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La Cour de justice de l’Union européenne juge qu’un parent ressortissant d’un pays tiers qui séjourne dans un État membre en raison du droit qu’il tire de la qualité de citoyen de l’Union européenne de son enfant mineur, peut se prévaloir de ce séjour pour obtenir un statut de résident de longue durée.

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Florence Guillaume and Swen Riva (University of Neuchatel) have posted Blockchain Dispute Resolution for Decentralized Autonomous Organizations: The Rise of Decentralized Autonomous Justice on SSRN.

For the past twenty years, the use of the Internet has facilitated international commercial relations between people who do not know each other and who are geographically distant. Disputes resulting from e-commerce have undermined the supremacy of state courts, which have proved unable to provide an appropriate response to small claims arising in an international context and raising delicate questions as to jurisdiction and applicable law. The length, cost and complexity of the procedure, as well as the risk associated with the international enforcement of the judgment are deterrent factors that led e-commerce platforms to develop online dispute resolution (ODR).

Thanks in part to the removal of intermediaries, the transfer of cryptocurrencies and other crypto assets using blockchain technology has further facilitated international commercial relations. The decentralized and distributed characteristics of blockchain technology and the pseudonymity of its transactions has led to a new economy growing independently from nation states. This technology has brought an additional degree of complication in the application of private international law (PIL) rules by removing the illusion that online transactions can be linked to the territory of a state. Smart contracts also allow the creation of digital entities that can enter into commercial relations. The first decentralized autonomous organization (DAO) was the source of a resounding dispute between parties with diverging interests, which had to be urgently resolved without any access to state courts or a dispute resolution mechanism. This case revealed the risk of disputes in the blockchain environment and the resulting legal uncertainty, and led to the emergence of various models of blockchain dispute resolution (BDR) mechanisms (BDRs) inspired by the solutions developed in e-commerce.

This chapter deals with the application of PIL rules to the resolution of disputes involving DAOs. The authors first analyze what is a DAO and whether DAOs legally qualify as companies. What is at stake is the legal personality of DAOs and their capacity to conduct legal proceedings. The authors then examine whether disputes involving DAOs may be brought before state courts. This analysis highlights the problems related to the location, pseudonymity, and uncertainty regarding the legal personality of the participants of the blockchain environment, which challenge the jurisdiction of state courts in case of a dispute. The authors then draw on the experience acquired in the field of e-commerce to examine the advisability of setting up alternative dispute resolution mechanisms available to the actors of the blockchain environment. Based on an analysis of existing BDRs, the authors examine whether and how BDRs are likely to avoid a denial of justice and bring legal certainty to disputes related to contractual relationships with DAOs formalized through smart contracts as well as disputes related to the governance of DAOs. The authors find that a BDR decision which can be directly enforced through smart contracts confers effective justice to the actors of the blockchain environment. Finally, the authors address the more delicate issue of the enforcement of a BDR decision on non-crypto assets. This approach shows that a type of justice based on cryptoeconomic incentives challenges the concept of fair justice. This could be an impediment to obtaining the assistance of state authorities for the enforcement of a BDR decision outside of the blockchain environment as this type of decision could be considered contrary to public policy.

The analysis is mostly based on Swiss private international law and major private international law conventions. In this chapter, the authors outline the contours of a new private justice system designed to provide decentralized autonomous justice to the actors of the crypto economy.

The paper is forthcoming in Bonomi and Lehmann (eds), Blockchain and Private International Law (Brill Nijhoff 2022)

Banka Slovenije
Politique économique ETAB
Politique monétaire et résolution bancaire dans la zone euro : la Cour précise les limites de la responsabilité d’une banque centrale face aux dommages subis par des titulaires d’instruments financiers qu’elle a supprimés en application de mesures d’assainissement

Cross-Border Litigation in Central Europe – EU Private International Law Before National Court, is the tile of a collection of essays, edited  by Csongor István Nagy and just published by Kluwer.

Cross-Border Litigation in Central Europe, an indispensable reference book, provides a detailed understanding of the process of seeking justice in cross-border disputes in Central Europe. It is the first of its kind to offer a comprehensive and analytical overview of the judicial practice in the region and to make this case law accessible in English.

The book provides a critical insight into the case law of ten Central European States relating to various fields of EU private international law (general civil and commercial, insolvency, family and succession matters).

The contributions were written by Dora Zgrabljic Rotar, Tena Hosko, Katazyna Bogdzevic, Pavle Flere, Lucia Gandzalova, Justyna Gumula-Kedracka, Monika Jagielska, Elena Judova, Inga Kacevska, Wojciech Klyta, Vadim Mantrov, Gabor Palasti, Magdalena Sobas, Janos Szekely, Dace Trupovniece, Jiri Valdhans, Emod Veress, and Lucie Zavadilova.

Meanwhile, a paper issued from the research on which the book builds has appeared on SSRN. It is authored by Csongor Nagy and is titled EU Choice-Of-Law Rules before Hungarian Courts: Contractual and Non-Contractual Obligations.

The abstract reads as follows:

This article is based on the Hungarian strand of the multiyear CEPIL project carried out with the generous support of the European Commission Directorate General Justice and Consumers. One of the leading considerations behind the CEPIL project was that the value of private international law unification can be preserved only if EU private international law instruments are applied correctly and uniformly, hence, the European endeavours in the field should not and cannot stop at statutory unification but need to embrace the judicial practice and make sure that besides the vertical communication between the CJEU and national courts, there is also a horizontal communication between national courts, authorities and the legal community in general. The purpose of this publication is to contribute to this horizontal communication between Member State courts by providing an analytical insight into the Hungarian case-law on the Rome I and the Rome II Regulations.

Additional information on the edited book, including the table of contents, is available here.

Lydia Lundstedt has prior review of the judgment in CJEU C-399/21 IRnova AB v FLIR Systems AB (who had been business partners in the past) here. Swedish courts are clearly busy referring the private international law elements of patent cases to the CJEU.

Of particular note is that a 3 judge chamber would seem to have ruled out reflexive effect as casually as if it were swatting a fly.

On 13 December 2019, IRnova brought an action before the Patent and Market Court seeking, inter alia, a declaration that it had a better right to the inventions covered by international patent applications, subsequently supplemented by European, US and Chinese patent applications deposited by FLIR in 2015 and 2016, and by US patents granted to FLIR on the basis of those latter applications. In support of that action, IRnova had stated, in essence, that those inventions had been made by one of its employees, meaning that that employee had to be regarded as their inventor or, at the very least, as their co-inventor. IRnova therefore argued that, as the inventor’s employer and thus successor in title, it had to be regarded as the owner of the inventions. However, FLIR, without having acquired those inventions or otherwise being entitled to do so, deposited the applications in its own name.

The court had dismissed jurisdiction viz the Chinese and US patent applications, and the US patents, on the ground, in essence, that it regarded the action concerning the determination of the inventor as being linked to the registration and validity of the patents, and it applied A24(4) BIa reflexively. The Appeals Court referred the issue on reflexive effect to the CJEU, in the following terms:

‘Is an action seeking a declaration of better entitlement to an invention, based on a claim of inventorship or co-inventorship according to national patent applications and patents registered in a non-Member State, covered by exclusive jurisdiction for the purposes of Article 24(4) of [the Brussels Ia Regulation]?’

however the CJEU reformulated [22-24] the case as not concerning reflexive effect at all, rather, enquiring about the scope of the A24(4) gateway.

The Court first of all [25] ff makes a point of confirming its broad reading of the ‘international’ element required to trigger European private international law, referring to CJEU Owusu.

It then [35] would seem to rule out reflexivity in a very matter of factly way (and as Lydia also noted, without AG Opinion):

as has already been pointed out in paragraph 26 of the present judgment, the patent applications at issue in the main proceedings were deposited and the patents concerned were granted not in a Member State, but in third countries, namely the United States and China. As Article 24(4) of the Brussels Ia Regulation does not envisage that situation, however, that provision cannot be regarded as applicable to the main proceedings.

This may have already answered a core question in  BSH Hausgeräte v Aktiebolaget Electrolux .

[36] ff it refers ia to CJEU Hanssen and to the exceptional nature of A24 [39]. It holds that [42]

the main proceedings relate not to the existence of the deposit of a patent application or the grant of a patent, the validity or lapse of a patent, or indeed an alleged right of priority by reason of an earlier deposit, but to whether FLIR must be regarded as being the proprietor of the right to the inventions concerned or to a portion of them.

[47] it refers ia to the fact that fact that

an examination of the claims of the patent or patent application at issue may have to be carried out in the light of the substantive patent law of the country in which that application was deposited or that patent was granted [however it ] does not require the application of the rule of exclusive jurisdiction laid down in Article 24(4) of the Brussels Ia Regulation

Much relevant and surprisingly succinct on the reflexivity issue.

Geert.

EU Private International Law, 3rd ed. 2021, 2.208 and 2.548.

 

On 9 September 2022, the Max Planck Institute for Procedural Law Luxembourg hosted a conference on the Brussels Ibis Reform, in collaboration with the KU Leuven and the EAPIL.

The Brussels Ibis Regulation is certainly the fundamental reference-instrument of cross-border judicial cooperation in civil matters within the European Union. Since its establishment in 1968, it has been constantly evolving. At present, the European Commission is required to present a report on the application of the Regulation and to propose improvements. Against this background, a Working Group was set up within the network of the European Association of Private International Law (EAPIL) to draft a position paper. The group is led by Burkhard Hess (MPI Luxembourg) and Geert van Calster (KU Leuven). Members of the working group answered a questionnaire, reporting the application and possible shortcomings of the Brussels Ibis Regulation in their respective jurisdictions.

The topics of the conference were based on the 19 reports that were received from 16 working group members and 3 observers. Additional experts presented topics ranging from insolvency proceedings to third state relationships. The aim of the conference is to prepare a position paper. The paper will be presented to the European Commission to advise it on the evaluation process. EAPIL Members are invited to join the Members Consultative Committee (MCC) of the EAPIL Working Group on reforming Brussels Ibis.

After welcome notes by Burkhard Hess (MPI Luxembourg), Andreas Stein (Head of Unit, DG JUST – A1 “Civil Justice”, European Commission European Commission, connected via Video from outside), Gilles Cuniberti (University of Luxemburg/EAPIL) and Geert van Calster (KU Leuven), the first panel, chaired by Marie-Élodie Ancel, Paris, focused on the role and scope of the Brussels Ibis Regulation in European Procedural Law. Dário Moura Vicente, Lisbon, highlighted the Regulation’s indispensable function as a “backbone” of European civil procedural law, reaching far beyond civil and commercial matters into e.g. family law, in order to increase consistency. Room for improvement in this respect was identified, inter alia, for the definition of the substantive scope, in particular in relation to arbitration, the subjective or personal scope, in particular in relation to third state domiciled defendants, and for coordinating the relationships with other instruments such as the GDPR. Following up on the latter aspect, Björn Laukemann, Tübingen, analysed the delineation of the Regulation and the European Insolvency Regulation with a view to annex actions and preventive restructuring proceedings. No imminent need for textual reform was seen for the former, whereas for the latter suggestions for amendments of the Recitals were submitted. Vesna Lazic, Utrecht/The Hague, discussed the controversial judgment of the ECJ in London Steamship that certainly put again on the table the question whether the arbitration exception of the Regulation should be drafted more precisely. Whereas some argued that the large differences in the arbitration laws of the Member States would not allow any unifying approach based on notions of mutual trust, others held that there was some sense in the ECJ’s attempt not to get blocked the Spanish judgments in the UK via arbitration. As to the suggestion of a full-fledged European Arbitration Regulation, one reaction was that this might result in unintended consequences, namely exclusive external competence by the EU on arbitration. Further, the question came up whether in light of the ECJ’s judgment in London Steamship its earlier decision in Liberato should be rectified in the reform. In Liberato, the ECJ held that a violation of the lis pendens rules of the Regulation does not amount to a ground for refusal of recognition whereas in London Steamship the Court held that the lis pendens rules formed part of the fundamental principles of the Regulation to be respected under all circumstances. Speaking of lis pendens, another question in the discussion was whether a backbone instrument like the Brussels Ibis Regulation would or should allow de lege lata transferring certain core elements, such as the rules on lis pendens, to other instruments without any rules on lis pendens, such as the European Insolvency Regulation. The ECJ in Alpine Bau GmbH had rejected the application of Article 29 Brussels Ibis Regulation by way of analogy, as it considered the EIR as a special and distinct instrument of its own kind, so the question was whether analogies from the “backbone” should be encouraged expressly where appropriate in the concrete constellation.

The second panel, chaired by Burkhard Hess, dealt with collective redress. François Mailhé, Picardy, Stefaan Voet, Leuven, and Camelia Toader, Bucharest, discussed intensely the cross-border implications of the new Representative Actions Directive, in particular the potential need for specific heads of jurisdiction, as the Directive was described as subtly seeking to encourage pan-European actions but at the same time leaves a number of options to the Member States. Obviously, this means that provision and allocation of – ideally one-stop – jurisdiction would be of the essence, e.g. by extending the forum connexitatis of Article 8 (1) Brussels Ibis Regulation to connected claimants, possibly even for third state domiciled claimants. However, concerns were formulated that the Brussels Ibis Regulation should not be “politicized” (too strongly). In addition, the importance of other aspects were highlighted such as coordinating and consolidating proceedings, the delineation of settlements and court judgments in respect to court-approved settlements (probably to be characterised as judgments) and the essential role of funding. The overall tendency in the room seemed to be that one should be rather careful with (at least large-scale) legislative interventions at this stage.

The third panel, chaired by Thalia Kruger, Antwerp, focused on third state relations. Chrysoula Michailidou, Athens, discussed potential extensions of heads of jurisdiction for third state domiciled defendants, in particular in respect to jurisdiction based on (movable) property and a forum necessitatis. Alexander Layton, London, focused on the operation of Articles 33 and 34 and reiterated the position that discretion of the court to a certain extent was simply inevitable, also in a distributive system of unified heads of jurisdiction, as it is provided for e.g. in these Articles, in particular by the tool of a prognosis for the chances of recognition of the future third state judgment (“Anerkennungsprognose”) in Article 33(1) lit. a and Article 34(1) lit. b, and by the general standard that the later proceedings in the Member State in question should only be stayed if the Member State court is satisfied that a stay is necessary for the proper administration of justice (Articles 33(1) lit. b and 34(1) lit. c). Further, the question was posed why Articles 33 and 34 would only apply if the proceedings in the Member State court are based on Articles 4, 7, 8 or 9, as opposed to e.g. Articles 6(1) and sections 3, 4 and 5 of Chapter II. The author of these lines observed that relations to third states should be put on a consistent basis including all aforementioned aspects as well as recognition and enforcement of such judgments. Further, need for clarification, e.g. in the respective Recitals, was identified for the question whether there is an implicit obligation of the Member State courts not to recognize third state judgments that violate Articles 24, 25 and the said sections 3, 4 and 5 of Chapter II. This could be framed as a matter of the Member States’ public policy, including fundamental notions of EU law (see ECJ in Eco Swiss on another fundamental notion of EU law as an element of the respective Member State’s public policy). The central point, however, was the suggestion to correct the latest steps in the jurisprudence of the ECJ towards allowing double exequatur, if a Member State’s lex fori provides for judgments upon foreign judgments (see ECJ in H Limited). Options for doing so would be either adjusting the relevant Recitals, 26 and 27 in particular, or the definition of “judgment” or inserting another specific ground for refusal outside the general public policy clause, thereby in essence restating the principle of “no double exequatur” within the mechanics of the Regulation as understood by the ECJ, or limiting the effects of a judgment upon judgments for the purposes of the Brussels system, a method (altering the effects of a judgment under its lex fori) employed by the ECJ in Gothaer Versicherung in respect to other effects of a judgment from a Member State court, or, finally, by introducing an entire set of rules on the recognition and enforcement of third state judgments. In the latter case, all measures would have to be coordinated with the latest and fundamental development within the EU on third state judgments, namely the (prospective) entering into force of the HCCH 2019 Judgments Convention on 1 September 2023. Anyone who is interested in what this Convention could offer should feel warmly invited to participate and discuss, inter alia, the interplay between the Brussels and the Hague systems at the Bonn / HCCH Conference on 9 and 10 June 2023.

The next panel, chaired by Geert van Calster, related to certain points on jurisdiction and pendency to be reformed. Krzystof Pacula, Luxemburg, discussed Articles 7 no. 1 and no. 2 and, inter alia, suggested abstaining from a general reformulation of these heads of jurisdiction but rather opted for concrete measures for improving the text in light of lines of case law that turned out to be problematic. Problems identified were, inter alia, the delineation of the personal scope of Article 7 no. 1 in light of the principle of privity of contracts (“Relativität des Schuldverhältnisses”) and the concurrence of claims under Article 7 no. 1 and no. 2. In this regard, it was discussed whether both of these heads should allow to assume annex competence in regard to each other. Marta Requejo Isidro, Luxemburg, discussed the intricate interplay of Article 29 and 31 and, inter alia, considered increased obligations of the two Member State courts involved to coordinate conclusively the proceedings, for example by inserting certain time limits and, in case only the non-designated court is seized, powers to order the parties to institute proceedings at the designated court within a certain time limit. Otherwise the court seized should decline jurisdiction finally. Victória Harsági, Budapest, discussed the implications of the judgment of the ECJ in Commerzbank in respect to balancing consumer protection with foreseeability when the consumer, after a Lugano Convention State court has been seized with the matter, transferred its domicile to another (Lugano Convention) State, thereby creating the only international element of the case. Burkhard Hess dealt with reforming Article 35 of the Brussels Ibis Regulation after the ECJ in Toto and observed that there was no express hierarchy between measures under that Article and measures by the court of the main proceedings, and the Court did not infer any such hierarchy in its decision. The suggestion, therefore, was to think about introducing express coordination, be it along the lines of Rules 202 et seq. of the 2020 European Model Rules of Civil Procedure, be it along those of Article 6(3) of the 2022 Lisbon Guidelines on Privacy (on these see here and here), be it along those of Article 15 (3) Brussels IIter Regulation. Good reasons for the latter approach were identified, and this led back to the fundamental question to what extent the notion of a coherent “Brussels system” might allow even de lege lata not only to apply concepts from the Brussels Ibis Regulation, the “backbone” of that system, to other instruments by analogy, but also vice versa from the latter instruments to the former.

The last panel started with a submission by Gilles Cuniberti, Luxemburg, to remove Article 43, based on a number of reasons, as the Brussels I Recast aimed at removing “intermediate measures” such as exequatur, which rendered it inconsistent to uphold the intermediate measure foreseen in Article 43 – service of the certificate of Article 53 upon the judgment debtor. This was held to be all the more so, as this measure would primarily protect the debtor, already adjudged to pay, to an unjustifiable degree. Marco Buzzoni, Luxemburg, discussed the adaptation of enforcement titles under Article 54, a provision that was held to be one of the major innovations of the last Recast but turned out to be of little practical relevance. A similar provision had been proposed in the preparatory works for the HCCH 2019 Judgments Convention (February 2017 Draft Convention, Article 9), but was ultimately dropped, as opposed to the 2022 Lisbon Guidelines on Privacy (see its Article 12(2) Sentence 2). Vesna Rijavec, Maribor (unfortunately unable to attend for compelling reasons, but well represented by the chair, Geert van Calster) presented proposals on refining Articles 45(1) lit. c and d, mainly arguing that these should connect to pendency (as had already been proposed by the Heidelberg Report for the Recast of the Brussels I Regulation).

An overall sense of the conference was that no radical revolutions should be expected in the forthcoming Recast, which should be taken as another sign for the overall success of the backbone of the Brussels system, but that there was quite some room for specific and well-reasoned improvements. The conference contributed to preparing these in a truly excellent and inspiring way and in outstanding quality.

The University of Lagos Law Review (“Unilag Law Review”) in its 2022 issue recently published articles on Nigerian law. One of the articles is focused on conflict of laws:

P Oladimeji, “Simplifying the Doctrine of Renvoi under Conflict of Laws”

The doctrine of Renvoi is a topic in Conflict of Laws that posits a stumbling block, more often than anticipated, to students of the academic discourse trying to understand the scope of Conflict of Laws and how the framework of this topic applies in international matters. As such, this paper is an effort by the writer to simplify the tenets of the doctrine of Renvoi, its applicability, and its suppositions as reflected by scholars of English jurisprudence who dealt extensively with the doctrine at the time of its inception in the early 20th century. The paper begins with an introduction to the doctrine of Renvoi and its meaning per Private International Law; and then proceeds to distil the doctrine further by looking at the theories concocted by early scholars of its discourse as to its functionality in law. This paper also looks at the often quoted types of Renvoi and simplifies the difference(s) between these types as much as possible. Following this, the paper analyses the challenges brought to bear by the application of Renvoi in international matters – challenges that have led to rising arguments for and against the application of the doctrine as is.

Thanks to Costanza Honorati and Laura Carpaneto for the tip!

The Practice Guide on the Brussels IIb Regulation (Regulation 2019/1111) has been published on the site of the European Judicial Network in Civil and Commercial Matters (EJN) – scroll to the bottom.

The Guide was written by Boriana Musseva under a contract between the European Commission and Milieu Consulting. It uses the name Brussels IIb (presumably the Commission’s preferred nomenclature) even though some authors also use Brussels IIter. The Guide is still being translated in the other EU languages and will then also be published with the other information that the Commission provides on the European Judicial Atlas.

Here is the direct link to the Practice Guide for the application of the Brussels IIb Regulation.

A volume titled “Cross-Border Litigation in Central Europe: EU Private International Law Before National Courts” and edited by Csongor István Nagy (University of Szeged, Hungary & Center for Social Sciences, Budapest) has recently been published by Kluwer. It was and authored by Katazyna Bogdzevic, Pavle Flere, Lucia Gandzalova, Justyna Gumula-Kedracka, Tena Hosko, Monika Jagielska, Elena Judova, Inga Kacevska, Wojciech Klyta, Vadim Mantrov, Csongor István Nagy, Gabor Palasti, Dora Zgrabljic Rotar, Magdalena Sobas, Janos Szekely, Dace Trupovniece, Jiri Valdhans, Emod Veress, Lucie Zavadilova. The book provides a detailed understanding of the process of seeking justice in cross-border disputes in Central Europe and a comprehensive and exhaustive presentation of the case law in 10 Central European Member States (Croatia, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia, and Slovenia). It is the first of its kind to offer a comprehensive and analytical overview of the judicial practice in the region. More information on the book, its content and contributors is available here.

The book is a product of the multi-year EU-funded CEPIL project (“Cross-Border Litigation in Central-Europe: EU Private International Law before National Courts”, 800789 — CEPIL — JUST-AG-2017/JUST-JCOO-AG-2017), which was based on the cooperation of six universities (University of Szeged, Hungary, Masarykova univerzita, Czech Republic, Sveu?ilište u Zagrebu, Croatia, Universitatea Sapientia din municipiul Cluj-Napoca, Romania, Univerzita Mateja Bela v Banskej Bystrici, Slovakia, Uniwersytet ?l?ski, Poland). The CEPIL project inquired whether EU private international law functions optimally in the Central European Member States to secure a Europe of law and justice and whether EU private international law instruments are applied correctly and uniformly. It analyzed whether national courts deal appropriately with disputes having a cross-border element and whether the current legal and institutional architecture is susceptible of securing legal certainty and an effective remedy for cross-border litigants. More information on the project is available here.

The author of this post is Lydia Lundstedt, who is a Senior Lecturer at the Stockholm University.

In IRnova (C-399/21), decided on 8 September 2022, the CJEU clarified the interpretation of Article 24(4) of the Brussels I bis Regulation. The latter provision confers exclusive jurisdiction “in proceedings concerned with the registration or validity of patents, trade marks, designs, or other similar rights required to be deposited or registered” upon “the courts of the Member State in which the deposit or registration has been applied for, has taken place or is under the terms of an instrument of the Union or an international convention deemed to have taken place”.

In its judgment, the Court ruled that Article 24(4) is to be interpreted as not applying to a dispute, in the context of an action based on an alleged status of inventor or co-inventor, concerning the determination of whether a person is entitled to certain inventions referred to in patent applications filed and patents granted in third countries.

I reported on the facts and the question referred here but a brief synopsis follows.

The Swedish company IRnova AB brought proceedings before the Swedish Patent and Market Court against the Swedish company FLIR Systems AB for a declaration that it was entitled to inventions referred to in certain European, US and Chinese patent applications and certain US patents on the ground that its employee was the true inventor (or co-inventor).

The Patent and Market Court dismissed the part of IRnova’s action concerning the patent applications filed in the US and China and the patent granted in the US. Incidentally, the court retained jurisdiction over the European applications which are governed by the lex specialis rules in the Protocol on Jurisdiction and the Recognition of Decisions in respect of the Right to the Grant of a European Patent.

IRnova AB appealed to the Patent and Market Court of Appeal, which asked the CJEU whether Article 24(4) could be applied to these types of entitlement disputes concerning patents registered and applied for in non-Member States.

The CJEU began by slightly reformulating the referring court’s question to refer to applications filed and patents granted in third States as opposed to non-Member States (paras 22-24). Thereafter, the CJEU established that the dispute had international character and therefore fell within the scope of the BIa Regulation (paras 25-31). Referring to its decision Owusu, C-281/02, the CJEU observed that international character may be based on the subject-matter of the dispute (here the patent applications and the patents) being connected to a third State.

Thereafter, the CJEU answered the question whether Article 24(4) applied to a situation such as the one in the Swedish proceedings. First, the CJEU observed that it follows from the wording of Article 24(4) that it concerns the courts of a Member State of registration and therefore the provision was not applicable to patents applied for and registered in third States (paras 32-35).

Second, the CJEU held that entitlement disputes, including those based on inventorship, are not “concerned with the registration or validity of patents” in the meaning of Article 24(4) (paras 36-49). In this regard, the CJEU recalled that the concept was autonomous and that it must not be given a wider interpretation than is required by its objective (paras 38-39).

The CJEU also recalled its case law in Duijnstee, 288/82 , GAT, C-4/03, and Hanssen Beleggingen, C-341/16 where it held that the rule on exclusive jurisdiction in what is now Article 24(4) is justified by the fact that the courts of the Member State where the patents are applied for or registered are best placed to adjudicate upon cases in which the dispute itself concerns the validity or lapse of a patent, the existence of the deposit or registration or an alleged right of priority by reason of an earlier deposit. It recalled further that an action which merely raises the question of who is the owner of a patent or whether a person has been correctly registered as the owner of a trade mark is not covered by that rule of exclusive jurisdiction because such questions are not closely linked in fact and law to the place where the right has been registered (paras 36-41).

The CJEU stated that the dispute in the Swedish proceedings did not concern these questions but only the question concerning the right to the inventions or to a part of them (para 42).

In this regard, the Court observed first that the question of who owns the inventions, which includes the question of who is the inventor, does not concern the application for an intellectual property right or the right as such, but the object of the right. The CJEU referred to its earlier case law on the justification for Article 24(4) and concluded that it was relevant in a case such as the one in the Swedish proceedings where the question relates only to the entitlement to object of the right, i.e. the invention (para 43).

Thereafter, the CJEU noted that the question of who is the inventor, which the CJEU noted was the sole issue in the Swedish proceedings, is a preliminary question and therefore distinct from that of whether a patent application has been filed or a patent granted. In addition, the CJEU stated that the dispute did not concern the validity an application, but seeks only to establish the right to the inventions themselves. The CJEU stated that the fact that a lack of entitlement to an invention may constitute a ground for refusal of the application is therefore not relevant to the jurisdiction to hear disputes concerning inventorship (paras 44-45).

Lastly, the CJEU stated that the preliminary question of who is an inventor is also distinct from that of the validity of the patent and that latter question was not part of the case in the Swedish proceedings.

The CJEU added that even if the national court was required to examine the claims in the patent applications or patents to determine each employee’s contribution to the invention, this examination does not concern the patentability of the invention.

The CJEU further added that infringement actions also require an in-depth assessment of the protection afforded under the law of the protecting country but that it had previously held that such actions were not covered by the rule on exclusive jurisdiction (paras 46-48).

In my opinion, the CJEU comes to a sensible outcome – the parties should not need to pursue duplicative proceedings in every granting third State with risk that inventorship is decided differently in different states.

The question of inventorship is not closely linked in fact to the state where the patent was applied for or granted as the relevant facts will have taken place where the invention was made, which in this case was most likely in Sweden. Although there is proximity in law to the State where the patent was applied for or granted (the CJEU noted that the Swedish court will likely need to apply US and Chinese law), inventorship disputes are mostly factual disputes concerning who actually came up with the inventive idea, and not the legal value of the parties’ contributions.

If IRnova succeeds with its case on the merits, an interesting question is how it will get the judgment enforced. It can use the Swedish judgment in support of a request before the US and Chinese authorities to persuade them to correct the applicant or owner. An interesting question is whether IRnova can request the Swedish court to order FLIR Systems to transfer the patent applications and patents to it.

Lastly, the decision has significant implications so it is surprising that the CJEU did not obtain a written opinion from the Advocate General. Indeed, the CJEU dealt with the question whether Article 24(4) applies to third States in a rather summary fashion.

The question whether Article 24 in general can be given reflexive effect either as a matter of EU law or national law has been hotly debated in the legal doctrine so I would have expected more than a textual argument to support the CJEU’s conclusion.

I mentioned the pending case C-339/22 BSH Hausgeräte v Aktiebolaget Electrolux yesterday at our excellent (if I say so myself) Max Planck Institute – EAPIL – KU Leuven workshop on Brussels Ia reform. Questions referred, are

Is Article 24(4) [BIA] to be interpreted as meaning that the expression ‘proceedings concerned with the registration or validity of patents … irrespective of whether the issue is raised by way of an action or as a defence’ implies that a national court, which, pursuant to Article 4(1) of that regulation, has declared that it has jurisdiction to hear a patent infringement dispute, no longer has jurisdiction to consider the issue of infringement if a defence is raised that alleges that the patent at issue is invalid, or is the provision to be interpreted as meaning that the national court only lacks jurisdiction to hear the defence of invalidity?

Is the answer to Question 1 affected by whether national law contains provisions, similar to those laid down in the second subparagraph of Paragraph 61 of the [Swedish] Patentlagen (Patents Law), which means that, for a defence of invalidity raised in an infringement case to be heard, the defendant must bring a separate action for a declaration of invalidity?

Is Article 24(4) [BIa] to be interpreted as being applicable to a court of a third country, that is to say, in the present case, as also conferring exclusive jurisdiction on a court in Turkey in respect of the part of the European patent which has been validated there?

BSH hold a European patent relating to a vacuum cleaner. The patent has been validated in Austria, Germany, Spain, France, the United Kingdom, Greece, Italy, the Netherlands, Sweden and Turkey. Electrolux of Sweden has subsidiaries in a number of other Member States, such as Germany. A number of disputes have arisen between BSH and companies in the Electrolux group concerning the patent in question. Inter alia, the European patent validated in Germany was invalidated in 2020 by a German court at the request of a subsidiary of Electrolux. That judgment has been appealed.

On 3 February 2020, BSH brought an action against Electrolux before the Patents and Market Court in Sweden and claimed inter alia that Electrolux should be prohibited from using the patented invention in all the abovementioned States and ordered to pay reasonable compensation for the unlawful use. BSH also claimed compensation for the additional damage caused by Electrolux’s alleged patent infringement. Electrolux argue that the Court should dismiss the action in relation to the foreign parts of the patents. In its view the foreign patents are invalid and the Swedish court therefore lacks jurisdiction to hear infringement actions concerning those patents.

End of December 2020 the court agreed, citing A24(4) viz the EU patents (the claim being issued prior to Brexit implementation day, this includes the UK) and ‘an internationally accepted principle of jurisdiction’ (in essence, the Moçambique rule) viz the Turkish patent.

BSH of course appeal.

A asked students in the August resit exams how they think the CJEU should answer. On Q1 I would expect them to cite the need to interpret A24 restrictively, with reference to one or two cases confirming same (there are plenty); and the lack of solution in the Brussels Recast. Contrary to what Electrolux contend, a proposal to allow a court to merely stay the case pending the foreign court’s decision on validity, was never rejected. Such a proposal was never made. BIa merely confirmed CJEU Gat v Luk’s holding that exclusive jurisdiction kicks in regardless of whether the argument of invalidity is introduced as a claim of by way of defence.

On Q2 I would like to seem them argue something to the effect that national CPR must not infringe the effet utile of BIa. (Only) if the effect of the Swedish rules is that it requires the defendant to initiate IPR invalidity claims in all the relevant States, or lose its possibility of an invalidity defence, this would in my view run counter BIa’s intention and scope.

Finally, on the 3rd Q they should engage with the lack of BIa clarification on reflexive effect, other than in the strict confines of A33-34 and its related recitals. Relevant case-law of course includes Ferrexpo and Central Santa Lucia L.C. v. Meliá Hotels International S.A. Interested readers may wish to consult Alexander Layton KC’s most excellent paper on same. Some students may refer to the UPC developments and the jurisdictional consequences in Article 71 BIa (operational 2023?).

Geert.

The Court of Justice delivered yesterday its judgment in case C‑399/21 (IRnova AB v FLIR Systems AB), which is about the scope of application of Article 24 Brussels I bis. The judgment is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version)

“L’article 24, point 4, du règlement (UE) no 1215/2012 du Parlement européen et du Conseil, du 12 décembre 2012, concernant la compétence judiciaire, la reconnaissance et l’exécution des décisions en matière civile et commerciale, doit être interprété en ce sens que : il ne s’applique pas à un litige tendant à déterminer, dans le cadre d’un recours fondé sur la qualité alléguée d’inventeur ou de co-inventeur, si une personne est titulaire du droit sur des inventions visées par des demandes de brevet déposées et par des brevets délivrés dans des pays tiers”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=265068&pageIndex=0&doclang=fr&mode=req&dir=&occ=first&part=1&cid=1837579

TP (Monteur audiovisuel pour la télévision publique)
Principes du droit communautaire
Selon l’avocate générale Ćapeta, l’orientation sexuelle ne saurait être une raison pour refuser de conclure un contrat avec un travailleur indépendant

D.B.P. (Crédit hypothécaire libellé en devises étrangères)
Environnement et consommateurs
Prêts libellés en devise étrangère : si le consommateur s’y oppose, le juge national ne peut pas substituer à une clause abusive liée au prix de conversion une disposition de droit national à caractère supplétif

Ministerstvo životního prostředí (Perroquets Ara hyacinthe)
Environnement et consommateurs
La Cour apporte des précisions à la notion d’« élevage en captivité » des spécimens de perroquet Ara hyacinthe

Staatssecretaris van Justitie en Veiligheid
Espace de liberté, sécurité et justice CIT
Un ressortissant d’un pays tiers qui bénéficie d’un titre de séjour en tant que membre de la famille d’un citoyen de l’Union peut acquérir, lorsqu’il remplit les conditions prévues par le droit de l’Union, le statut de résident de longue durée

Boriss Cilevičs e.a.
L’obligation de dispenser des programmes d’enseignement supérieur dans la langue officielle de l’État membre peut être conforme à la liberté d’établissement

The Danish Supreme Court held in a judgment of 31 May 2022 (case 134/2018), that Danish law should be applied for tort liability for assaults committed during the military operation Green Desert in Iraq in 2004.

In the aftermath of the war in Iraq in 2003, Iraq was controlled and administrated by international coalition forces. Danish troops took part in the coalition between 2003 and 2007. In 2004, Danish and British troops collaborated with Iraqi military in a search and arrest operation called “Green Desert”. During the operation, several Iraqis claimed that they were subject to torture. For this maltreatment, 18 Iraqis filed a civil lawsuit against the Danish Defence Authority for tort compensation in Denmark.

In its judgment, the Danish Supreme Court found that it was proven that Iraqis had been subject to assault during operation Green Desert. Whether the Danish Defence Authority could be held liable for the assaults should be decided according to Danish law and the European Convention on Human Rights.

The conclusion to apply Danish law was not elaborated in the judgment. However, the Danish Supreme Court notes that pursuant to section 18 in the Coalition Provisional Authority’s Order 17, third party claims shall be dealt with “in a manner consistent with the Sending State’s laws, regulations and procedures”. Regardless of whether the order could be seen as having status of Iraqi law or not, the Supreme Court held that its status does not matter as it points out Danish law to be applicable. Perhaps, this statement by the Supreme Court can be interpreted as an allowing attitude to the doctrine of renvoi as it seems that a remission to Danish law would be accepted if Iraqi law would have been pointed out by Danish choice of law rules. As the judgment is not at all framed as a private international law matter, such conclusions shall probably be cautiously made.

In substance, the Danish Supreme Court held that the Iraqi plaintiffs were not entitled to compensation according to the Danish Damages Act’s Section 26 on liability for torts as it was not proven that assault was conducted by Danish troops. Nor was it proven that the Danish troops should have known or understood that collaborating Iraqi military personnel would conduct assault to the civilians. Eventually, the Supreme Court held that nor did the European Convention on Human Rights (ECHR) lead to a different result. In this part, the Supreme Court concluded that the alleged assaults were conducted on territory controlled by Iraq. Hence, Denmark lacked public international law jurisdiction, which is a prerequisite for application of the ECHR according to Article 1.

Dans l’affaire du 28 juin 2022, Boutaffala c/ Belgique, la Cour européenne des droits l’homme a rappelé les conséquences sur la charge de la preuve de l’application du principe « in dubio pro reo ».

en lire plus

The current issue of Lex & Forum explores the existing status of Private International Law & the Internet, and tries to map out solutions and proposals for the future.

The issue benefits from the privilege of hosting papers of two worldwide leading figures in the area of private international law: Professor Dan Svantesson is sharing his insightful conclusions about the current state of the interplay between Private International Law & the Internet and, also, points at the critical problems that need to be addressed in order to secure a better digital future. In doing so, he sets the tone of the entire issue. At the same time, Professor Symeon Symeonides offers a fascinating account of a much needed international coordination effort. After explaining the current status of addressing internet related personality infringemetns accross different jurisdictions, Prof. Symeonides focuses on the initiative of the Institut de Droit International (IDI), which at its 79th biennial session adopted a critical Resolution on internet related personality infringements and Private International Law. Prof. Symeonides explains vividly how this transnational initiative improves over existing regional approaches and offers great insights on its history, rationale and development.

The papers of Prof. Svantesson and Prof. Symeonides are accompanied by that of Professor Ioannis Deliskostopoulos, University of Athens, who offers an excellent account of how the CJEU has been dealing with the challenge of personality related internet disputes. Trying to address future challenges, a second family of papers focused on blockchain based issues. Dr. Ioannis Revolidis, Lecturer at the University of Malta, contributes a primer on International Jurisdiction and the Blockchain, by exploring the unique characteristics of blockchain based systems and by extending his analysis on the so-called Non Fungible Tokens. Dr. Nikolaos Zaprianos puts the challenge of smart contracts into perspective, offering an excellent account about the limits of automation in contractual relationships, while Dr. Konstantinos Voulgarakis monitors the impact of cryptoassets in capital markets and the ensuing private international law challenges. All the aforementioned papers have been presented during a webinar hosted by Lex&Forum on May 13 2022 (youtube.com/watch?v=84wCNVyWXPA&t=652s, accessed 3.9.2022).

The analysis of the relation between Private International Law & the Internet in the current issue of Lex&Forum is concluded with the Praefatio authored by another leading expert in the area, Prof. Gerald Spindler from the University of Göttingen/Germany. The title of it reads as follows: “The Internet and other emerging technologies within the EU and international legal order – aspects of conflicts of laws and international civil procedure”.

At the same time, the Judge of the Court of Appeal Mr. Ioannis Valmantonis has provided a comment on the decision of the CJEU in Gtflix v DR, while Dr. Apostolos Anthimos contributes his views on two Greek court decisions on the refusal of recognition and enforcement of arbitral awards ordering payment in bitcoin (Court of Appeal Western Central Greece 88/2021 and Court of First Instance of Agrinio, Single Chamber, 193/2018). Lastly, Dr. Evangelos Ziakas contributes a paper on the mosaic approach of the CJEU on internet related personality disputes.

Lex&Forum will return with a new issue, which will be focusing on the relationship of the EU Private International Law acquis with cases including third country elements.