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M P A
DFON
La Cour apporte des précisions quant à la compétence judiciaire en matière de divorce, de responsabilité parentale et d’obligations alimentaires

Affaires jointes C 273/20 et C-355/20 & Bundesrepublik Deutschland (Regroupement familial avec un mineur réfugié) et dans l’affaire C-279/20 & Bundesrepublik Deutschland (Regroupement familial d’un enfant devenu majeur)
Justice et Affaires intérieures ELSJ ASIL
Regroupement familial : le refus de délivrance d’un visa national aux fins du regroupement familial au parent d’un mineur réfugié non accompagné devenu majeur au cours de cette procédure est contraire au droit de l’Union

HOLD Alapkezelő
Liberté d'établissement
Les exigences découlant du droit de l’Union en matière de politique de rémunération des gestionnaires d’investissements peuvent s’appliquer au versement de dividendes par ces gestionnaires à certains de leurs employés actionnaires qui relèvent du champ d’application personnel de cette politique

Staatssecretaris van Justitie en Veiligheid (Refus de prise en charge d’un mineur égyptien non accompagné)
Espace de liberté, sécurité et justice
Protection internationale : les mineurs non accompagnés disposent d’un droit de recours contre le refus de prise en charge par un Etat membre où réside un proche

Sea Watch
Transport
Les navires d’organisations humanitaires exerçant une activité systématique de recherche et de sauvetage de personnes en mer peuvent faire l’objet d’un contrôle par l’État du port

Bundesrepublik Deutschland
Espace de liberté, sécurité et justice
Une demande de protection internationale introduite par un mineur ne peut être rejetée comme irrecevable au motif que ses parents se sont déjà vu accorder une telle protection dans un autre État membre

Familienkasse Niedersachsen-Bremen
Principes du droit communautaire
Un citoyen de l’Union ayant établi sa résidence habituelle dans un État membre d’accueil ne peut pas être exclu du bénéfice d’allocations familiales pendant les trois premiers mois de son séjour au motif qu’il ne perçoit pas de revenus tirés d’une activité dans cet État membre

Vyriausioji tarnybinės etikos komisija
Principes du droit communautaire
La législation lituanienne prévoyant la divulgation en ligne d’une partie des données contenues dans la déclaration d’intérêts privés des directeurs d’établissements percevant des fonds publics est contraire au droit de l’Union

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

Jürgen Basedow, Ulrich Drobnig *25.11.1928 †2.3.2022

Daniel Gruenbaum, From Statehood to Effectiveness: The Law of Unrecognised States in Private International Law

One of the functions of private international law (PIL) is to determine the law that governs a legal relationship. Yet what occurs when the rules designated by PIL emanate from an entity that has not been recognised as a state by the government of the forum? This article aims firstly to identify and describe the major prevailing approaches to applying the law of unrecognised states in contemporary PIL practice. It then critically appraises the principal reasons justifying the application of foreign law despite it emanating from unrecognised states. The article finally argues that applying the law of unrecognised states reveals the potential for PIL to grapple with non-state rules and with interactions of normative orders of all different sorts, regardless of their state pedigree.

Matthias Fervers, Die Drittwirkungen der Forderungsabtretung im Internationalen Privatrecht (Third-Party Effects of Assignments of Claims in Private International Law)

Although Art. 14 Rome I Regulation addresses the relationship between the assignor and the assignee as well as the relationship between the assignee and the debtor, there is still no provision as to the third-party effects of assignments. The question of what law should govern these third-party effects is, correspondingly, a subject of considerable discussion. While some propose that the law governing the assigned claim should be applicable, others suggest that third-party effects should be governed by the law that applies to the contract between the assignor and the assignee; the current prevailing opinion assumes that third-party effects should be governed by the law of the habitual residence of the assignor. This article demonstrates that a limited possibility for a choice of law for assignor and assignee is the most appropriate solution.

Christoph Wendelstein, Der Handel von Kryptowährungen aus der Perspektive des europäischen Internationalen Privatrechts (The Trading of Cryptocurrencies from the Perspective of European Private International Law)

The rules in the Rome I Regulation are used to ascertain the applicable law in cases of trades in cryptocurrencies. However, these are only partially appropriate for a predictable determination of the applicable law. While in B2B and C2C cases of “stationary” trading of cryptocurrencies via Crypto-ATMs the law at the location of the ATM still provides a predictable legal system, this is not the case for online trading with crypto-brokers or via crypto exchanges. Especially in cases of online trading via crypto exchanges, a further complication results from the fact that such platforms allow their users to trade legally under a pseudonym – in line with the historical notion of cryptocurrencies. This may complicate or even prevent the determination of the applicable law. The resulting “vacuum” is to some extent filled by the technical design of the transaction through the use of smart contracts. However, this does not dispense with the question of applicable law. The article examines these and other questions and points out possible solutions de lege lata.

The table of contents in German is available here.

The deceased, living in Germany, leaving as her sole heir her son, who also lives in Germany, owned immovable property in Germany and Lithuania. Her son obtained a European Certificate of Succession from the German authorities, naming him as the sole heir of the deceased’s entire estate. He presented the certificate to the Lithuanian authorities and applied for the immovable property to be recorded in the Real Property Register. They refused to do so on the grounds that the certificate was incomplete, as the European Certificate of Succession submitted did not contain the information required under the Lithuanian Law on the Real Property Register to identify the immovable property by documents to be submitted, in that it did not list the property inherited by the applicant. The heir sought legal redress against this rejection with the Lithuanian courts. Against this background the referring court asked:

Must point (l) of Article 1(2) and Article 69(5) [of Regulation No 650/2012] be interpreted as not precluding legal rules of the Member State in which the immovable property is situated under which the rights of ownership can be recorded in the Real Property Register on the basis of a European Certificate of Succession only in the case where all of the details necessary for registration are set out in that European Certificate of Succession?

AG Szpunar first of all referred to the overall objective of the ESR as spelled out in recital 7 to facilitate the proper functioning of the internal market by removing the obstacles to the free movement of persons who want to assert their rights arising from a cross-border succession (para. 39). In doing so, the Regulation does not harmonise substantive law but has opted for harmonising private international law, choice of law in particular (para. 40) but also provides for the European Certificate of Inheritance, subject to an autonomous legal regime, established by the provisions of Chapter VI (Art. 62 et seq.) of the Regulation.

Article 68 lists the information required in a European Certificate of Succession “to the extent required for the purpose for which it is issued” and this includes “the share for each heir and, if applicable, the list of rights and/or assets for any given heir” (italic emphasis added).

Under a succession law like the German that does not provide for succession other than universal succession it is clear that the estate as a whole, rather than particular assets, is transferred as a totality. AG Szpunar concludes: “That being so, it is not necessary to include an inventory of the estate in the European Certificate of Succession, inasmuch as the situation referred to in point (l) of Article 68 of Regulation No 650/2012 by the phrase ‘if applicable’, the need for a list of assets for any given heir, does not arise” (para. 55). Thus, the phrase “if applicable” is not to be understood solely as a reflection of the wishes of the person applying for a European Certificate of Succession (para. 57). Even though the applicant is required to inform the authority issuing the certificate of its purpose, it is for that authority to decide, based on that information, whether or not an asset should be specified. The Commission Implementing Regulation No 1329/2014 (point 9 of Annex IV to Form V) does not have a bearing on this decision as it can only implement but not modify the Regulation (para. 73).

However, where the situation does not depend upon a national right of succession governed by the principle of universal succession and where the purpose of the certificate can only be achieved by indicating the share of the inheritance for the person in question, “it is most likely that the asset in question should be specified” (para 62). And even if there is no need to list assets (such as under German law), “it should be noted in that regard that, if a European Certificate of Succession is to produce its full effects, a degree of cooperation and mutual trust between the national authorities is required. That may imply that the issuing authority is required, in a spirit of sincere cooperation with the authorities of other Member States, to take account of the requirements of the law governing the register of another Member State, especially if that authority holds relevant information and elements” (para. 65).

Of course, Point (l) of Article 1(2) of the ESR states that “any recording in a register of rights in immovable or movable property, including the legal requirements for such recording, and the effects of recording or failing to record such rights in a register” is excluded from the scope of the regulation. By its judgment in Kubicka, AG Spzunar explained, “the Court found that points (k) and (l) of Article 1(2) and Article 31 of that regulation must be interpreted as precluding refusal, by an authority of a Member State, to recognise the material effects of a legacy ‘by vindication’, provided for by the law governing succession chosen by the testator in accordance with Article 22(1) of that regulation, where that refusal is based on the ground that the legacy concerns the right of ownership of immovable property located in that Member State, whose law does not provide for legacies with direct material effect when succession takes place. As a consequence of that judgment in Kubicka, the German law disputed in the main proceedings was not applied to the transfer of ownership. However, it did not concern real property registration rules. The national property law of a Member State may therefore impose additional procedural requirements, but only inasmuch as any such additional requirements do not concern the status attested by the European Certificate of Succession.” (paras. 77 et seq).

As Advocate General Bot noted in his Opinion in Kubicka, in practice, other documents or information may be required in addition to the European Certificate of Succession where, for example, the information in the certificate is not specific enough to identify the asset the ownership of which must be registered as having been transferred. In the present case, however, AG Szpunar rightly observed, “the Lithuanian authorities have all the information needed for the purpose of making an entry in the Real Property Register: they are able to identify the person to whom the asset in question belongs or belonged and to ascertain, from the European Certificate of Succession, the status of heir of the applicant in the main proceedings”. Thus “the effet utile of the European Certificate of Succession would be undermined if Lithuanian property law were able to impose additional requirements on the applicant” (para. 81).

In other words, even though the contents of a European Certificate of Succession, due to the underlying lex successsionis, may not exactly represent what is required for documentation by the lex registrii of the requested Member State, the overarching principle of the EU’s efforts for integration, namely mutual trust, and, more concretely, the effet utile of the ESR create the obligation of the requested Member State to substitute required documents under its lex registrii as much as functionally possible – a methodical tool that may perhaps be abstractly framed as “extended substitution” and may well develop to a powerful concept for the European Succession Certificate.

Be that as it may, limited to the constellation in question, AG Szpunar concluded:

“Point (l) of Article 1(2), point (l) of Article 68 and Article 69(5) of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession preclude the application of provisions of national law pursuant to which an immovable property acquired by a sole heir pursuant to a right of succession governed by the principle of universal succession can only be recorded in the Real Property Register of the Member State in whose territory that asset is located on the basis of a European Certificate of Succession if all the data required under the national law of that Member State to identify the immovable property are included in the certificate.”

The full text of the Opinion is here.

In G I Globinvestment Ltd & Ors v VP Fund Solutions (Luxembourg) SA & Ors [2022] EWHC 1872 (Comm) wealthy Italian investors seek to recover losses which they suffered when investments they had made plummeted in value at the outset of the COVID pandemic. Defendants are in various jurisdictions. Most have accepted jurisdiction, two of them, one based in Luxembourg, the other in Liechtenstein, challenge jurisdiction.

The claim against the Liechtenstein defendant is subject to common law rules, the country not being a party to Lugano. I will leave that further undiscussed here, suffice to say the challenge was unsuccessful.

The claim against the Luxembourg based defendant was issued before Brexit implementation date and subject to Brussels Ia. It claims there is an A25 exclusive choice of court clause in the investment fund’s general subscription terms, and Vineall DJ discusses it with reference to the general A25 outline in PIFSS v Piqtet.

Parties are agreed [64] – wrongly, nota bene, that on formal validity, the question is whether there has been an actual consensus between the parties, clearly and precisely demonstrated, and on material validity, the question is whether the dispute between the parties arose or originated from the particular legal relationship in connection with which the clause was concluded. That is the kind of agreement which would see my students fail a Brussels Ia question.

[65] a further major error is made with the parties seemingly agreeing that ‘whether the claim falls within the scope of the [clause], that question is to be answered according to Luxembourg law’.

The conclusions are [88] that there is no [forum clause] in the in the Subscription Agreement, although there is choice of law clause; 88.2. There is no EJC in the Offering Document; The Offering Document wrongly asserts that there is a jurisdiction clause in the Subscription Agreement; That is insufficient to establish a clearly and precisely demonstrated consensus; no consensus as to jurisdiction is demonstrated: the result of the conflicting documents is a muddle; therefore there is no exclusive jurisdiction clause on which VP Lux can rely.

I have not got the kind of access to the file to say the outcome is factually wrong – the route to it certainly is and simply wrong in law.

The judge also [89] concludes that whether one of the claimants is a consumer who can sue in England and Wales need not be decided:  ‘That issue does not seem to me to be entirely straightforward and since it is not necessary to resolve it in the light of my conclusions about [choice of court] I prefer not to decide it’: why not?: VP Lux contest jurisdiction and it is the judge’s task under Brussels Ia to assess the existence of jurisdiction on any of the Brussels Ia grounds.

Had the judgment been issued in exam season it would have been obvious material for ‘spot the Brussels Ia errors’.

Geert.

 

Unsuccessful jurisdiction challenge which was based ia on Brussels Ia consumer, choice of court sections

G I Globinvestment Ltd & Ors v VP Fund Solutions (Luxembourg) SA & Ors [2022] EWHC 1872https://t.co/UfyToABXz6

— Geert Van Calster (@GAVClaw) July 21, 2022

Conventions & Instruments

On 1 July 2022, the HCCH 2007 Child Support Convention and the HCCH 2007 Maintenance Obligations Protocol entered into force for Ecuador. At present, 44 States and the European Union are bound by the Convention, while 30 States and the European Union are bound by the Protocol. More information is available here.

On 8 July 2022, Pakistan deposited its instrument of accession to the HCCH 1961 Apostille Convention. The Convention, which currently has 124 Contracting Parties, will enter into force for Pakistan on 9 March 2023. More information is available here.

On 13 July 2022, Senegal deposited its instrument of accession to the HCCH 1961 Apostille Convention. The Convention, which currently has 124 Contracting Parties, will enter into force for Senegal on 23 March 2023. More information is available here.

 

Meetings & Events

From 4 to 8 July 2022, the Fifth Meeting of the Special Commission on the Practical Operation of the 1993 Adoption Convention was held online, attended by nearly 400 participants representing HCCH Members, Contracting Parties and Observers. The meeting resulted in the adoption of over 50 Conclusions and Recommendations, providing guidance to (prospective) Contracting Parties on a wide range of issues relating to the practical operation of the 1993 Adoption Convention, including the prevention of illicit practices, post-adoption matters, intrafamily adoptions and alternatives to full adoption, technical assistance and the use of technology. More information is available here.

On 27 July 2022, the HCCH and the Asian Business Law Institute co-hosted the webinar “Cross-border Commercial Dispute Resolution – HCCH 2005 Choice of Court and 2019 Judgments Conventions”. More information is available here.

 

Upcoming Events

The inaugural CODIFI Conference will be held online from 12 to 16 September 2022. CODIFI will examine issues of private international law in the Commercial, Digital, and Financial (CODIFI) sectors, highlighting developments in the digital economy and fintech industries as well as clarifying the roles of core HCCH instruments: the 1985 Trusts Convention, the 2006 Securities Convention, and the 2015 Choice of Law Principles. More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

The Final Conference of the EFFORTS Project

• Date: Friday, 30 September 2022
• Venue: Università degli Studi di Milano – Sala Napoleonica, Via Sant’Antonio, 12 (Milan, Italy) (remote participation is also available)

The Conference is the final event of the EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU) Project, funded by the European Union and conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, the University of Heidelberg, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.

The Conference will provide an international forum where academics, policymakers, and practitioners discuss the Project’s key findings and exchange their views on the national implementation of – and the path forward for – the EFFORTS Regulations (i.e., the Brussels I-bis Regulation and the Regulations on the European Enforcement Order, the European Small Claims Procedure, the European Payment Order, and the European Account Preservation Order).

The Conference will tackle, in particular:

• Current challenges in the EU rules on cross-border enforcement of claims
• The interaction between the EFFORTS Regulations and national enforcement procedures
• Future perspectives for the re-drafting of EU rules on cross-border enforcement of claims

The working language is English; simultaneous translation in Italian will be available.

Registration is compulsory. More information is available here.

 

Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union

Professor Maarit Jänterä-Jareborg has retired after having been professor in private international law at Uppsala University in Sweden for 23 years. To pay her tribute, the anthology Festskrift till Maarit Jänterä-Jareborg (“Essays in Honour of Maarit Jänterä-Jareborg”) has been edited by Margareta Brattström, Marie Linton, Mosa Sayed and Anna Singer.

The anthology contains 22 contributions as well as a bibliography of Jänterä-Jareborg’s extensive writings over the last four decades. Of the essays in the anthology, eleven are written in English, six in Swedish, four in Norwegian and one in French.

Most of the essays deal with private international law issues. Michael Bogdan and Giuditta Cordero-Moss have both written contributions on different aspects of recognition of foreign marriages. Christina Gonzáles Beilfluss and Nigel Lowe have written essays dealing with the new Brussels II Regulation (2019/1111). In addition to the four mentioned contributions, the book contains several more essays dealing with private international law issues.

A sample read including the full table of contents and the Swedish preface written by the editors can be accessed and read here.

RT France / Conseil
Relations extérieures PESC
Le Tribunal, en grande chambre, rejette la demande de RT France d’annuler les actes du Conseil, adoptés à la suite du déclenchement de la guerre en Ukraine, lui interdisant temporairement de diffuser des contenus

The first issue of 2022 of Giustizia Consensuale (published by Editoriale Scientifica) has just been released, and it features:

Andrea Simoncini (Professor at the University of Florence) and Elia Cremona (PhD, University of Siena), Mediazione e Costituzione (Mediation and Constitution; in Italian)

This paper deals with the issue of the constitutional basis of mediation. After describing the currently dominant view which sees mediation as merely a ‘means’ to an end, such as reducing the judicial backlog, and as a complementary tool to in-court proceedings, the authors argue that mediation could be considered as a constitutional ‘end’ in itself. Thus, by promoting the attainment of a more cohesive society, mediation is seen as a way to fulfil the social solidarity obligations as enshrined in the Italian Constitution.

Claudio Cecchella (Professor at the University of Pisa), La negoziazione assistita nelle controversie sulla crisi delle relazioni familiari dopo la riforma con legge n. 206 del 2021 (Lawyer-Assisted Negotiation Procedure in Family Disputes Subsequent to Law No 206 of 2021; in Italian)

This paper analyses the provisions of Law No 206 of 2021 concerning the negotiation process assisted by attorneys in family disputes. The author firstly examines the provisions which entered into force on 22 June 2022, such as the extension of the scope of application of this negotiation process. Secondly, he explores the provisions that will enter into force at a later date, such as the possibility of agreeing to a lump-sum maintenance payment, the provision of legal aid and the right to take evidence during negotiations. While praising this reform, the author strongly criticizes it for not having provided for the minor’s right to be represented and heard during the negotiation process.

Juan F. Herrero (Professor at the University of Zaragoza), Accordarsi o soccombere (Reaching an Agreement or Losing the Case; in Italian)

Settlement rates are still relatively low compared to the percentage of cases that go to trial. Against this backdrop, the Spanish legislator has committed to reversing the trend. After some early efforts that were in vain, the legislator resorted to two instruments: the mandatory mediation attempt as a prerequisite to instituting judicial proceedings (as an alternative to mediation, parties may opt for other extrajudicial dispute resolution methods), and a new scheme for the allocation of judicial costs. The paper investigates correlations between judicial decisions on cost allocation and mandatory or voluntary extrajudicial settlement attempts. Furthermore, it examines the impact of the aforementioned attempts on the determination of judicial costs, with a special focus on relevant case law. Oftentimes, the risk or likelihood of obtaining an unfavourable – or only partially favourable – decision on the allocation of costs prompts the parties to reach an out-of-court settlement. In fact, if it is not the case, the winning party to litigation stands to lose more than they would gain financially.

Stefania Brun (Professor at the University of Trento), ‘Proceduralizzazione’ dei poteri datoriali e mediazione sindacale. Il laboratorio trentennale in materia di licenziamenti collettivi (Trade Union Mediation in Collective Dismissal. A Study of its Application over Three Decades; in Italian)

This article reviews the three-decade history and present-day application of Law No 223 of 1991 on collective dismissal. While providing an overall positive evaluation of this law, the article seeks to examine the role of the judicial and legislative branches in promoting best practices in its application. In this regard, it emphasizes the role of trade union mediation in the phase preceding collective dismissal as an effective means for reducing judicial scrutiny and ensuring greater legal certainty.

Antonio Cassatella (Professor at the University of Trento), Il procedimento amministrativo come strumento di giustizia consensuale. Potenzialità e limiti (Administrative Procedure as a Means to Reach Consensual Justice. Strengths and Limitations; in Italian)

This paper focuses on settlements reached by an individual and the public administration in the course of an administrative procedure as governed by Law No 241 of 1990. According to the author, these types of settlement are only possible if the administrative procedure is not seen as a unilateral exercise of the public administration’s power, but rather as a way of settling disputes between the administration and citizens. The author argues that the administrative procedure can be considered an alternative dispute resolution mechanism from a theoretical point of view. However, Article 11 of the aforementioned law cannot be considered an effective legal basis for settlement between an individual and the public administration due to its intrinsic limitations. Therefore, the author proposes that the Italian legislator reforms Law No 241 of 1990 taking the German and French legislations as a model.

 

Observatory on Legislation and Regulations

Lorenzo Bianchi (PhD, University of Parma), La conciliazione giudiziale tributaria. Criticità applicative e prospettive di riforma (Judicial Conciliation in Tax Disputes. Inherent Limits and Reform Proposals; in Italian)

This paper analyzes the mechanism of judicial conciliation in tax disputes and its relationship with out-of-court dispute resolution tools. The author examines the historical evolution of judicial conciliation and its current regulation. While exploring the main characteristics of tax disputes, particular attention is given to the inherent limits on reaching an agreement between the parties to litigation and the judicial power to promote settlement. In conclusion, the analysis focuses on the recent Italian reform proposals of the judicial proceedings regarding tax disputes and conciliation mechanisms as incentivized by the Next Generation EU plan.

 

Observatory on Practices

Dilyara Nigmatullina (Postdoctoral Researcher at the University of Antwerp) and Ruohan Zhu (Project manager at the Shanghai Arbitration Commission), A Study on the Use of Mediation in Combination with Arbitration. The Experience of East Asia with Focus on Mainland China

The article analyses the results of an empirical study about the current use of mediation in combination with arbitration (combinations) in international commercial dispute resolution. This study follows up the original study conducted by one of the article’s authors in 2014-2015, the results of which suggested the existence of a link between the practitioners’ legal culture and their use of a combination where the same neutral acts as a mediator and an arbitrator. The follow-up study further tests the hypothesis about the existence of the mentioned link by involving practitioners based in the East Asia region, predominantly in mainland China, while those taking part in the original questionnaire practiced in Continental Europe and common law jurisdictions in the Asia Pacific region. The article discusses the results of the follow-up study in the context of the findings of the original study before concluding that these results provide further support to the hypothesis that the use of a combination where the same neutral acts as a mediator and an arbitrator varies throughout the world and can be linked to the practitioners’ legal culture.

Francesca Valastro (Case Manger, Milan Chamber of Arbitration), La mediazione in videoconferenza. Dalla situazione emergenziale agli orizzonti futuri. Dati e note a margine di un’indagine empirica (Online Mediation: From Necessity to the Norm. An Empirical Study; in Italian)

The outbreak of the Covid-19 pandemic in March 2020 affected the way mediations in civil and commercial matters were conducted, transforming online mediation into an absolute necessity. Two years on, the world has changed and in this post-Covid time, it would be advisable to assess how the pandemic has affected the practice of mediation. Will mediation return to be conducted face to face or will online mediation be the future? This article presents the results of the empirical research collected through interviews with fifty attorneys assisting clients in mediation and fifty professional mediators of the Mediation Service at Milan Chamber of Arbitration. Based on the analysis of their responses, the author argues that online mediation will have a pivotal role in the post pandemic world. However, further research and analysis is still necessary to develop best practices and guidelines for effectively managing mediation remotely.

In addition to the foregoing, this issue features the following book review by Giuseppe Buffone (Judge, Justice and Home Affairs Counsellor, Permanent Representation of Italy to the European Union, Brussels): Maria MARTELLO, Una giustizia alta e altra. La mediazione nella nostra vita e nei tribunali (Mediation in Our Courts and in Our Daily Lives. An Empowering Alternative), Roma, Paoline Editoriale Libri, 2022, 1-160.

 

 

In Athena Capital Fund SICAV-FIS SCA & Ors v Secretariat of State for the Holy See [2022] EWCA Civ 1051, the Court of Appeal has overturned the High Court’s judgment ordering a stay in a case involving alleged property fraud. I reviewed the first instance judgment here. The judge held the E&W courts did have jurisdiction over the claims but stayed them

because he took the view that the respondent had adopted a neutral position as to whether the appellants were under any liability and because the real dispute was not between the parties to this action but between the appellants and the prosecuting authorities responsible for the conduct of criminal proceedings against the fourth appellant in the Vatican City State.

(Males LJ [1]).

Many of the High Court judgment’s’ findings were not on appeal (such as the erroneous dropping of renvoi in the A25 BIa choice of court analysis).

The Court of Appeal spends a while summarising the earlier judgment, to arrive [54] at the crucial juncture between the Brussels Ia Regulation and case-management stays, with reference to its very recent decisions in Municipio and Nokia and to Article 6 ECHR right of access to courts [59]. Para 59 is crucial and I repeat it here in full

There is, as it seems to me, no reason to doubt that it is only in rare and compelling cases that it will be in the interests of justice to grant a stay on case management grounds in order to await the outcome of proceedings abroad. After all, the usual function of a court is to decide cases and not to decline to do so, and access to justice is a fundamental principle under both the common law and Article 6 ECHR. The court will therefore need a powerful reason to depart from its usual course and such cases will by their nature be exceptional. In my judgment all of the guidance in the cases which I have cited is valuable and instructive, but the single test remains whether in the particular circumstances it is in the interests of justice for a case management stay to be granted. There is not a separate test in “parallel proceedings” cases. Rather, considerations such as the existence of an exclusive English jurisdiction clause and the danger of circumventing a statutory scheme for the allocation of jurisdiction (such as the Judgments Regulation) will be weighty and often decisive factors pointing to where the interests of justice lie.

Males LJ therefore, like others before him, does not rule out a case-management stay even for proceedings covered by Brussels Ia yet puts (among others) that Regulation’s statutory purpose, and the need not to allow it to be circumvented, at the centre ground of the decision on a stay.

[60] ff a succinct background is given to the happiness, or not, of English courts entertaining negative declarations. [74] is the Court of Appeal’s core argument for lifting the stay:

I consider that the judge’s conclusion on what he described as the Secretariat’s “central argument” was mistaken. The Secretariat was not neutral. It follows that the basis on which the judge concluded that, at present, the grant of declarations would serve no useful purpose and therefore exercised his discretion to grant a case management stay was fundamentally flawed. Indeed the circumstances in which he envisaged that the declarations might serve a useful purpose and that the stay might be lifted, that is to say if the Secretariat adopted a partisan position in the criminal proceedings in the Vatican, already existed.

The judge had essentially decided that claimants, given the jurisdictional (for reasons of immunity) unavailability of the real defendants, had picked an ‘innocent bystander’ against whom to seek the negative declaration, the Secretariat, yet the Court of Appeal now finds that the Secretariat is not a neutral bystander at all. There is a real ‘dispute between the appellants and the Secretariat as to whether the appellants are under any civil liability to the Secretariat, for example to pay compensation, as a result of entering into the Transaction.’ [75]

[77] it is conceded that the lifting of the stay means there will be related proceedings going on in E&E, and the Vatican. But that is not found to be a reason to stay the English proceedings.

Geert.

 

For review of the first instance judgment see https://t.co/LcAvK1nua8 https://t.co/G1XIlQ2QlV

— Geert Van Calster (@GAVClaw) July 26, 2022

 

 

The new issue of the International & Comparative Law Quarterly (Volume 71, Issue 3) is out. As usually, some of articles concern directly or indirectly questions of private international law. A selection of abstracts is provided below.

The whole issue is available here. Some of the articles are available in open access.

Richard Garnett, Determining the appropriate forum by the applicable law, pp. 589-626

The concepts of jurisdiction and applicable law have been traditionally regarded as separate inquiries in private international law: a court only considers the applicable law once it has decided to adjudicate a matter. While such an approach still generally applies in civil law jurisdictions, in common law countries the concepts are increasingly intertwined. This article examines the relationship between jurisdiction and applicable law in two key areas: applications to stay proceedings on the ground of forum non conveniens and to enforce foreign exclusive jurisdiction agreements. While courts generally apply the principle that jurisdiction and applicable law should coincide where possible, there are circumstances where a court may retain jurisdiction despite a foreign governing law or may ‘trust’ a foreign tribunal to apply the law of the forum. This article seeks to establish a framework by which courts may assess the role of the applicable law in forum determinations.

Ardavan Arzandeh, Brownlie II and the Service-Out Jurisdiction under English Law, pp. 727-741.

FS Cairo (Nile Plaza) LLC v Brownlie (Brownlie II) is arguably the United Kingdom’s highest appellate court’s most significant decision this century on a private international law question. The judgment has ended nearly two decades of debate about the meaning of ‘damage’ sustained in England for the purpose of paragraph 3.1(9)(a) of Practice Direction 6B of the Civil Procedure Rules. In a four-to-one majority ruling, the Supreme Court decided that the provision was to be interpreted widely, such that, in a personal injury claim, any significant harm of any kind suffered by a claimant in England could provide a basis for the service of proceedings on a foreign-based defendant. The article is critical of the majority’s decision, as it is liable to create both immediate and long-term problems in the context of the service-out jurisdiction in England. It also examines the court’s pronouncements on the other question before it concerning proof of foreign law.

Written by Mayela Celis, UNED

On 14 July 2022 the Court of Justice of the European Union (CJEU) ruled on the interrelationship between the Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (Brussels II bis Regulation) and the HCCH 1996 Child Protection Convention. This case concerns proceedings in Sweden and the Russian Federation and deals in particular with the applicability of the perpetuatio fori principle contemplated in Article 8(1) of the Brussels II bis Regulation. The judgment is available here.

Facts

Mother (CC) gave birth to child (M) in Sweden. CC was granted sole custody of the child from birth.

Until October 2019 child resided in Sweden.

From October 2019 child began to attend a boarding school on the territory of the Russian Federation.

Father (VO) brought an application before the District Court of Sweden and several proceedings ensued in Sweden, holding inter alia that Swedish courts have jurisdiction under Article 8(1) of the Brussels II bis Regulation. CC brought an application before the Supreme Court of Sweden asking the court to grant leave to appeal and to refer a question to the CJEU for a preliminary ruling.

Question referred for preliminary ruling

‘Does the court of a Member State retain jurisdiction under Article 8(1) of [Regulation No 2201/2003] if the child concerned by the case changes his or her habitual residence during the proceedings from a Member State to a third country which is a party to the 1996 Hague Convention (see Article 61 of the regulation)?’

Main ruling

Article 8(1) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, read in conjunction with Article 61(a) of that regulation, must be interpreted as meaning that a court of a Member State that is hearing a dispute relating to parental responsibility does not retain jurisdiction to rule on that dispute under Article 8(1) of that regulation where the habitual residence of the child in question has been lawfully transferred, during the proceedings, to the territory of a third State that is a party to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, signed at The Hague on 19 October 1996 (our emphasis).

Analysis

This is a very welcome judgment as it allows for the proper application of the 1996 Child Protection Convention to a case involving an EU Member State (Sweden) and a Contracting Party to the 1996 Child Protection Convention (the Russian Federation).

At the outset, it should be emphasised that this case deals with the lawful transfer of habitual residence and not with the unlawful transfer (removal or retention) such as in the case of international child abduction. In the latter case both the Brussels II bis Regulation and the 1996 Child Protection Convention provide for the retention of the jurisdiction in the EU Member State / Contracting State in which the child was habitually resident immediately before the removal or retention.

It is also important to clarify that contrary to the Brussels II bis Regulation, the 1996 Child Protection Convention does not adopt the principle of perpetuatio fori when dealing with general basis of jurisdiction (Article 5 of the Convention; see also para. 40 of the judgment). The 1996 Child Protection Convention reflects the view that the concept of habitual residence is predominantly factual and as such, it can change even during the proceedings.

As to the principle of perpetuatio fori, the CJEU indicates:

“By referring to the time when the court of the Member State is seised, Article 8(1) of Regulation No 2201/2003 is an expression of the principle of perpetuatio fori, according to which that court does not lose jurisdiction even if there is a change in the place of habitual residence of the child concerned during the proceedings” (para. 28, our emphasis).

With regard to the interrelationship between these two instruments, the CJEU says:

“In that regard, it should be noted that Article 61(a) of Regulation No 2201/2003 provides that, as concerns the relation with the 1996 Hague Convention, Regulation No 2201/2003 is to apply ‘where the child concerned has his or her habitual residence on the territory of a Member State’” (para. 32).

“It follows from the wording of that provision that it governs relations between the Member States, which have all ratified or acceded to the 1996 Hague Convention, and third States which are also parties to that convention, in the sense that the general rule of jurisdiction laid down in Article 8(1) of Regulation No 2201/2003 ceases to apply where the habitual residence of a child has been transferred, during the proceedings, from the territory of a Member State to that of a third State which is a party to that convention” (para. 33, our emphasis).

In my view, this judgment interprets correctly Article 52 of the 1996 Child Protection Convention, which was heatedly debated during the negotiations, as well as the relevant provisions of the Brussels II bis Regulation. In particular, the formulation in both Article 61(a) of the Brussels II bis Regulation “where the child concerned has his or her habitual residence on the territory of a Member State” and Article 52(2) of the 1996 Child Protection Convention “[This Convention does not affect the possibility for one or more Contracting States to conclude agreements which contain] in respect of children habitually resident in any of the States Parties to such agreements [provisions on matters governed by this Convention]” has been properly considered  by the CJEU as the habitual residence of the child is the Russian Federation.

To rule otherwise would have reduced significantly the applicability of the 1996 Child Protection Convention and would have run counter Articles 5(2) and 52(3) of the referred Convention (see para. 42 of the judgment).

As this judgment only deals with Contracting Parties to the 1996 Child Protection Convention, it only makes us wonder what would happen in the case of bilateral treaties or in the absence of any applicable treaty (but see para. 29 of the judgment).

For background information regarding the negotiations of Article 52 of the 1996 Child Protection Convention see:

–  Explanatory Report of Paul Lagarde (pp. 601-603)

– Article by Hans van Loon, “Allegro sostenuto con Brio, or: Alegría Borrás’ Twenty-five Years of Dedicated Work at the Hague Conference.” In J. Forner Delaygua, C. González Beilfuss & R. Viñas Farré (Eds.), Entre Bruselas y La Haya: Estudios sobre la unificación internacional y regional del derecho internacional privado: Liber amicorum Alegría Borrás (pp. 575-586). Madrid: Marcial Pons, pp. 582-583.

 

 

Another overdue post following up on earlier Twitter flag. In On the Beach Ltd v Ryanair UK Ltd & Anor [2022] EWHC 861 (Ch), a competition law ‘follow-on damages suit, Nugee LJ considered in particular whether in assessing the relatedness of proceedings, the judge can indeed may have to take into account what is likely to be pleaded by way of defence in both actions. He held [52] he can:

the better view is that where an application for a stay is made at a stage when the defence to an action has not yet been pleaded, the Court can have regard to the substance of a defence that it can confidently predict is likely to be pleaded.

However [53] ff on the facts he then held that the most likely outcome of that defence in the Irish proceedings is that these will be dismissed. This I believe is a form of judicial clairvoyance which goes too far, even in the wide remit which Article 30 gives to the judge assessing relatedness and the appropriateness of an Article 30 stay.

Geert.

EU Private International Law, 3rd ed. 2021, 2.521 ff.

Jurisdiction, competition law 'follow-on' damages
Stay on the basis of A30 Brussels Ia 'related actions' refused.
Re taking into account of possible defences in the Irish proceedings.

On the Beach Ltd v Ryanair UK Ltd & Anor [2022] EWHC 861 (Ch)https://t.co/SR85hPU1X9

— Geert Van Calster (@GAVClaw) April 19, 2022