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This post was written by Stefan Leible and Felix M. Wilke (both University of Bayreuth). It is the fourth in a series of posts on the French draft code of private international law of March 2022 (the previous posts in the series discussed the issues of renvoi, foreign law and the recognition of marriages celebrated abroad). It is based on an article by the authors (in French) forthcoming in the Revue critique de droit international privé. The English manuscript of that article can be found SSRN here (SSRN).

The outlook that France might soon have a full private international law (PIL) code can cause some envy in a German PIL scholar. After all, Germany does not have – nor will it have it in the foreseeable future – such a code. To be sure, a big part of German conflict-of-laws provisions can be found in one place, i.e. the Introductory Act to the Civil Code (EGBGB). But this Act overall is not limited to PIL issues. Moreover, there is no piece of legislation exclusively and comprehensively devoted to questions of cross-border proceedings in civil matters. International jurisdiction outside the scope of EU law typically must be determined by applying the rules for local jurisdiction/venue “double-functionally” (on the prevalence of this concept in the EU, see the project (see here). And while the German Code of Civil Procedure (ZPO) expressly addresses other cross-border issues (such as service abroad or recognition and enforcement of foreign decisions), it only does so in the context of the respective subject matter (e.g. service in general and effects of decisions in general). Hence, these provisions are scattered across the Code.

Nevertheless, we hope some remarks from a German perspective may be of interest. At the risk of coming across as stereotypical German (PIL) scholars, we focus on the General Part of the Draft Code in this contribution. The readers may rest assured that our forthcoming article in the Revue critique de droit international privé has a broader approach.

Idea and Scope of the General Part

The general part (Book I: “General Rules” = Articles 1-33) of the Draft Code contains provisions on conflict of laws as well as on procedure, including four “general general” provisions applying to both areas. The idea of “factoring out” provisions in this way obviously speaks to us, with the German Civil Code (BGB) arguably being the pinnacle of this legislative technique. True, to organize provisions in this way can run contrary to the accessibility of a legal instrument and therefore could be detrimental to one of the main goals of the Draft Code (see the Report of the Working Group (“Report”), p. 7). As the level of abstraction is still rather low, however, the advantage of not having to repeat the same provisions over and over (or at least to insert a plethora of references across the code) outweighs this risk. Furthermore, some of the general issues of PIL tend to appear to outsiders as arcane. Hence, it is beneficial for legal clarity to make some of them explicit.

The general part in the field of conflict of laws contains many of the usual suspects. It comes as no surprise in particular that there are provisions on renvoi (Article 8 of the Draft Code) and public policy (Article 11 of the Draft Code); we are not aware of any code of private international law anywhere in the world that fails to address these issues. It is commendable that a provision on characterisation (Article 6 of the Draft Code) has been drafted, following trends in other countries. The basic German approach (characterisation lege fori) is the same as in the Draft Code, but there is no provision to this effect. Of course, one of the main problems with characterisation concerns institutions unknown to the lex fori. Special conflict-of-laws provisions for such institutions make life much easier. It is thus a very good idea to have included provisions on trusts in the special part (Articles 107-114 of the Draft Code).

Renvoi and the Sword of Damocles

Article 8 of the Draft Code on renvoi has already been the subject of an insightful post by Gilles Cuniberti on this blog. We are in agreement with him that the respective reference in the Report to insights from comparative (private international) law are vague and misleading. We can add that Germany would be another example of national PIL allowing renvoi in general (Article 4(1) EGBGB).

We do not think that legal clarity is improved by making renvoi mandatory only if one of the parties so requests (Article 8 cl. 2 of the Draft Code). This would mean that applicable law at least for a considerable time has the sword of Damocles hanging over its head: Assuming that application of renvoi would lead to a different applicable law than if renvoi was excluded, the applicable law ultimately would be subject to one party choosing to “trigger” the application of renvoi or not. And why should one party have the unilateral power to change the applicable law in this way, possibly to the detriment of other parties?

The Conundrum of Overriding Mandatory Provisions

Article 7(1) of the Draft Code contains a definition of lois de police (overriding mandatory provisions). Paragraph 2 sets forth that French overriding mandatory provisions must be applied; pursuant to paragraph 3, foreign overriding mandatory provisions can be applied under certain conditions. The legislative technique thus is rather similar to Article 9 Rome I. There is no comparable provision in the EGBGB (Article 34 EGBGB – implementing the respective provision of the Rome Convention – was abolished at the end of 2009). Again, we consider it beneficial for legal clarity to have a written rule on this issue.

But the function of Article 5(2) of the Draft Code is not clear to us in this regard. It states that a conflict-of-laws rule is “excluded” (écartée) by a material rule for certain international situations or by an overriding mandatory provision. Why is this statement even needed if Article 7(2) and (3) of the Draft Code contain precise instructions of how to deal with overriding mandatory provisions? Additionally, we object to the idea arguably expressed in Article 5(2) of the Draft Code that a rule of substantive law can take precedence over a conflict-of-laws rule. This would mean to conflate two areas of law that – analytically speaking – must be strictly kept apart.

Even More General Provisions?

While the German EGBGB with only four articles in the section on “General Provisions” does not serve as an inspiring example in this context, one might consider addressing even more issues in the general part of the Draft Code. (The Report does not indicate whether this was on the Working Group’s agenda.) In particular, we are thinking of the incidental question and the triad of adaptation, substitution and transposition. All of them concern a stage in the analysis of a case in which the applicable law has seemingly already been determined. There is a certain risk that especially those not well-versed in PIL could overlook that not necessarily all aspects of the case will be governed by the law just determined and/or that some adjustments still must be made under substantive law. To include provisions on these issues, even if phrased rather broadly, could at least draw attention to them. And the French PIL Code could be something of a trailblazer here.

A conference titled The Brussels I bis Reform will take place on 9 September 2022, between 8:30 am and 4:30 pm (CEST), organised by the Max Planck Institute Luxembourg.

Regulation (EU) 1215/2012 is the fundamental reference-instrument of cross-border judicial cooperation in civil matters within the European Union. It provides rules on jurisdiction, pendency, recognition, and enforcement of judgments and other enforceable titles. Since its establishment in 1968, it has been a constantly evolving instrument. 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 (Luxembourg) and Geert van Calster (Leuven). Members of the working group answered a questionnaire, reporting the application and possible shortcomings of the Brussels Ibis Regulation in their respective jurisdictions.

Speakers include Dario Moura Vicente, Björn Laukemann, Vesna Lazić, François Mailhé, Stefaan Voet, Camelia Toader, Chrysoula Michailidou, Alexander Layton, Matthias Weller, Krzysztof Pacula, Marta Requejo Isidro, Viktória Harsági, Gilles Cuniberti and Marco Buzzoni.

The topics of the conference are based on the reports received from working group members and observers. Many of the reporters will have the opportunity to take up issues they indicated as important. Additional experts will present topics ranging from insolvency proceedings to third state relationships. Most importantly, the conference will provide a forum for all attendees to discuss the application of the Brussels I bis Regulation up until now and the need for future improvements. The aim of the conference is to prepare a position paper.

The paper will be presented to the European Commission to advise it in the evaluation process.

The conference, which is organised in collaboration with the European Association of Private International Law and the University of Leuven, will take place at the premises of the MPI Luxembourg. Digital participation is possible. Registration is on a first come, first served basis.

Those interested in participating are required to register before 26 August 2022.

Introductory remarks

Applications to recognize and enforce CAS awards are not part of Greek court’s daily order business. About ten years ago, the first decision of a Greek court was published, which accepted an application to declare a decision of the Court of Arbitration for Sports (CAS) enforceable. For this ruling, see here  (in English), and here (in Spanish). Two recent decisions are added to this short list of judgments, where the corresponding decisions of the above sports arbitration body were again declared enforceable

(Piraeus Court of first instance, decision published on 28. July 2021, and Thessaloniki Court of first instance, decision published on 26. April 2022, both unreported).

 

A summary of the new decisions

The first decision concerned a company of sport? management located in France, who initiated CAS proceedings against a football team in Greece due to non-payment of agreed fees for the transfer of a football player. The CAS granted the application and ordered the payment of 45.000 Euros and 16.391 CHF for the costs of the arbitral proceedings (case number 2018/O/5850).

The second decision concerned two accredited sports managers from Argentina against an Argentinian football player who terminated unilaterally the agreement, hence, he failed to abide by the conditions of the contract signed with the managers. They initiated arbitration proceedings before the CAS, which ordered the payment of 1 million Euros and 49.585,80 CHF for the costs of the arbitral proceedings (case number 2014/O/3726). The player appealed unsuccessfully before the Swiss Supreme Court (no reference available in the text of the decision).

 

Main findings

From the assessment of the aforementioned decisions, it is possible to draw the following conclusions:

 

• NYC: The ruler of the game. The application of the New York Convention regarding requests to recognize CAS awards is undisputable and common to all Greek decisions.

 

• National rules of Civil procedure. From the combination of Articles 3 and 4 NYC, and those of the Greek Code of Civil Procedure (Book on voluntary jurisdiction), it is clearly concluded that the true meaning of Articles 3 and 4 of the above convention is that, the one who requests the declaration of enforceability of a foreign arbitral award, is required to present the relevant decision and the arbitration agreement, either in original or in an official copy, as well as an official translation into the Greek language, during the hearing of his application, and without being obliged to file these documents at the court, when submitting the relevant application.

This because, to the eyes of Greek judges, Article 4 NYC, referring to a presentation “at the time of the application”, does not determine the procedural ‘moment’ (stage) when the documents of the arbitration agreement and the arbitral decision must be submitted to the court. It simply determines the burden of proof and the party borne with it. The procedural method and the time of presentation of the documents referred to in Article 4 § 1 NYC are still regulated by the procedural law of the trial judge, in the case at hand the Greek Code of Civil Procedure.

• Field of application of CAS. On the grounds of the decisions rendered by Greek courts, it has been confirmed that the CAS has jurisdiction over the following disputes:
• Application for arbitration by an athlete against the team in which he plays;
• Application for arbitration by the sports manager of athletes and/or coaches against the sports club.
• Application for arbitration by the sports manager against the athlete.

 

• Enforceability in the country of origin not a pre-requisite. Contrary to finality, it is not necessary to meet the condition of enforceability of the arbitral award in the state of origin, i.e., Switzerland.

 

• Enforceability of CAS Costs. The ‘order’ awarding arbitration costs, following the CAS award, must also be declared enforceable, according to Rule R.64.4 CAS Procedural Rules. The matter is noteworthy, as the above ‘order’ is issued after the award by the CAS Secretariat, not by the arbitration Panel that ruled on the dispute, and without the participation of the parties. However, it should be underlined that the letter from the CAS Secretariat merely specifies the amount of the arbitration costs awarded by the Panel; hence, it is considered as belonging to the award’s operative part. In addition, the act of awarding costs is notified to the parties in accordance with CAS rules.

 

• Irreconcilable judgments. It is not necessary to furnish a certificate of non-irreconcilability with a decision, by following the domestic model of article 903 § 5 and 323 nr. 4 Greek Code of Civil Procedure. According to the judgment of the Greek court, it is not permissible to transfuse a condition regulated by domestic arbitration law into the context of the New York Convention.

 

• No revision on the merits. Finally, although not directly stated in the text of the NYC, a revision of the foreign arbitral award by the Greek court is prohibited, the latter being unanimously accepted and labelled as the principle of non-examination on the merits.

The Mexican Academy of Private International and Comparative Law (AMEDIP) will be holding its annual XLV Seminar entitled “Private International Law in the conformation of a new international order” (el derecho internacional privado en la conformación de un nuevo orden internacional) from 16 to 18 November 2022. The venue is still to be determined but it is likely to be a hybrid event (online and on-site).

The main focus of the seminar will be to analyse the Proyecto de Código Nacional de Procedimientos Civiles y Familiares (draft National Code of Civil and Family Procedure, which includes Private International Law provisions and whose objective is to replace all the existing states’ legislation on the matter -32-) and the hotly debated litigation regarding non-contractual obligations arising out of a tort/delict resulting from the illicit traffic of firearms (the case of Mexico vs. Smith and Wesson), among other matters.

Potential speakers are invited to submit a paper in Spanish, English or Portuguese by 31 August 2022. Papers must comply with the criteria established by AMEDIP and will be evaluated accordingly. Selected speakers will be required to give their presentations preferably in Spanish as there will be no interpretation services but some exceptions may be made by the organisers upon request. For more information, please click here.

Participation is free of charge. A certificate of participation may be issued upon (a modest) payment.

The 9th Annual International Arbitration Lecture organised by Roma Tre University and Unidroit, will be held at Unidroit, in Rome, and online on 30 September 2022.

The lecture, titled Beyond Nationalists Mirages in Arbitration: The Inescapable Transnational Approach, will be delivered by Diego P. Fernández Arroyo.

Maria Chiara Malaguti (President of Unidroit and Professor at the Catholic University of the Sacred Heart) and Andrea Zoppini (Roma Tre University) will intervene.

For further information and registration see here.

The latest issue (2022/2) of the Dutch/English journal  Nederlands Internationaal Privaatrecht is dedicated to cross-border involvency.

Editorial: P.M. Veder, De Wet internationaal insolventierecht / p. 203-207

Articles

Welling-Steffens, Hoofdlijnen voor een wettelijke regeling van het commune internationaal insolventierecht. Bevoegdheid inzake, toepasselijk recht op, en erkenning van ‘derde-lands’ insolventieprocedures en aanverwante vorderingen / p. 208-226

Abstract

This article outlines a proposal on principles for future Dutch legislation on international insolvency law in relation to foreign insolvency proceedings held in so-called third countries (i.e. non-EU states). Itcommences with an overview of the current status of the Dutch national private international law rulesin respect of jurisdiction in, the applicable law to and the recognition of foreign insolvency proceedings and related actions held in third countries. Other than three scant provisions in the Dutch Bankruptcy Act, there is no legislation in relation to international insolvency law regarding foreign non-EU insolvency proceedings and the current rules are all based on case law, culminating in the Yukos case decided by the Dutch Supreme Court. Subsequently, the author, inspired by such Dutch case law, previous proposals on international insolvency law in the Netherlands like the 2007 legislative pre-proposal of the Kortmann Committee on insolvency, the UNCITRAL Model Laws and the various proposals put forward in Dutch legal literature, outlines a proposal on principles for legislative rules on (indirect) jurisdiction in, the applicable law to and the recognition of foreign (non-EU) insolvency proceedings.

Madaus, The German law on the recognition of foreign insolvency and restructuring proceedings / p. 227-240

Abstract

The recognition of third country insolvency proceedings in Germany does not follow the mechanisms of the EIR but falls within the scope of the respective national frameworks of international insolvency law. While Germany did not adopt the UNCITRAL Model Law on Cross-Border Insolvency, §§ 335-359 InsO provide rules that in many respects even resemble those of the EIR 2000. The framework is more recognition-friendly than the Model Law and is accompanied by rules for the recognition of foreign judgments in civil and commercial matters as well as Private International Law rules on the recognition of any modification of substantive rights by foreign law. Non-EU main restructuring and insolvency proceedings including their plans – in particular US Chapter 11 plans – are thereby routinely recognized in Germany without any need for court involvement. The recognition of scheme-type procedures would be available under these frameworks, but probably not under the cross-border insolvency framework.

Garcimartín & N. Bermejo, Spanish national rules on cross-border insolvency proceedings: a symmetrical approach / p. 241-251

Abstract

This paper examines the Spanish national rules on cross-border insolvency proceedings applicable vis-à-vis non-EU countries (including Denmark) laid down in Book III of the Spanish Insolvency Act. These rules aim to extend unilaterally the model of mitigated universalism enshrined in the EU Regulation outside its scope of application. According to those rules, the main insolvency proceedings will be opened in Spain if the debtor has its centre of main interests (COMI) here in Spain and, as a result, their opening, as well as their effects, conduct and closure, will be regulated by the Spanish Insolvency Act (lex fori concursus), with certain exceptions. Likewise, territorial proceedings may be opened in Spain if the debtor’s COMI is located in a third country, but it has an establishment here. Likewise, the paper studies the specific rules for the recognition in Spain of insolvency proceedings opened in foreign (non-EU) countries (including Denmark) and the rules on coordination and cooperation between proceedings. In addition, it describes the rules on the publicity of insolvency proceedings, information for foreign creditors and the submission of their claims. Finally, it analyses the rule of negative reciprocity, which constitutes a general safeguard in the event of a lack of reciprocal cooperation by the corresponding third country.

T.H.D. Struycken, Grensoverschrijdende insolventieprocedures en rechten op goederen in andere landen / p. 251-276

Abstract

Article 8 of the EU Insolvency Regulation (2015 recast) dominates the current thinking on insolvency proceedings in relation to rights in rem in assets situated in other jurisdictions. Implicit in the rule is the assumption that recognition of foreign security interests is too complicated. Hence, rights in assets in other EU Member States are de facto excluded from the insolvency proceedings. This article analyses the justification for the rule in Article 8, and rejects it. Recognition of foreign rights in rem is, and should be, the basic principle in the Netherlands, both outside and inside cross-border insolvency proceedings. The author proposes not to mirror Article 8 when codifying the PIL rules for cross-border insolvency proceedings outside the scope of the EU Insolvency Regulation, and formulates a first draft for a possible statutory rule.

P.M. Veder, Verrekening in de Wet internationaal insolventierecht / p. 277-287

Abstract

The Dutch government has announced that it will prepare draft legislation to address the cross-border aspects of insolvency proceedings that fall outside the scope of the EU Insolvency Regulation. This article examines which rules should be included in such draft legislation concerning set-off. It critically analyzes the approach to set-off in the European Insolvency Regulation and looks at the current state of play at UNCITRAL. The conclusion is that, even though the approach to set-off in Article 9(1) EIR is not convincing – there is no sound justification for offering protection to a creditor on the basis of the law applicable to the insolvent debtor’s claim – the Dutch legislator would nevertheless be well advised to follow the rules in the EIR concerning the applicable law, including Article 9(1) EIR, as much as possible. By following the rules in the EIR on the applicable law, insolvency proceedings and their effects are governed by the same law, regardless of whether the EU Insolvency Regulation applies or not. This promotes legal certainty and the practical applicability of a statutory regulation of cross-border insolvency proceedings in Dutch customary private international law.

C.G. van der Plas, Informatievergaring door buitenlandse curatoren in Nederland – heden en toekomst / p. 288-302

Abstract

It is not uncommon for foreign bankruptcy trustees to encounter Dutch entities or Dutch bank accounts when settling the bankruptcy. Think, for example, of a foreign bankruptcy in which the bankrupt entity has siphoned off assets through a web of entities in various jurisdictions. In order to be able to follow the bankrupt’s trail across the border, the bankruptcy trustee needs information about those entities. This article examines the means of discovery available to a bankruptcy trustee in a foreign (non-EU) bankruptcy in the Netherlands. After identifying the problems that a foreign bankruptcy trustee may be confronted with under the current Dutch system, the possibilities offered by the UNCITRAL Model Law on Cross-Border Insolvency will be examined. The article concludes with a recommendation for a future amendment to the Dutch Bankruptcy Act.

Pepels, Het Nederlandse internationaal groepsinsolventierecht – cause for concern? / p. 303-318

Abstract

Following the drafting of the Dutch Bankruptcy Act in the 1890s, the manner in which large enterprises are legally organized has undergone significant changes. Multinational groups of companies have become an important driving force behind the Dutch and the European economies. Dutch domestic international insolvency law, however, does not address the issues that are specific to cross-border group insolvencies. In this article, the author sets out to analyze whether there is any need for a Dutch domestic law on cross-border group insolvencies and, if so, what the contours thereof should be. In doing so, the article discusses the provisions on cross-border group insolvency as introduced by the 2017 EU Insolvency Regulation (recast) and UNCITRAL’s 2019 Model Law on Enterprise Group Insolvency. As the Dutch legislator is currently evaluating the options to revise the Dutch Bankruptcy Act on the topic of domestic cross-border insolvency law, the article concludes with various recommendations on group insolvencies that could align the legal treatment of insolvent multinational groups of companies more with the economic reality.

A book titled Domestic Violence and Parental Child Abduction. The Protection of Abducting Mothers in Return Proceedings edited by Katarina Trimmings, Anatol Dutta, Constanza Honorati and Mirela Župan has been published recently by Intesentia.

The book has been prepared under the auspices of the EU-sponsored POAM project and, therefore, is available not only for purchase in paper format, but also in open access in e-book formats and online.

The POAM was a collaborative research project which has explored the intersection between domestic violence and international parental child abduction within the European Union. The project was concerned with the protection of abducting mothers who have been involved in return proceedings under the 1980 Hague Abduction Convention and the Brussels IIa Regulation, in circumstances where the child abduction had been motivated by acts of domestic violence from the left-behind father. The POAM examines the usefulness of the Protection Measures Regulation and the European Protection Order Directive in the context of such return proceedings. The POAM project was led by the University of Aberdeen and involved three partner institutions – the Ludwig Maximilians University of Munich, the Milano-Bicocca University and the University of Osijek.

The abstract of the book reads as follows:

This book focuses on the protection of abducting mothers who have been subject to return proceedings under the 1980 Hague Abduction Convention and the Brussels IIa Regulation, in circumstances where the child abduction has been motivated by acts of domestic violence from the left-behind father. The utility of Regulation 606/2013 on mutual recognition of protection measures in civil matters and Directive 2011/99/EU on the European Protection Order, and how protection measures can be used to protect abducting mothers, are examined within this context. Both instruments allow cross-border circulation of protection measures but, so far, have not attracted much attention in practice. This book aims to fill that gap (…) The book offers a unique perspective on the problem of international parental child abductions committed against the background of domestic violence. Given its practical focus, it will appeal not only to an academic audience but also to judges, legal practitioners and other professionals working in the area of parental child abduction.

written by Abhishek Trivedi, Institute of Legal Studies and Research, GLA University, Mathura, India

(Publication of this book was announced earlier over here. 

Written by Dr Abhishek Trivedi, the book review of Indian Private International Law has been published in the Asian Journal of International Law, Volume 12, Issue 2 in its July 2022 issue.

Preview: 
This timely required up-to-date book provides a systematic detailed study about all-encompassing Private International Law (PIL) issues concerning jurisdiction, choice of law, and recognition and enforcement of foreign judgments/decrees/arbitral awards in India. Considering the new developments in the field of technology and the internet, the book seems to be useful, and thus, can be relied upon by judiciary and policy and lawmakers in India and South Asian countries in order to develop a coherent and robust jurisprudence on PIL. It will consequently help enhance transparency, foster predictability, and harmonise the rules/principles of PIL in India.

A detailed review of the book may be found here.

 

On 28 July 2022, the Hellenic Republic ratified the Hague Convention of 13 January 2000 on the International Protection of Adults, which will enter into force for Greece on 1 November 2022.

Source: https://www.hcch.net/en/news-archive/details/?varevent=869

The French Ministry of Justice has launched a series of podcasts titled Droit vers l’Europe, presenting key-aspects of EU Judicial Cooperation in civil and commercial matters (in French) for judges and legal practioners.

The objective is to improve their understanding of EU instruments of private international law and thus facilitate their application in cross-border cases.

The introduction of the series reads as follows:

You are a legal professional and you are confronted with a European problem in a family, civil or commercial case? “Droit vers l’Europe” gives you the keys to apply the instruments of EU judicial cooperation. In each episode, an expert sheds light on a specific issue. This podcast will enable you to develop the right practices in the implementation of EU regulations.

The main topics of the series include the following regulations: Brussels I bis Regulation; European order for payment; European account preservation order; Taking of evidence and Service of documents; Circulation of authentic instruments; Handling of international successions; Brussels II bis Regulation and its recast; Applicable law to matrimonial property regimes of international couples; Applicable law to divorce and legal separation; Recovery of maintenance claims; Access to legal aid in cross-border cases.

The initiative is co-funded by the EU.

More information is available here.

A comprehensive and detailed volume by Dr. Lenka Válková was just released providing a dedicated analysis of the private international law framework as it applies to jurisdiction agreements in the framework of the EU Regulations in family and succession matters.

The blurb reads:

Party autonomy has been traditionally considered as one of the leading principles used in cross-border trade law. In fact, choice-of-court agreements have been embedded into the majority of EU Regulations governing civil and commercial matters. On the other hand, mandatory approach to family and succession law slowed down the progress of recognition of party autonomy in these fields. Only in recent years, the trend towards acknowledging choice-of-court agreements has spread into almost all areas of international family and succession law. This publication follows this development: firstly, it analyses the reasons and concerns of the recognition of choice-of-court agreements in civil and commercial matters, whereby it is questioned whether the considerations established in relation to commercial contracts may apply also for personal relationships. Consequently, different treatment of choice-of-court agreements family and succession law, where the freedom to choose the competent court is far from being unlimited, is examined. Accordingly, the attention must be paid to functions of choice-of-court agreements in family law. The second chapter subsequently investigates the position of parties in personal law relations and their protection. In particular, partial and full exclusion of party autonomy, formal and substantive validity, time limits, substantive review and public policy and overriding mandatory rules are considered as tools for protection of vulnerable parties in family and succession law relations when entering into choice-of-court agreements. Finally, last chapter provides for in-depth analysis of rules on choice-of-court agreements under different EU Regulations (the Brussels IIa and Brussels IIter Regulations, Maintenance Regulation, Regulations on Property Regimes and Succession Regulation), where the strengths and gaps of the rules are highlighted. This analysis includes also an attempt to clarify the problem of derogation from jurisdiction in favour of Third States in presence of choice-of-court agreements. Lastly, effectiveness of the rule on lis pendens in stress-tested.

Overall, in her manuscript Dr. Válková successfully combines complex theoretical analysis with concrete propositions in a multifaceted and developing area of the law. Notably, Dr. Válková exemplifies the contribution of party autonomy in private international law in addressing the challenges arising in the context of family relations in the cross-border context: in doing so, she illustrates the complex status quo of party autonomy in this area of the law, its limitations, and how policies may be promoted via private international law. As such, her book is a highly recommended source for academics, notaries, and legal practitioners.

Lenka VÁLKOVÁ, Choice-of-Court Agreements under the EU Regulations in Family and Succession Matters (Wolters Kluwer / CEDAM, 2022), 548 pp., available for purchase here.

This volume is a welcome addition to Wolter Kluwer / CEDAM’s already thriving ‘Studi e pubblicazioni della Rivista di diritto internazionale privato e processuale’ series.

Even after Brussels IIb‘s coming into force (that we reported on last week), the Court of Justice of the EU issued its judgment in case C-501/20. The case remains relevant, also under the new Regulation. The Court had the opportunity to not only add to its case law on habitual residence, but also to clarify three other matters: first, the Regulation’s and the Maintenance Regulation‘s relation to the Vienna Convention on the Law of Treaties, specifically with regard to diplomatic immunity; second, the Brussels IIa‘s relation to domestic bases of jurisdiction; and third (and related to the second point), the forum necessitatis.

The case concerned the divorce and related disputes between a Spanish national and a Portuguese national. The couple had two children, who had dual Spanish-Portuguese nationality. The family lived first in Guinea-Bissau and later in Togo. The parents were posted at these places as EU delegates of the European Commission. They separated factually while still living in Togo. The mother then brought divorce proceedings, including the issues of parental responsibility and maintenance, in Spain. This court had to decide on its jurisdiction, which raised various issues.

Concerning the habitual residence, which is the first stop to determine jurisdiction (Art. 3 and 8 of Brussels IIa and Art. 3 of the Maintenance Regulation), the Court reiterated the two main factors to determine the habitual residence of adults: “first, the intention of the person concerned to establish the habitual centre of his or her interests in a particular place and, second, a presence which is sufficiently stable in the Member State concerned” (para 44, referring to its case C-289/20 interpreting the Rome III Regulation on the law applicable to divorce proceedings). The Court added that the definition of habitual residence in the Brussels IIa and Maintenance Regulations should be “guided by the same principles and characterised by the same elements” (para 53). (The Court here did not refer to Rome III, but the same is true as we know from previous case law.) Both factors of habitual residence were absent in this case. First, there was no intention to move back to Spain. Second, the parents were physically absent from Spain for this period (except for the birth of the children and periods of leave). Therefore, they could not have been habitually resident in this Member State.

Concerning the habitual residence of the children, the Court referred to the factors in its previous case law, including the duration, regularity, conditions and reasons for the child’s stay, the child’s nationality, school and family and social relationships (para 73). To establish a habitual residence, it is essential that the child is physically present in this Member State (para 75). The mother’s nationality and the pace where she lived prior to her marriage (and prior to the child’s birth) are not relevant (para 76). The child’s nationality and the place where they are born, are relevant but not decisive (para 77).

Any diplomatic immunity cannot change this conclusion, as the Spanish court does not have jurisdiction (paras 61 and following). Even though Recital 14 states that “[t]his Regulation should have effect without prejudice to the application of public international law concerning diplomatic immunities,” this refers to a situation where a court in a EU Member State would have jurisdiction but cannot exercise it due to diplomatic immunity. In short, the existence of diplomatic immunity cannot grant jurisdiction.

The residual jurisdiction under Arts 6 and 7 of Brussels IIa, and specifically the situation that factual scenario that arose in this case, have long caused confusion. The legislator attempted to rectify this in Brussels IIb (Art. 6). The problem was that Art. 6 stated that if a spouse who is habitually resident in or a national of a Member State, may only be sued on the bases of jurisdiction in the Regulation, while Art. 7 referred to domestic bases of jurisdiction where no court in an EU Member State has jurisdiction. So, what is to be done where a spouse is a national of an EU Member State (Portugal in this instance) but there are no available bases of jurisdiction in the Regulation (as neither of the spouses are habitually resident in the EU and they do not have a common EU nationality)? Which provision should prevail? The Court found that Art. 7, and thus domestic bases of jurisdiction, cannot be used in this case; only the residual bases of jurisdiction of the Member State of the defendant’s nationality can come into play (Portugal in this instance). See also the Opinion of Advocate-General Szpunar.

The same contradiction does not exist in the case of jurisdiction over children: Art. 14 simply states that where no court in a Member State has jurisdiction on the basis of the Regulation, domestic jurisdiction rules apply. Thus, Spanish residual bases of jurisdiction could be used concerning the parental responsibility.

The Maintenance Regulation does not have such reference to domestic bases of jurisdiction, but contains a complete harmonisation of jurisdiction, for all situations. It is in this context that there is also a forum necessitatis: if no court in a Member State has jurisdiction and it would be impossible or cannot reasonably expected of the parties to bring the proceedings in the third State to which the dispute is connected, a court in a Member State may, on an exceptional basis, hear the case (Art. 7). The Court explained that this can only come into play if no court in a Member State has jurisdiction, also not on the basis of the link of the case to the status or parental responsibility, and also not on the basis of the choice of the parties (para 101 and following). If this is the case, it is not required that the parties first attempt to institute proceedings in the third State, but the court “cannot rely solely on general circumstances relating to deficiencies in the judicial system of the third State, without analysing the consequences that those circumstances might have for the individual case” (para 112).

Oxford University Press has recently published the secondo edition of European Cross-Border Insolvency Law, by Reinhard Bork and Renato Mangano.

The blurb reads:

The first edition of this textbook was published in 2016, but since then the legal and factual scenario of European cross-border insolvency law has changed dramatically. In particular, three main events have occurred. First of all, the prescriptions of Regulation (EU) 2015/848 (Recast) have become applicable; second, the UK has left the European Union, without this completely reducing the meaning of the regulation for the UK though; and third, the European Union has enacted Directive (EU) 2019/1023 on preventive restructuring and insolvency. Moreover, since 2016, the Court of Justice of the European Union (CJEU) has delivered significant new judgments, albeit regarding the Regulation (EU) 1346/2000; national courts have started applying the prescriptions of Regulation (EU) 2015/848; scholars have produced numerous papers and commentaries on Regulation (EU) 2015/848; and the United Nations Commission on International Trade Law (UNCITRAL) has issued relevant new documents such as the 2018 ‘Model Law on Recognition and Enforcement of Insolvency-Related Judgments’ and the 2019 ‘Model Law on Enterprise Group Insolvency’. The second edition of this textbook maintains its original purpose of providing readers with a user-friendly framework so that they may understand the rationale of Regulation (EU) 2015/848 and be consistent in their application of its prescriptions. However, in order to analyse the impact of the new events and discuss the most recent interpretations of judges and scholars, each chapter has been given new bibliographical references, supplemented with further observations, and, in some cases, even reorganised.

Further information can be found here.

Greece still forms part of the EU Member States group not recognizing same-sex marriage. Same-sex couples do enjoy however some rights. The latest challenging issue concerned custody rights of a same-sex couple married abroad. The Thessaloniki Court of Appeal reversed the first instance ruling, and recognized an English custody order [Thessaloniki CoA, decision published on January 24, 2022, unreported].

FACTS: The appellant (Parent A) is a woman of Greek and American nationality. Her partner was a woman of American national (Parent B). They registered their partnership in the UK on 20 August 2013. Nearly a month later, Parent B gave birth to a child. The partners married in January 2015. Parent A. filed an application for child custody and parenting arrangements order in the UK. The court granted the application, and ordered that the child stays with the psychological (non-biological) mother on the basis of previous decisions concerning parental responsibility rights issued in the same country. In addition, the court ordered that the child reside with Parent A., and it issued an order to remove the child permanently to Greece. Finally, the same court arranged the contact rights of the biological mother. The UK order was issued by the High Court – Family Division in Chelmsford, and it was final. Parent A. filed an application for the recognition and enforcement of the UK order before the Court of First Instance in Thessaloniki.

The Court refused recognition. It entered into an analysis of the public policy defense, culminating in the conclusion, that the forum judge is obliged to defend national public policy, while at the same time demonstrating respect towards the state’s international obligations. To that end, a proportionality test of the domestic public policy with Article 8 ECHR standards is imperative. Following the above introduction, the court declared that same-sex marriage, and any subsequent relations emanating thereof are not allowed in Greece. A detailed presentation of the first instance court reasoning may be found here.

Parent A appealed.

THE DECISION: Unlike the lower instance court, the Thessaloniki CoA primarily underlined the European context of the dispute, citing Articles 21 et seq of the Brussels II bis Regulation. It then referred to a significant number of pertinent provisions, such as: Articles 8, 12 and 14 of the European Convention of Human Rights; articles 23 and 26 of the International Covenant on Civil and Political Rights (ICCPR); articles 7 and 9 of the Charter of Fundamental Rights; the Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation; Greek Civil Union law nr. 4356/2015; article 21 of the Greek Constitution, on the protection of family; directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States; and finally, articles 2 and 3 of the United Nations Convention on the Rights of the Child (UNCRC), ratified in Greece by law nr. 2101/1992.

On the grounds of the above references, the CoA found no violation of the Greek public policy, and reversed the ruling of the first instance court. In particular, the CoA emphasized two points:

• The diversity of views, i.e., the non-recognition of same sex marriage in Greece may not result to the infringement of the child’s best interests, reflected in the UK court findings.
• The ruling of the first instance court results to the discrimination of children on the grounds of their parents’ sexual orientation.

The battle for full equality is not yet won. A couple of days after the decision of the Thessaloniki CoA was published, the Athens CoA refused recognition to a South African adoption decree issued upon the application of a same-sex (male) couple. Yet again, public policy was the defense hindering recognition. To sum up: Same sex couples may not marry or adopt children in Greece; they may however be appointed as foster parents, and exercise custody rights. Hence, equality evolves in a piecemeal fashion. And last but not least, let us not forget: the Supreme Court has the final word.

The International Commission on Civil Status (ICCS / CIEC in French) is organising a conference on 21 September 2022 entitled: ICCS plurilingual forms Present and future of international cooperation in civil status matters.

This event is being held on the occasion of the entry into force of the Convention (n°34) relative à la délivrance d’extraits et de certificats plurilingues et codés d’actes de l’état civil for the following States: Belgium, Germany and Switzerland (as of 1 July 2022).

Speeches and discussions will be in French or English with simultaneous interpretation.

The venue of the conference is Château de Pourtalès, 161, rue Mélanie, 67000 STRASBOURG – France.

Registration is free of charge but mandatory. Interested persons should send a message to:

ciec-sg@ciec1.org

Below is the agenda (see also here Conference program):

8.30 am : Welcome speech

Jeannine Dennewald, President of the ICCS

8.40 am : Opening speech

Hans van Loon, former Secretary General of the Hague Conference on Private International Law

Morning session : 9.00 – 12.15 am : Improving plurilingual forms

Chair : Paul Lagarde, Emeritus professor, University Paris I, former secretary general of the ICCS

9.00 – 10.30 am : workshop n°1 : Plurilingual forms and sex of persons: same-sex couples, neutral sex and third sex

Speaker : Patrick Wautelet, Professor, University of Liège

Discussion : Dr Bojana Zadravec, President of the Slovenian Association of Administrative Staff, EVS (European Association of Registars)

10.30 – 10.45 am : break

10.45 am – 12.15 pm : workshop n°2 : Plurilingual forms and filiation: the relevance of adapting to diversity

Speaker : Olivier Guillod, Professor, University of Neuchâtel

Discussion : Hague Conference representative

12.15 – 12.30 pm : The ICCS: dynamic transition to the future

Nicolas Nord, Secretary General of the ICCS

Afternoon session : 2.00 – 6.00 pm : Optimizing the circulation of plurilingual forms

Chair : Anatol Dutta, Professor, University of Munich

2.00 – 2.30 pm : workshop n°3 : Plurilingual forms and European rights: from the public documents regulation to the recognition of situations

Speaker : Camille Reitzer, Deputy Secretary General of the ICCS

Discussion : Marie Vautravers, European Commission

3.30 – 4.00 pm : break

4.00 – 5.30 pm : workshop n°4 : Plurilingual forms, digitization and data protection: the need for a specific regime

Speaker : Guillermo Palao Moreno, Professor, University of Valencia

Discussion : ANUSCA representative – Alexander Schuster, University of Graz

5.30 – 6.00 pm : General conclusion

Andreas Bucher, Emeritus Professor, University of Geneva

 

On 25 May 2022, the European Commission published a set of Questions and Answers (Q&As) to clarify the practical implementation of the new sets of Standard Contractual Clauses (SCCs), adopted in June 2021 (Decision 914/2021/EU). Contracts based on the earlier sets of SCCs will no longer be a lawful basis for international data transfers after 27 December 2022 (Q&A No. 22).

As a reminder, SCCs are standardised and pre-approved model data protection clauses that allow controllers and processors to comply with their obligations under EU data protection law. They are based on a triangular relationship, whereby the obligations assumed by the data importer and the data exporter (the parties to the contract) by virtue of their contractual agreement can be enforced by the data subject, acting as a third-party beneficiary.

SCCs are, by definition, incorporated within an international contract between a controller/processor of personal data established in the EU (or subject to the GDPR pursuant to Article 3(2) thereof) and a controller/processor established in a third country and placed beyond the scope of application of the GDPR (cf Q&A No. 24). Owing to their congenital “foreign element”, these contracts must speak the language of private international law (PIL), at least in cases where they are concluded between two commercial entities (see Q&A No. 2 for the potential range of users of the SCCs). In this respect, the Commission’s Q&As bring along welcome clarifications concerning some of most recurrent PIL issues arising out of these clauses, such as those regarding the contents and limits of conflict-of-laws party autonomy and the interplay between these contracts and the legal order (notably, the overriding mandatory rules) of the receiving third country.

While being of certain interest for the private international lawyer, the relationship between local laws (objectively applicable to the data importer) and the SCCs remains extremely complex and it deserves its own blogpost. For this reason, Section A of this blogpost will briefly present the major “PIL innovations” brought along by the 2021 SCCs, focusing solely on choice of law and choice of court clauses. Section B will then point to some unresolved issues that presently find no answer in the Commission’s Q&A (nor elsewhere).

A. Modernised SCCs and PIL: What’s New

The first and most evident innovation brought along in 2021 consists in an attempt at simplification of the regulatory environment. The three distinct sets of SCCs adopted under Directive 95/46 [Decision 2001/497/EC (SCCs for controller to controller transfers), Decision 2004/915/EC (alternative set of SCCs for controller to controller transfers) and Decision 2010/87/EU (transfer of personal data to processors established in third countries)] have been replaced by two sets of SCCs: one concerning the relationship between controllers and processors to fulfil the requirements in Article 28(3) and (4) of the GDPR; one dealing with SCCs as a tool for the transfer of data outside the EEA. The latter present an innovative modular structure consisting of 4 “modules”, covering four transfer scenarios (cf Q&A Nos 21 and 27): transfer from EU-based Controller to Non EU-based Controller (Module 1); transfer from EU-based Controller to Non EU-based Processor (Module 2); transfer from EU-based Processor to Non EU-based Processor (Module 3); transfer from EU-based Processor to Non EU-based Controller (Module 4).

The parties have to combine “general clauses” (that are applicable regardless of the specific transfer scenario) with the module(s) that applies to their specific situation.

For the purposes of the present blogpost, only the SCCs as a tool for the transfer of data outside the EEA will be considered, as specifically concerns the Clauses dealing with applicable law (A.1) and jurisdiction over remedies (A.2).

A.1 Applicable law

The regime governing the choice of the applicable law has undergone significant modifications in the 2021 restyling. To fully grasp these innovations, it is useful to briefly present, at the outset, the previous regime(s) established by the SCCs adopted under Directive 95/46/EC.

– Applicable Law under the Previous SCCs Regime

Concerning applicable law, the previous sets of SCCs clearly regarded international data transfers as a dynamic process, consisting of three distinct strands.

First, the processing of personal data by the data exporter, including the transfer itself, were governed, up to the moment of the transfer, by the objectively applicable data protection law [clause 4 of the SCCs set out by Decision 2001/497/EC; clause I(a) of the SCCs set out by Decision 2004/915/EC; clause 4 of the SCCs set out by Decision 2010/87/EU]. The “objectively applicable data protection law” is, in this context, the Member State law applicable to the EU-established controller by virtue of EU law itself (ie the law determined pursuant to Article 4 of Directive 95/46/EC until 23 May 2016, and by Article 3 GDPR after this date. This law now includes the GDPR-complementing provisions issued by the Member States based on the opening clauses scattered throughout the GDPR, whose spatial scope of application remains uncertain in current law).

Second, the processing of personal data by the data importer, occurring after the transfer to the third country, was seen as a separate processing operation, placed beyond the scope of the direct application of EU law, and governed by the law chosen by the parties to the SCCs. There was not, however, an unrestricted freedom of choice, which was limited to:

(1) the law of the Member State where the data exporter was established [clause 5 (b) first indent of the SCCs set out by Decision 2001/497/EC; clause II(h)(i) of the SCCs set out by Decision 2004/915/EC];

(2) the provisions of an adequacy decision applicable to the third country where the data importer is established, even if such adequacy decision was not applicable ratione materiae to this importer, provided that such provisions were of a nature which made them applicable in the sector of that transfer [cf. Clause 5 (b) second indent of the SCCs set out by Decision 2001/497/EC; clause II (h)(ii) of the SCCs set out by Decision 2004/915/EC];

(3) a (more or less) extensive set of “mandatory data protection principles”, set out in the annexes of the SCCs [clause 5 (b) indent of the SCCs set out by Decision 2001/497/EC; clause II(h)(iii) of the SCCs set out by Decision 2004/915/EC].

Evidently, it is not possible to qualify the choices made under (2) or (3) as a veritable “choice of governing law”: said provisions or principles would have been applied in conjunction with a national law (objectively) applicable to the data importer under local PIL.

Finally, all three sets of SCCs contained a provision entitled “governing law”, whereby “the Clauses shall be governed by the law of the Member State in which the data exporter is established” (respectively clauses 10, IV and 9). The actual scope of this choice of law clause shall be read in the light of what has been said regarding the first two strands of the data processing operation: vis-à-vis the first step, there is no room for party autonomy and the chosen law cannot directly govern the processing operations carried out by the exporter within the EU, including the transfer. The processing of the transferred data by the importer in the third country must also be excluded from the scope of the chosen “governing law”, otherwise the (different) choice eventually made under (2) or (3) above would have been deprived of practical significance. In essence, the law appointed under the clause entitled “governing law” was therefore limited to the “contractual issues” posed by the SCCs (validity, form, nullity, consequences of the total or partial breach etc).

– The 2021 SCCs

The 2021 SCCs did not change the approach with respect to the first strand of the data transfer operation, which remains subject to the “objectively applicable law”, ie the GDPR as eventually complemented by the applicable Member State law (see Clause 2).

With respect to the second strand, the new SCCs took away the possibility of choosing between different alternatives as regards the legal regime applicable to the processing operations carried out by the importer in the third state. The obligations of this party vis-à-vis the exporter and the data subjects are now set out in greater detail in the SCCs themselves, without any specific reference to a national governing law. Clause 4 specifies, in any event, that the SCCs shall “be read and interpreted in the light of the provisions of Regulation (EU) 2016/679”.

Finally, there is, just as in the previous sets of SCCs, a clause (Clause 17) titled “Governing law”, which is quite innovative as compared to its predecessors. Consistently with the “modular structure” of the SCCs, this clause presents different wordings depending on the specific transfer operation at stake.

• For transfers from controller to controller (Module 1), the parties are free to choose the law of one of the EU Member States, subject to the sole requirement that such law allows for third-party beneficiary rights. In particular, neither the clause itself nor the Q&A require an objective connection between the chosen Member State and the transfer operation: the laws of the Member States are deemed perfectly fungible in this respect.
• This unrestricted freedom of choice disappears for Modules 2 (transfer from controller to processor) and 3 (transfers between processors): the law of the Member State where the exporter is established applies in principle, unless it does not allow for third parties beneficiary rights. In that case, the parties must choose the law of another Member States that allows for such rights (again, no objective connection is required).
• Module 4 (transfers from processor to controller) deals with the situation of a non EU-established controller that transfers data to a EU-established processor (eg. outsourcing of payroll services to a EU company). This transfer comes under the scope of EU law once the EU-based processor sends the data back to its controller, established outside the EEA. Given that this data was originally placed under a different (and possibly less protective) legal regime, EU law relaxes some of its requirements and the SCCs allow, in this case, for an unrestricted choice of applicable law (cf. Q&A No. 37). It is uncertain as to whether this unrestricted freedom of choice continues to exist if the data transferred by the processor partially originates in the EU: in this case, in fact, the Q&As specify that the relaxation of other requirements no longer applies (cf. Q&A 44). Despite the silence of the Q&As on this specific point, the same solution seems required as concerns the governing law.

A lingering uncertainty concerns the scope of the governing law and, in particular, the question as to whether it extends to directly regulating the processing operations carried out by the data importer in the third country. According to Q&A No. 37, this law “will govern the application of the SCCs”. It is also stressed that Clause 17 shall be read in conjunction with Clause 4, whereby the interpretation and application of the SCCs should conform to, and should not contradict, the GDPR. Nonetheless, throughout the Q&A, the governing law is mentioned with respect to marginal contractual issues such as formal requirements (Q&A No. 6); the formalisation of the parties’ consent within the docking clause (Q&A No 12); the time limits (Q&A No. 37).

A.2 Jurisdiction over Remedies

With respect to jurisdiction for remedies, the previous sets of SCCs were consistent in that they enabled the data subject who invoked third-party beneficiary rights to sue one or both parties to the contract in the Member State where the data exporter was established, without prejudice to any other substantive or procedural rights he may have had under national or international law.

The new SCCs (Clause 18) are, at once, more detailed and more liberal on this point, insofar as they set out, concerning modules 1, 2 and 3, the general principle whereby “any dispute arising from these Clauses shall be resolved by the courts of an EU Member State”. This provision is particularly important from a systemic point of view, as it makes sure that, irrespective of the law governing the processing activities carried out by the importer, the most important principles of EU data protection law would be enforced in any case as overriding mandatory provisions of the forum.

Clause 18 then requires the parties to expressly designate the court of a Member State: again, the freedom of choice seems unrestricted and no longer dependent on the existence of an objective connection between forum and dispute. Letter (c) of that Clause adds the most important innovation, insofar as it allows the data subject to bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence. This choice of court agreement extends the procedural rights granted to the data subject by Article 79 GDPR, a provision that opens a ground of jurisdiction solely with respect to actions brought against the EU-established data exporter, jurisdiction for any action brought against the third-country data importer being left, under than provision, to national PIL.

It must be stressed on that Q&A No. 33 contains a somewhat confusing reference to national law, as it states, concerning the forum opened by letter (c), that “such actions can be brought before the competent court of the EEA country (as determined by national law) in which you live …”. Nonetheless, the data subject’s possibility of suing the data importer in the Member State of his/her habitual residence should depend not on the (dubious) existence, in national law, of a forum actoris, but rather on the choice of court agreement resulting from the combined reading of letters (c) and (d) of Clause 18 (the latter stating that “[t]he Parties agree to submit themselves to the jurisdiction of such courts”). A totally different question is knowing whether, and under which conditions, the designated court will enforce this choice of court agreement: in case the Brussels I bis Regulation is not deemed applicable to these contracts (see Section B), the answer to this question will indeed depend on the (non uniform and potentially inconsistent) national laws of the Member States.

A derogatory regime is set in place for Module 4, which allows the parties to designate any court, ie even the court(s) of a third country. In this respect, however, Q&A No. 33 specifies that this shall not affect the procedural rights conferred to the data subject vis-à-vis the data exporter under Article 79 GDPR

B. Modernised SCCs and PIL: What’s Unresolved

Despite the useful clarifications brought along by the Commission Q&As, concerning notably the room for manoeuvre given to the parties to the SCCs regarding choice of law and choice of court agreements, there still exists some major open questions regarding the practical operation of these PIL devices, that are liable to impinge on the effectiveness of SCCs as a tool for the effective protection of European personal data in case of extra-EEA transfers.

It must be remembered that the main purpose of the SCCs is to “provide a comprehensive data protection framework that has been developed to ensure continuity of protection in case of data transfers to data importers that are not subject to the GDPR” (Q&A No. 24). Within this framework, the third-party beneficiary rights granted to the data subject play a pivotal role, as evidenced by the importance attached to them during the choice of the governing law (supra, Section A.1). Third-party beneficiary rights are a key-element of the so-called “private enforcement” of EU data protection law, insofar as they allow the data subject to directly invoke the protection vested by the GDPR and the SCCs both against the importer and the exporter, and to do so before a court in the EU.

Intuitively, the effective ability of the data subject to ground the jurisdiction of such courts and to invoke the application of said law will depend on the procedural treatment of these choice-of-law and choice-of-court agreements in the seised/designated courts. In this respect, the applicability of both the Brussels Ibis and the Rome I Regulations to the SCCs remains controversial, and finds no clarification in the Commission’s Q&As. Conversely, both the SCCs and the Q&As seem to simply assume that these choice-of-law and choice-of-court agreements will be enforced by any court in the EU.

B.1 Civil and Commercial Matters?

The Brussels I bis and the Rome I Regulations (as well as the Hague Convention on Choice of Court Agreements) apply in “civil and commercial matters”. A recent and exhaustive summary of the (uniform) meaning of this expression in EU PIL can be found in the Opinion of AG Szpunar and the judgment rendered by the ECJ in Rina. Regard should be had, in particular, to the need of ensuring that the Regulations are broad in scope (§ 31 of the judgment in Rina) and to the “the elements which characterise the nature of the legal relationships between the parties to the dispute or the subject matter thereof” (§ 32). This assessment aims at excluding that one of the parties (or both) is acting in the exercise of “public” powers, ie “powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals” (§ 34).

Against this backdrop, it is worth stressing that the SCCs set up by the Commission can be used by the parties (which, in most cases, will be private commercial operators) without the prior approval by a public authority, the competent DPA. The triangular relationship between the data importer, the data exporter and the data subject heavily relies of private contract law. If it is true that these are all factors that may vouch for the inclusion of SCCs within the scope of “civil and commercial matters”, the fact remains that the Commission’s Q&As stress, on many occasions, the specific “nature” of the SCCs and the ensuing limits placed on the parties’ substantive party autonomy: “if the parties change the text of the SCCs themselves (beyond the adaptations mentioned below) they cannot rely on the legal certainty offered by an EU act” (Q&A No. 7, emphasis added). It will likely be for the ECJ to determine whether the specific nature of “EU act” attached to the SCCs and the limitations it entails for ordinary contract law are enough to exclude a characterisation as “civil and commercial matters” for the purposes of EU PIL.

If the Brussels 1bis Regulation was deemed applicable ratione materiae, it would ensure the effectiveness of the above-mentioned choice-of-court agreements throughout the EU. The fact that said agreements are invoked by a third-party beneficiary should not pose any problem in the light of the Gerling case law. Clearly, the Brussels Ibis Regulation would not be applicable to choice of court agreements concluded under Module 4, in cases where jurisdiction is conferred upon a third-state court.

B.2 A “Free” Choice of Governing Law?

The applicability of the Rome I Regulation to the SCCs elicits more substantial doubts.

To begin with, it is uncertain as to whether the choice of law made by the parties under current Clause 17 can be deemed “free” in the sense of Article 3 thereof. Setting aside the non-problematic case of the (unrestricted) freedom of choice available for Module 4, Module 2 and 3 confer very limited leeway: the parties must choose the law of the Member State where the data exporter is established, deviations being admissible solely if this law does not allow for third-party beneficiary rights (it must be added that the unrestricted freedom of choice which follows from this circumstance is at odds with the limitation set by the general rule: a “cascade” list of options or, even better, a rule turned around a “close(st?) connection” with another Member State would have been a more logical complement to the general rule).

As concerns the requirement that the choice of law made under Article 3 of the Rome I Regulation shall be “free”, it is worth stressing that both the Opinion of AG Campos Sánchez-Bordona and the judgment of the Court in Gruber Logistics started from the assumption that a “choice” of law which is actually imposed by law would be incompatible with this provision (respectively, §§ 97-101 of the Opinion and § 39 of the judgment). In the same case, the Court clarified that regulation does not prohibit the use of standard clauses which are pre-formulated by one of the parties (or, it must be assumed, by a third party). In such a case, freedom of choice, within the meaning of Article 3, can be exercised by consenting to such a clause and is not called into question solely because that choice is made on the basis of a pre-formulated clause.

The compatibility of Clause 17 of the SCCs with the Rome I Regulation teeters along the fine line which separates an ex lege imposition of an applicable law and the sheer pre-drafting by the Commission. It must be stressed, in this respect, that SCCs are established through an Implementing Decision of the Commission, but they can be used by the parties on a voluntary basis to demonstrate compliance with data protection requirements (Q&A No. 1). Nonetheless, if the parties choose to resort to these standard clauses, they are not free to amend the wording of Clause 17, besides the exercise of the freedom of choice (if any) explicitly allowed under that provision. If this provision is amended, the parties need to submit their contract to the DPA for prior approval, to be able to proceed with the transfer. It is highly doubtful that a DPA would approve a contract containing, for example, a choice of third-country law for the transfer scenarios corresponding to Modules 1, 2 and 3. In fact, in the Schrems II, the ECJ attached great importance to the safeguards following from the application of the law of the Member State where the exporter is established, when assessing if the protection granted by the former SCCs was “essentially equivalent” to that guaranteed within the Union (§ 138).

B.3 Universal Application v Restrictions to the Freedom of Choice

More fundamentally, it must be determined whether the Rome I Regulation is compatible with the “geographical” restriction of the parties’ freedom of choosing the applicable law. This problem is shared by Modules 1, 2 and 3: the chosen law shall be, in all of these cases, the law of a Member State, whereas a choice of third-country law would be totally admissible under the combined reading of Articles 2 and 3 of the Rome I Regulation. From the standpoint of the general theory of PIL, behind this asymmetry lie irreconcilable philosophical stances as concerns the international interchangeability of (private) laws. The Rome I Regulation starts from the assumption of a perfect interchangeability between all the (private) laws of this world, irrespective of their specific contents, and subject to a sheer ex post control through the gateway of the public policy exception. Conversely, the Commission’s SCCs (and probably the GDPR itself) adopt a more prudential approach based on an ex ante pre-selection of laws (those of the Member States of the EU) which, because of their contents, can be deemed “essentially equivalent” in terms of the protection granted to personal data. Again, this is a thorny issue that the ECJ might likely have to resolve in the near future, considering that, according to the Commission, SCCs are, at present, “the most popular tool” for transferring personal data outside the EEA in accordance with the GDPR (Q&A No. 3).

The Academy of European Law (ERA) will held its Annual Conference on European Family Law on 22-23 September 2022 .

The conference will deal with the new Brussels II Regulation, which is applicable from 1 August 2022, hearing of the child, parentage, surrogacy and double motherhood, as well as recent CJEU case law on international family law.

Speakers include Véronique Chauveau, Dagmar Coester-Waltjen, Gilles Cuniberti, Joanna Guttzeit, Frank Klinkhammer, Carlos de Melo Marinho, James Netto, Marta Requejo Isidro, Caroline Rupp, Nadia Rusinova and Andrea Schulz.

For further information, see here.

Starting from 1 August 2022, the Regulation (EU) 2019/1111 of 29 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast)(Brussels II ter Regulation) became applicable, replacing the Brussels II Regulation.

As nearly two decades has passed since the Brussels II Regulation itself became applicable, it seemed important to record its retirement also on CoL and to welcome its successor. Special thanks need to go to Mayela Celis who rang the bell timely.

For further discussion on the new Regulation and the changes its brings, I am happy to refer our readers to the special volume of Polish quarterly on civil procedure („Polish Civil Procedure”, „Polski Proces Cywilny”), which we brought to your attention a while ago.

Although repealed, the „old” Regulation does not completely loose its relevance. Under Article 100 of the Brussels II ter Regulation, the former is still applicable in particular to the legal proceedings instituted prior to 1 August 2022 and to the decisions given in such proceedings.

So… Exit the Regulation (but not fully), enter the Regulation. Anyway, Long Live to the Latter ?

Canara Bank v MCS International [2022] EWHC 2012 (Comm) is interesting with respect to Cooper J’s discussion of privity of choice of court and law, and the corporate carve-out of retained (post Brexit) Rome I.

Canara (an Indian bank) say that the Guarantee at the core of the issues, with English choice of law and court, was transmitted automatically to MCS France under the French Civil Code as a result of an amalgamation or merger of two French companies, namely the original guarantor and MCS France.

On the impact of Rome I, the judge [53] presumably with parties’ counsel approval, remarks that ‘pursuant to Article 1(2)(e) and (f), Rome 1 does not apply to questions governed by the law of companies or to the issue of whether or not an agent is able to bind a principal in relation to a third party. For both these issues, it is necessary to look to common law principles.’

[88] It is said again that whether an agent is able to bind a principal in relation to a third party is excluded from Rome 1 further to article 1(2)(g), the corporate carve-out. I do not think that is necessarily the case, even in combination with the Article 1(2)(e) carve-out for choice of court. The judge at any rate continues by applying the Dicey Rule 243 that where an agent acts or purports to act on behalf of a principal, their rights and liabilities in relation to each other are in general governed by the law applicable to the relationship or contract between them, with Dicey Rule 244(1) adding a bootstrap /von Munchausen /putative law element:

The issue whether the agent is liable to bind the principal to a contract with a third party, or a term of that contract, is governed by the law which would govern that contract or term, if the agent’s authority were established.”

[89] In light of the foregoing, ‘it was common ground between the parties, and rightly so, that Mr. Maurel’s actual authority on behalf of MIF fell to be determined under French law and the question of whether and to what extent Mr. Maurel was able to bind MIF in respect of the Guarantee given Canara’s knowledge of the resolution is a matter of English law.’

Common English conflict of laws is held to apply to the issue of transfer of a guarantee during the dissolution of a company, and parties agree [76] that whether a corporation has been amalgamated with another corporation is to be determined by the law of its place of incorporation: French law is held to be the relevant law for the dissolved guarantor issue, and expert reports were discussed.

Overall conclusion is [125]

Having considered the issue of good arguable case by reference to each of the issues raised by the parties in relation to the question of whether MCS France was a party to the Guarantee and therefore the jurisdiction agreement contained within it, it seems to me to appropriate to step back and consider whether overall Canara has a good arguable case on whether or not MCS France was a party to that jurisdiction agreement. In this regard, I consider that it does. Even were I to be wrong on one of the issues considered above, the balance of the evidence supports the conclusion that MCS France is a party to the Guarantee and to the jurisdiction agreement contained within it. In circumstances, where the evidence establishes that Canara, MCS France and MCS UK have done business since 2014 on the basis that the Guarantee was binding on MCS France, it would be a surprising conclusion that there was no good arguable case that MCS France was a party to the jurisdiction agreement.

Interesting, if flimsy on the corporate carve-out issue.

Geert.

Guarantee with EN law and jurisdiction clause. Whether it extends to French amalgamated company for purposes of jurisdiction.
Retained Rome I held not to apply on basis of corporate law carve-out.

Canara Bank v MCS International [2022] EWHC 2012 (Comm)https://t.co/jRg4GCW0Yr

— Geert Van Calster (@GAVClaw) July 30, 2022

A. Introduction

During the Summer of 2019, I attended one of the two flagship courses organised by the Hague Academy of International Law – the annual Summer Courses on Private International Law.

I quite vividly recall that, during the opening lectures, one of the Professors welcomed the participants at the premises of the Academy, a few steps from the Peace Palace itself, and made an observation that, at that time, seemed as captivating as remote.

As my precise recollection of his words may be far less accurate than the memory of the impression they made on me, I paraphrase: when it comes to education in general, in years to come – he noted – it will be a privilege to be able to benefit from a physical presence of a teacher or professor, being there, in front of you, within the reach of your hand and of your questions.

At that time, just a few months prior to the beginning of the worldwide spread pandemics, even the Professor himself most likely did not realize the extent to which his words would soon prove prophetic.

That was, however, not the sole lecture that I recall vividly.

Among others, Professor Matthias Weller (University of Bonn, one of two general editors of CoL.net) presented his course titled ‘Mutual Trust’: A Suitable Foundation for Private International Law in Regional Integration Communities and Beyond?

The present post is not, however, an account of this Hague experience. It is an account of a different and more recent one that resulted from the lecture of the freshly published Volume 423 of Recueil des Cours of the Hague Academy of International Law and of the Course by M. Weller within its pages.

 

B. Structure of the Course

The Course, in its just published incarnation, is composed of eight chapters.

Details about the Course and the Volume within which it is contained can be found here, on the website of its publisher, Brill. I can also refer the readers to the post on EAPIL by Elena Alina Otanu who also reported about the publication.

Thus, in this post, I will refrain from detailing the content of every Chapter and rather present and discuss its main and/or most interesting themes. Please be warned though that their selection is highly subjective, as there is far more to uncover within the pages of the Volume.

Chapter I (“Introduction”) sets the scene for the analysis provided for in the following Chapters. Here Weller also builds up the main hypothesis of his work (see section C below).

I digress but from a methodological standpoint, the Course is very thoughtful and may serve as an example of how to deal with a matter of comparative private international law that is highly difficult to conceptualise.

The methodological awareness is most visible in Chapter I, as well as in Chapter III (“Regional integration communities and their private international law”), which furtherly explains how the analysis is conducted through the text.

Between those two, lies Chapter II (“Private international law: a matter of trust management”), where the Author explores one of his core ideas that private international law may be conceived as a matter of “trust management”. As this is an innovative paradigm with which the Author approaches his main hypothesis, it calls for some additional exposition and discussion (see section D below).

The Author devotes next four chapters (Chapters IV – VII) to the specific regional integration communities, namely: Association of Southeast Asian Nations (ASEAN), Central African Economic and Monetary Community (OHADA), El Mercado común del sur (MERCOSUR) and EU. Here, I found the Chapter on EU to be highly innovative – at least to my knowledge, this is the first comprehensive attempt to look at the plethora of heavily-discussed private international law mechanics from “trust”-oriented perspective (see section E below).

Chapter VIII (“General conclusions”) closes the book, recaps the Author’s findings and provides food-for-thought for future research in the field.

 

C. Hypothesis under scrutiny in the Course

The Course starts off with a series of references showing the relevance of “mutual trust” for various aspects of functioning of the EU and its legal framework, in particular – for its private international law.

Quoting J. Basedow who stated that the EU is the “experimental laboratory of private international law”, Weller sets the main hypothesis of his work (para. 5): there might be a fundamental relevance of mutual trust to the private international law of any regional community.

To test this hypothesis, the Author delves into analysis of selected “regional integration communities”. Doing so, Weller aims to examine whether and to what extent mutual trust is of relevance for the private international law of those communities, be it as a foundation or guiding principle, triggering more intensive cooperation (in presence of mutual trust) or preventing it (in the lack of it).

The Author also hints the possibility to take his main hypothesis even further, although this aspect does not constitute the focal point of the Course: there might even be something fundamental in “mutual trust” for private international law as it is, also where it does not operate within a framework explicitly created for the purposes of regional integration communities (to use the term employed by the Author, also where it comes to “extracommunity efforts on private international law”, para. 127). Indeed, I would argue that, at present, no system of private international law should be conceived as operating in isolation, blind to the global reach of the situations that it aims to govern.

Back to the Course itself and the hypothesis:

Weller explores and employs, as he puts it, an EU “product” – the notion of “mutual trust” (para. 8), to verify his main hypothesis in the context of various regional integration communities.

The readers should not be misled though. The Course is not built around the idea that the EU private international law, with its concept of ‘mutual trust’, constitutes an ultimate form of private international law system or a pinnacle of achievement of some sorts, and that any other regional integration communities efforts have to be benchmarked against the “EU model”. Far from that.

In fact, Weller uses the concept of “trust”, and its qualified form of “mutual trust” as a tool that allows him to research the main hypothesis of his Course.

Doing so, the Author explicitly refrains from adopting a solely EU-oriented perspective. He goes so far as to state that “not everything that comes from experiments ends up in good results, let alone the best solution for everyone”. “Not even ‘integration’ as such may be considered a priori the most suitable avenue for all states and regions in the world” (para. 8). This becomes even clearer if we read into the Chapter III. Here, the Author goes so far as to call “naive” the belief according to which “progress” boils down to increasing degrees of mutual trust (para. 126).

Also, even where Weller refers to notion of “mutual trust” and calls it at some instances an EU “product”, he also makes it clear that “mutual trust” is not an EU invention: rather, he roots it in the German regional economic community of the nineteenth century, the German Union (paras. 432 and 482).

 

D. Paradigm of the Course: Private international law as a matter of “trust management”

In Chapter II (“Private international law: a matter of trust management”) the Author exposes and explores the paradigm that he proposes and researches in the following Chapters, with regards to selected regional integration communities.

In order to do so, he divides the Chapter into two sections.

In the first section of this Chapter, Weller explores the concept of “trust”: what it is and what purpose it serves, not only in the field of private international law.

The Author manages to seamlessly transit from “trust” as a societal phenomenon, deeply researched and explained both by sociological and economic (think: risk management) theory, with its qualified form (“mutual trust”) that became so crucial for the EU and beyond.

Within the first section, Weller also juxtaposes “trust” to “knowledge” arguing, in essence, that the former allows to act (even) where information is deficient. Trust relates, he explains, to the predictability of the actions of another. He builds up another dichotomy on that observation: in the lack of information, there is a choice between “trust” and “control”, and it is the former that appears to be a better candidate for governance of private international law issues.

In the second section Weller exposes the paradigm he proposes: for him, as mentioned above, private international law may be conceived as a matter of “trust management”. In other terms, as he puts it: to trust or not to trust – this is the question of private international law (para. 123).

To make his point, the Author looks closely at what J. Basedow called the “ultimate and most far-reaching form of judicial cooperation between States” – the recognition and enforcement of foreign judgments (para. 40).

He elaborates on various tools of “trust management” with regards to foreign judgments: from “total control” (no effects of foreign judgments at all), through revision au fond, doctrine of obligation, letter rogatory and far-reaching trust with residual control via exequatur proceedings to full faith and credit among federal states and, finally,“full trust”. He argues that all of them represent a specific amount of “trust” that is given to the judicial system of another State, complemented by “control” mechanics of some sorts.

Furthermore, Weller does not shy away from exploring other aspects of private international law through the mutual trust-tinted lens. He addresses also, inter alia, authentication of foreign documents and their service or taking evidence abroad (paras. 85 et seq.), as well as application of foreign law (paras. 104 et seq.).

I digress again: reading initially into first section of Chapter II, I had a (false) impression that the views on trust are too one-sided and do not take into account that both “trust” and “mutual trust” are not (and cannot be) blind to the various circumstances that occur within the framework to which the trust applies.

Trust is first and foremost a societal phenomenon and not a religious one. In this perspective, there is something to say about what distinguishes “trust” from “faith” – the latter is not (or at least should not be) undermined by lack of feedback; it can even “fuel” more faith and intensify it. By contrast, when it comes to “trust”, a systematic lack of positive feedback, replaced by feedback that calls for concern, needs to results into reconsideration as to whether the trust must still be given and the control waived.

My initial false impression was, however, quickly dispersed. Weller recognizes the dynamics of trust too. In the paragraphs that follow, he quotes and comments extensively on one of the key elements of this research, building up on the consideration of K. Lenaerts according to which “mutual trust cannot be confused with blind trust” (para. 90). This becomes even clearer when we read into Chapter VII on EU private international law.

 

E. “Trust management” in EU private international law and beyond

I turn now to aforementioned Chapter VII, devoted to EU private international law or, if we read into this Chapter more attentively, to EU law in general.

Here, Weller discusses extensively the “mutual trust” and human/fundamental rights dynamics and argues that the balance between the former and the latter is nothing else but trust management (para. 360).

He shows, next, that private international law-inspired mechanics of trust management may apply beyond the field of EU private international law. This may seem as an even more perverse turn if we take into account that, as Weller observes, in the context of EU integration, judicial cooperation in civil matters developed in the shadows of judicial cooperation in criminal matters (para. 377).

Interestingly, Weller recognizes that even within the context of EU integration, the EU legislator does not cap the pre-existing trust with legislative framework within which this trust operates. By contrast, at least in some instances (he cites E-commerce and Service Directives), the EU legislator diagnosed a lack of mutual trust and then imposed an obligation of the Member States for mutual recognition as a cure (para. 371).

Then, he goes through various EU private international law provisions and case law pertaining to them in order to explore how the “trust management” is dealt with under EU law.

I mention just one piece of this exploration on public policy, operating under the Brussels I regime as a ground four refusal of enforcement.

Weller mentions the case that resulted in the German Federal Supreme Court judgment of 2018, which accepted the application of public policy exception with regards to a Polish judgment condemning ZDF to publish an apology on its main webpage after it described two concentration camps as being “Polish”. The Supreme Court considered that the obligation for ZDF to publish a preformatted text on its website contradicted freedom of speech and freedom of press as guaranteed under Article 5(1) of the German Basic Law. The enforcement was rejected on the basis of public policy exception.

The case has been extensively discussed in the literature before. However, faithful to the paradigm of the Course, Weller examines the case from trust management perspective.

Adopting this perspective, Weller argues that the German court “could have and would have better enforced just the enforceable parts of the Polish judgment” and “it seems that it would have been under an obligation from EU law to do so in order to maintain the movement of judgment within the EU as far as possible, an obligation that emanates from the effet utile of the Brussels regime (para. 405).

I might add, in line with this contention: if the right of enforcement of a foreign judgment is conceptualized as a right protected under the Charter (and – to be more specific – under its Article 47), then any interference to that right, although “provided for by law” [see: public policy exception of Article 34(1) of the Brussels I Regulation/Article 45(1)(a) of the Brussels I bis Regulation], must respect the requirement resulting from Article 52(1) of the Charter. Thus, if I follow Weller paradigm, also Article 52(1) of the Charter is a “trust management” tool, that calls for proportionate and restricted (only when it is “necessary”) refusal of “trust” in the EU.

 

F. So again, why do I need “mutual trust” when I already have “comity”?

I close this post with another recollection of the Summer Course of 2019: during one of his intervention at the Hague Academy, Weller mentioned that when he had shared with one of his colleagues about this “mutual trust” research, the said colleague had asked: so again, what is the difference between “mutual trust” and “comity”?

According to my account of that conversation, Weller provided, if I recall correctly, an answer that boiled down to the following statement, I paraphrase: while “comity” allows for cooperation between States, over the heads of individuals, the concept of “mutual trust” enables the cooperation between States but with paying a particular attention to the individual; it elevates the individual and his/hers interests to the attitude, where they become a matter of true concern also to the States.

The difference between “mutual trust” and “comity” is furtherly explored in the Course, although I might be accused of reading too much in-between the lines.

On the one hand, in Chapter II, commenting on various tools of “trust management”, the Author mentions the concept of “comity” again. He explains that one of it aspects can be seen as “an abstract trust in the administration of justice by the foreign state from where the judgment emerged – it results from the acknowledgment of the sovereignty and such equality of the foreign state is concretized by the presumption that the administration of justice in the foreign state is equally well placed to produce justice in the particular case at hand”.

On the other hand, in another part of the book, he makes an interesting point: the individuals push a State towards trust, so the States cooperate on behalf of those individual when they enable and supervise judicial cooperation (paras 35 and 72). In yet another part of the book, pertaining to the application of foreign law, the Author even juxtaposes trust-based mechanics, concerned with the rights of the individuals, with the sovereignty-based (“outdated”) concepts of comity (para. 111).

Furthermore, States are, Weller argues, in obligation to optimize their trust management – doing so, they optimize the chances of the individuals when it comes to the enforcement of their rights in cross-border contexts (para. 122).

I concur. But why such obligation exists? Under Weller’s paradigm, the general concept of “comity” cannot be the justification, at least not the “outdated” one. Besides, if we follow Weller on that point, from the perspective of interest of individual, “comity” may be seen as a construct inferior to “mutual trust”.

If we read into text, the Author provides an answer though: the obligation to optimise trust management results from the imperatives of rule of law and of the fundamental right to effective access to justice; as such, it is a matter of constitution guarantees (para. 123 and 444). I might add that there is also something to say about effective protection of fundamental/human rights that underlie the substance of specific rights and/or legal situations shaped under foreign law or within foreign territory. In essence, it is necessary to optimise trust management system also because it allows to ensure recognition and enforcement of rights and legal situations that are rooted in fundamental/human rights.