Feed aggregator

Commission / Danemark (AOP Feta)
Agriculture
Le Danemark a manqué à ses obligations en ne cessant pas d’utiliser l’appellation « Feta » pour des fromages destinés à l’exportation vers des pays tiers

Procureur général près la cour d'appel d'Angers
DFON
Mandat d’arrêt européen et condition de la double incrimination du fait : une correspondance parfaite n’est pas requise entre les éléments constitutifs de l’infraction concernée dans l’État membre d’émission et dans l’État membre d’exécution

Universität Bremen / REA
Principes du droit communautaire
Un professeur de droit peut représenter sa propre université devant le Tribunal et la Cour de justice de l’Union européenne

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) will be published on 1 July 2022. It contains a number of interesting articles and case comments regarding issues of jurisdiction and applicable law. The table of contents is available here. The following abstracts have been kindly provided to us.

R. Wolfram, Achmea – Neglecting of International Public Law – Some Afterthoughts

This contribution is not meant to assess the Achmea judgment of the European Court of Justice. It intends instead to throw some light on the rules of public international law on the termination of international treaties, which have not fully been taken into account by those who attempted to implement the Achmea judgment. At the core of is the question whether the incompatibility of a treaty under international law with another international law treaty leads to the automatic non-applicability of the former. The contribution concludes this is not generally the case under the Vienna Convention on the Law of Treaties.

P. Schlosser, Jurisdiction Agreements and other Agreements integrally Covered by European Law

Certain contracts are particularly close to the law of the European Union. They include international jurisdiction agreements, contracts creating an exception in European law, to generally prohibited contracts, and contracts providing the use of European Trademarks and other European rights valid even against third persons. The fundamental proposal of the author is, that the legal effects of the violation of rights, provided by such contracts, must be found in European, rather than in national law. That law is particularly concerned about its effectiveness, if needed by a creative approach. In German law the legal consequences of such a violation must include, inspired by French law, an indemnification of a lost chance and a more liberal approach to moral (immaterial) damage.

S. Schwemmer, A Conflict of Laws Doctrine for the Transfer of Bitcoin, Crypto Securities and Other Crypto Assets

Cryptoassets like Bitcoin are entries in a distributed ledger. As such, they do not fall within any of the traditional categories of property. However, most jurisdictions are slowly working their way to recognize them as property. Even German law now allows for tokenized bearer bonds and defines special transfer requirements. On the level of conflict of laws, this results in a growing need to define the applicable law relating to the assignment of cryptoassets. These questions are not regulated by the written general conflict of laws rules under German law. While § 32 eWpG now provides a special conflict of laws rule for electronic securities, there is still a regulatory gap for other types of tokens. The article discusses possible solutions for the different types of cryptoassets.

B. Heiderhoff and E. Yalcin, International Jurisdiction in Cases Where Services are Provided in Several Member States

The determination of international jurisdiction under Article 7(1)(b), second indent, of the Brussels Ia Regulation is highly difficult in cases where services are provided in different Member States. The decision of the OLG München (Higher Regional Court of Munich) regarding a brokerage contract shows that it is not always possible to determine the place of main performance. This article discusses if, in such cases, the place where the service provider is domiciled should be considered as the place of performance. The authors conclude that this approach only fits if at least a part of the service was provided at the service provider’s domicile.

W. Hau, International Jurisdiction Based on Nationality in European Family Law

For almost a quarter of a century, there has been an intensive debate on whether the European legislator is allowed to open international jurisdiction in matrimonial matters for nationals of the forum state earlier than for nationals of other Member States. Now the CJEU has taken the view that such a rule is in line with the prohibition of discrimination provided for in Article 18 TFEU. The reasoning given for this is not particularly profound and leaves some questions unanswered, but it may at least contribute to a welcome reassurance in the area of European family law, in which very deep differences between the legal policy positions of the Member States have become apparent in recent years.

C. González Beilfuss, Forum Non Conveniens in a European Way: A Failed Dialogue

In the decision commented on here, the CJEU decided for the first time on the interaction of Article 6(a) and Article 7(a) of the Succession Regulation and emphasized the binding effect of the decision to decline jurisdiction for the court later seized. The second court is not permitted to review the decision to decline jurisdiction by the first court. This article analyzes the decision in particular with regard to the lack of communication between the courts, which would have facilitated the smooth interplay between both jurisdiction rules.

B. Hess, Exequatur sur exequatur vaut? The CJEU Enlarges the Free Movement of Decisions Coming from Third States under the Brussels I bis Regulation

In the judgment C-568/20, the CJEU held that a decision of a court of an EU Member State which merges a judgment of a third state is enforceable under Articles 39 ss of the Brussels Ibis Regulation. The Third Chamber argued that the concept of “judgment” in Articles 2(a) and 39 of the Brussels Ibis Regulation refers to the different procedural laws of EU Member States. Burkhard Hess criticizes this deviation from the uniform and autonomous interpretation of the Brussels Ibis Regulation. The solution of the Third Chamber is not compatible with the principle “exequatur sur exequatur ne vaut”.

C. Thole, The Law Applicable to Voidable Payments by Third Parties Under Article 16 EIR

In its judgment of 22 April 2021 the ECJ decided that Article 16 EIR must be interpreted as meaning that the law applicable to the contract also governs the payment made by a third party in performance of a contracting party’s contractual payment obligation, where, in insolvency proceedings, that payment is challenged as an act detrimental to all the creditors. The following article explains the decision and its consequences for cross-border avoidance claims.

D. Wiedemann, Lex successionis or Lex fori: On the Classification of Judicial Measures in the Event of Uncertain Inheritance Relationships

The decision concerns a classical question of classification: the delimitation of succession law from procedural law. The classification of judicial measures in the event of uncertain inheritance relationships, e.g. the appointment of a curator, decides whether such measures are to be assessed according to the procedural law of the lex fori or according to the lex successionis. That a classification is not predetermined can be inferred from different locations: While Germany regulates judicial measures regarding uncertain inheritance relationships in its substantive law (Sections 1960–1962 German Civil Code), other EU Member States and Brazil mainly address this problem in their procedural laws. In the EU, the Succession Regulation No. 650/2012 defines the boundary between succession law and procedure. It will be argued that measures only securing the estate are to be classified as procedural aspects. Measures that also involve the administration of the estate are governed by the Regulation’s choice of law rules.

R. de Barros Fritz, The Characterization of Gifts Causa Mortis under the European Succession Regulation

One of the most debated questions since the enactment of the European Succession Regulation has been the question of the proper characterization of gifts causa mortis. The UM case presented the first opportunity for the CJEU to address this issue. The following case note will discuss the court’s decision and show that, even after the court’s ruling, many open questions remain as to the characterization of gifts causa mortis.

C. Thomale, Circumventing Member State Co-determination Rules with the Societas Europaea

Since its introduction, the supranational legal form of the SE, provided by EU law, has been widely used to circumvent national co-determination law. The case note dicusses two German decisions, which highlight the specific arbitrage potential lying in the national component of the company law and co-determination law of the SE as well as in its autonomous co-determination rules.

D. Looschelders, Characterization of German Joint Wills under the EU Succession Regulation – The Austrian Perspective

Whether the binding effects of a joint will underlie German or Austrian law is of great practical importance when successions are connected to both jurisdictions. While under German law the revocation right of an interrelated disposition lapses upon death of the other spouse, Austrian law enables the surviving spouse to revoke his interrelated disposition even after death of the other spouse. Against this background, the subsequently discussed ruling by the Austrian Supreme Court (OGH) deals with the crucial question regarding the connecting factor for binding effects, namely whether joint wills under German law have to be characterized as “dispositions of property upon death other than agreements as to succession” (Article 24 EU Succession Regulation) or as “agreements as to succession” (Article 25 EU Succession Regulation). The OGH declared itself in favour of applying Article 25 EU Succession Regulation.

F. Eichel, International Enforcement of Judgments Subject to a Condition – Exequatur Proceedings and International Jurisdiction

The article deals with the international enforcement of judgments which are subject to a condition. Against the background of the exequatur proceedings, it sheds light on the question in which proceedings and in which state it is examined whether the condition has occurred. German, Austrian and Swiss procedural law is taken into account. Furthermore, the article examines the scope of the enforcement jurisdiction (Article 24(5) Brussels Ibis Regulation/Article 22(5) Lugano Convention) for these kinds of proceedings and agrees with the decision of the Austrian Supreme Court (OGH, 7.6.2017 – 3 Ob 89/17k). The OGH held that the Austrian claim to examine the occurence of the condition falls within the scope of the enforcement jurisdiction. However, the article criticises that the OGH did not take into account the limited res iudicata-effect of the Austrian claim which should be decisive in determining whether the enforcement jurisdiction is applicable or not.

A. Kirchhefer-Lauber, Private Law Systems with an Interpersonal Division of Law Always Pose Special Challenges for Conflict of Laws

The article deals with the interplay between autonomous German PIL and the internal conflict of laws of a multi-jurisdictional state using the example of Lebanon, which is home to a total of 18 partial religious legal systems in addition to a “civil legal system”. The author analyses, among other things, court decisions in which the distinction between constitutive religious marriage and civil documentation of marriage in Lebanon plays a central role. She also addresses the fact that the possibility of an ordre public violation in legal systems with a division of laws exists on two levels. Firstly, regarding the internal conflict of laws of the multi-jurisdictional state itself and secondly, with regard to the results through the application of a partial legal system. Finally, she highlights that the interpretative method of comparative law between civil and religious partial legal orders requires a special awareness of the importance of the culture-bound nature of law.

Earlier this week, the Council of the European Union has adopted the decision for the EU to accede to the 2019 Hague Judgments Convention (which, in accordance with Art. 27(1) of the Convention, binds all Member States except Denmark). Once a second party either ratifies, accepts, or approves, or accedes to the Convention, it will enter into force one year after the deposit of the instrument of ratification, acceptance, approval or accession by that second State (Art. 28(1)). More information is available here.

Illumina / Commission
Concurrence
Le Tribunal confirme les décisions de la Commission acceptant une requête de renvoi de la France, à laquelle se sont joints d’autres États membres, lui demandant d'évaluer le projet d'acquisition de Grail par Illumina

After more than 3 years of active involvement in the EAPIL Young Research Network, which she had co-founded together with Susanne Gössl in 2019, Martina Melcher has handed over the responsibility as one of the Network’s three chairpersons to Dora Zgrabljić Rotar.

The Association is grateful to Martina for her work for, and continued commitment to, the success of the Young Research Network.

The Network is rapidly growing (membership currently stands at 75). This led the members of the Network itself to elect a Secretary. The position will inaugurally be assumed by Marco Pasqua. In case your personal details (including, most importantly, your e-mail address) change or if you want to reach out to one or several members of the Network, please feel free to contact Marco Pasqua at youngresearch@eapil.org.

The activities that the Network is conducting are being worked on. In relation to the current third research project the Network has been dealing with, which focuses on the domestic rules on international jurisdiction in light of Article 79 of the Brussels I bis and the possible extension of the Regulation to defendants without a domicile in an EU Member State, results will be published in a dedicated volume of the Hart Studies in Private International Law series.

In addition, opportunities to discuss the findings directly with the EU Commission and the Working Group on Jurisdiction of the Hague Conference are currently being scheduled. The future fourth research project is being defined after the summer break. The focus could shift to the recognition and enforcement issue, quite similar to the jurisdiction one in the sense that it is partly governed by the Brussels I bis Regulation and partly governed by national law.

The independent think tank Conference on European Restructuring and Insolvency Law (CERIL) has published its latest Statement and Report 2022-2 on Cross-Border Effects in European Preventive Restructuring. As EU Member States implement the EU Preventive Restructuring Directive (2019/1023), CERIL has identified and assessed the benefits and shortcomings of applying the EU Insolvency Regulation 2015 (EIR 2015) to govern the cross-border effects of proceedings in national preventive restructuring frameworks. In the absence of an adequate framework for these new preventive restructuring proceedings, the CERIL Report and Statement formulate recommendations to the EU and national legislators.

Three Ways Forward

To date, no tailor-made framework exists which could adequately and effectively facilitate the cross-border effects of these preventive restructuring proceedings. To resolve the legal uncertainty resulting from the lack of a clear regulatory framework, CERIL suggests the following three lines of action. Firstly, as the European Commission will review the application of the EIR 2015 by 27 June 2027, it is recommended that this review critically assesses the adequacy of the EU legislator’s approach laid down in the EIR 2015 and tailor it to also cover in detail these restructuring proceedings.  Secondly, CERIL welcomes any early, if not immediate, action of the European Commission towards the adoption of a special cross-border framework to include restructuring proceedings in the EIR 2015, either as a separate chapter or take the form of a separate regulation. Thirdly, CERIL invites all Member States to timely review their cross-border frameworks to enable and/or facilitate the recognition of foreign preventive restructurings. A European rescue culture, endorsed by Directive (2019/1023), should be complemented by an instrument to adequately provide legal effects of any restructuring for creditors and shareholders, wherever they are located.

About CERIL and its project on Cross-Border Dimensions of Preventive Restructuring Proceedings

The Conference on European Restructuring and Insolvency Law (CERIL) is an independent and voluntary non-profit organisation of presently 85 members (conferees), consisting of insolvency practitioners, judges, and academics representing 30 European countries and reflecting a diverse array of national insolvency systems and legal traditions.

In January 2022, CERIL commenced a new project led by Prof. Stephan Madaus (Member of the CERIL Executive, University of Halle-Wittenberg, Germany) and Prof. em. Bob Wessels (CERIL Chair, University of Leiden, the Netherlands). This project addresses the policy issues of identifying (and possibly selecting) the regulatory cross-border framework for the new procedural options introduced in most EU Member States when implementing preventive restructuring frameworks flowing from Directive (2019/1023). CERIL studied the role of the EIR 2015, the Brussels Ibis Regulation, and the current national cross-border laws of Member States. The reporters worked with contributions of a large group of scholars and insolvency practitioners (Czech Republic, Germany, Greece, Hungary, Italy, Poland, Portugal, Serbia, Slovak Republic, Spain, The Netherlands).

With his thesis, which has just been published by LGDJ as part of the prestigious Bibliothèque de droit privé, Yves El Hage makes another, yet formidable addition to the ever-growing body of scholarship on the difficult relationship between private international law and the internet. In the inimitable style of French scholarship, the book consists of two main parts addressing, in turn, “the confrontation” and “the reconciliation” between private international law and the internet (with each part of course being further divided into two sections, and so on).

In the first part, the author convincingly identifies the two core challenges of the internet, i.e. its immateriality (or virtuality) and its universality (or ubiquity). For each of these, he shows how courts and legislators have struggled to find appropriate responses on the basis of traditional PIL rules and methods, with the “territorialist” response to the inherently international nature of online communication a particularly pertinent point of criticism.

In the second part, El Hage discusses two possible ways in which PIL might accommodate these challenges (both of which aim to identify a single competent jurisdiction and a single applicable law). First, he rejects proposals (including my own) that rely mainly, if not solely, on the places in which the individual parties to a litigation have initiated and/or received acts of online communication (so-called “personal” connecting factors). According to him, such criteria do not resolve the existing problems of localisation and fail to accommodate the relevant regulatory interests beyond a purely economic and/or protective logic. Instead, the author proposes, second, to maintain the existing “extrapersonal” connecting factors but to reinterpret them in a way that puts the place of the most significant impact (“l’impact le plus significatif de l’activité en ligne”) into the centre of the analysis.

The extent to which this proposition would differ in practice from proposals relying on “personal” connecting factors, especially from those that try to combine actor- and victim-centred criteria, can certainly be debated. Regardless, the book by Yves El Hage offers both an unusually rich account of the existing (general and specialised) scholarship and a well-argued proposition that flows seamlessly from his thorough analysis of the status quo.

On 8 July 2022, Pakistan acceded to the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, which will enter into force for Pakistan on 9 March 2023.

Source: https://www.hcch.net/en/news-archive/details/?varevent=865

Toute la rédaction de Dalloz actualité vous souhaite un bel été.

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Nord Stream 2 / Parlement et Conseil
Énergie
La Cour déclare partiellement recevable le recours de Nord Stream 2 AG contre la directive étendant certaines règles du marché intérieur du gaz naturel aux gazoducs en provenance de pays tiers

Mathilde Codazzi, who is a master student at the university Paris II Panthéon-Assas, contributed to this post.

In a judgment of 15 June 2022, the French supreme court for private and criminal matters (Cour de cassation) addressed the issue of jurisdiction for loss suffered as a consequence of fraudulent misappropriation of funds transferred on a bank account.

Facts

A French real estate company, Immobilière 3F, ordered several bank transfers from its bank account in Paris maintained by a French bank, Société Générale, to an account seemingly belonging to a French company with which Immobilière 3F already had business relationships. This account was opened in Portugal and maintained by a Portugese bank, Banco Commercial Portugues. The bank details were given to Immobilière 3F by a person who fraudulently appeared as the chief accountant of Immobilière 3F’s French business partner. Immobilière 3F sued both Société Générale and Banco Commercial Portugues before French courts for breach of their professional obligations and compensation of the damage suffered as a result of the wrongful appropriation of the funds. Banco Commercial Portugues challenged the jurisdiction of French courts.

Court of Appeal

In a judgment of 4 November 2020, the Paris Court of Appeal ruled that French courts did not have jurisdiction on the ground that the damage did not materialize in the place from which the bank transfers were performed or where the loss was suffered, that is, France, where Immobilière 3F is established, but in the place where the unlawful appropriation of the funds occurred, that is, Portugal, where the account wrongfully debited was opened and maintained, i.e. where the wrongful appropriation of the funds occurred.

Immobilière 3F challenged this judgment on two grounds both based on the relevant case-law of the CJEU concerning pure financial damage.

First, it argued that the damage did not materialize itself where the unlawful appropriation of the funds occurred/where the funds were debited from the bank account of Immobilière 3F’s business partner, but where Immobilière 3F was dispossessed of the funds, that is in France, where its account was debited.

Second, it argued that the Court of Appeal, departing from CJEU case-law (Löber, C-304/17), failed to examine whether other specific circumstances of the case could lead to find that the damage actually materialized in France and not in Portugal, in which case French courts would have jurisdiction. According to Immobilière 3F, the following circumstances would be relevant: the plaintiff is established in France, the damage caused by the acts of Banco Commercial Portugues materialized in France, the transfer orders were given in France to a French bank (Société Générale) based on elements shared by an entity established in France.

Judgment

In a judgment of 15 June 2022, the Cour de cassation overturned entirely the judgment of the Paris Court of Appeal. It cited the relevant case-law of the CJEU regarding Article 7(2) of the Brussels I bis regulation: the courts of the Member State where the plaintiff is domiciled have jurisdiction notably when the damage materializes directly on the plaintiff’s bank account held with a bank established within the jurisdiction of those courts (Kolassa, C-375/13). It went on and reminded that this however cannot be the only relevant connecting factor: the courts of the Member State where the plaintiff is domiciled will only have jurisdiction if other specific circumstances of the case contribute to granting jurisdiction to these courts (Universal Music, C-12/15).

As a result, the judgment of the Paris Court of Appeal ‘lacked legal basis’, i.e. did not give enough reasons in support of its decision: in order to decline jurisdiction of French courts on the ground that the damage materialized in Portugal, it should have first examined if other specific circumstances of the case contributed to granting jurisdiction to French courts. Those circumstances could be, according to the Cour de cassation, that the damage occurred directly on a bank account opened in France, and that the transfer was destined to a French business partner.

Assessment

The cases on which the Cour de cassation relied in this judgment were all concerned with the loss in value of dematerialised assets, mostly financial instruments. This case is quite different: it is about fraudulent misappropriation of funds from a bank account.

Is the case law of the CJEU on loss of value of financial instruments decisive for the sole reason that a bank account was involved? That is not certain. In a case of misappropriation of funds, the damage is more tangible than that of loss of value of financial instruments. In the present case, the assets did not lose their value, they were taken away.

 

Report on the

Summer School on the new Foreign Relations Law

MPIL Heidelberg, June 8-10, 2022

by Zixuan Yang and Jakob Olbing*

 

The MPIL in Heidelberg hosted a three-day Summer School titled “Populism and the New Foreign Relations Law: Between Public International Law, ‘External Public Law’, and Conflict of Laws”, led by Anne Peters (MPI Heidelberg), Karen Knop (University of Toronto and Max Planck Law Fellow), and Ralf Michaels (MPI Hamburg). The Summer School, which brought together 20 young scholars, was also the first step in a large-scale research project that Karen Knop will lead in the coming years as one of the first Max Planck Law Fellows.

The aim of the Summer School was to familiarize the participants with foreign relations law, a field which is known in only a few countries, and to examine its relationship to conflict of laws and international law. Led by the three hosts, the participants engaged in lively discussions on the presented topics, thus bringing together their diverse professional and national backgrounds. The results of the Summer School will not be published as such but will instead fuel and direct the joint research project within the Max Planck Law Fellowship Program. Karen Knop is one of the first five Fellows of the Program and is going to collaborate with Anne Peters, director at the MPI Heidelberg and Ralf Michaels, director at the MPI Hamburg on the project for the next few years.

Foreign Relations Law as a law in between

The Summer School began with the observation that few of the many nations represented identified foreign relations law as a distinct area of law. In Germany, one of the few countries having such a field of law, it is known as Staatsrecht III. From a comparative law perspective, however, it is difficult to define this new field of law in a general way. This also generates questions of whether such a field of law is needed at all or which particular issues it should govern, as the possible area of regulation is to a large extent covered by other areas of law, namely international law, conflict of laws, constitutional law, and administrative law as well as by the field of diplomacy. However, there is a variety of situations that cannot be assigned clearly to any of these established areas of law, thus highlighting the question if they should be assembled in a new field. Why, for instance, is the legality of a demonstration in front of an embassy often subjected to different rules and standards than other demonstrations? May South Korean “comfort women” compel the South Korean government to negotiate with Japan for compensation for their suffering during the war? Why is a claim for compensation for a death caused by the exercise of excessive police force dismissed when the fatal shooting occurred across an international border? Do such cases even fall under a court’s jurisdiction or is it rather a task of diplomacy to find a solution?

These and many other cases clearly show that there is room for a new field of law which should be explored with closer attention. However, the field’s further development should not – as has been the case so far – be left to a few Western countries; rather, the perspectives of other countries should also be included. Precisely this creation of new perspectives was one of the core aims of the Summer School. According to Karen Knop, the still young field of law is in danger of falling victim to populist politics. She understands populism not as an ideology but as a method for the demarcation and devaluation of all things “international” vis-à-vis what is deemed national. This concern was illustrated by the “take back control” slogan of the Brexit campaign, alleging that the EU institutions have little or no democratic legitimacy. The withdrawal from international treaties and organizations is a phenomenon that can, indeed, be observed in many countries. This dynamic should not be encouraged by foreign relations law through its establishment as a substitute for international law.

But are general concerns against international law as undemocratic justified or is the opposite the case? Case studies presented by Anne Peters illustrated how the ratification of international public law treaties – or the withdrawal from such treaties – may or may not be democratically legitimized. Can the executive of a state withdraw from the International Criminal Court without involving the legislative?

Foreign Relation Law as international or domestic law?

On the one hand, one can try to find a solution in public international law, but most treaties or conventions don’t entail provisions on withdrawal. Until Brexit, the sentiment rather was that more and more states will join a treaty or convention, not leave. On the other hand, national law could give an answer, when adopting a foreign relations law perspective. Though, in many countries public international law is, in some way or another, incorporated into the national law, legislatives have little opportunities to influence its content, since most treaties are negotiated between the state’s representatives. Also, judicial review is very limited concerning public international law. When developing foreign relations law, one could and should address these concerns. As Anne Peters put it: one has to normalize foreign relations law, by subjecting it to judicial review, providing stronger democratic legitimation and figuring out if and when a foreign set of facts should be treated different to a domestic, and when not.

Foreign Relations Law as a voice for unheard actors

It was highlighted throughout the three days that especially in smaller less economically strong countries, the recognition of foreign relations law as an independent field of law next to public international law could be very important. It could provide additional funding to a notoriously underfunded field of law. Normally those countries, mostly members of the global south, have only little chance in being heard, for example when treaties are negotiated. This is even more important as public international law has a long and controversial colonial legacy dating back to the history of imperial politics until the mid-20th century. To move from the colonial global north/south hierarchy and reframe foreign relations law, it is important to reflect whether there is a universal model and criteria for foreign relations law on a global level. In this sense, voices from different sides should all contribute to the formation of this new field of law.

Foreign relations law should also give a voice to actors who have never been heard in international law. Taking a historical and comparative perspective it should be a Post-Colonial foreign relations laws, encouraging non-state participants such as indigenous people to have a say. From a post-colonial perspective, it is also necessary to open up foreign relations to indigenous peoples to facilitate other forms of cross-border disputes and cooperation. Karen Knop raised the example of the Arctic Council, in which both states and indigenous peoples of the polar region are represented and participate in sustainable development and environmental protection.

Foreign Relations Law and Private International Law

But how to proceed? How can all these voices come together in a new area of law? Ralf Michaels introduced private international law methodology as an example for how to accommodate the different actors. He illustrated the already existing interdependency between foreign relations law and private international law through a series of cases of the U.S. Supreme Court. This interdependency should be further discussed and can offer new perspectives and has a future potential for both sides.

The traditional methodology of private international law is considered to be apolitical and neutral. However, it can also be influenced by diplomatic or policy considerations when certain public elements are involved. In a cross-border shooting case, Hernandez et al. v. MESA, a Mexican national assumed to have illegally crossed the border was shot to death on Mexican soil by a U.S. Border Patrol Agent who stood on U.S. soil. The claim for compensation was dismissed by the U.S. court. The agent’s duty to protect the border from illegal crossings was an act of foreign relations and therefore is ‘exclusively entrusted to the political branches’ and should be immune from judicial inquiry. Based on the separation of power, the court refrained itself from arbitrating on diplomatic matters. Granting such ‘private’ claims would also have the risk of undermining national security, the court said. There are other tension between national security and private international law. A recent general ban on Sharia and International law in several U.S. States Courts demonstrates populist arguments influence into public policy and against the application or recognition  of foreign laws, values and beliefs.

When it comes to the determination of the content of foreign law, ‘comity’ in foreign relations provide a basis for the forum’s treatment of foreign law. In Animal Science Products, the U.S. Supreme Court ruled that respectful considerations should be given to the foreign government’s submission on its own law, however, the federal court is not bound to accord conclusive effect to it. Furthermore, comity also plays an important role for the court to determine the territorial reach of domestic law in international cases. The Supreme Court’s decision in Empagran concerned an antitrust class-suit alleging the application of the Sherman Act even though the alleged conduct and harm were occurred significantly on foreign territory. Justice Breyer’s statutory interpretation and justification for limiting the scope of U.S. antitrust law in this case was discussed to rethink the nature of the U.S. federal court’s long standing Charming Betsy principle, also known as the presumption against extraterritoriality.

Foreign Relations Law as a Law of opportunities

It might seem an impossible task to accommodate all these interests and participants into a new foreign relations law and at the same time follow a coherent methodology. But a new field of law gives the opportunity to address issues, which long have been left aside or completely ignored despite the factual relevance and to find creative answers. Indigenous people have been interacting with another across borders since borders where put in place. States where entering into treaties all the time, policemen are shooting everywhere and anyone (in the US) and occasionally across a border and after a war, victims are (sometimes) compensated for their losses by the alien. All the cases have a foreign element, so maybe private international law can provide one solution, as it is his task to provide clear answers to international complex cases, and its methods are designed to accommodate international cases. Its aims of uniformity and certainty of results could also benefit foreign relations law. Another solution could be provided within the framework of global constitutionalism, as Anne Peters suggested. Developing a foreign relations law within the global institutions of public international law, such as the United Nations, by means of diplomacy and treaty making to create a uniform body of law.

After three days filled with sessions, discussions, and lively conversations, the participants departed with the strong sense that the foundation for the further development of foreign relations law had been laid together. As a parting gift, the three hosts wished for a further development of the learned and encouraged the participants to publish the newly made findings. Given the many newly made contacts – woven diligently after the long break due to the Covid-19 pandemic – it is merely a question of time that co-authored publications will appear.

 

* Zixuan Yang and Jakob Olbing are PhD students under Ralf Michaels at the Max Planck Institute for Comparative and International Private Law, Hamburg.

Municipio De Mariana & Ors v BHP Group (UK) Ltd & Anor [2022] EWCA Civ 951 (background to the case here) is the appeal against the stay (and partial strike-out), on forum non conveniens, A33-34 Brussels Ia and case-management grounds ordered by Justice Turner. The Court of Appeal has overturned all three reasons for a stay. Bar appeal with the Supreme Court (which the defendants are likely to seek) the claimants may now bring their claim in the courts of England and Wales.

For the benefit of full disclosure I should add I am instructed for claimants in the case; this post however does not speak for claimants or co-counsel in the case and is merely my academic view on the judgment.

The judgment runs to 107 pages (not excessive given the issues and facts covered). There is little point in me rehashing it all (again, reference to my previous post may be useful). 40 pages are spent describing the applicable law in Brasil and the various proceedings underway there. This is of particular importance seeing as the crux of all three defences advanced is that the proceedings are already underway in Brasil and should not be duplicated by an English procedure.

In the main:

Abuse is dealt with [170] ff, with the key points for reversal listed [179] and the CA’s own analysis detailed thereafter, summarising in [234] ff.

Of particular note here is the rebuke of Justice Turner’s finding of ‘unmanageability’ of proceedings (which the CA as such does not believe will be the case) having dominated his subsequent findings on other elements of abuse, and the use of forum non conveniens criteria for the assessment of abuse.

[182] Consideration should have been made of the question of the availability of full redress in Brazil. To those following business and human rights litigation, this will be a welcome finding. [186] Support for manageability of proceedings not having a place in the abuse assessment (other than [187] if the claimant were to have vexatiously made the proceedings unmanageable himself), was found in Mastercard v Merricks [2020] UKSC 5.

[190] discussion of what Turner J at the abuse level,  saw as complications arising out of the existence of parallel proceedings in Brazil, already indicate the direction the Court took on the forum non and A34 issue: the many differences between the English and the Brazilian proceedings.

The Article 34 Brussels Ia application is discussed [237] ff and is of particular relevance to readers of the blog.

Firstly [256] the Court of Appeal settles for now the Privatbank /Euroeco discussion on ‘expediency’ (see also ia SCOR v Barclays) in favour of the former: What is required to fulfil A34(1)(a)’s condition is that it must be desirable for the two actions to be heard and determined together in order to avoid the risk of irreconcilable judgments, irrespective of whether that is a practical possibility. (Claimants have reserved the right to contest this should the matter go before the Supreme Court).

Further [257] the test of relatedness for the purposes of A34 is held by the CA to be a broad test: [243] per Tesauro AG in C-406/92 The Tatry, whenever the judge seized of the stay request considers that the reasoning adopted by the court hearing the earlier proceedings may concern issues likely to be relevant to its own decision, the cases can be said to be related. This is opposed to the narrow approach in the House of Lords Sarrio SA v Kuwait Investment Office [1991] AC 32: there the HoL held that for there to be a risk of irreconcilable judgments the inquiry is limited to “primary” issues which are those necessary to establish the cause of action, and does not include issues which the court might or might not decide and which would not be essential to its conclusion.

On the condition ‘that the court of the third State will give a judgment capable of recognition‘, at the hearing the question was asked whether a twofold condition exists, namely (i) that a judgment was expected as a matter of fact and (ii) that the expected judgment was one which was capable of recognition and, where applicable, enforcement. The Court [260] supports the view that only the second (ii) condition applies. I do not think that is correct and I am not convinced by the Court’s travaux analysis on this point [266] – I detail this in my forthcoming paper in the JPIL. As for that second condition, the CA holds [269] that ‘the exercise at this stage is a conceptual one, looking at the type of judgment to which the third state pending action may give rise, and evaluating whether it attracts recognition, or where applicable enforceability.’

‘Necessity for the proper administration of justice’ is dealt with [273] ff (although it confusingly includes discussion of more than just this ultimate A33-34 condition), starting with the discussion whether a stay was available or could be justified on a “consolidation” basis (effectively, an allocation of jurisdiction [275], or on a “wait and see” basis [temporary case-management: wait and see whether and to what extent the outcome of the case ex-EU affects the action in the member state]. [277] Underhill LJ takes a holistic approach: Does waiting for the outcome [of the Brazilian proceedings held to be related] give rise to advantages which sufficiently outweigh any disadvantages such that a stay is necessary? [279] The CA takes a broad approach to the issues that might be considered, including issues classic to a forum non conveniens analysis. I believe that is right, with the important caveat that A34 must not effectively be conflated with forum non (which is what the first instance judge had effectively done) (compare Ness).

[282] the Court takes a formalistic (and correct) view on the ‘related proceedings’ and their being ‘pending’:

for the purposes of the article 34 application, the nature and extent of overlap which falls to be considered when addressing whether and to what extent there is a risk of irreconcilable judgments, and in considering whether that risk weighs in favour of a stay being necessary for the proper administration of justice, is limited by reference to that which might be decided in the [pending Brazilian proceedings].

In particular, an advantage eg in winding-up proceedings viz the defendants or related undertakings, which could be obtained down the line from the outcome of the related proceedings, would not be caught by the comparative overlap and the likelihood of relatedness therefore is seriously reduced ([283] contrary to Turner J’s finding that that the list of areas in which potentially
irreconcilable judgments are liable to arise was “almost endless”).

[291] ff the CA makes its own assessment of the ‘proper administration of justice’ requirement given the judge’s core mistakes (particularly, his abuse conflation and the consideration given to future proceedings which are not pending).

[298] The CA holds that the continuation of the claim against BHP Australia (for which later in the judgment it finds that this is not barred on forum non grounds) in and of itself argues against an A34 stay (and that relevant parts of Lord Briggs’ speech in Vedanta do not change that).

Obiter [300] ff it lists other factors against a stay: [302] there is a real possibility that final resolution of the related BRA proceedings,  if they resume at all, is well over a decade away; [303] ‘For there to be a further delay of years, and quite possibly over a decade, before [E&W proceedings] could resume would cause very substantial prejudice to the claimants in obtaining relief, and would be inimical to the efficient administration of justice as a result of all the well-known problems which delay brings to the process’; [304] ff there are many disadvantages to the BRA proceedings including that these will not address the liability of the defendants in the E&W proceedings; [308] the degree of overlap between the proceedings is limited.

The forum non application is highly relevant given the English courts’ preponderant reliance on it, outside the BIa context, following UKSC Brownlie. Of note here is ia [345] the unrealistic prospect of the alternatives being suggested – I will leave the further forum non analysis to blogs less focused on European conflict of laws.

Rejection of a case-management stay is done succinctly, with Underhill LJ noting ia [374] that such stay would be incompatible with A34 and A4 BIa.

 

All in all I do not agree with each of the Court’s findings on tenets of A34, however in general the Court’s application reflects the correct approach to the Article, which very much makes a stay the exception.

Geert.

 

See also ‘Dude, where’s my EU court? On the application of Articles 33-34 Brussels Ia’s forum non conveniens- light rules’, Journal of Private International Law, forthcoming 2022.

Delighted to report we have won jurisdiction appeal in Mariana (background https://t.co/SiYFGAJEEM
Court of Appeal finds unanimously that forum non conveniens, A34 Brussels Ia and case-management stay applications all fail
Holds victims of 2015 Fundão Dam disaster may sue in E&W pic.twitter.com/qwZQZk7gwe

— Geert Van Calster (@GAVClaw) July 8, 2022

Alex Mills (University College London) published a working paper on the role of territoriality in Private International Law. This is available in free access on SSRN.

The abstract reads:

Private international law essentially deals with the question of how we should regulate relationships and resolve disputes which have connections with more than one legal system, distinguishing between the institutional aspects of regulation (jurisdiction) and the substantive aspects (applicable law). Traditionally, a decision is made about which legal system (or systems) should govern based on a range of connecting factors. Among these factors, territorial connections have historically had the most significant influence, reflecting an approach to private international law which understands the subject as concerned with the division and allocation of state authority and adopts a ‘spatial’ conception of that authority. Private international law theory and practice has also, however, explored a range of alternatives which might be relied on, including the characteristics or wishes of the parties themselves, as well as other approaches which reject altogether the idea that private international law should focus on allocational questions. This chapter asks why territoriality plays such an important role in private international law, and considers whether it should. The chapter begins with an examination of the role of territoriality in private international law history and theory. It then considers various arguments which might be raised to justify territoriality in private international law, suggesting that they may also justify traditional private international law techniques. The chapter also, however, addresses the question of whether these justifications hold up against the challenges presented to territoriality by modern globalisation, in particular, whether territoriality can provide certainty, coherence, and effective regulatory constraint.

Alex Mills work is forthcoming in a volume on Philosophical Foundations of Private International Law edited by Roxana Banu, Michael Green and Ralf Michaels with Oxford University Press in 2023.

More information on the interdisciplinary project exploring the Philosophical Foundations of Private International Law can be found here.

La France a présidé le Conseil de l’Union européenne ces six derniers mois. À cette occasion, la Délégation des barreaux de France et Lefebvre Dalloz s’associent pour vous proposer ce podcast dont la vocation est de sensibiliser sur les travaux et les actions conduites dans le domaine de la justice au plan européen.

en lire plus

Après avoir commencé à encaisser les contrecoups de la crise sanitaire et du déclenchement de la guerre d’Ukraine, la Cour européenne des droits de l’homme, en mai et juin 2022, a semblé retenir son souffle. Avant de se pencher sans doute sur la question cruciale du réchauffement climatique qui sera bientôt exclusivement abordée en Grande chambre puisque la déjà célèbre affaire Duarte Agostinho c/ Portugal et 32 autres États membres du Conseil de l’Europe (n° 39371/20) a donné lieu à son tour à un dessaisissement le 28 juin, elle n’a rien décidé de particulièrement spectaculaire. Le seul arrêt de grande chambre de la période, Savickis et autres c/ Lettonie du 9 juin (n° 49270/11), n’a lui-même qu’un intérêt très contextualisé puisqu’il affirme, pour l’essentiel, que, au regard de l’article 1er du Protocole n° 1 protecteur du droit au respect des biens, le pays balte défendeur n’était pas tenu d’assumer les droits à la retraite accumulés pendant la période soviétique. On peut néanmoins souligner l’existence d’intéressants arrêts et décisions dans des domaines aussi variés que : le formalisme numérique, les droits religieux des personnes détenues ou appartenant à des minorités, la liberté syndicale, la liberté d’expression, la protection de l’environnement, l’accès des personnes handicapées aux bâtiments culturels municipaux, la lutte contre les violences de tous ordres…. Il ne faut pas oublier l’actualité des mesures provisoires.

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The University of Antwerp has a vacancy for a PhD researcher in EU private international law, with a particular emphasis on Union citizenship and its interaction with conflict of laws. The university offers a doctoral scholarship for a period of two years. Following a positive evaluation, the scholarship can be renewed once for another two-year period. Interested persons can apply up until 8 August 2022, and the successful candidate will start on 1 October 2022.

 

The Court of Justice delivered yesterday (7 July 2022) its judgment in case C‑7/21 (LKW WALTER Internationale Transportorganisation AG), which is about the rights of the defence in the Service bis Regulation:

« Article 8(1) of Regulation (EC) No 1393/2007 […], read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding legislation of the Member State of the authority which issued a document to be served, pursuant to which the starting point of the one-week period referred to in Article 8(1) of that regulation, within which the addressee of such a document may refuse to accept it on one of the grounds set out in that provision, is the same as the starting point for the period within which a remedy is to be sought against that document in that Member State”.

Source : https://curia.europa.eu/juris/document/document.jsf?text=&docid=262423&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=252837