. As public and private, domestic and international actors compete for regulatory authority, spaces for political legitimacy have become fragmented and the state’s exclusivist claim to be law’s harbinger and place of origin under attack. Against this background, transnational law emerges as a conceptual framework and method laboratory for a critical reflection on the forms, fora and processes of law making and law contestation today.

The individual contributions are authored by Stephen Minas, Christopher A. Whytock, Thomas Schultz, Niccolò Ridi, Karsten Nowrot, Gregory Shaffer, Carlos Coye, Francis Snyder, Zhouke Hu, Lili Ni, Florian Grisel, Bryan Horrigan, Shahla Ali, Paul Schiff Berman, Antoine Duval, Ivana Isailovic, A. Claire Cutler, Jothie Rajah, Natasha Affolder, Larry Catá Backer, Prabhakar Singh, Ralf Michaels and Vik Kanwar.

The book’s table of contents can be found here. For further information see here.

Ilaria Viarengo and Pietro Franzina have edited The EU Regulations on the Property Regimes of International Couples – A Commentary, published by Edward Elgar in its Elgar Commentaries in Private International Law series.

The publisher’s abstract reads as follows.

This article-by-article Commentary on EU Regulations 2016/1103 and 2016/1104 critically examines the uniform rules adopted by the EU to deal with the property relations of international couples, both married and in registered partnerships. Written by experts from a variety of European countries, it offers a comprehensive side-by-side discussion of the two Regulations to provide context and a deeper understanding of the issues of jurisdiction, applicable law and recognition of judgements covered.

The authors of the commentary are Giacomo Biagioni, Andrea Bonomi, Beatriz Campuzano Díaz, Janeen Carruthers, Sabine Corneloup, Gilles Cuniberti, Elena D’Alessandro, Pietro Franzina, Martin Gebauer, Christian Kohler, Silvia Marino, Cristina M. Mariottini, Dieter Martiny, Csongor I. Nagy, Jacopo Re, Carola Ricci, Andres Rodríguez Benot, Lidia Sandrini, Ilaria Viarengo and Patrick Wautelet.

More information available here.

The Presidency of the Council of the European Union and the European Parliament reached on 30 June 2020 a provisional agreement on the modernisation of Regulation 1206/2001 on the taking of evidence abroad, and Regulation 1393/2007 on the service of judicial and extra-judicial documents (see here and here for contributions appeared on this blog regarding the reform).

The provisional agreement now needs to be submitted for endorsement by Member States’ representatives.

The purpose of the amendments under discussion is, generally, to improve the efficiency and speed of cross-border judicial proceedings by taking advantage of digitalisation and the use of modern technology, and by these means advance access to justice and fair trial for the parties.

Changes include the mandatory use of an electronic decentralised IT system, composed of interconnected national IT systems, for the transmission of documents and requests between Member States. The new regulations will also task the Commission with the creation, maintenance and future development of a reference software which Member States can choose to apply as their back end system, instead of a nationally-developed IT system.

As to the service of documents, the envisaged new rules provide that documents can be served electronically and directly on an addressee with a known address in another Member State, when his or her express consent is given in advance. The service can be performed through qualified electronic registered delivery services or, under additional conditions, by e-mail.

The new rules also aim to promote the use of videoconferencing or other distance communication technology in the taking of evidence.

Before the judicial holiday, several decisions will be delivered regarding EU instruments on private international law.

The decision of the 1st Chamber (Bonichot, Safjan, Bay Larsen, Toader, Jääskinen) in C-343/19, Verein für Konsumenteninformation, regarding Article 7.2 of the Brussels I bis Regulation, is due on 9 July 2020. M. Safjan is the reporting judge; AG Campos’s Opinion was published on 4 April.

One week later the 1st Chamber will read the judgments in C-73/19, Movic e.a., C-80/19, E.E., and C-249/19, JE. C. Toader acts as reporting judge in C-73/19, on the meaning of “civil and commercial matters” in the Brussels I bis Regulation; see here AG Szpunar’s Opinion, of 23 April 2020. Judge Toader is the reporting judge as well in C-80/19, which addresses several aspects of the Succession Regulation; the Opinion by AG Campos, of 26 March 2020, has not yet been fully translated into English (here the French version; the original is in Spanish). C-249/19 benefited from AG Tanchev’s Opinion, also of 26 March 2020; the Court was asked to rule on the Rome III Regulation on the law applicable to divorce. R. Silva de Lapuerta is the reporting judge.

The same day, the judgment in C-253/19 (9th Chamber: Rodin, Jürimäe, Piçarra, with Jürimäe as reporting judge) will be delivered, addressing the COMI under the new Insolvency Regulation. AG Szpunar’s Opinion was published on 30 April 2020.

The Court’s activity resumes on 1 September 2020. Next date for a PIL judgment is September 3 (C-186/19, Supreme Site Services e.a.; see the Opinion by AG Oe here).

Iacyr de Aguilar Vieira and Gustavo Cerqueira have edited a volume on the CISG in the Americas (La Convention de Vienne en Amerique).

From the foreword of the book:

On the occasion of the Vienna Convention on Contracts for the International Sale of Goods’ 40th anniversary, its success can be evidenced by its influence in America. In fact, 19 out of the 93 member-States are found in this vast continent.

To celebrate its 40th anniversary, the Latin American section of the Société de législation comparée sought to present the Convention’s current state of application in different American countries, as well as to measure its influence on domestic sales laws.

As court decisions and scholarly writing multiply with the ratification of the Convention by American States, this presentation seeks to offer a better understanding of how the Convention is being applied and, through that, support the efforts for its uniform application. A comparative approach concludes the book. This initiative seeks not only to oppose the attempts that can be found in domestic cases to interpreting the Convention differently, but also, and on a more positive note, to promote the Convention as a model for the regulation of sales in America and Europe.

Concerning the more specifics private international law issues, the numerous analyses related to the applicability of the Convention and to the subsidiary application of national law offer very interesting insights into the conflict of laws systems of Contracting States in this part of the world. On this point, the contributions of G. Argerich (Argentina), F. Pignatta (Brazil), D. Rojas Tamoyo (Colombia), M. Paris Cruz (Costa Rica), R. A. Williams Cruz (Honduras), E. Hernández-Bretón and C. Madrid Martinez (Venezuela) will be particularly instructive.

Thus, this book is the perfect occasion to compare the Vienna Convention’s implementation in American States and to benefit from the view of American scholars on this universal instrument for the uniformization of sales of goods.

It is meant both for scholars and lawyers in the field of international commerce.

The table of contents can be downloaded here. More details are available here.

Still on the application of foreign law (see my previous post here), a second topic has caught my eye: that of free access providers of legal information – the ‘Legal Information Institutes’ (‘LII’s), directly related to the ‘Free Access to Law Movement’. I have never really reflected about them; even less, about what their role could be for the purposes of facilitating access to a foreign law. I have made a little bit research on the institutions and the underlying principles, out of curiosity.

The existence of the LIIs was made possible thanks to the internet; free access to legal information would not be possible against distribution costs. As a consequence, the LII’s existence goes back only to the early 1990’s. The first institute was the Legal Information Institute at Cornell University Law School, set up in 1992 with a number of databases primarily of US federal law. The foundation of the Australasian Legal Information Institute (AustLII) followed in Sydney, Australia, in 1995. The next ones were the ZamLII (Zambia), the BAILII (UK and Ireland), the PacLII (Pacific Islands), the HKLII (Hong Kong), the SAFLII (South Africa), the NZLII (New Zealand), and the CanLII (Canada). Today, there are more of 50 LII or similar institutions –  not all of them have borrowed the “LII” suffix- over the world.

The LIIs publish legal information from more than one source, i.e., not just ‘their own’ information but also data from other LIIs, for free access via the Internet. To this aim they collaborate with each other, also at the technical level (sharing of software, technical expertise and experience on policy questions such as privacy issues), through membership of the ‘Free Access to Law Movement’ (FALM). The FALM was officially born at a Conference in Montreal in 2002, where the Declaration on Free Access to Law was adopted. The document as amended, as well as a list of all members with links to their respective websites, is accessible here.

The Montreal Declaration defines public legal information as “legal information produced by public bodies that have a duty to produce law and make it public”. It includes primary sources of law, such as legislation, case law and treaties, and various secondary (interpretative) public sources, such as reports on preparatory work and on law reform, and resulting from boards of inquiry. It also includes legal documents created as a result of public funding.

The underlying principles of the Declaration read as follows: public legal information from all countries and international institutions is part of the common heritage of humanity; maximising access to this information promotes justice and the rule of law; public legal information is digital common property and should be accessible to all on a non-profit basis and free of charge; the government bodies that create or control that information should provide access to it so that it can be published by other parties. The Declaration acknowledges, however, that while access to secondary interpretative legal materials should be for free, permission to republish is not always appropriate or possible.

The FALM aims at being global, but so far only a few LIIs are based in Europe (Austria, Cyprus, France, Germany, Ireland -and the UK-, Italy, Spain); the majority are located and represent jurisdictions outside Europe. It should be noted that some LLIs, like the WorldLII, have a global scope.

What precisely can be obtained from the LIIs, and who behind each of them is, are  tricky questions: the answer is, it depends on the LLI. Regarding the first question, all the institutes share the task of promoting and supporting free access to public legal information throughout the world, principally via the Internet. In practice, however, the number and scope of the databases varies a lot: from many of the countries they are small, but they are very substantial from others; in some cases, like Canada, Australia, Hong Kong, Ireland or the UK, the LIIs’ offer includes content not available from commercial legal publishers. Another factor to be taken into account when assessing the usefulness of an LII is the policy on re-use: in some countries where doctrines such as the Crown Copyright still apply (for example, Australia), a LII is not at liberty to permit users to reproduce its data for all purposes.

On the second question, the answer is that LIIs are mostly based in academic institutions; some include as well libraries, and some, governmental or semi-governmental bodies. From this information it is already easy to guess that funding, and particularly long-term funding, is a problem. Private sponsorship and voluntary contributions to this kind of project, which is finally in the general interest, seems to be a question of culture and tradition: popular in some countries and almost unknown in others. As a consequence, the capacity of the LIIs to perform varies from one another; the divergences appear already at the level of the design and degree of sophistication of the respective websites. How often statutes and regulations are updated, how long it takes to have a decision published after delivery, depends as well on each LII.

Because every LII (and assimilated institutions) is different, a common assessment in terms of the authenticity, reliability or update of the sources provided, would be inappropriate. However, two things are clear: documents published by LIIs have no official status; and the initiative was not adopted, nor is being implemented, primarily for foreign users. Whether local courts and professionals rely on the services of an LII is a matter of trust. What I would say is that if they do – that is, if the documents published on a particular LII are routinely used for professional purposes, and accepted by the courts to assess the state of the law at the domestic level-, there is no reason not to follow for the purposes of bringing that foreign law before a court sitting in another country. But, of course, already finding out whether this is the case may be a cumbersome task.

— Further Reading: you may want to have a look at the Journal of Open Access to Law.

William S. Dodge (University of California, Davis) and Wenliang Zhang (Renmin University of China) have posted Reciprocity in China-U.S. Judgments Recognition on SSRN.

The abstract reads:

The conventional wisdom is that China and the United States do not recognize each other’s court judgments. But this is changing. A U.S. court first recognized a Chinese judgment in 2009, and a Chinese court first reciprocated in 2017. This Article provides an overview of the enforcement of U.S. judgments in China and Chinese judgments in the United States, noting the similarities and differences in the two countries’ systems. In China, rules for the enforcement of foreign judgments are established at the national level and require reciprocity. In the United States, rules for the enforcement of foreign judgments are established at the state level and generally do not require reciprocity. This Article also looks at possibilities for future cooperation in the enforcement of foreign judgments, through a bilateral treaty, a multilateral convention, and the application of domestic law. It concludes that progress in the recognition and enforcement of China-U.S. judgments is most likely to come from continued judicial practice under existing rules and from China’s shifting approach to reciprocity.

The paper is forthcoming in the Vanderbilt Journal of Transnational Law.

On 22 June 2020, Parliament and Council negotiators reached a deal on the first EU-wide rules on collective redress.

The new rules introduce a harmonised model for representative action in all member states that guarantees consumers are well protected against mass harm, while at the same time ensuring appropriate safeguards from abusive lawsuits. The new law also aims to make the internal market function better by improving tools to stop illegal practices and facilitating access to justice for consumers.

Background

The Representative Action Directive is a part of the New Deal for Consumers, launched in April 2018 by the European Commission, to ensure stronger consumer protection in the EU. It includes stronger consumer rights online, tools to enforce rights and compensation, penalties for violating EU consumer law and improved business conditions.

The Agreement

The main elements of the agreement are as follows.

1. Each Member State will name at least one qualified entity (an organisation or a public body) that will be empowered and financially supported to launch actions for injunction and redress on behalf of groups of consumers and will guarantee consumers’ access to justice.

2. On designation criteria for qualified entities, the rules distinguish between cross-border cases and domestic ones. For the former, entities must comply with a set of harmonised criteria. They have to demonstrate 12 months of activity in protecting consumers’ interest prior to their request to be appointed as a qualified entity, have a non-profit character and ensure they are independent from third parties whose economic interests oppose the consumer interest;

3. For domestic actions, member states will set out proper criteria consistent with the objectives of the directive, which could be the same as those set out for cross-border actions.

4. The rules strike a balance between access to justice and protecting businesses from abusive lawsuits through the Parliament’s introduction of the “loser pays principle”, which ensures that the defeated party pays the costs of the proceedings of the successful party-

5. To further avoid abusive lawsuits, Parliament negotiators also insisted that courts or administrative authorities may decide to dismiss manifestly unfounded cases at the earliest possible stage of the proceedings in accordance with national law.

6. Negotiators agreed that the Commission should assess whether to establish a European Ombudsman for collective redress to deal with cross-border representative actions at Union level.

7.  The scope of collective action would include trader violations in areas such as data protection, financial services, travel and tourism, energy, telecommunications, environment and health, as well as air and train passenger rights, in addition to general consumer law.

Next steps

Parliament as a whole and the Council will now have to approve the political agreement. The directive will enter into force 20 days following its publication in the Official Journal of the EU. Member states will then have 24 months to transpose the directive into their national laws, and an additional six months to apply it.

Click here to access the procedure file.

While doing some research on the topic of the application of foreign law (frustrating: nothing has happened at the international level since the issue was given up at the Hague some years ago), I have come across some publications on related topics which I believe deserve attention. One of them is whether there is a human right of public access to legal information; scholars in favor even claim a UN Convention proclaiming it should be adopted .

Thanks to these readings I remembered a case of the European Court of Human Rights which, except I am mistaken, is largely unknown. The judgement, of 6 April 2004, corresponds to application no. 75116/01, Karalyos and Huber v. Hungary and Greece. Hungary was found to have failed to comply with Article 6 ECHR in a case for the compensation of damages: the contents of the foreign applicable law had not been established nine years after the claim was lodged; the proceedings were still pending at an early stage before the Hungarian courts. What is more relevant, the local courts had not taken the approppriate steps to ascertain the contents of the foreign law, nor applied national law instead – a possibility foreseen in section 5 § 1 of Hungarian Law-Decree no. 13 of 1979 on International Private Law.

I suggest you have a look, also on the lengh of proceedings where foreign law is applicable, to  Bekerman v. Liechtenstein, on application no. 34459/10  (although less representative than Karalyos).

I would disclose nothing new by asserting the potential of Article 6 ECtHR in the area. However, to infer a fundamental right of access to legal materials from the case law mentioned above would, to my mind, go too far. On the contrary, some consequences could definitly be drawn regarding the application of foreign law – and not only in Hungary. I am not aware it has happened. It would be great to have feedback, if someone knows better.

— Some readings on access to legal information as a right: Ginevra Peruginelli, ‘Law belongs to the people: access to law and justice’, [2016] 16(2) Legal Information Management 107 – quite short; Leesi Ebenezer Mitee, The Right of Public Access to Legal Information: A Proposal for Its Universal Recognition as a Human Right’ (2017) 18 German LJ 1429 – almost 70 pages.

Aaron D. Simowitz (Willamette University College of Law) has posted Convergence and the Circulation of Money Judgments on SSRN.

The abstract reads:

For half a century at least, the several states of the United States have taken a liberal attitude toward the recognition and enforcement of foreign country money judgments. The U.S. Supreme Court invoked the “grace” of sovereign nations to justify a restrictive approach to the recognition of judgments in the famous case of Hilton v. Guyot. The New York Court of Appeals laid out a more generous approach based in the vindication of private rights. Simply put, private rights won. In 1962, the Uniform Law Commission promulgated the Uniform Foreign Money-Judgments Recognition Act, which codified a liberal approach to the cross-border circulation of money judgments. The many U.S. states that adopted the uniform act were trying to lead by example. The hope was that, if they accepted incoming judgments, judgments exported to the rest of the world would be accepted, recognized, and enforced. For decades, this effort was regarded as a failure. The European Union continued to draw a sharp distinction between E.U. judgments and U.S. judgments—though acceptance of U.S. judgments by E.U. member states crept up over time. Some of the world’s largest economies—most notably, China—outright rejected recognition of U.S. money judgments.

Change has been recent and dramatic. In 2017, a Chinese court recognized and enforced a U.S. money judgement for the first time. Chinese law requires reciprocity between nations in order to recognize a foreign money judgment. The United States has no reciprocal judgment recognition treaty with any country. A U.S. district court recognized and enforced a Chinese judgment in 2009. This “reciprocity in fact” was sufficient for a Chinese court. A few months later, China announced that it would sign The Hague Convention on Choice of Court Agreements (“COCA”), obligating Chinese courts to recognize and enforce judgments rendered under a choice of court clause selecting the courts of any contracting state. The COCA has already entered into force between the European Union, Mexico, and Singapore. The United States has signed, but not ratified, the agreement. Meanwhile, The Hague Judgments Project gathers steam to require the free circulation of judgments arising in all but a few contexts. The drivers of this apparent convergence are obscure and likely diverse. This Article will analyze the causes of this recent, dramatic shift and will attempt to assess the likelihood of further convergence.

The paper is forthcoming in the Southern California Law Review.

On 28 May 2020, the German Federal Court of Justice (BGH) decided to refer a question for a preliminary ruling to the ECJ regarding Articles 80 and 84 of the General Data Protection Regulation (GDPR). The case, brought by consumer protection groups, is about the alleged violation, by the operator of a social network, of the obligation to inform users about the scope and purpose of the collection and use of their data.

Background

The Irish-based defendant, Facebook Ireland Limited, operates the “Facebook” social network. On the internet platform of this network there is an “app center” in which the defendant makes free online games of other providers accessible to the users of its platform. In November 2012, several games were offered in this app center, for which the following information could be read under the button “Play now”: “Clicking on Play game above gives this application: your general information, your email address, about you, your status. This application may post on your behalf, including your score and more.” In one game, the notice ended with the phrase: “This application may post information on your status, photos, and more on your behalf”.

The plaintiff is the umbrella organization of the consumer centers of the Federal states. It claims, among other, that the presentation of the information under the “Play now” button in the app center is improper, including from the point of view of the legal requirements for obtaining effective data protection consent from the user. It considers itself entitled to enforce injunctive relief by bringing an action before the civil courts in accordance with the relevant German rules on unfair competition and consumer protection.

In the first instance, the district court ordered the defendant to refrain from presenting games on its website in an app center in such a way that users of the internet platform, by clicking a button such as “play game”, allow the game operator to use personal data stored there, and is authorized to transmit (post) information on behalf of the user (LG Berlin, 28 October 2014, 16 O 60/13). The defendant’s appeal was unsuccessful (Kammergericht Berlin, 22 September 2017, 5 U 155/14). The defendant has filed a second appeal with the BGH.

The question

The question referred to the ECJ focuses on whether the criteria set out in Chapter VIII of the GDPR, in particular in Article 80(1) and (2) and in Article 84(1), conflict with national rules granting to competitors and associations, institutions and bodies authorized under national law, the right to sue before the civil courts for infringements under the GDPR regardless of the violation of specific rights of individual data subjects, and without any mandate from a data subject.

This question is controversial in the case law of the lower courts and in legal literature. Some consider that the GDPR contains a final regulation for the enforcement of the data protection provisions made in this Regulation, and that associations are therefore only authorized to bring proceedings under the conditions of Article 80 of the GDPR (which have not been met in the case at hand). According to others, the GDPR is not exhaustive, hence associations continue to be authorized to try and enforce injunctive relief in case of an alleged violation of personal data protection rules, independently of any infringement of specific rights of individual data subjects, and without the need of a mandate from a data subject.

The Court of Justice ruled in Fashion ID that the provisions of Directive 95/46/EC (the Data Protection Directive), which was in force until the General Data Protection Regulation became applicable on 25 May 2018, do not preclude associations from having legal standing. However, this decision does not indicate whether this right to bring an action remains in force under the GDPR.

On 26 May 2020, the European Commission launched a public consultation on cross-border investment within the EU.

Why this initiative?

First, the Commission is currently working on a new regulatory framework for intra-EU investments in order to make the internal market more attractive for foreign investors. The main objective of the future legislation will be to better protect and facilitate cross-border investments (see communication COM/2020/102, A New Industrial Strategy for Europe).

Second, following the Achmea judgment of the European Court of Justice (Case C-284/16), an agreement for the termination of intra-EU bilateral investment treaties has recently been adopted by a broad majority of Member States. At the same time, many investors but also arbitration practitioners have raised concerns because of this brutal change in the regulatory framework. They principally  invoke the loss of effective enforcement of their rights within the EU.

The main topics of the consultation are as follows: the first section contains some general questions aimed at gaining inputs on respondents’ familiarity with cross-border investments and linked issues; the second seeks feedback from stakeholders on rules to protect intra-EU investments; the third invites views on enforcement of intra-EU investment protection rules, including dispute resolution mechanisms and remedies when issues related to cross-border investments arise; the fourth section contains some general questions to assess the overall EU investment protection framework (as presented in section two and three); the fifth section seeks views of stakeholders on measures to facilitate and promote cross-border investment.

The consultation is open until 8 September 2020 and can be found here.

In October 2019, Vincent Richard defended a PhD thesis on default judgments in the European judicial area, written under the joint supervision of Gilles Cuniberti and Loïc Cadiet.

The abstract reads:

French judges regularly refuse to enforce foreign judgements rendered by default against a defendant who has not appeared. This finding is also true for other Member States, as many European regulations govern cross-border enforcement of decisions rendered in civil and commercial matters between Member States. The present study examines this problem in order to understand the obstacles to the circulation of default decisions and payment orders in Europe. When referring to the recognition of default judgments, it would be more accurate to refer to the recognition of decisions made as a result of default proceedings. It is indeed this (default) procedure, more than the judgment itself, which is examined by the exequatur judge to determine whether the foreign decision should be enforced. This study is therefore firstly devoted to default procedures and payment order procedures in French, English, Belgian and Luxembourgish laws. These procedures are analysed and compared in order to highlight their differences, be they conceptual or simply technical in nature. Once these discrepancies have been identified, this study turns to private international law in order to understand which elements of the default procedures are likely to hinder their circulation. The combination of these two perspectives makes it possible to envisage a gradual approximation of national default procedures in order to facilitate their potential circulation in the European area of freedom, security and justice.

The thesis, in French, is titled Le jugement par défaut dans l’espace judiciaire européen and can be accessed here.