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M. Marc van der Woude est réélu président du Tribunal de l’Union européenne

Building on the very successful conferences held in Aberdeen (2005), Birmingham (2007), New York (2009), Milan (2011), Madrid (2013), Cambridge (2015), Rio (2017) and Munich (2019), we are pleased to announce that the Journal of Private International Law will be holding its 9th Conference at the Singapore Management University from 3 to 5 August 2023.

We now invite abstracts for the conference. Please submit an abstract if you would like to make a presentation at the conference and you are willing to produce a final paper that you will submit for publication in the Journal. Abstracts should be up to 500 words in length and should clearly state the name(s) and affiliation(s) of the author(s).

They can be on any subject matter that falls within the scope of the Journal and can be offered by people at any stage of their career, including postgraduate students. Presentation at the conference will depend on whether your abstract is selected by the Editors of the Journal (Professor Jonathan Harris KC of King’s College, London and Professor Paul Beaumont FRSE of the University of Stirling) and the conference organiser (Associate Professor Adeline Chong, Singapore Management University). The subsequent article should be submitted to either of the editors of the Journal before the end of 2023. Publication in the Journal will be subject to the usual system of refereeing by two experts in the field.

There will be a mixture of plenary (Friday) and parallel panel sessions (Thursday afternoon and Saturday morning). Please indicate on the abstract whether you are willing to present in either or are only willing to do so in one or the other. A willingness to be flexible maximises our ability to select your paper.

The Conference will be held in the Yong Pung How School of Law, Singapore Management University. Please see here for up-to-date information on travel requirements to enter Singapore.

Speakers will not be expected to pay a conference fee but will be expected to pay their expenses in relation to their attendance at the conference in Singapore. Details about options for accommodation and the conference dinner on the Friday evening will be made available on the conference webpage . Please send your abstract to the following email address by Friday 16 December 2022: jpil2023@smu.edu.sg.

Today (16 September 2022) the Russian Federation has ceased to be a High Contracting Party to the European Convention on Human Rights (ECHR). This means, inter alia, that applications against the Russian Federation will no longer be entertained by the European Court of Human Rights (ECtHR).

However, the Resolution of the ECtHR of 22 March 2022 clarified that “The Court remains competent to deal with applications directed against the Russian Federation in relation to acts or omissions capable of constituting a violation of the Convention provided that they occurred until 16 September 2022.” To view the full resolution, click here. The news item is available here.

The Russian Federation had ceased to be a member of the Council of Europe on 16 March 2022. See here.

We have previously reported on the increasing interaction between the ECHR and Private International Law. This is particularly so in surrogacy and international child abduction cases. See for example a judgment regarding international child abduction rendered by the ECtHR earlier this year, where no violation of article 8 of the ECHR was found against Russia: Case of P.D. v. Russia (Application no. 30560/19). But see Thompson v. Russia (Application no. 36048/17) where a violation of article 8 of the ECHR was indeed found.

For more information about this interaction, click here.

Undoubtedly, today is a sad day for human rights law.

Olaf Meyer (Frankfurt University of Applied Sciences) edited a book titled Public Policy and Private International Law – A Comparative Guide with Edward Elgar Publishing, part of the Elgar Comparative Guides.

Bearing in mind that the public policy exception in private international law is designed to provide a national backstop in the application of foreign laws, this book provides detailed and practical comparative coverage of the use of public policy in the context of private international law across a number of important jurisdictions spanning three continents. As well as explaining the basic theoretical framework of the public policy exception in private international law, this book drills down into the practical application of such rules, giving an overview of these jurisdictions’ legal and policy stances on current issues including: punitive damages, surrogacy, same-sex marriage, gender-based discrimination, Islamic law, and adoption to name a few. This approach serves to highlight both the differences and the similarities in approach.

Contributors include John F. Coyle, Luís de Lima Pinheiro, Anita Duraković, Pietro Franzina, Andreas Furrer, Florian Heindler, Madina Kassenova, Svenja Langenhagen, Qiao Liu, Peter Mankowski, Ulf Maunsbach, Louise Merrett, Zlatan Meškić, Olaf Meyer, Alberto Muñoz Fernández, Cécile Pellegrini, Réka Somssich, Dirk Trüten, Bea Verschraegen, Wolfgang Wurmnest, Candan Yasan-Tepetaş, Fang Yu, Maciej Zachariasiewicz and Nicolás Zambrana-Tévar.

For further information, see here.

La Cour de cassation fait application de la solution dégagée par un arrêt de la Cour de justice du 21 décembre 2021 en matière de compétence en cas d’atteinte portée à des droits par la diffusion de propos dénigrants sur Internet.

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Renouvellement partiel et entrée en fonctions de trois nouveaux membres du Tribunal

Under the auspices of the EU Justice project E-training on EU Family Property Regimes, shortly known as EU-FamPro, the project partners organise a conference COUPLES’ PROPERTY WITH CROSS-BORDER IMPLICATIONS: Uniting Academic Discussions and Practical Concerns, followed by the seminar on Practical Challenges in the Application of the Twin Regulations. The conference and the seminar are due to take place on 19 September 2022 at the University of Almeria, Spain.

The programme of the event is now available here.

The event will be held in hybrid format. You may join the event via Zoom by clicking on this link.

Some of our readers will be interested to know that University of Rijeka, Faculty of Law announced this year’s call for applications to the Rijeka Doctoral Conference: RIDOC 2022. Receiving applications on any legal or related topic of doctoral research, the conference traditionally hosts at least one session in private international law. Applications should be sent to ridoc@pravri.hr by 5 October. The conference is scheduled for 9 December 2022 in the hybrid format, but hopefully many of the participants will be able to attend onsite.

Fenix International
Fiscalité TVA
Selon l’avocat général Rantos, la disposition du règlement d’exécution de la directive TVA prévoyant qu’une plate-forme intermédiaire en ligne est, en principe, redevable de la TVA est valide

FTI Touristik (Voyage à forfait aux Îles Canaries) et C 407/21 UFC - Que choisir et CLCV
Rapprochement des législations
Tourisme en temps de pandémie : selon l’avocate générale Medina, si les opérateurs touristiques ne sont pas en mesure d’honorer les termes d’un contrat de voyage à forfait, la pandémie ne les exonère pas de l’obligation de réduire le prix et, en cas d’annulation, de procéder à un remboursement en argent, à moins de prouver l’existence de difficultés exceptionnelles

HA.EN.
Fiscalité TVA
Une pratique administrative fiscale nationale privant les assujettis ayant acquis un bien immeuble dans le cadre d’une procédure de vente forcée de leur droit à déduction de TVA est, en l’absence d’une fraude ou abus de droit, contraire au droit de l’Union

Fossil (Gibraltar)
Aide d'État
Imposition des sociétés à Gibraltar : les autorités nationales en charge de la récupération d’une aide qualifiée d’illégale peuvent appliquer une disposition nationale en vue de prévenir la double imposition

Georgina Garriga Suau and Christopher Whytock have recently published a paper on SSRN, entitled “Choice of Law for Immovable Property Issues: New directions in the European Union and the United States”.

Building on a comparative assessment of recent developments in US and EU private international law (PIL), the paper address the changing fate of lex rei sitae conflict-of-law rule, which went from being the cornerstone of the PIL regime for issues about immovable property to see its scope of application substantially reduced over the last years.

In the US, the current drafts of the Third Restatement limits the scope of application of the lex rei situs to “core immovable property issues”, to the exclusions of other ancillary matters that were subsumed under this rule according to the First and Second Restatement, such as succession and matrimonial property issues involving immovables, and even issues concerning contracts for the transfer of immovable property interests. Behind the retrocession of this rule lies a different and more holistic approach to the appraisal of the policies underpinning the laws governing matrimonial property regimes, successions and contracts: these are usually not policies about immovables as such, meaning a State other than that where the immovables are located will likely have a stronger interest in having its law applied to these issues, considered as an inseparable whole.

The authors give evidence of a similar trend in EU PIL. Although the lex rei sitae conflict-of-law rule is maintained, in principle, by the Rome I Regulation with respect to contracts relating to a right in rem in immovable property, later on it did not find its way in either the Succession Regulation or the Matrimonial Property Regulation, both axed on the connecting factor of habitual residence.

Similarly, the Registered Partnership Regulation does not adopt the lex rei sitae conflict-of-law rule, even when the issues covered by it arise in relation to immovable property. All these Regulations favour the unity of the applicable law, extending their conflict-of-law rules to the issues that are within their scope regardless of the property’s location and regardless of whether it is characterized a movable or immovable property.

They do, nonetheless, indirectly allow for the “survival” of the lex rei sitae conflict-of-law rule, insofar as they exclude from their scope (and delegate to national PIL) certain core immovable property issues, namely, the nature of rights in rem  and the recording o immovable property rights in a register, including the legal requirements for recording and the effects of recording or failing to record. Such exclusions (which are narrowly interpreted by the ECJ) pose the problem of defining such “core immovable property issues”.

According to the authors, these include, that these issues include, at a minimum, issues about permissible interests in immovable property and about the requirements for and effects vis-à-vis third parties of recording immovable property transfers in immovable property registries. On this point, there is certainly room for enhancing coherence among the several EU Regulations and improving legal certainty as concerns the EU’s understanding of “rights in rem in immovable property”. This challenge is currently being tackled by several academic initiatives, that are briefly discussed by Garriga Suau and Whytock.

The authors conclude that the comparative analysis of EU and US PIL reveals that similar reasons lie behind the “shrinking” scope of application of the lex rei sitae conflict-of-law rule, relating mostly to the objective of avoiding fragmentation a corpus of property in the case of matrimonial property/succession issues, and in those contexts as well as in the context of contractual matters, avoiding the need to characterize issues as involving either immovable property or movable property. Another underlying reason is, in both legal systems, a shift in the interest analysis that underpins the conception of conflict-of-law rules in those matters, which now tends to attach less weight to the sheer location of property, to the benefit of other interests that can usually be better ensured through the application of a law other than the lex rei sitae.

From the intersection of conflict of laws, archaeology, and indigenous studies, this multidisciplinary webinar will explore legal and practical challenges and solutions in repatriating cultural heritage in Australia, China, the EU, and the USA.

Examples include an Australian repatriation project with the Anindilyakwa Land Council and Traditional Owners on Groote Eylandt, the world-wide Return of Cultural Heritage (RoCH) program established by the Australian Institute of Aboriginal and Torres Strait Islander Studies, legal battles in repatriating the Chinese statue of Zh?ng G?ng Z? Sh? (a budda statue with a mummy inside), sovereign immunity issues in recovery of World War II-era stolen art and other heritage, and participation of local communities in protecting and repatriating cultural heritage.

Speakers (listed in the surname alphabetic order):

• Dr. Evelien Campfens, member of the International Law Association Cultural Heritage Law Committee based at Leiden University, the Netherlands, and former director to the Dutch Restitutions Committee for Nazi looted art
• Professor Anne (Annie) Clarke, Chair of Archaeology Discipline and Member of Museum and Heritage Studies Program, the University of Sydney, Australia
• Professor Zheng Xin Huo, China University of Political Science and Law, China
• Professor Charles T. Kotuby Jr., University of Pittsburgh School of Law and Honorary Professor of Law, Durham Law School, the USA and UK
• Mr. Craig Ritchie, an Aboriginal man of the Dhunghutti and Biripi nations and the Chief Executive Officer at the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS), Australia

Moderator:

• Associate Professor Jie (Jeanne) Huang, the University of Sydney Law School and Co-Director of Center for Asian and Pacific Law

Webinar via Zoom: Wednesday 21 September 6.00-7.15 pm (AEST)

Once registered, you will be provided with Zoom details closer to the date of the webinar.

 

If interested, please register here.

 

This webinar is jointly presented by the American Society of International Law Private International Law Interest Group, Centre for Asian and Pacific Law and the Center for International Law at the University of Sydney Law School.

The Australian Institute of International Affairs (AIIA) and the Australian Branch of the ILA are pleased to present the 2022 Peter Nygh Hague Conference Internship. The award will support a postgraduate student or graduate of an Australian law school to undertake an internship with The Hague Conference on Private International Law in the Netherlands by providing funds to cover the cost of travel to the Netherlands and a contribution towards living expenses.

 

Applications for the 2023 Nygh Internship are now open, and will close on 30 September 2022. More information about the award and how to apply is available here, and below.

 

The Internship

The award will provide a postgraduate student or graduate with the opportunity to work with some of the leading private international law practitioners in the world. With over 80 members (including the European Union) representing all major regions and legal systems, The Hague Conference is a global intergovernmental organisation that aims for the ‘progressive unification’ of the various State private international law rules.

Activities of The Hague Conference are coordinated by a multinational Secretariat – the Permanent Bureau – located in The Hague. The successful intern will work for 5 to 6 months under the direction of the Secretariat, assisting with research, translation and preparation of meetings in accordance with the needs of the lawyers of the Permanent Bureau.

 

How to apply

Please send a letter of application addressed to the Peter Nygh Hague Conference Internship Board (nygh.internship@internationalaffairs.org.au) or to c/- Ms Nicola Nygh, Resolve Litigation Lawyers, level 18, 126 Phillip Street, Sydney NSW 2000.

The letter should include:

• the applicant’s reasons for applying for the Peter Nygh Hague Conference Internship;
• the benefits which the applicant expects are to be derived from the internship and the contribution which the applicant expects to make to the work of The Hague Conference;
• the applicant’s career ambitions and how the internship will relate to those ambitions;
• a description of the applicant’s current research, if applicable; and
• the dates when the applicant would be available to undertake the internship (Note: The applicant must be available to undertake the internship for 5 to 6 months. The preferred start date is the beginning of January 2023 and the preferred end date is the end of June 2023. The start date, and indeed whether the internship can be undertaken in 2023, may vary depending on what travel restrictions are in place at the time).

The award is for a lump sum amount, and the successful candidate will need to accept the risks and increased costs of travelling during the COVID-19 pandemic, including limited and more expensive flights (in particular into and out of Australia), government restrictions on travel, and quarantine regimes for travellers.

 

Please also enclose the following:

• the applicant’s up-to-date résumé;
• the applicant’s most recent academic transcript;
• two letters of reference for the applicant (including at least one academic reference), with contact details of referees;
• a copy of research work by the applicant in a field relevant to the work of The Hague Conference; and
• any other proof of the applicant’s legal and linguistic abilities and knowledge. Knowledge of French would be an asset but is not required. Knowledge of any other languages may also be an advantage.

The Hon Dr Peter Nygh AM

The Peter Nygh Hague Conference Internship has been established in memory of the late Hon Dr Peter Nygh AM, a leading international lawyer, former judge of the Family Court of Australia and former President of the ILA (Australian Branch). Dr Nygh began his 25 year association with The Hague Conference as a member of Australia’s delegation in 1975. During this time, Dr Nygh helped to draft the Convention on the Celebration and Recognition of the Validity of Marriages as well as the Convention on the Law Applicable to Matrimonial Property Regimes, work which contributed to his appointment to the Family Court of Australia. After his retirement from the bench, Dr Nygh returned to The Hague Conference and between 1994 and his death in 2002 he contributed in many ways, including serving as co-rapporteur on The Hague ‘judgments project’ from 1996 and representing Australia in the negotiations that led to the Convention on the Protection of Children. In his later years Dr Nygh spent extended periods in The Hague without remuneration or payment of his expenses, yet his work did not go unrecognised. He was awarded the Centenary Medal by the Australian Government as well as the Order of Australia, partly in recognition of his outstanding and longstanding contribution to private international law, and in particular his representation of Australia at The Hague Conference.

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) is offering several three- to six-month legal internships at its office in the Hague from January to June 2023.

The selected interns are expected to conduct research together with the HCCH legal team the following areas of activity of the organisation:

Family and Child Protection Law (at least three interns):

• 2000 Protection of Adults Convention and 2007 Child Support Convention and Protocol
• 1993 Adoption Convention and Parentage / Surrogacy Project
• 1980 Child Abduction Convention (incl. Malta Process and related Working Party on Mediation) and 1996 Child Protection Convention

Transnational Litigation, Legal Cooperation, and Commercial and Financial Law (at least three interns):

• 1961 Apostille Convention (incl. e-APP)
• 1985 Trusts Convention, 2006 Securities Convention and Digital Economy (incl. DLT) Project
• 2005 Choice of Court Convention, 2019 Judgments Convention, Jurisdiction Project, and 2015 Choice of Law Principles
• 1965 Service Convention, 1970 Evidence Convention, and 1980 Access to Justice Convention

Application Requirements

The HCCH Internship Programme is open to those currently studying law at the Bachelor, Masters, J.D, and PhD. level and to those who have already been awarded a law degree or Masters.

The intern should speak at least one of the two official languages of the HCCH, English and French. Knowledge of the other official language is an asset. Knowledge of any other languages may also be an advantage.

Prospective applicants should complete an online application form (available here) and submit the following supporting documentation:

1. a letter of motivation (two pages maximum)
2. a curriculum vitae (CV)
3. a transcript of academic records or statement of academic results
4. an academic writing sample (an excerpt of any of your essays or papers in either English or French)
5. at least one letter of recommendation

The applications can be submitted until 18.00 hours (CEST), Friday 23 September 2022.

Additional information

More information about the internship and the application and selection process can be found here.

QBE Europe SA/NV v Generali Espana De Seguros Y Reaseguros [2022] EWHC 2062 (Comm) is not a surprising judgment of course. I flagged it on Twitter early August and I post it here for the sake of blog completeness.

The judgment grants an urgent anti-suit injunction (ASI) to restrain proceedings brought by the Defendant (Generali) against QBE UK in Spain, and to prevent Generali from commencing similar proceedings against QBE Europe. The proceedings in Spain assert a direct claim against QBE UK under a Spanish statute, by reference to a liability insurance policy. The judgment is exactly the kind of ASI outlawed by CJEU West Tankers and will reinforce the position of London in the arbitration market.

Geert.

Move over CJEU West Tankers….
Anti-suit injunction viz Spanish proceedings granted to protect #arbitration in London. Discusses ia nature of claim in SP proceedings

QBE Europe SA/NV v Generali Espana De Seguros Y Reaseguros [2022] EWHC 2062 (Comm) https://t.co/LwzrDzzNXv

— Geert Van Calster (@GAVClaw) August 1, 2022

Google et Alphabet / Commission (Google Android)
Concurrence
Le Tribunal confirme dans une large mesure la décision de la Commission selon laquelle Google a imposé des restrictions illégales aux fabricants d’appareils mobiles Android et aux opérateurs de réseaux mobiles, afin de consolider la position dominante de son moteur de recherche

This post was contributed by Thomas Mastrullo, who is an Associate Professor of Commercial Law at the University  of Luxembourg. It is the fifth in a series of posts on the French draft code of private international law of March 2022 (the previous posts in the series gave a German perspective and discussed the issues of renvoi, foreign law and the recognition of marriages celebrated abroad). 

Background

Title II of Book II of the French Draft Code of Private International Law is devoted to legal persons.

This Title II is divided into two chapters which deal with two major questions of international company law: the first chapter pertains to the recognition of companies (Art. 85), while the second chapter concerns the conflict-of-law rule in corporate matters, through the determination (Art. 86) and the scope (Art. 87) of lex societatis.

By the rules it proposes, the French Draft PIL Code undoubtedly promotes the modernization of French international company law.

Recognition of Companies (Article 85)

Article 85 of the French Draft PIL Code lays down the principle of recognition in France of the legal personality of companies formed in accordance with the law of a foreign State.

The proposed article 85 reads :

L’existence et les effets de la personnalité morale ou de la capacité juridique des sociétés dont le siège statutaire est situé hors du territoire français et qui ont été régulièrement immatriculées sur un registre public d’un État étranger sont reconnus de plein droit sous réserve de la fraude aux droits des tiers.

The Draft PIL Code thus adopts the liberal theory of incorporation with regard to the recognition of foreign companies: as soon as a company is validly incorporated in a foreign State, where by hypothesis it has fixed its statutory seat or registered office, it must be recognised in French territory.

Such a rule “codifies” the traditional position of French law on this subject. Indeed, since the 19th century, it has been accepted in French law that “la régularité de la constitution selon la loi de l’État d’immatriculation est suffisante pour que la société soit reconnue en France” (M. Menjucq, Droit international et européen des sociétés, LGDJ, “Précis Domat”, 6th ed., no. 58), as long as it is established that the company enjoys legal personality in its State of incorporation (See CA Paris, 30 Apr. 1997, BJS 1997, p. 778, note M. Menjucq). Moreover, the solution adopted by the Draft is in line with the jurisprudence of the CJEU, and in particular with Überseering judgment (see here) according to which:

the refusal by a host Member State to recognize the legal capacity of a company formed in accordance with the law of another Member State in which it has its registered office on the ground (…) constitutes a restriction on freedom of establishment” and, even worst, an “outright negation of the freedom of establishment.

Beyond these general remarks, three points on the text may be underlined.

Firstly, recognition relates to the “existence and effects” of legal personality. This expression refers to the French doctrinal position which defines recognition as “l’admission sur le territoire nationale de l’existence et des effets d’une personne juridique (physique ou morale) étrangère” (L. Lévy, La nationalité des sociétés, LGDJ, 1984, p. 51). This definition gives precedence to the fiction theory of legal personality, considering that, whatever personality a company enjoys abroad, it is not imposed on the State of recognition, which remains free to decide on its existence. We know that other authors, inspired by the reality theory, define recognition more strictly as “l’autorisation accordée par l’État à la société d’exercer une activité sur son sol” (P. Mayer et V. Heuzé, Droit international privé, LGDJ, « Précis Domat », 11th ed., no. 1106 et s.). The approach adopted by the Draft has the merit of grasping the whole issue of recognition in corporate matters: the recognition of the existence of a foreign company as a legal person logically implies the recognition of the effects resulting from this personality… And it is difficult to imagine that a foreign company whose existence is recognised in a State could be outright refused authorization to carry on its business there.

Secondly, the Draft PIL Code pertains to the recognition of the companies’ “legal personality” but also of the companies’ “legal capacity”. A simple legal capacity granted in the foreign State of incorporation is therefore sufficient to recognize a company’s legal personality in France. Indeed, the condition that the company must have legal personality in its State of incorporation in order to be recognized in France is interpreted broadly. Even if it does not have legal personality in its State of incorporation, a company which enjoys a capacity equivalent to that conferred on companies which have legal personality in France may be recognized as a legal person on French territory, as was decided in the case of a German Offene Handelsgesellschaft (see CA Versailles, 14 janv. 1999, BJS 1999, § 97, p. 466, note M. Menjucq).

Thirdly, the Draft PIL Code provides that recognition can be rejected in case of fraud against the right of third parties. This could be the hypothesis of a letter-box company without any effective connection to the State in which it has its statutory seat or registered office. This international company law’s classic limitation is to be welcomed, especially as it is compatible with EU law. Indeed, it follows in particular from the Inspire Art (see here) and Polbud (see here) CJEU’s judgements that fraud against the rights of third parties may constitute a limit on the companies’ freedom of establishment, provided that such fraud is assessed on a case-by-case basis and in a punitive manner (see Th. Mastrullo in Traité de droit du commerce international, M. Menjucq et J. Béguin (dir.), LexisNexis, 3rd ed., no 711). Obviously, the characterisation of fraud will always be based on an assessment of the facts of the case.

Determination of the lex societatis (Article 86)

The French Draft Code of Private International Law adopts the theory of incorporation and the criterion of the statutory seat or registered office as a connecting factor for determining the lex societatis.

The proposed Article 86 reads :

Les sociétés immatriculées au registre du commerce et des sociétés au titre de leur siège statutaire sont soumises aux dispositions de la loi française.

Les sociétés dont le siège statutaire est situé hors du territoire français sont soumises aux dispositions du droit des sociétés de l’État dans lequel elles sont immatriculées dans un registre public ou, à défaut d’immatriculation, de l’État où est situé le siège statutaire.

The first paragraph uses the unilateralist method, and states the French law’s will to be applicable to companies whose statutory seat or registered office is in France, while the second paragraph contains a bilateral conflict-of-laws rule according to which, when its statutory seat is not in France, the company is ruled by the law of the State where it is incorporated or has its statutory seat.

As the Legal High Committee for Financial Markets of Paris (“Haut Comité juridique de la Place Financière de Paris” – HCJP) which has published a report on the applicable law to companies  (Rapport sur le rattachement des sociétés – see here) on 31 March 2021, the French Draft PIL Code adopts a liberal approach of companies’ connecting factor.

Several arguments may be advanced in support of this proposition.

Firstly, the connecting factor relying the statutory seat or registered office is simpler and, as a consequence, more favorable to legal certainty. Indeed, on the one hand, it eliminates the touchy question of the place of the real seat and, on the other hand, it guarantees respect for the operators’ choice of the law to rule their company. Thus, this connecting factor might reinforce France’s attractiveness. Secondly, the solution is inspired by the comparative private international law which reveals a strong tendency towards the generalization of the incorporation theory or connecting criterion by the statutory seat or registered office. In Belgium, for instance, the connecting criterion by the real seat, which had prevailed since 1873, has been abandoned by the law of 23 March 2019 in favour of the connecting criterion by the statutory seat, the new Article 110 of the Belgian Code of Private International Law now providing that « La personne morale est régie par le droit de l’État où se situe son siège statutaire ». Thirdly, the solution is more suited to the development of EU law which, through the jurisprudence of the CJEU – and in particular the Centros (see here), Überseering (see here), Inspire Art (see here), and Polbud (see here) judgments – and some regulations – such as European Regulation n° 2157/2001 on SE (see here) or Directive (UE) 2019/2121 amending Directive (EU) 2017/1132 as regards cross-border conversions, mergers and divisions (see here), tends to promote the statutory seat or registered office as a connecting factor.

It is regrettable that the proposed Article 86 does not provide for the limit of fraud against the rights of third parties, as it is expressly provided for in relation to recognition. One can think, however, that the limit of fraud could be implemented in order to apply the law of the real seat instead of the law of the statutory seat, either on the basis of Article 85, which rejects the recognition of legal personality’s “effects” in case of fraud against the right of third parties (lex societatis may be considered as one of these “effects”), or on the basis of common private international law, knowing that such a limit is envisaged by European case law (see already above).

Scope of the lex societatis (Article 87)

Article 87 of the French Draft Code of Private International Law is dedicated to the scope of application of the lex societatis. The inspiration of this text can be found in Swiss law. The aim is to increase the readability and, as a result, the attractiveness of French law. A list of elements falling within the scope of lex societatis is drawn, this list being non-exhaustive as suggested by the use of the French adverb “notamment” (which can be translated by “in particular”).The list of elements falling within the scope of the lex societatis is not surprising and, mostly, “codifies” the French doctrinal positions and case law’s solutions.For example, the assertion that the lex societatis determines the acquisition and loss of the status of shareholder takes up the solution of the famous Royal Dutch judgment of 17 October 1972 (see here), in the same way that the Africatours judgment of 1st July 1997 admitted the application of the lex societatis with regard to the liability of managers towards third parties (see here).

In conclusion, the project seems relevant to meet the challenges created by the development of freedom of establishment in the European Union and to strengthen the competitiveness of French company law.

Par un arrêt du 30 juin 2022, la Cour de justice interprète l’article 11, § , b), du règlement Bruxelles I bis, qui fixe la compétence du juge lorsque le preneur d’assurance, l’assuré ou un bénéficiaire domicilié dans un État membre agit contre un assureur domicilié dans un autre État membre.

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