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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.

en lire plus

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.

en lire plus

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.