EAPIL blog

The author of this post is Carlos Santaló Goris, lecturer at the Centre for Judges and Lawyers of the European Institute of Public Administration (Luxembourg).

On 26 October 2023, the High Regional Court of Karlsruhe (Oberlandesgericht Karlsruhe) rendered a judgment on an appeal confirming a decision of the Regional Court of Baden-Baden refusing to issue a European Account Preservation Order (‘EAPO’). The creditor had invoked a 2023 amendment in the Maltese Gaming Act to justify the periculum in mora required to obtain a EAPO. The judgment is at the crossroads of two issues. On the one hand, the systemic difficulties that creditors across the EU are facing to satisfy the periculum in mora condition. On the other, the Maltese legislative reform referred to, which is currently under the scrutiny of the European Commission for potentially infringing EU law.

A German creditor requested an EAPO against a debtor domiciled in Malta before the Regional Court of Baden-Baden (Landgericht Baden-Baden). The debtor was a company offering online gambling services. The creditor applied for the EAPO relying on a judgment of that court sentencing the debtor to pay 13.000 euros plus interest to the creditor. The EAPO application was rejected: the court found that the periculum in mora requirement, which is essential to obtain an EAPO, had not been proven. This prerequisite is defined in the EAPO Regulation as ‘an urgent need for a protective measure in the form of a Preservation Order because there is a real risk that, without such a measure, the subsequent enforcement of the creditor’s claim against the debtor will be impeded or made substantially more difficult’ (Article 7(1) EAPO Regulation).

The creditor appealed the decision before the High Regional Court of Karlsruhe, which also considered that the periculum in mora criterion had not been duly satisfied, confirming the decision of the Regional Court of Baden-Baden.

The existence of a title is thus not sufficient to grant an EAPO. Creditors, irrespective of whether or not they have a title, have to prove the periculum in mora. In the case at hand, in order to justify the existence of such risk, the creditor argued that the 2023 amendment of the Maltese Gaming Act would prevent the future enforcement of the claim against the creditor. The reform introduced in the Maltese Gaming Act Article 56A, which states the following:

Notwithstanding any provision of the Code of Organization and Civil Procedure or of any other law, as a principle of public policy:

1. no action shall lie against a licence holder and, or current and, or former officers and, or key persons of a licence holder for matters relating to the provision of a gaming service, or against a player for the receipt of such gaming service, if such action:

• • conflicts with or undermines the legality of the provision of gaming services in or from Malta by virtue of a licence issued by the Authority, or the legality of any legal or natural obligation resulting from the provision of such gaming services; and
  • relates to an authorised activity which is lawful in terms of the Act and other applicable regulatory instruments.

2. The Court shall refuse recognition and, or enforcement in Malta of any foreign judgment and, or decision given upon an action of the type mentioned in sub acticle (i)

The reform would prevent the enforcement in Malta of judgments rendered in other Member States against holders of Maltese licenses to provide online gaming services. This is, precisely, the argument used by the German creditor to substantiate the periculum in mora. The creditor considered that ‘as long as the law is in force, there is a risk that the defendant will move money from Maltese accounts to non-European countries (…), thereby preventing enforcement’. In line with the creditor’s opinion, the German gambling regulator (Gemeinsamen Glücksspielbehörde der Länder) considered that such a solution would contravene the automatic recognition and enforcement regime of the Brussels I bis Regulation. Nonetheless, it should be noted that the Brussels I bis Regulation includes infringement of national public policy among the grounds to contest the recognition and enforcement of judgments granted in other Member States (Article 45(1)(a) Brussels I bis Regulation). Under the EAPO Regulation, it is also possible to contest the enforcement of an EAPO on the ground that it would violate the public policy of the Member State of enforcement (Article 34(2) EAPO Regulation). Had the Regional Court of Baden-Baden granted the EAPO, the debtor could have raised the violation of the Maltese public policy to contest enforcement of the EAPO.

The European Court of Justice (‘ECJ’) has generally interpreted the public policy exemption under the Brussels system in a restrictive manner: a violation of public policy exists only in case of ‘manifest breach of the rule of law regarded as essential in the legal order of the State in which enforcement is sought or a right recognised as being fundamental within that legal order’ (C‑568/20, H Limited, para. 44). The iGaming industry has significant weight in the Maltese economy – it allegedly contributes to around 12% of the Maltese GDP. However, this does not mean that is it essential or fundamental for the Maltese legal order, as the ECJ requires. Accepting the move of the Maltese legislator to protect the iGaming industry would open the door for other Member States to adopt a similar solution to protect relevant sectors of their economies. That abusive use of public policy would result in undermining the proper functioning of the simplified mechanism of recognition and enforcement under the Brussels I bis Regulation.

The controversy surrounding the Maltese legislative reform has not passed unnoticed for the European Commission. Last May, one Member of the European Parliament, Sabine Verheyen, asked the Commission what its stand was towards the reform of the Maltese Gaming Act. The Commission replied that it ‘is in the process of assessing the compatibility of the draft Bill with EU law’.

For the High Regional Court of Karlsruhe, the Maltese legislative reform was not a reason to acknowledge the existence of the periculum in mora. It expressly relied on the guidance offered by Recital 14 of the Preamble of the EAPO Regulation, which contains certain criteria on how to determine that there is a risk. Recital 14 focuses on concrete actions adopted by the debtor that could show that they intend to hinder the enforcement of a claim such us dissipating, concealing, or destroying the assets. Other circumstances such as ‘the mere non-payment or contesting of the claim or the mere fact that the debtor has more than one creditor’ are not sufficient alone to determine that there is a risk. Therefore, for the court, ‘it follows that there must be concrete signs and not just typical abstract dangers of the risk of thwarting of enforcement or of making enforcement more difficult without the provisional account seizure’. Since the creditor did not show ‘any specific or viable indications that the debtor could use up, conceal, destroy or otherwise sell their assets through unusual actions’, the periculum in mora could not be established. The High Regional Court of Karlsruhe found that it was also irrelevant whether or not the post-reform Maltese Gaming Act is incompatible with EU law.

The interpretation that the High Regional Court of Karlsruhe gave of the EAPO´s periculum in mora is coherent with the strict interpretation other German courts had made of this prerequisite. The High Regional Court of Hamm (Oberlandesgericht Hamm) considered that transferring a debtor’s funds from a German bank account to another outside Germany was not sufficient to establish the periculum in mora. In another EAPO case before the Regional Court of Bremen (Landesgericht Bremen), the creditor justified the periculum in mora arguing that the debtor had failed to make two promised payments. Furthermore, the creditor added that the debtor was experiencing financial difficulties. The court found that both arguments were insufficient to claim the existence of a risk. Citing the Preamble of the EAPO Regulation, the court stated that mere non-payment by the debtor was not enough.

Across the EU, courts in other Member States, which relied on the Preamble of the EAPO Regulation, have also adopted a similar stance towards the periculum in mora as German courts have. In Slovakia and Portugal, the most common case law on the EAPO Regulation are judgments rejecting EAPO applications because creditors failed to satisfy the periculum in mora in light of the standards of the Preamble (see 2020 Prof. Requejo Isidro’s post concerning  a Portuguese court judgment on the EAPO). Creditors seem to find it difficult to prove that debtors have adopted specific actions intended to hinder the future enforcement of the claim. The Commission Proposal had a more lenient approach towards the periculum in mora for those creditors with an enforceable title: they were exempted from proving it (some scholars defend the reintroduction of that more lenient approach: Burkhard Hess, Europäisches Zivilprozessrecht (2nd edition De Gruyter 2021), para. 10.141). Had the EU legislator adopted the approach defended by the Commission, the creditor of the present case would not have experienced any issue since he had already obtained an enforceable judgment.

Dr Mihail Danov, Associate Professor at the University of Exeter, has accepted the invitation of the editors of the blog to present his recent book, titled ‘Private International Law and Competition Litigation in a Global Context’, published in the Hart Publishing series on Studies in Private International Law.

The book examines the private international law issues in competition law claims which are issued by private parties and which arise out of infringements that distort the process of competition in different countries. The issues are important because many private antitrust damages claims would raise regulatory issues concerning the nature of the conduct as well as tortious issues concerning the causation and quantification of damages that may be sustained by numerous consumers and businesses (that may be up or down the chain of commerce).

The private international law aspects matter in practice because the jurisdiction rules (predetermining the applicable procedural rules) and the choice-of-law rules (ascertaining applicable law/s which are used to determine whether the conduct is anticompetitive as well as to quantify damages) would both have an impact on the outcome of a cross-border competition law dispute. More importantly, the book demonstrates that private international law issues are closely intertwined with injured parties’ access to legal remedies in private antitrust damages claims. For example, since many competition law infringements may last for several years and cause harm to various injured parties, the procedural rules (concerning case-management; disclosure; standard of proof) at the place where the parties litigate would be key for judges to quantify damages by applying the applicable substantive law rules. This means that the injured parties’ access to justice might often depend on where the proceedings are issued.

A major layer of complexity, which signifies the importance of private international law, is that competition law infringements may frequently be committed by multinational groups of companies that would naturally engage in transnational economic activities. Since the relevant anticompetitive conduct would potentially cause antitrust damages to many consumers and businesses in different jurisdictions, multiple and related private antitrust damages claims (and public enforcement actions) may be issued against different subsidiaries forming part of the same infringing undertaking/s (i.e. group/s of companies). A regime for judicial cooperation is needed because competition laws would reflect the national public policy (being classified as overriding mandatory rules for the private international law purposes). In order to determine whether the conduct is anticompetitive, judges may apply extra-territorially their own competition laws (without necessarily factoring in foreign regulatory interests). This means that an important question is how any related competition law claims – which arise out of the same competition law infringement/s and which raise common issues (concerning the nature of the conduct or causation or damages) – are to be governed in a global context. A closely connected policy choice concerns any preclusive effects of foreign judgments / decision, establishing competition law infringements and/or dealing with certain common issues.

The existing private international law rules are considered along with their implications for the resolution of cross-border competition law disputes before the English courts with a view to suggesting how a regime for judicial cooperation should / could be developed. The issues – which need to be considered by injured parties, defendants, judges and which should be addressed by policy-makers with a view to promoting a level of judicial cooperation in antitrust matters – are identified. The book goes further to advance an argument for a new approach to governance by suggesting that private international law techniques may be key to attaining a level of judicial cooperation in a global context.

The author of this post is Kleopatra Koutouzi (Attorney-at-Law / In-house legal Counsel at Aims Shipping Corporation and External Collaborator with the International Labour Organisation (Maritime Unit)).

In my recently published PhD research entitled Mass Claims in Maritime Law and Alternative Methods of Dispute Resolution, I attempted to answer the above question by dealing with an issue more and more debated at a national and an international level: whether a group of people, suffering damage due to a maritime casualty, can defend their rights collectively before an arbitral tribunal, taking into consideration that collective mechanisms facilitate effective judicial protection.

Shipping has been one of the strongest supporters of arbitration for as long as one can find records. However, arbitration clauses are not included anymore only in contracts between equals. Arbitration clauses in passengers’ tickets and crewmembers’ employment contracts are a common phenomenon recently. The example of the cruise industry shows a trend which may become a mainstream in the near future. Therefore, novel dispute resolution devices affect directly the maritime industry, since most of the international trade and activities are carried out by sea. Given also that maritime casualties tend to take nowadays the form of massive catastrophes, the international maritime community should be alerted to deal with mass and often divergent claims in a rather quick and efficient way.

Τhe research applies a cross-sectoral approach, i.e. the intersection of maritime law with international commercial arbitration law, the procedural practice of mass collective claims and alternative (out-of-court) dispute resolution (ADR). The study cuts across several legal fields and it does so on a comparative basis with four jurisdictions of reference – United States of America (USA), United Kingdom, France and Greece. For the conduct of this research, the United States jurisdiction is used as a benchmark. US law has long been recognized as one of the most friendly and familiar with methods of collective actions – in the form of the unique worldwide phenomenon of class actions – and the use of alternative methods of dispute resolution – with a great emphasis on arbitration. This turns USA into one of the main destinations for the resolution of large-scale disputes. Moreover, the recent US case law on class action waivers in consumer and employment agreements and the relevant debate generated therefrom as well as a series of court decisions compelling arbitration in seafarers’ injury claims are very pertinent to the current analysis.

In this study, the term “mass claims” is used in order to describe claims which arise when a number of people, either contractually bound to the shipowner or not, suffer damages resulting from the same historic event, in our case from a maritime casualty or a maritime adventure whether on board the ship or ashore. Therefore, the claims examined arise either simultaneously or at around the same time and present very similar legal and factual issues without however being identical. In relation to the number of claims involved, for convenience purposes, the research adopts the threshold set by the EU Recommendation of 11 June 2013 and considers mass claims any claims brought collectively by two or more natural or legal persons claiming to have been harmed in a maritime casualty or adventure. Therefore, individual accidents fall outside the scope of this work.

The main research questions answered in this book are:

1. Is arbitration a legally permissible dispute resolution method for the handling of mass claims in the aftermath of a maritime casualty and how should the silence of the governing instruments be interpreted and handled?
2. Is it an appropriate mechanism from a policy point of view, taking into account all the interests involved (private, collective, public)? In such a case, how may a balance be established between procedural efficiency and procedural fairness?
3. Would it be possible to propose solutions, building on the common elements found in the annotated jurisdictions?
4. Is there any added value of mass arbitrations in maritime fields where specific collective indemnity schemes are already in place and have proved effective, as in the case of oil pollution from ships?

To address the above questions the book examines two different categories of claims; a) contract-based ship passengers’ claims, and b) tort-based ship pollution claims. In relation to the first category, reference is made to the specific liability regime governing the sea carriage of passengers, examining the use of arbitration in the relevant disputes (through the lens of consumer protection) as well as the issue of the class action waivers included in many passage contracts. In relation to the second category, reference is made to the specific regime regulating liability and compensation in case of ship pollution with the aim of testing whether arbitration can provide a valid alternative to the jurisdiction of national courts for the resolution of this kind of claims; to that end, the processes activated to address the consequences of the DeepWater Horizon accident provide useful food for thought.

The analysis deals with international contracts of carriage and therefore cross-border disputes with a particular focus on cruises and package holidays. Cruise passengers can raise their claims based mainly on the contract they had entered into while arranging a specific cruise trip. This contract is actually a special form of consumer contract and therefore the cruise passenger “wears the consumer’s uniform” as well. The discussion in relation to ship-passenger claims revolves around the theory and application of class and collective forms of arbitration in consumer disputes. A wide spectrum of claims are taken into consideration, e.g. claims for loss of or damage to luggage, illness, injury and death, claims for delays and cancellations, loss of enjoyment, inconvenience and distress. Single events and purely domestic cases fall outside the scope of this work.

The analysis concludes that in all four examined jurisdictions, the majority of passengers’ claims are considered arbitrable. The categories of claims still excluded from arbitration are personal injury, illness, and death claims. The arbitrability of passengers’ claims is also supported by the provision for arbitration in the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea which authorizes post-dispute arbitration agreements. The main difference in the approach of the examined fora is their stance towards the form and drafting of the arbitration agreement. While the USA adopt the most extreme, if one can say, approach, by enforcing both arbitration clauses stipulating for mandatory arbitration to the exclusion of state courts and post-dispute arbitration agreements, Europe, influenced by the European Courts of Human Rights jurisprudence and the Unfair Terms Directive, clearly rejects mandatory arbitration clauses, since they are presumed to be abusive. Differently, post-dispute arbitration agreements between the passengers and the carrier do not seem to be a problem in either jurisdiction.

Many passengers fear the time, cost, and energy associated with pursuing an individual arbitration and therefore prefer to proceed on a group basis. However, the analysis reveals that large scale arbitration could work well in case of passengers with relatively low value claims, not justifying a single action. Respondents on the other hand only favor broad resolution of group claims after it becomes clear that the matter will be adjudicated on a large-scale basis. In many cases, respondents believe that their legal liability will be eliminated if they can eliminate the possibility of a group action, since many claimants will be unable or unwilling to proceed on a bilateral basis. Taking into account the above, it seems that the possibility of large-scale arbitration would be more beneficial for the passenger than for the shipowner, while at the same time the latter would still be benefited from the use of arbitration, joining multiple claims into a single neutral forum and enjoying secrecy on matters of wide social significance.

Nevertheless, in theory such arrangements are always easier than in practice. In the USA, even though the use of arbitration in consumer/passenger disputes is much more popular and advertised, large-scale arbitration seems not a feasible alternative at present. The US example of cruise lines is indicative of their approach. Specific and now standardized clauses on cruise ship tickets require passengers to submit most claims to arbitration and prohibit them from uniting similar claims in a class action or class arbitration. They contain the so called “class action waivers”. Even worse, the US Supreme Court, in a series of judgments upheld their validity.

With respect to Europe, while EU law has achieved the goal of uniformity in consumer protection, and the principle of the protection of the weaker party is incorporated in all legislations of the EU Member States, the mechanisms of collective relief are at an infant stage. Moreover, the possible application of the concepts of class actions and class arbitration in the continental law generate still various concerns. It is also true that EU policymakers, even though they have recently attributed a significant role to collective redress, they do not look at the arbitration forum for the resolution of mass claims.

The discussion in relation to this category of claims revolves around the theory and application of mass forms of arbitration, which are in principle treaty-based. The analysis and arguments drawn have been heavily influenced by the concept of mass arbitration  that was first innovatively used in the context of investment arbitration. In contrast to the passengers’ claims, there is no contractual relationship in place between the victims of mass harm and the ship-owner. Also, the claims are usually vast in numbers and the various claimants cannot be easily grouped, since they base their claims on different legal grounds. Their only link is that they have suffered damage due to the same event.

The main factor that triggered the application of this exercise in the field of pollution claims is the need for concentration of these claims in one forum. This derives, on the one hand, from the text of the international conventions and, on the other hand, from the fact that they cannot be handled properly if they are not concentrated in one place.

According to the wording of 1992 CLC, if there is a pollution damage in several countries, claimants can address the courts of all of these countries, irrespective of their nationality or the exact localisation of the damage they bring their claim for. Also, there is no lis pendens rule in the 1992 CLC, according to which the proceedings in one contracting State could be stayed in favour of earlier proceedings in another contracting State. Moreover, the ship-owner has the right to set up the fund in any of the contracting States in which an action is brought, or, if no claim is brought, in any of the contracting States in which a claim could be brought. Nevertheless, only the court of the place where the fund has been constituted is competent to decide on the apportionment and the distribution of the fund, which means that all claims for payments must in the end be addressed to this court. Similar wording is used in the International Convention on Civil Liability for Bunker Oil Pollution Damage (BOPC) and the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS).

The above coupled with the different kinds of proceedings initiated in the various fora generate the reasonable question of why are there so many alternatives of competent courts since the claims will have to get technically concentrated in the end in one forum? The fact that there is not a single court that has jurisdiction over all the interested parties, creates a huge risk.

Many courts dealing with such cases resolve procedural issues by excluding foreign plaintiffs from the plaintiff group. However, courts that cannot assert jurisdiction over all of the putative parties to a dispute fail to fulfil one of the primary rationales supporting large-scale relief, namely the resolution of mass disputes at a single time, in a single forum. This deprives the parties of certain efficiencies of scale as well as the speedy route to finality that so many defendants desire. Second, it requiring claimants to seek redress in different jurisdictions can lead to different parties having different rights and remedies, despite having suffered identical injuries from the same historic event. Third, forcing cases to go forward in multiple jurisdictions can lead to inconsistent results, since courts in one state are not bound by factual or legal determinations made elsewhere. This can lead to defendants being required to undertake conflicting duties and it can also give rise to inequitable treatment of injured parties, particularly if judgements that are rendered earlier in time exhaust a limited fund.

The instruments regulating compensation for ship-source pollution do not provide for arbitration. The alleged reason is because the whole structure of compensation under the international conventions is based on an entitlement to limit liability. So, in order to claim the benefit of limitation, a shipowner is required to constitute a limitation fund with the court of the contracting state in which the action is brought against him. The conventions therefore envisage litigation rather than arbitration, although the majority of cases are settled by negotiation.

There are two kinds of (parallel) proceedings that can take place in the aftermath of a maritime casualty: proceedings on the merits of the case, if the extent of the liability and/or the extend of the damage are disputed, and limitation proceedings, which are initiated by the shipowner in order to benefit from the limitation of his liability.

The analysis carried out for the research concludes that arbitration is compatible with both proceedings.

Αs to the types of claims that arise, it is clear that all of them can be validly submitted to arbitration except for the personal injury and death claims. But, even these types of claims are clearly arbitrable in the USA and, in part, also in other common law jurisdictions, like the UK. The same applies to the types of damages claimed by the victims. Although the adjudication of damages falls strictly speaking outside the scope of the current analysis, it is worth clarifying that international tribunals are very much familiar and experienced in adjudicating both compensatory (such as actual loss, consequential loss, pure economic loss) and non-compensatory damages (such as moral and punitive damages).

Also, the selection of claims for compensation is not in any way contrary to the function of an arbitral tribunal. One can argue that the courts have better facilities and more staff to support a large volume of claims, but another could counter-argue that an arbitral tribunal constituted for this particular purpose will have more time and expertise to handle this task efficiently and quickly. Also, arbitral tribunals have historically proved that they have the capacity to deal efficiently with large-scale claims which have strong technical characteristics.

Most of the advantages of arbitration benefit both sides involved in environmental disasters. Particularly for the respondent, the possibility to adjudicate mass claims in a single neutral forum and thus to achieve concentration of homogeneous claims in one place would be a highly valued point since it would either facilitate settlements or result in consistent awards. This would be coupled with the preservation of confidentiality of the arbitral proceedings and, thus, the reduced risk of negative publicity. This would make arbitration appear very appealing to potential respondents.

Given the need for efficiency and procedural economy as well as the trend in contemporary European civil procedure for further specialization and privatization of civil justice, arbitration comes up as a viable solution for mass claims in the maritime environment. De lege ferenda solutions, mainly in the form of legislative proposals to existing maritime treaties, are displayed in the conclusions’ chapter of the book.

To conclude, the research carried out reveals that one field which can easily generate mass sea-related pollution claims and which remains unregulated is the field of oil rigs and offshore hydrocarbon platforms. An international Convention regulating their use as well as the dispute resolution methods in case of mass accidents like Deep Water Horizon is a matter of urgent necessity. If adopted, a Convention could offer a fertile ground for the use of arbitration in tabula rasa towards the resolution of mass pollution claims.

Further insight into the results of the research can be found in the book which is available here.

This post has been written by Dr Bobby Lindsay, Lecturer at the University of Glasgow. He is the author of a forthcoming book in the OUP Private International Law Series, entitled Cross Border Public Law Claims: Private International Law’s Exclusionary Rules.

It is not uncommon for a Rule formulated within Dicey, Morris and Collins to be treated by English lawyers with near-legislative reverence. Fentiman (‘English Private International Law at the End of the Twentieth Century’ in Symeonides (ed), Private International Law at the End of the Twentieth Century, 1999, p169) has noted the impression that, at least in practice, ‘coherence in the conflict of laws means coherence with that legendary work’. Even still, it is remarkable for a judgment of the UK Supreme Court to be framed almost exclusively around an inquiry into the scope of one of the Dicey rules. Rule 20(1) of the latest (16th) edition states:

English courts have no jurisdiction to entertain an action:

(1) for the enforcement, either directly or indirectly, of a penal, revenue or other public law of a foreign state

In Skatteforvaltningen (‘SKAT’) v Solo Capital Partners LLP [2023] UKSC 40, the ‘essential questions’ were identified to be the scope of Rule 20(1) and its application to the facts, which concerned an alleged widescale fraud on the Danish tax authority ([2]). It marks the first time the apex court has considered the revenue rule since Re State of Norway’s Application [1990] 1 AC 723 in 1989, and the first time it directly has addressed the ‘other public law’ strand of Rule 20(1).

The Danish tax authorities already have contributed to our understanding of the scope of what is now Rule 20(1). But the £4 million sought (via a nominee liquidator) by SKAT’s predecessor in QRS v Frandsen [1999] 1 WLR 2169 pales in significance compared to the £1.44 billion sought by SKAT in the present litigation. The case related to ‘cum-ex’ schemes (also known as ‘dividend stripping’). To create the impression that multiple parties owned shares with dividend entitlements, companies would trade shares with (cum) and without (ex) dividend rights at high volume. That impression allowed those multiple parties to present to tax authorities as meeting the criteria for refunds in respect of dividend tax, when only one party – the true owner of the dividend-entitled shares – could legitimately claim such a refund.

Solo Capital Partners (‘SCP’), the appellants, allegedly assisted companies with such a scheme to SKAT’s detriment. Non-residents of Denmark are liable to pay 27% in ‘withholding’ tax (WHT) on dividends received from Danish companies. Before paying out on dividends, Danish companies will withhold the tax which is due and pay this to SKAT to discharge the shareholder’s liability, before passing on the residue to the shareholder or their agent. However, taxpayers falling under provisions of relevant double taxation treaties were entitled to receive a full or partial refund in relation to the withheld WHT. Clients of SCP presented themselves to SKAT as entitled to WHT refunds, which they duly received. But SKAT later alleged that those clients never owned the relevant shares, never were liable for WHT, and were not entitled to those refunds. The scale of the fraud has become a national Danish scandal, and one factor behind the reorganisation of SKAT into seven separate authorities.

Tortious, equitable, and restitutionary claims (in English and Danish law) were brought by SKAT in England against (as at the time of the Supreme Court’s decision) 89 defendants, including SCP and associated parties. To keep such mass litigation manageable, trials of two preliminary issues were directed: the first on jurisdiction; the second to establish what constituted a valid WHT application under Danish tax law. Andrew Baker J found against SKAT on the jurisdiction point ([2021] EWHC 974 (Comm)), holding that SKAT’s claims were inadmissible attempts to enforce Danish revenue law. This was reversed by the Court of Appeal ([2022] EWCA Civ 234). Permission to appeal to the Supreme Court successfully was obtained by SCP; the trial of the second preliminary issue continued to judgment while the Supreme Court heard the jurisdiction point.

Lord Lloyd-Jones first notes ([21]) the suggestion of the editors of Dicey, Morris and Collins that the rule does not really go to the existence of the English court’s jurisdiction, but to its exercise. His Lordship then observes the distinction between the enforcement of a revenue law (which is forbidden) and the recognition of such a law (which is permitted). He then goes on ([22]) to discuss the two primary justifications which have been put forward for the rule. First, sovereignty: by submitting a tax claim in State B, State A exceeds the bounds of its own sovereignty in an impermissible manner. Secondly, the avoidance of embarrassment: the admittance of revenue claims might risk the forum having to declare a particular foreign tax as contrary to public policy, and so wholesale rejection is said to be the safest court. Lord Lloyd-Jones disfavoured the second rationale. English courts, eg in asylum cases, or those involving forum non conveniens and the foreign act of state doctrine(s), may have cause to criticise the conduct of foreign states, their institutions, or their legal system. The sovereignty rationale provided ‘a principled basis’ for the rule.

The key dispute between the parties was whether the existence of an unsatisfied foreign revenue claim was a prerequisite for the application of the revenue rule ([23]). Lord Lloyd-Jones surveyed ([24]-[32]) revenue law authorities from Sydney Municipal Council v Bull [1909] 1 KB 7 up to Webb v Webb [2020] UKPC 22. In each, the relevant court operated on the assumption that the revenue law rule prohibits the collection or recovery of tax which has not been paid. Importantly, this was consistent with the speeches in the House of Lords in Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd [1986] AC 368 (see [27]-[29]). There, Lord Mackay noted (at 441A) that the ‘enforcement’ of a foreign revenue law could not be said to arise where ‘no claim under that law remained unsatisfied’: an ‘unsatisfied claim’ was an ‘essential feature’ of the application of the revenue rule.

Lord Lloyd-Jones concluded ([36]) that the existence of an unsatisfied demand for tax was a prerequisite for the application of the revenue rule. Without such a claim, the foreign tax authority’s action cannot be said to involve the enforcement of the foreign revenue law. Not only was this consistent with the ratio of Williams & Humbert, but the limitation was consistent with the sovereignty-based rationale for the revenue rule: if no tax was due, then the tax authority’s claim could not be an extraterritorial assertion of the sovereign power to impose tax. It also cohered with the enforcement/recognition distinction. As the whole basis of SKAT’s claim was that no tax was due from the relevant parties at any point, the revenue rule was not engaged on the facts ([38]-[39]). While the ‘Danish tax system undoubtedly provided the context and opportunity for the alleged fraud and the operation of the fraud can be understood only by an examination of that system’, that did not make the claim one for the enforcement of Danish tax law. At most, the resolution of the claims would involve the recognition of various aspects of the Danish tax regime by the English courts, which was permissible. These were simply private law claims of the same variety as enjoyed by ‘all legal and natural persons’ ([42]).

Nor were the claims precluded by the wider ‘sovereign power’ rule: it was not a claim to recover amounts imposed by Danish public law and did not involve the exercise of any ‘prerogative right’ ([53]-[54]). The test in Mbasogo v Logo Ltd [2006] EWCA Civ 1370, focusing on the exercise of a peculiarly sovereign/prerogative/pubic right, effectively was endorsed ([55]-[57]). Any initial exercise of sovereignty by Denmark was too remote from the claims before the English courts to see them fall foul of that test; the tax regime merely provided the context for the restitutionary claims, which could have been pursued by any private party ([58]). That conclusion was not altered by the fact that SKAT had acquired evidence through sovereign powers: that was ‘at most, of merely peripheral significance’ to the characterisation of the claim ([61]). The claims, therefore, fell entirely outside the scope of Rule 20(1), and now may proceed to trial, which presently is listed to take place for well over one year.

The judgment in SKAT puts it beyond doubt that an unsatisfied tax claim due under foreign law is a prerequisite for the application of the revenue rule. In a decision handed down between the High Court and Court of Appeal judgments in SKAT, a majority of the Hong Kong Court of Appeal refused to conclude definitively on this point. Andrew Baker J’s first instance judgment played some role in the hesitancy of the majority; the categorical view of a unanimous UK Supreme Court to the contrary will no doubt influence the future position in Hong Kong and elsewhere.

Despite clearly stating the limits of the revenue rule, the decision does not give much succour to those (such as the present author) who would like to see the rule pared back. The rule still is alive and well. In discussing the conspiracy claim brought by HMRC in Case C-49/12 Sunico, Lord Lloyd-Jones opines ([44]-[47]) that private law actions brought by a foreign tax authority still will be caught by the revenue rule if their success would have the effect of making good on an unsatisfied tax claim. That stands in opposition to conclusions reached (albeit on a preliminary basis) in Hong Kong and Singapore, but a similar approach recently has been adopted in Gibraltar. The rule still will constitute a firm barrier to attempts by foreign tax authorities to pursue claims for tax the payment which has been evaded by fraudsters.

The judgment also confirms that the ‘other public law’ rule, possibly rebranded as the ‘sovereign authority rule’, definitively forms part of the exclusionary rules of English private international law.  That raises the question of its relationship with the revenue and penal law rules. Rule 20(1) suggests the ‘other public law’ rule sits alongside the revenue and penal rules. However, following SKAT, it seems that the ‘sovereign authority rule’ is a higher-order principle, and that the revenue and penal law rules are specific categories of its operation. Lord Lloyd-Jones notes ([54]) that ‘it would require exceptional circumstances’ to bring a claim falling outside the revenue rule within the ‘wider sovereign authority rule’, and it is difficult to envisage what such circumstances could entail. Lord Lloyd-Jones notes ([62]) that the sovereign authority rule, but not the revenue rule, may be subject to a public policy exception. While it might seem strange that a public policy exception operates at the general, but not the specific, level, the situation can be compared (loosely and impressionistically) with the law of negligence. There, a claim falling within an established category attracts the application of fixed rules, but a novel claim invites wider considerations of policy. The existence of that policy stopgap perhaps makes up for the fact that definition of what is an ‘other foreign public law’, or what involves the exercise of foreign ‘sovereign authority’, sometimes can be elusive.

Whether the Supreme Court’s analysis of SKAT’s claim makes that definitional exercise any more straightforward is a question for another time. More, too, could be said about Rule 20 being described as one which goes to the ‘admissibility’ of foreign claims (eg [1], [15], [39]). The Supreme Court’s faith in the ‘sovereignty’ justification, rendered contestable by convincing attacks by Carter, and a sustained recent critique by O’Hanlon, also deserves further comment. And nothing in the decision does much to help illuminate the precise relationship between Rule 20(1) (the revenue rule, the penal rule, and the ‘sovereign authority’ rule) and Rule 20(2) (the various act of state doctrines). But, on the narrow question presented to the Court, its very clear limitation of the revenue rule is to be welcomed.

On 23 November 2023, the UK Ministry of Justice published its response to the consultation on whether the UK should sign and ratify the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. The Government has concluded that it is the right time for the UK to join Hague 2019 and will seek to do so as soon as practicable.

The Convention will have UK-wide extent, that is apply in all three jurisdictions of the UK. It will be implemented using a registration model, similar to the one used for the 2005 Hague Choice of Court Convention. The UK will not make a declaration under Articles 14, 16 or 19.

The Children’s Rights Academy at the University of Geneva offers an executive training programme on Civil Aspects of International Child Protection (ICPT).

The programme includes four half-day online modules in English (Children’s Individual Rights in Transnational Parental Relationships; International and Comparative Family Law; Vulnerable Migration and Practice of Child Protection Stakeholders: Inter-agency Co-operation in Context), scheduled to take place between 7 December 2023 and 18 April 2024.

Roberta Ruggiero, Gian Paolo Romano and Karl Hanson are the programme directors; Vito Bumbaca is the coordinator.

Speakers include: Roberta Ruggiero, Olga Khazova, Karl Hanson, Gian Paolo Romano, Philippe Lortie, Michael Wilderspin, Ilaria Pretelli, Vincent Chetail, Irina Todorova, Noelle Darbellay, Mayela Celis Aguilar, Jason Harts, Nicolas Nord, Joëlle Schickel and Jean Ayoub.

For further info, see here.

A Russian father, who was long since separated from the mother of his children in Russia, came to Finland with his two sons in September 2022 and applied for asylum. The mother in Russia pleaded in Finnish courts that the children should be returned to Russia in line with the 1980 Hague Convention on the Civil Aspects of Child Abduction (1980 Hague Convention), which the two countries are signatories to. The father stated that a return to Russia would not be in the best interest of the children and would constitute a breach of Finland’s international obligations to protect fundamental human rights.

In its judgment of 27 September 2023, the Finnish Supreme Court initially held that the prerequisites for return of the children were met as it was uncontested that the removal was wrongful. The issue for the court was whether a return to Russia could be refused despite this. Article 13.1.b of the 1980 Hague Convention allows for refusal if “there is a grave risk that a return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” With reference to the Hague Conference on Private International Law’s Guide to Good Practice from 2020, the Finnish Supreme Court held that the ground for refusal should be interpreted narrowly.

As regards refusal on the grounds of Article 13.1.b, the Court emphasized that an assessment cannot be based on a  comparison of different general living conditions in the requested state and the state of potential return. Living conditions in another country can only be taken into consideration under Article 13.1.b if the fundamental needs of the children will not be met. Holding that it was not proven that the children would lack fundamental needs like food, rest, hygiene, or child-like activities in Russia, the Court found that there was no ground for refusal under Article 13.1.b. Nor was it claimed in the case that the children risked being involved in the Russian war on Ukraine. However, the father argued that the children’s learning of military skills in school was harmful. In this regard, the Supreme Court concluded that there are ideological and practical differences between the Russian and the Finnish school systems. This difference was not considered to reach the threshold for refusing the return of the children.

The Finnish Supreme Court also noted that Article 20 of the 1980 Hague Convention allows a state requested to return a child to refuse to do so if it is not permitted by its fundamental principles relating to the protection of human rights and fundamental freedoms. Here, the court argued that Finnish law has not implemented Article 20 of the Hague Convention and that it therefore could not be applied. Nonetheless, the Court added that a return of children to another country may be refused if it is in conflict with Section 9 of Finland’s Constitution which grants foreigners the right not to be sent to countries where they risk death penalty, torture or other treatment that violates their human dignity.

Lastly, the court also assessed the views of the children themselves. Under Article 13.2, the own views of the child can be taken into consideration if the child has attained such an age and degree of maturity that this is appropriate. Both children had a strong and genuine view that they wanted to stay with the father in Finland. However, the court held that it was only the older of the two children who had attained such an age and maturity that his views could be taken into account. Thus, the Finnish Supreme Court held that “the best interest of the child” as a whole prevailed over the older child’s own view of wanting to stay with the father in Finland.

Even if the judgment truly illustrates the strong principle of returning the child after a wrongful removal under the 1980 Hague Convention, I think that the Court’s non-application of Article 20 in the Hague Convention deserves some discussion. First, it is worth noting that Article 20 of the 1980 Hague Convention is not formulated as a traditional public policy exception. According to the explanatory report to the 1980 Hague Convention, Article 20 is a compromise of opposing views (see in particular paragraphs 31-34 of the explanatory report). On the one hand, the convention would risk being a “dead letter” if the requested state too easily could apply an exception. On the other hand, the most fundamental human rights must be protected by a requested state in all circumstances. To that extent, Article 20 serves as a public policy exception in practice. Even if the legal value of human rights has increased in Europe since the 1980 Hague Convention was adopted, one must also remember that every in casu-exception of the strong principle rule that abducted children must always be returned risk leading to a collapse of the system. This is especially true for two neighbouring countries with so fundamentally different ideological and political systems as Finland and Russia.

On 4 December 2023, at 6 p.m. CET, a free webinar will take place in preparation of the 2024 inaugural edition of the EAPIL Winter School on Personal Status and Family Relationships, which will be held on-site in Como between 12 and 16 February 2024 (a detailed brochure is available here).

The webinar will give a glimpse of what the Winter School will be about. Specifically, it will focus on selection of hot topics, such as the cross-border recognition of sex reassignment and the enjoyment of the right to name abroad.

The speakers are some of those who will be lecturing at the Winter School, namely Laura Carpaneto (University of Genova), Ester di Napoli (University of Ferrara), Cristina González Beilfuss (Unversity of Barcelona), Satu Heikkilä (LL.D., Administrative Law Judge), Silvia Marino (University of Isnubria), Nadia Rusinova (Hague University), Michael Wildespin (Legal Advisor to the European Commission), Anna Wysocka-Bar (Jagiellonian University), and Mirela Župan (University of Osijek).

The webinar will also offer an opportunity to provide information about the EAPIL Winter School.

Join the free seminar to discover what awaits you during the Winter School week, and…if you want to know more, enrol and come to Como in February!

Those interested in attending the webinar may do so directly through this link. No prior registration is required.

More information on the Winter School is found here. To enrol in the Winter School, please fill in this form.

A seminar series on the recast of Brussels I bis Regulation, organized by the Research Centre for Private International Law and International Trade (CRDI, University of Paris Panthéon Assas) and the Sorbonne Department Study of International Private Relationships (SERPI, University of Paris 1 Panthéon-Sorbonne), together with the Société de Législation Comparée (SLC), the French national school for the judiciary (ENM) and the French Supreme Court for civil and criminal matters (Cour de cassation), will take place during the 2023-2024 academic year, both in Paris and online (in French).

According to the scientific coordinators of the seminar series, Marie-Elodie Ancel (University of Paris-Panthéon-Assas) and Pascal de Vareilles-Sommières (University of Paris 1 Panthéon-Sorbonne), the seminar series aims to provide a forum for French legal experts – academics and practitioners – to discuss the future reform of Brussels I bis Regulation and to propose key improvements to the text.

The first seminar will take place on 30 November 2023 (9.00 – 12.30 am, UTC+1). The objective will be to present the prospect of a recast, from a political and technical perspective, and to discuss different issues relating to the scope of a future “Brussels I ter Regulation”.

The list of speakers includes Pascal de Vareilles-Sommières, Tania Jewczuk, Marie-Elodie Ancel, François Ancel, Malik Laazouzi and Etienne Pataut.

The programme, as well as registration and access details can be found here. The conference series will take place at the Cour de cassation (Paris, France) and will also be broadcast live (see here).

The other seminars will take place in 2024 from 16.00 to 18.00 (UTC+1) on 18 January, 26 February, 18 March, 22 April, 30 May and 24 June.

A post published a few days ago on this blog presented, and briefly discussed, the private international law issues raised by the case of Indi Gregory, the critically ill eight-month-old child that parents wanted to transfer to Italy, to avoid the withdrawal of the life-sustaining treatment she was receiving at a hospital in England.

In fact, the child’s doctors at Queen’s Medical Centre in Nottingham had assessed that withdrawing the life-sustaining treatment would be in Indi’s best interests, having regard to the pain she was enduring because of the treatment itself and the lack of prospects of improvement. The parents disagreed, and sought to have the treatment extended for as long as possible.

As explained in more detail in the post mentioned above, the English High Court ruled in favour of the hospital trust in October 2023, and authorized the withdrawal of the treatment. A request for permission to appeal against the ruling was dismissed, and so was a subsequent application to the High Court whereby Indi’s parents sought to have the initial ruling reconsidered in light of new circumstances, including the fact that a hospital in Rome had expressed its availability to provide Indi with the extended treatment that parents were seeking.

Several readers will likely be aware by now of the dramatic developments of the case, as these were largely reported in the media throughout Europe and elsewhere. Indi was eventually transferred to a hospice in England, where she died on 13 November 2023, soon after the first steps for the court-approved withdrawal plan were put in place.

Before this tragic epilogue occurred, Indi’s parents had sought permission to appeal against an additional order given by Peel J for the High Court. Specifically, the parents had challenged the decision whereby the removal of invasive mechanical ventilation, i.e., extubation, that Peel J had previously authorised, should take place at a hospice. Their case was that Indi should be rather extubated at home.

On 10 November 2023, the Court of Appeal of England and Wales dismissed the application, assessing that no grounds appeared to exist to reconsider the order. The Court held, in particular that, contrary to the parents’ submission, they had not suffered from any unfairness in the proceedings before the High Court (Indi’s father claimed, inter alia, that he did not know that he had the opportunity to get his own evidence about the issue of the location of extubation at the hearing held before Peel J), and that the conditions for reopening a court’s earlier determination of a child’s best interests were not met in the circumstances.

The Court of Appeal had not been asked to deal with issues of private international law for the purposes of fiving the ruling of 10 November. In a significant obiter, however, the Court did address such issues.

It is worth recalling that on 6 November 2023 the Italian Government decided to grant Italian citizenship to Indi Gregory, and that, shortly afterwards, the Italian Consul in Manchester, acting as a “guardianship judge” pursuant to Italian legislation, took two measures. First, as reported by the Court of Appeal, the Consul issued a decree – arguably, one taken as a matter of urgency – whereby he appointed a guardian for Indi and authorised her removal to Italy for treatment. Secondly, the Consul wrote to the High Court requesting that that he be authorised to exercise jurisdiction over the case in accordance with Article 9(1) of the Hague Convention of 19 October 1996 on the Protection of Children, which permits such a request where the requesting authority considers that they are better able to assess the child’s best interests. compared with the authorities in the State where the child is habitually resident.

The Court of Appeal, in the words of Peter Jackson, criticised the latter moves in unusually strong terms. Having noted that the “only basis upon which such a request could even theoretically be made in Indi’s case is that she was granted Italian citizenship”, the Court observed that in hearings before the High Court and before the Court of Appeal itself, Indi’s father had “accepted that decisions about Indi’s welfare are to be made by [English] courts”, adding that

in any case, the argument that the Italian authorities are better able than the English court to determine Indi’s best interests is in our view wholly misconceived and a request of this nature is clearly contrary to the spirit of this important international convention.

The Court did not elaborate on the denounced misconception nor on the spirit of the Convention.

Arguably, the obiter reflects an understanding of the Hague Convention on the Protection of Children that could be summarised as follows.

1. The Convention, as stated in the preamble, aims to “improve the protection of children in international situations”. It does so by avoiding (or managing) conflicts between their Contracting States’ legal systems in respect of jurisdiction, applicable law, recognition and enforcement of measures for the protection of children.

2. Contracting States share the view that, as stated in the United Nations Convention on the Rights of the Child and recalled in the Hague Convention’s own preamble, “the best interests of the child are to be a primary consideration”. The Convention, based as it is on the assumption that the protection of children is best ensured in a cross-border cases through international cooperation, builds on mutual trust among Contracting States. It is in fact mutual trust, combined with the primary consideration owed to the best interests of the child, that suggests that the authorities of a State other than the State of habitual residence of the child should refrain, in principle, from exercising their jurisdiction over the child, let alone disregarding the measures taken by the authorities of the State of habitual residence.

3. The substantive and procedural rules applied in one Contracting State may differ from those in force in another, but such differences do not mean that Contracting States may, as a matter of principle, step out from the framework of cooperation established by the Convention, and depart from its rules (engaging with differences is precisely the purpose of private international law, generally). Put in another way, it may be that the (political) institutions of a Contracting State disagree with the way in which a particular case is handled by the (judicial) authorities of another (including because of the rules and standards applied by such authorities to decide the case differ from the rules and standard that the former institutions would follow in the circumstances), but the Convention does not permit the former State to interfere, on this ground, with the work carried out by the authorities of the latter State, notably by issuing competing orders.

4. Habitual residence is the key connecting factor under the Convention for the purposes of allocating jurisdiction. It was chosen on the assumption that, generally, the authorities of the State where the centre of the child’s interests are located, regardless of the child’s nationality, are best placed to assess his or her interests. Nationality, too, may play a role, but only insofar as the circumstances indicate that the authorities of the State of nationality would be better place to assess the child’s interests in the particular case concerned, provided, in any case, that the authorities of the State of habitual residence agree with this finding. The mere fact that a child possesses the nationality of a Contracting State does not confer as such on the authorities of the State of nationality the power to rule on the child.

Dear readers, dear EAPIL Members,

You might have received the email below, from gilles.cuniberti@gmx.de.

This is a fraud, please do not answer.

GC

Dear xx,

How are you doing today?.

Please, I need your assistance for the EAPL.

Get back to me by email so I can explain further.

Best regards

Gilles Cuniberti

—
Gilles Cuniberti
President of European Association of Private International Law (EAPL)
Professor of Comparative and Private International Law
Université du Luxembourg
4, rue Alphonse Weicker
L-2721 Luxembourg

This is the second of a series of posts which will present how the issue of the applicable law to the time limit to enforce or recognise foreign judgments is addressed in comparative private international law. The first post presented the view of the Swiss federal tribunal.

In a judgment of 11 January 2023, the French supreme court for private and criminal matters (Cour de cassation) confirmed its traditional position by ruling that the French 10 year time limit applies to the enforcement of foreign judgments in France and that foreign time limits may indirectly be taken into consideration by denying standing to the party seeking a declaration of enforceability.

For more than 30 years, the Cour de cassation has ruled that the enforcement of foreign judgments in France is governed by the applicable French time limit. For years, there was no specific time limit applicable to the enforcement of judgments, and French courts would thus apply the general time limit of 30 years. Since 2008, a specific rule was included in article L 111-4 of the Code of Civil Enforcement Proceedings providing for a time limit of 10 years.

In order to justify the application of French law to the issue, the Cour de cassation has consistently held that the subject matter of the time limit was the enforcement of a judgment. In other words, the issue was identified as concerned with a particular effect of the judgment, namely enforcement.

In a judgment of 4 November 2015, the court clarified that the starting point of the time limit was the date of the French order declaring the foreign judgment enforceable in France. This has been convincingly interpreted by French scholars as meaning that the subject matter of the time limit was, in an international context, the enforcement of a French judgment rather than a foreign one, i.e. the exequatur order. A possible rationale for such a proposition is that, under the French common law of judgments, a foreign judgement cannot, strictly speaking, be enforced. Only a French exequatur order can. In other words, the enforcement of foreign judgments in France is not, strictly speaking, a problem of private international law. It is a matter a domestic enforcement (of a French exequatur judgment).

This approach works fine under the French common law of judgments. But it is unclear whether it works as under the European law of judgments. In the 2023 judgment, the Cour de cassation repeated the traditional rule in the context of the Lugano Convention. Under the Lugano Convention, foreign judgments can only be enforced on the basis of a declaration of enforceability. Is it exactly the same as an exequatur order under the common law of judgments of the Member States? It seems that the Cour de cassation thought so.

All this begs the question of the time limit applicable to the enforcement of a judgment under the Brussels I bis Regulation. In the absence of any declaration of enforceability, it is hard to consider that the foreign judgment is not enforced as such.

The judgment of 11 January 2023 also confirms that the Cour de cassation would still take into account the time limit of the country of origin of the judgment to assess whether the judgment creditor would have standing to seek enforcement of the judgment in France.

The reasoning of the Cour de cassation starts from the premice that the foreign judgment may only be declared enforceable in France if it is enforceable in its country of origin. As a result, a judgment creditor of a foreign judgment time barred in its country of origin would lack standing to seek a declaration of enforceability in France, as the foreign judgment would not be enforceable in its country of origin.

The consequence of this rule is that, at least until the foreign judgment has been declared enforceable in France, it is, in effect, also subject to the time limit of its country of origin, to the extent to such time limit would affect its enforceability.

The case leading to the judgment of 11 January 2023 was concerned with the enforcement in France of a Swiss judgment. The Lugano Convention applied. The Cour de cassation does not underscore that peculiarity, which does not seem to be relevant for the court. The issue arises, however, whether the proposition that an action seeking a declaration of enforceability under the Lugano Convention might be found inadmissible comports with the rule that the only grounds for denying such declaration are the limited grounds found in Art 34 of the Convention (Case C-139/10, Prism Investments). True, the Cour de cassation does not rule that it would dismiss the application on the merits, but rather that it would find it inadmissible. Is the issue of admissibility governed by the law of the Member States?

Or should the issue of lack of enforceability of the foreign judgment be addressed at the stage of enforcement of the declaration of enforceability (and the foreign judgment)? This is what the Swiss federal Tribunal ruled in its judgment of 2 August 2022.

This post has been written by Jacco Bomhoff (LSE), Uglješa Grušić (UCL), and Manuel Penades (KCL).

As previously announced, the LSE Law School hosted a symposium to celebrate the scholarly work of Emeritus Professor Trevor C. Hartley on 17 October 2023.

The Symposium brought together around 70 participants, colleagues, and friends from the UK and abroad, who celebrated and discussed Trevor’s many contributions.

The first contribution to the Symposium was a keynote by Professor David Kershaw, Dean of the LSE Law School. He reminded us that Trevor came to LSE from the University of Western Ontario in 1969 and taught at LSE for a record-breaking 54 years. In that time, Trevor firmly established himself as a leading scholar in private international law and EU law, and inspired many generations of law students.

Subsequently, Lord Collins gave another keynote in which he commented on Trevor’s contributions to private international law. Trevor has pursued many topics in the field, but is perhaps best known for his work on mandatory rules, choice-of-court agreements, and comparative international civil and commercial litigation. He joined the team of editors of Dicey and Morris on Conflict of Laws (as it then was) in 1985 and was one of the specialist editors responsible for 10 chapters in the 11th edition (1987) and 12 chapters in the 12th edition (1993). He sat on the Lord Chancellor’s Committee for Private International Law, gave a Hague Academy special course on the common law approach to mandatory rules in international contracts in 1997 and a general course on the modern approach to private international law in 2006, and was a rapporteur on the 2005 Hague Choice-of-Court Convention. Trevor has authored many books in the field, including a student textbook on International Commercial Litigation (CUP, now in its 3rd edition from 2020), and monographs on Civil Jurisdiction and Judgments in Europe (OUP, now in its 3rd edition from 2023) and Choice-of-Court Agreements under the European and International Instruments (OUP, 2013).

These keynotes were followed by the first panel of the day, which focused on global and comparative private international law, one of the main themes of Trevor’s scholarship. This panel was chaired by Dr Roxana Banu (Oxford), who noted that the aim of the Symposium was to celebrate Trevor and, through Trevor, the field of private international law.

The first speaker in this panel, Professor Paul Beaumont (Stirling), outlined the 2019 Hague Foreign Judgments Convention and explained its relationship with the 2005 Hague Choice-of-Court Convention. He commented on key features of the 2019 Convention, such as the broad range of judgments that come within its scope, the broad set of indirect jurisdictional rules, and exclusion of arbitration. Furthermore, he noted that the 2019 Convention supplements the 2005 Convention in different ways, for example by covering non-exclusive choice-of-court agreements, providing for a defence of breach of a jurisdiction agreement, and covering asymmetric choice-of-court agreements (as confirmed in Etihad Airways PJSC v Flother, where the Court of Appeal referred to the Hartley and Dogauchi Explanatory Report at [85]). Finally, Professor Beaumont confirmed that the two conventions should be interpreted in a systematic way. The 2005 and 2019 Conventions represent two key pieces of the Hague global justice system, which is a fitting legacy for Trevor’s excellent work on the 2005 Convention.

Professor Alex Mills (UCL) commented on the importance of the 2005 Convention. He remarked that the fact that the 2005 Convention exists and is in force is important for the Hague Conference and global private international law. However, a relatively modest number of ratifications demonstrates challenges of international harmonisation. Nevertheless, the success of a treaty is not measured only in terms of number of ratifications – the 2005 Convention crystalised the importance and acceptance of party autonomy in the field of jurisdiction and foreign judgments, and is an important sign of consensus in this respect. The 2005 Convention is important for the London litigation market because it provided a degree of continuity after Brexit. Finally, Professor Mills noted the value of the Hartley and Dogauchi Explanatory Report for interpreting and applying the treaty, and its contribution to the success of the treaty.

Professor Koji Takahashi (Doshisha) commented on comparative private international law by pointing out that the relationship between the common law and civil law systems in private international law is often analysed in terms of well-known dichotomies. One of those dichotomies is pragmatism v dogmatism (idealism). Nevertheless, Professor Takahashi noted that all private international law systems combine elements of both pragmatism and dogmatism. He demonstrated this point by showing the pragmatic aspects of pleading and proof of foreign law, renvoi, and the choice-of-law rules for divorce in Japanese law. The application of these doctrines often allows Japanese courts to apply Japanese law.

Professor Veronica Ruiz Abou-Nigm (Edinburgh) closed the first panel by discussing the protection of global commons in private international law, a subject that Trevor touched on in his 2009 Revue Hellenique de droit international article on ‘Multinational Corporations and the Third World’. Prof Ruiz Abou-Nigm did this by drawing out attention to three points: (1) power imbalances and access to justice, particularly in the context of business and human rights litigation; (2) accessibility of the private international law logic to ordinary people and lawyers; and (3) impact of differentials in capacity and expertise. Professor Ruiz Abou-Nigm concluded by remarking on the importance of local solutions to global problems such as sustainable development, and by recognising the importance of academic activism.

This panel was followed by a third keynote given by Professor Hans van Loon, who, as former Secretary General of the Hague Conference, is particularly well placed to comment on Trevor’s contribution to the work of the Conference. Professor van Loon expressed a view that the Hartley and Dogauchi Explanatory Report is a “masterpiece”. Professor Van Loon also reminded us that Trevor is a key member of the European Group of Private International Law (GEDIP).

A fourth keynote was given by Professor Carol Harlow (LSE, emerita). Since Professor Harlow and Trevor joined LSE at around the same time, she was able to comment on Trevor’s contributions to the LSE Law School, as well as on Trevor’s contributions to public law and EU law scholarship. Some readers of the blog may not know that Trevor was a pioneer in EU law in the UK and that his book on the Foundations of European Community Law (Clarendon Press, 1981) had a significant impact in the English-speaking world.

The day’s second panel was chaired by Professor Pippa Rogerson (Cambridge). Its remit was Trevor ’s well-known ICLQ article on the CJEU’s “systematic dismantling of the common law” in its decisions in Gasser v Misat, Owusu v Jackson, and Turner v Grovit. The panel’s task was to revisit the article, almost 20 years after its publication, and in light of all that has happened in the law of civil jurisdiction since.

Professor Andrew Dickinson (Oxford) spoke first, on anti-suit injunctions. Professor Dickinson sketched a contrast between Trevor’s view of anti-suit injunctions, which he characterized as one of “wary receptiveness”, and his own, which was “warier and less receptive”. Zooming out from the discussion of Turner v Grovit, Dickinson also looked further back – to the Privy Council’s seminal decision in Aérospatiale v Lee Kui Jak, on which Trevor recently published a case comment – and to more recent developments, notably the CJEU’s decision in Charles Taylor Adjusting Ltd v Starlight Shipping Co. Professor Dickinson’s conclusion was that “[The] anti-suit injunction is as controversial as it ever was, and the issues that it throws up have become more complex as the world and the ways in which legal systems interact with one another have evolved over time. It is a good thing that Trevor has been willing to serve as one of our principal guides, highlighting the trade-offs involved in choosing between unilateralism and multilateralism.”

Professor Jonathan Harris (KCL) discussed forum non conveniens, taking up not just the ICLQ article just mentioned, but also Trevor’s book on Civil Jurisdiction and Judgments (Sweet & Maxwell, 1984), and his 1992 comment in the European Law Review on the Court of Appeal’s decision in Re Harrods (Buenos Aires) Ltd [1992] Ch 72. Professor Harris noted how Trevor thought the Court of Appeal had reached the right decision in that case, and how he “did not hold back” in his later criticism of Owusu, in both the ICLQ article and in his lectures for the Hague Academy. Again taking a broader perspective, Professor Harris noted that the answer to the question “forum non conveniens – where are we now?” seems to be, roughly, “where we were 35 years ago”, at the time of Spiliada. Professor Harris concluded by giving his views on why, in the way English law is currently structured, so much still turns on the ability of claimants to serve defendants within the jurisdiction, as compared to having to obtain permission to serve out.

Professor Eva Lein (BIICL and Lausanne) was slated to speak on “torpedo” actions – another topic of concern in the “systematic dismantling” article – but unfortunately had to cancel at short notice.

The last speaker for this panel, therefore, was Professor Adrian Briggs (Oxford), who addressed the topic “What is left of the Brussels I Regulation in English law and in the English courts?”. Professor Briggs identified four different layers to the lingering effects of the Brussels regime. First, the direct legacy of the rules of section 15 of the Civil Jurisdiction and Judgments Act 1982, as amended, on jurisdiction in certain cases involving consumers and employees. Second, and a little more indirect, is the baggage of CJEU interpretations of key terms in the Rome I and Rome II Regulations that built on their approach to the Brussels regime, and that now threaten to affect the English courts’ approach to the retained rules on choice of law. For both these instruments, in Professor Briggs’ view, the conclusion is that there is nothing much wrong with the “European” rules themselves, but rather a lot wrong with the CJEU’s interpretation of them. The third and fourth layers to the legacy of the Brussels regime in English law, in Professor Briggs’ view, sound in cultural terms. First, certain basic ideas and outlooks familiar from practice under the Brussels rules may still influence English law. The main example for this is perhaps the basic proposition, patterned on Article 4 of Brussels I bis, that it is right that claimants should always be able to sue English companies in England. For the fourth and last lingering effect of the Brussels regime, Professor Briggs returned to the main theme of Trevor’s “systematic dismantling” article. This is the lasting memory, stated bluntly, of a Court of Justice preaching mutual respect but acting with disrespect; to Member States courts and legal systems in general, and to the common law in particular.

The last keynote speaker for the day was Professor Damian Chalmers (National University of Singapore). His speech combined an appraisal of Trevor’s early and seminal contributions to the study of the law of the European Communities, with a more personal reflection on Trevor’s role as mentor.

The final panel dealt with the relationship between dispute resolution clauses and EU law, another of Trevor’s significant themes of scholarship. The panel was chaired by Professor Yvonne Baatz (QMUL, retired). She opened the session by highlighting the breadth of Trevor’s work and his characteristic ability to explain complex ideas in accessible and clear ways.

The first talk in the panel was given by Alexander Layton KC (Twenty Essex and KCL), focusing on the reflexive effect of EU private international law. While the topic is now primarily of historical interest in England, Layton explained that it still serves as a good example of the tension between the common law and civil law traditions. He criticised the CJEU for failing to consider the role of comity in the context of the potential reflexive effect of the Brussels regime toward third States in three relevant areas: foreign lis pendens, exclusive jurisdiction, and dispute resolution clauses in favour of the courts of third States. While lis pendens is now resolved by Articles 33 and 34 of Brussels I bis, the other two issues remain contentious. National courts have three options: interpreting the Brussels/Lugano regime as incorporating an implied yet mandatory reflexive effect (“strict reflexivity”); prohibiting such reflexive effect based on the mandatory application of the rules on jurisdiction of the Brussels/Lugano regime in favour of EU courts, regardless of the interests of the third State (“prohibited reflexivity”); permitting EU courts to decide the matter based on national law given the absence of express solution in the Brussels/Lugano regime (“flexible reflexivity”). While all three options present challenges, English courts appear to have adopted the flexible reflexivity approach (Ferrexpo v AG v Gilson Investments Ltd). Layton opined that brief passages in previous European case law suggest that the CJEU could support the “strict reflexivity” model. This uncertainty might be resolved by the forthcoming decision in BSH Hausgeräte v Aktiebolaget Electrolux concerning the validity of a Turkish validation of a European patent.

This talk was followed by Professor Richard Fentiman (Cambridge), who spoke about the relationship between international arbitration and the Brussels/Lugano regime. He identified two reasons why the English legal community was profoundly unpersuaded by the case law of the CJEU that curtailed contractual remedies to enforce arbitration agreements in the form of antisuit injunctions and damages awards. The first was that those EU decisions were not about the hierarchy between arbitration and EU law but about a more profound clash between the integrity of the Brussels rules and the remedies available under national law to enforce arbitration agreements. The second reason concerned the Court’s frustrating technique, which refused to recognise the conceptual distinction between the allocation of jurisdiction, on the one hand, and the enforcement of contractual rights and controlling personal conduct, on the other. The use of open-textured concepts such as mutual trust and effet utile did not inspire confidence and, in fact, was used by the Court to make policy decisions in the guise of legal reasoning. In the second part of his presentation, Professor Fentiman argued that these contractual remedies should become available and effective again after Brexit even vis-à-vis EU Member States (as evidenced by French case law). Also he pointed out that the doctrine laid by the CJEU in Case Charles Taylor Adjusting no longer applies to English decisions and, therefore, their European effectiveness will depend on the national law of each EU Member State and their notions of public policy. The relief brought by Brexit, he concluded, is that the decision whether to request those remedies from English courts in each case will depend on the parties’ litigation strategies, and not on a general prohibition imposed by EU law. Equally, he celebrated the fact that English courts will be free to address outstanding questions such as the compatibility of these contractual remedies with Article 6 of the European Convention of Human Rights squarely and without the restrictions imposed by the often tendentious unpersuasive reasoning of the CJEU.

The third presentation in this panel was delivered by Jan Kleinheisterkamp (LSE), who spoke about arbitration and EU mandatory rules. He explained that at the root of the problem lies the fact that, unlike national courts with article 9 of the Rome I Regulation, arbitrators do not have a clear choice of law regime for mandatory rules. As a result of Eco Swiss and Ingmar, some European courts have refused the enforcement of arbitration agreements when the use of international arbitration, coupled with the choice of law made by the parties, would lead to the disapplication of EU mandatory law. An option to avoid this radical effect would be to allow court proceedings seeking an undertaking by both parties to apply the relevant mandatory rule as a condition to enforce the arbitration agreement, linked to the possibility of court review at the post-arbitration stage (just like in the SCOTUS decision in Mitsubishi v. Soler Chrysler-Plymouth). Dr Kleinheisterkamp argued that the growing tendency of English courts to issue antisuit injunctions should not impede the operation of this proposal post-Brexit, when a party commenced court proceedings before EU courts to obtain such undertaking from its counterparty to the arbitration agreement. To do this, English courts should reconsider the possible application of Ralli Bros v Compania Naviera Sota y Aznar (1921) 8 Ll L Rep 139 to arbitration agreements and avoid turning England into a safe haven for arbitrations of any colour and shape. A more measured approach was preferable to avoid backlashes against arbitration, and recent decisions by English courts preventing illegality in arbitration (The Federal Republic of Nigeria v Process & Industrial Developments Limited) offered hope that some judges were receptive to that restrained approach.

Professor Linda Silberman (NYU, emerita) closed the panel. She discussed the potential adoption of the 2005 Hague Choice-of-Court Convention by the USA and the controversy raised by the reactions of some arbitration practitioners against the Convention compared to the 1958 New York Convention (see here, here, and here). While the prospects for the adoption of the 2005 Convention are positive, Professor Silberman signalled that one of the main areas of concern was that, unlike in Article V(1)(a) of the NYC, Article 9(a) of the 2005 Convention provides that that the determination by the chosen court in favour of the validity of the forum selection agreement is conclusive. A recent discussion on the subject in the NY Bar Committee concluded that Articles 6(c) and 9(e) of the 2005 Convention offered sufficient safeguards to alleviate the concern. Article 6(c) would allow a party to demonstrate that it never consented to a putative choice of court agreement and that holding a party to such a clause would create manifest injustice or would manifestly violate the public policy of the non-selected court. Article 9(e) would also prevent the recognition or enforcement of a judgment when it would be manifestly incompatible with the public policy of the requested State. Despite Article 9(a) of the 2005 Convention, the NY Bar Committee NY Bar was satisfied that Article 9(e) would allow the court to stop the effect of the finding by the allegedly selected court in favour of the validity of a bogus choice of court agreement. To strengthen this position, the NY Bar Committee recommended the introduction of federal legislation to reiterate the principles that voluntary consent to jurisdiction is an aspect of fundamental US public policy and an element of US constitutional due process, and also that US public policy requires a court to refuse to recognise or enforce a judgment obtained in a judicial system that does not afford impartial tribunal and judicial fairness. The Hartley and Dogauchi Explanatory Report was instrumental to reach this positive conclusion.

The Interdisciplinary Association of Comparative and Private International Law (IACPIL) is hosting a conference titled “Legal Protection of Vulnerable Adults in Central and Eastern Europe” on the 28 November 2023 at the University of Vienna.

The aging population and the rise of age-related diseases result in the urgent need to address the legal issues surrounding vulnerable adults. Beyond the challenges posed by the aging demographic, other vulnerable groups also warrant legal protection. Conducting a comparative analysis of the prevailing legal frameworks for protecting vulnerable adults becomes imperative to gain insights into effective solutions and identify areas requiring further attention.

This conference will therefore explore the protection of vulnerable adults in Central and Eastern Europe including cross-border issues. Masha Antokolskaia and Bea Verschraegen, renowned experts in the fields of comparative and private international law, will shed light on the complexities surrounding the protection of vulnerable adults.

The full programme of the conference and further information can be found here.

Participation is free of charge. Those wishing to attend the Conference online are invited to register by 27 November 2023 (office@igkk.org).

While EU harmonization in matters of parenthood is approaching, following the Commission’s proposal of last year [COM (2022) 695 final], national courts are still examining applications for recognition of foreign court decisions in accordance with domestic legislation. Earlier this year, the Areios Pagos, i.e., the Hellenic Supreme Court, was asked to decide whether an Austrian judicial declaration of paternity should be denied recognition on grounds of public policy, or not (Areios Pagos, Judgment No. 170/2023, available in Greek here).

In 2012, an Austrian national (A), domiciled in Austria, started non-contentious proceedings before the District Court of Eastern Graz, in Austria, against a Greek national (B), whose residence was in Thessaloniki, Greece. Born in 1968, A sought a declaration that B was her father. The court ruled in 2015 that B, who had died shortly before the publication of the decision, was in fact the father of A.

The Graz Civil Court of First Instance, seised by the heirs of B, dismissed the appeal in 2016. The appellants further filed an (extraordinary) appeal against the latter decision, but this appeal, too, was dismissed.

The judicial declaration of paternity was declared​ final in Austria in June 2016.

On an application filed before the Thessaloniki Court of first Instance, the Austrian judicial declaration was recognized in Greece pursuant to the pertinent provisions of the Greek Code of Civil Procedure (mainly Article 780, on the recognition of foreign judgments issued in non-contentious proceedings). The heirs of B challenged the recognition, to no avail. They seised, then, the Greek Supreme Court, arguing, among other things, that the Austrian decision should not be recognized in Greece on the ground that its recognition would offend Greek public policy. They noted that the Austrian rules governing proceedings aimed at a declaration of paternity differ profoundly from the corresponding Greek rules, notably as regards the time limits on applying for such a declaration. 

In its ruling, the Supreme Court focused on Paragraph 148 of the Austrian Civil Code, on judicial determination of paternity, which reads as follows:

(1) The court must establish the paternity of the man from whom the child is descended. The application may be made by the child against the man or by the man against the child.

(2) On application by the child, the man who was present with the mother for not more than 300 and not less than 180 days before the birth or with whose semen medically assisted procreation was performed on the mother during this period may be established as the father, unless he proves that the child is not his offspring. Such recognition is no longer possible two years after the man’s death, unless the child proves that he or she is unable to provide evidence in accordance with para. 1 for reasons on the man’s side.

The Supreme Court then turned to corresponding Greek rule on the matter, namely Article 1483 of the Civil Code, which states:

A mother’s right to request recognition of her child’s paternity is extinguished when five years have passed since birth. The child’s right shall be extinguished one year after the child has reached the age of majority, and the right of the father or his parents two years after the mother has refused consent.

The Supreme Court dismissed the appeal. It acknowledged that Austrian law sets a two-year limitation period starting from the death of the father, whereas Greek law stipulates that an application for a declaration of paternity may be lodged no later than one year after the child has reached the age of majority, but observed that such a difference in regulation does not amount to a violation of public policy.

The Supreme Court concluded that recognition of the Austrian declaration ought to be granted in Greece, given that nothing in the judgment in question offends the basic principles of the Greek legal order.

Two years ago, the Athens Court of Appeal was called upon to examine the recognition of a German decision. The issues raised by the case are similar to those surrounding the Supreme Court’s ruling examined above. A German citizen, 31 years old at the date of filing, had seised a German court (the Schöneberg Justice of the Peace) seeking a declaration that the respondent, a Spaniard living in Athens, was his father. The German court upheld the application, and issued a declaration of paternity, which eventually became final in Germany.

At first instance, the German decision was granted recognition in Greece. The Athens Court of Appeal, however, later decided otherwise (Judgment No. 2736/2021, published in Private Law Chronicles 2021, p. 438 ff.).

In brief, it ruled as follows: the fact that the appellee applied for recognition of paternity before the German courts for the first time 13 years after he came of full age and subsequently, after 17 years, for the recognition of the German court decision in Greece, constitutes a breach of the time limits laid down by Greek law concerning applications for a declaration of paternity, and accordingly contravenes the public policy of Greece, since it constitutes an expression of abusive conduct

The Athens Court relied for this on the Greek Constitution and on the European Convention on Human Rights, in conjunction with Article 33 of the Greek Civil Code (on the public policy exception) and, more generally, the Greek legal order, which is concerned with the protection of third parties and the protection of public interest, as regards legal relationships that have been established and settled to date, i.e., 17 years after the appellant came of full age.

The Court of Appeal concluded that the Court of First Instance wrongly failed to examine whether the legal effects of the abovementioned German judgment, based on German law, correspond in substance to Greek law. Were Greek law applied, the legal consequences would have been diametrically opposed, and the application would have been dismissed, since the appellee had lost the right to bring the action long ago. Therefore, the court which delivered the judgment under appeal was not entitled to recognize the res judicata effect of that German judgment in Greece.

Article 31 para 1(a) of the Proposal for a Council Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood, states

The recognition of a court decision shall be refused: (a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is invoked, taking into account the child’s interests.

The addition of the last part of the wording (taking into account the child’s interests), which is also featured in the Brussels II ter Regulation (Article 39(1)(a): taking into account the best interests of the child), is a clear message towards a stronger protection of the children. The question here is whether the protective shield refers to children of any age, i.e., even those children who have already passed the age of majority since many years.

The Yukos saga is a gift that keeps on giving.

Following the nationalisation of Yukos in 2007, the former shareholders commenced a number of arbitral proceedings against Rosneft, which acquired Yukos’ assets, and Russia.

Many readers of the blog will know that the English courts have already dealt with an aspect of the Yukos saga. The arbitrations against Rosneft were seated in Russia. The arbitral tribunals decided in favour of the claimants. The awards were set aside in Russia. Nevertheless, the award creditors tried to enforce the awards in the Netherlands and England. The Dutch courts refused to recognise the Russian settings aside. In 2012, the Court of Appeal of England and Wales held that the foreign act of state doctrine did not apply to allegations of impropriety against foreign court decisions and that the Dutch judgments did not create an issue estoppel in England because the issues raised in the Dutch and the English proceedings were not the same (violations of Dutch and English public policy, respectively).

Cockerill J has now dealt with another aspect of the saga. The arbitration against Russia was commenced under the Energy Charter Treaty and was seated in the Netherlands. The arbitral tribunal (Yves Fortier as Chairman, Charles Poncet, and Stephen M Schwebel) ordered Russia to pay USD50bn to the claimants plus compound interest accruing at around USD2.5m a day. Russia tried to set aside the arbitral award, while the award creditors tried to enforce it in England. The Hague Court of Appeal rejected Russia’s challenges that the tribunal did not have jurisdiction and that there was fraud in the arbitration. The Dutch Supreme Court upheld the Court of Appeal’s ruling regarding the jurisdictional issue but held that the Court of Appeal had erred with respect to the fraud issue. The judgment was quashed and returned to the Court of Appeal for further consideration and decision. Did the Dutch judgments create an issue estoppel in England regarding the jurisdictional issue? Cockerill J answered the question positively in his judgment of 1 November 2023 in Hulley Enterprises Ltd v Russia.

There were four issues before the court: 1) can a foreign judgment against a state create an issue estoppel; 2) did the Dutch judgments satisfy the requirements for recognition from section 31 of the Civil Jurisdiction and Judgments Act 1982; 3) were the issues in the Dutch and English proceedings the same; and 4) were the Dutch judgments res judicata regarding the jurisdictional issue?

It may be surprising to hear that there was no clear authority on whether a foreign judgment against a state can create an issue estoppel. The court found that under common law there was ‘no reason why, if the relevant hurdles are cleared, there cannot be an issue estoppel arising out of a foreign judgment against a state, just as there can be against an ordinary company or individual’ ([48]).

Section 31(1)(b) of the Civil Jurisdiction and Judgments Act 1982 provides that a foreign judgment against a state can be recognised and enforced in England only if the court of origin would have had jurisdiction in the matter if it had applied rules corresponding to those applicable to such matters in the United Kingdom in accordance with the State Immunity Act 1978. ‘In other words: you can enforce/recognise a judgment here, but only if you could have got it here.’ ([42]) Section 2 of the 1978 Act provides that submission to jurisdiction is an exception to immunity. Russia submitted to the jurisdiction of the Dutch courts by challenging the award there.

The issues in the Dutch and English proceedings were the same, namely the validity of the arbitration agreement.

After hearing from experts on Dutch law, the court found that the Dutch judgments were res judicata regarding the jurisdictional issue, even if the Supreme Court had quashed the part of the Court of Appeal judgment dealing with the fraud issue and returned it to the Court of Appeal.

The outcome is that:

a particular legal battle has already been fought out fully between the parties. The RF chose to dispute jurisdiction, including the construction of Article 45 ECT, in the Netherlands. It has..had a determination, and cannot seek to have another one before a different court. ([55])

Consequently, the court dismissed the jurisdictional challenge to the enforcement of the arbitral award and, furthermore, stated that Russia was not immune as respects proceedings in the courts of the United Kingdom which relate to the arbitration pursuant to section 9 of the 1978 Act.

The Dutch and English courts are yet to deal with the fraud issue. The next chapter of the Yukos saga is eagerly awaited.

The fourth issue of the Journal du droit international for 2023 has been released.

It contains three articles and several case notes relating to private international law issues, including the 2022 annual case-law review of EU private international law coordinated by Louis d’Avout (University of Paris II) and Jean-Sébastien Quéguiner (University of Rennes).

In the first article, Hugues Fulchiron (French Cour de Cassation & University of Lyon 3) analyses the recent EU PIL regulation proposal in matters of parenthood, assessing its chances to be actually adopted (La proposition de règlement européen sur la filiation: coup de maître ou coup d’épée dans l’eau?).

The English abstract reads:

The proposal for a European Regulation on filiation published on December 7, 2022, came as a surprise, given that matters of filiation are an area where national specificities and principles of public order prevail. This is evidenced by the strong opposition among EU Member States on issues related to same-sex parenthood or surrogacy. It aligns with EU policies aimed at recognizing children’s rights and promoting equal treatment for LGBTIQ individuals. It also aims to facilitate the movement of people by ensuring the portability of their status.

To achieve its objectives, the proposal broadens the scope of its jurisdiction and adopts a conflict of laws rule that is sufficiently general and neutral to encompass all situations, from traditional families to same-sex parent families or children born through surrogacy. Above all, everything is designed to facilitate the recognition of parent-child relationships established in a Member State. To this end, a European Certificate of Filiation is notably established. The role of public policy is also strictly limited. Nevertheless, this ambitious project may face opposition from Member States. To avoid roadblocks, it might be necessary to resort to enhanced cooperation and refer questions related to surrogacy to the ongoing work within the Hague Conference on Private International Law.

In the second article, Marylou Françoise (University of Lyon 3) examines the role of (French) courts in private international law disputes from the perspective of the French Draft Code of private international law (L’office du juge à la lumière du projet de Code de droit international privé).

The English abstract reads:

The French draft Code of private international law, submitted to the Minister of Justice on March 31, 2022, modifies a significant number of existing standards. The provisions relating to the powers of a court are particularly affected, renewing the debate on the authority of the conflict of laws and international jurisdiction rule over the judge and the parties. The solution adopted is particularly favorable to the effectiveness of the rule. It requires the judge to verify her or his international jurisdiction and to apply, if necessary ex officio, the conflict of laws rule. However, the proposed framework raises several questions about its implementation. For instance, the scope of the proposal, the status of foreign elements and the form of the procedural agreement, deserve to be discussed.

In the third article, Cécile Legros (University of Rouen Normandie) analyses a recent decision of the UK Supreme Court in matters of international carriage of goods by road (JTI POLSKA Sp. Z o.o. and others v Jakubowski and others [2023] UKSC 19) and addresses questions of interpretation of international conventions in this area (La force du précédent en droit britannique ou les limites de l’interprétation uniforme des conventions internationales de droit matériel).

The English abstract reads:

For once, the Supreme Court of the United Kingdom has just ruled on a request to reverse established case law. The application sought to put an end to a divergence in case law between the States parties to the Convention on the Contract for the International Carriage of Goods by Road of 19 May 1956 (known as the CMR), which is a uniform law convention. Although the Court refuses to reverse this precedent, the judgment is remarkable in several respects, particularly as regards the method of interpreting uniform law conventions. However, it is disappointing in terms of improving uniform interpretation of the CMR, so that other solutions need to be considered. Soft law thus appears to be a possible remedy for the limitations of uniformization by international conventions.

The table of contents of the issue can be accessed here.

The latest issue of the RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht) has been published. As always, it contains a number of insightful articles, this time also two in English language. Here are the authors, titles and abstracts:

Horatia Muir Watt, An Ontology of the In-Between [18th Ernst Rabel Lecture, 2022] (Open Access)

The conflict of laws can serve heuristically to underscore two established but radically opposing models of modernist legal ordering: multilateralism and statutism. Such a prism is helpful if we want to rethink (as we must!) our late-modern legality’s deep epistemological settings in the shadow of the »catastrophic times« to come, whether in terms of environmental devastation or political dislocation. Both phenomena are profoundly linked and indeed constitute two faces of alterity, natural and cultural, from which modernity has progressively taught us to distance ourselves. Importantly, law encodes the conditions that produce these dual somatic symptoms in our contemporary societies. This chasm between nature and culture has produced humanity’s »ontological privilege« over our natural surroundings and a similar claim of superiority of modern (Western) worldviews over »the rest«. In this respect, the main achievement of the moderns, as Bruno Latour wryly observed, has been to universalise the collective blindness and amnesia that allow our »anthropocentric machine« to hurtle on, devastating life in its path and devouring the very resources it needs to survive.

Anton S. Zimmermann, Kriegskollisionsrecht. Ein Beitrag zum international-privatrechtlichen Umgang mit Gebietseroberungen (War and the Conflict of Laws – Private International Law’s Treatment of Territorial Conquest.)

The Russian war of aggression against Ukraine constitutes a breach of a fundamental consensus in public international law: states have authority over their territory. One element of territorial sovereignty is the right to legislate in the field of private law. If a territory is conquered, this right is – in breach of public international law – usurped by the conquering state. This article examines how private international law deals with such changes in factual power. It demonstrates that private international law is more flexible than is commonly assumed and that it can provide a differentiated and adequate reaction to occupations and annexations.

Wenliang Zhang and Guangjian Tu, Recent Efforts in China’s Ambition to Become a Centre for International Commercial Litigation

The last decade or so has witnessed intensifying efforts by China to reshape its legal framework for international commercial litigation. These efforts echo its advancement of the »One Belt and One Road Initiative« and a policy of strengthening the foreign-related rule of law. But the measures so far have been piecemeal and were adopted mainly by the Supreme People’s Court (SPC). Leading lower Chinese courts, the SPC has zealously advanced the reform of international commercial litigation by devices such as international commercial courts (ICCs), anti-suit injunctions, forum non conveniens and de jure reciprocity favouring recognition and enforcement of foreign judgments. Such efforts may help modernize China’s mechanism for international commercial litigation, and more are expected. Although what the SPC has been doing moves closer to the global mainstream and is on the right track, deep reforms are still needed before the Chinese international commercial litigation regime can »go global«.

Mathias Habersack and Peter Zickgraf, Sorgfaltspflichten und Haftung in der Lieferkette als Regelungsmodell: Rechtsentwicklung – Rechtsvergleichung – Rechtsökonomik – Rechtsdogmatik (Corporate Sustainability Due Diligence and Supply Chain Liability as a Regulatory Model: Legal Developments – Comparative Assessment – Economic Analysis – Legal Theory)

The proposal for a Corporate Sustainability Due Diligence Directive significantly exceeds the German Supply Chain Act (LkSG) not only in terms of its scope of application and the protected interests, but also regarding the enforcement mechanism in the event of a violation of a due diligence duty. While the LkSG has taken a stand against private enforcement in its § 3 para. 3 s. 1, Art. 22 of the proposed Corporate Sustainability Due Diligence Directive makes companies civilly liable for misconduct committed by their subsidiaries and business partners. The present article deals with the conceptual fundamentals of this regulatory model: From a comparative perspective, the proposed duties and accompanying civil liability mark a departure from the independent contractor rule which is deeply rooted in the tort laws of the German and Anglo-American legal families; the proposed regulatory model thus brings about a sector-specific paradigm shift in the law of non-contractual liability. From a law and economics perspective, however, the proposed regulatory model is justifiable given the special factors present in typical cases. The liability risks associated with the regulatory model appear to be manageable for companies if the pre-conditions of their potential civil liability are more clearly specified.

The table of contents in German is available here.

An online conference titled The Institution of the Family – Tradition, Reform, Uniformity and Perspectives will take place on 4 and 5 December 2023. The event, organized by a group of academic institutions, including the “Dunărea de Jos” University in Galați, the University of Caen Normandie, the Carlos III University of Madrid, the University of Murcia and the Universidad Autónoma del Estado de Morelos of Cuernavaca, aims to explore the evolving approach to family relationships as reflected in domestic, European and international rules.

Scholars interested in making a presentation at the conference have until 19 November 2023 to submit a proposal.

More information on the conference and the call can be found here.

This post has been written by Sanja Marjanović (Faculty of Law, University of Niš, Serbia) and Uglješa Grušić (UCL).

The 18th Regional Private International Law Conference will take place on 17 November 2023 at the Faculty of Law, University of Niš, Serbia, with the support of the Deutche Gesellschaft für Internationale Zusammenarbeit GmbH (GIZ). The theme of the Conference is Private International Law and International Organizations – Achievements and Challenges.

The Conference will provide an opportunity to celebrate the 20th anniversary of the inaugural regional PIL conference, which was also held in Niš in 2003. These regional PIL conferences are a result of the vision of Professor Mirko Živković (Faculty of Law, University of Niš) to re-establish a regional PIL network that had been broken by the tragic dissolution of the former Yugoslavia. Although PIL scholars from countries stemming from the former Yugoslavia continue to be the nucleus of these conferences, they regularly attract PIL scholars from other countries as well.

The opening panel will feature the following topics and speakers:

• Reflections on the Complementarity of Global and Regional Unification of Private International Law, Hans van Loon (Former Secretary General of the Hague Conference on Private International Law), The Hague
• Characterisation in the CJEU Case Law: Unity or Diversity?, Vesna Lazić, Utrecht University and Asser Institute, The Hague
• Centennial of the Hague Academy of International Law, Maja Stanivuković, University of Novi Sad

The full programme of the conference can be found here.

The working language of the Conference will be English, and it will also be streamed online.

Those wishing to attend the Conference online are invited to register by emailing contact details and affiliation to antanasijevic@prafak.ni.ac.rs by 16 November at 12 CET.

Conference proceedings will be published in September 2024.