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The latest issue of RabelsZ has just been released. It contains the following contributions:

 

OBITUARY

Jürgen Basedow: Ulrich Drobnig *25.11.1928 †2.3.2022, 571–576, DOI: 10.1628/rabelsz-2022-0052

ESSAYS

Daniel Gruenbaum: From Statehood to Effectiveness: The Law of Unrecognised States in Private International Law, 577–616, DOI: 10.1628/rabelsz-2022-0053

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, 617–643, DOI: 10.1628/rabelsz-2022-0054

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, 644–686, DOI: 10.1628/rabelsz-2022-0055

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.

On 23 June 2022, the Lisbon Guidelines on Privacy, drawn up by the ILA Committee on the Protection of Privacy in Private International and Procedural Law, have been formally endorsed by the International Law Association at the 80th ILA Biennial Conference, hosted in Lisbon (Portugal).

The Committee was established further to a proposal by Prof. Dr. Dres h.c. Burkhard Hess to create a forum on the protection of privacy in the context of private international and procedural law. It comprised experts from Austria, Belgium, Brazil, France, Germany, Italy, Japan, Luxembourg, Portugal, Spain, the United Kingdom, and the United States of America. Prof. Hess chaired the Committee; Prof. Jan von Hein and Dr. Cristina M. Mariottini were the co-rapporteurs. The documents of the meetings held by the Committee in the past years, and of the Guidelines and commentary as presented in Lisbon, are publicly available here. A related publication on ssrn and in the MPI Luxembourg’s Working Paper Series will follow.

The creation of the Committee was triggered by a simple factual evidence, which is described in the Conception Paper. By reason of the rapid computerisation and automatisation in the handling of personal information, traditional expectations for the protection of one’s privacy have undergone major changes. The dynamics and the dimension of the potential intrusions into one’s personal life have been significantly transformed, bringing forth new challenges for legislators, courts and practitioners. Questions arise concerning jurisdiction, applicable law, recognition and enforcement of judgments, but also legal standing, protection of vulnerable parties, and remedies, among others. Intuitively, it was felt that simply adapting the existing general rules on torts and contracts would not provide satisfactory answers to the new setting. Hence, exploring private international and procedural law issues was considered of utmost significance, with a view to (i) providing a set of principles/framework for regulating privacy in private international and procedural law, and (ii) developing concepts that could constitute a point of reference for legislators, the judiciary and legal counsels.

The document submitted for endorsement in Lisbon is the outcome of several meetings  of experts at ILA conferences (Johannesburg and Sydney) and in-between (Luxembourg), and of many on-line exchanges. It consists of two parts. The introductory one describes the scope and objectives of the Committee and the methodology followed. Then, the Guidelines themselves follow in the form of a Preamble and of 13 so-called articles, each accompanied by a thorough explanatory comment with references to pertinent legal acts and case law of different jurisdictions. The provisions are distributed under the headings General Part (Articles 1 and 2); Jurisdiction (Articles 3 to 6); Applicable Law (Articles 7 to 11); and Recognition and Enforcement of Foreign Judgments (Article 12 and 13).

The Guidelines define their nature and aims in the Preamble: their purpose is multifold in the sense that they may be used as a model for national, regional or international instruments (thus the word “article” in the operative text), but also simply to interpret, supplement or develop rules of private international law.

From the point of view of the scope, it is of interest to highlight that the Guidelines focus only on privacy: after careful reflection (and a conference organized by the Brussels Privacy Hub in collaboration with the MPI Luxembourg, held in Luxembourg in 2017) data protection-related issues were deliberately excluded. Also worth mentioning is the fact that the Committee did not intend to address all procedural and private international law concerns arising out of cross-border litigation in relation to privacy. It preferred rather to concentrate on those aspects which appeared to be more relevant under several considerations, one of them being exclusion from PIL international conventions (the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, Article 2, k) and l)) or regional instruments (the Rome II Regulation, see Article 1, paragraph 2, g)). Against this background, the Guidelines provide rules on jurisdiction, applicable law and the recognition and enforcement of judgments regarding compensatory and injunctive relief (to the exclusion of negative declaration actions), as well as provisional measures, both in contractual and non-contractual claims.

Very briefly, I would like to recall some points of the contents of the Guidelines, which are too rich to be commented in a single post. Most notably, as far as jurisdiction and applicable law are concerned two basic principles permeate the solutions chosen, namely (i) foreseeability, and (ii) parallelism between jurisdiction and applicable law. The limited heads of jurisdiction and the decision to repudiate the so-called Mosaïc principle under Article 3, as well as the forum-ius rule of Article 7, clearly correspond to those principles. In the same lines, choice of court is accepted and presumed to be exclusive except in case the parties agreed to the contrary. Specific attention is paid to provisional measures, with a solution in Article 6 deviating from the Brussels I bis Regulation and the Court of Justice decision in C-581/20, Toto. The choice of the applicable law is also permitted; here, a particular answer is given to the case of disputes among users of social media. In addition, for conflict of law purposes, the right of reply is addressed separately under Article 10. Article 11 allows resorting to the ordre public exception to refuse the application of the law designated under the Guidelines, in particular when the effects of applying said law would be manifestly incompatible with fundamental principles of the forum as regards freedom of expression and information, as well as the protection of privacy and human dignity.

It is clear that some of the solutions finally adopted by the Committee will not be fully convincing from a European perspective, especially against the backdrop of statutory prescriptions currently in force. However, one should not forget that the Guidelines represent a compromise among experts of different legal backgrounds, and that they are meant to talk to a public not necessarily rooted in the European Union. At the same time, they can perfectly work here as a model where no rules exist at all, or where there is a window open to amending partially dysfunctional rules (as it may be contended is the case of Article 7, paragraph 2, of the Brussels I bis Regulation). In this regard, it is submitted that none of the Guidelines run contrary to fundamental principles or values of the European Union, and that all of them have been carefully drafted with a view to their usability in practice – a precious quality in our too much technical field of law.

Judicial mediation is a unique dispute resolution mechanism in Chinese civil procedure. Wherever civil disputes are brought to the court, the judge should, based on parties’ consent, mediate before adjudicating. Judicial mediation, therefore, is an ‘official’ mediation process led by the judge and if successful, the judge will make a document to record the plea, the fact and the settlement agreement. This document is called ‘judicial mediation settlement’ in this note.

On 7 June 2022, the Supreme Court of New South Wales recognized and enforced two Chinese judicial mediation settlement issued by the People’s Court of Qingdao, Shandong Province China in Bank of China Limited v Chen. It raises an interesting question: is Chinese judicial mediation settlement recognisable as a foreign ‘judgment’ and enforceable in the other country? Two commentors provide different views on this matter.

Judicial Mediation Settlement can be classified as ‘Judgment’
Zilin Hao, Anjie Law Firm, Beijing, China

In Chinese civil trial practice, there are two types of legal document to merits issued by courts that has the res judicata effect, namely Minshi Panjue Shu (“MPS”) (civil judgment) and Minshi Tiaojie Shu (“MTS”). The MTS refers to the mediation settlement reached by the parties when a judge acts as a mediator and as part of the judicial process. It has been translated in various ways: civil mediation judgment, civil mediation statement, civil mediation, mediation certificate, mediation agreement, written mediation agreement, written mediation statement, conciliation statement and consent judgment, civil mediation statement, mediation agreement and paper of civil mediation. In order to distinguish it from private mediation settlement, the mediation settlement reached during the court mediation process is translated into the ‘judicial mediation settlement’.

No matter how the translation of MTS is manifested, the intrinsic nature of a judicial mediation settlement should be compared with the civil judgment, and analysed independently in the context of recognition and enforcement of judgments (“REJ”). Take the HCCH 2019 Judgments Convention as an example in an international dimension, Article 4 Paragraph 3 of the Convention provides that “A judgment shall be recognised only if it has effect in the State of origin, and shall be enforced only if it is enforceable in the State of origin.” In terms of REJ, a foreign judgment shall be effective and enforceable. While the validity of a foreign judgment specifically means when the judgment is made by a court has competent jurisdiction, the parties’ rights in proceedings are not neglected or violated, and the judgment is conclusive and final; the enforceability is more associated with types of judgments, such as fixed sum required in monetary judgments.

1. What is a judicial mediation settlement

Firstly, judicial mediation settlement is granted effectiveness by Chinese court in accordance with Article 100 of Civil Procedure Law of China (revised in 2021), which stipulates that “When a mediation agreement is reached, the people’s court shall prepare a written mediation statement, stating the claims, the facts of the case and the result of the mediation. The written mediation statement shall be signed by the judicial officers and the court clerk, be affixed with the seal of the people’s court and shall be served on both parties. A written mediation statement shall come into force immediately upon signatures after receiving by both parties.” In the civil trial proceedings of China, judges are encouraged to carry out mediation on a voluntary and lawful basis, failing which, a judgment shall be rendered forthwith. Article 125 also affirms that for a civil dispute brought by the parties to the people’s court, if it is suitable for mediation, mediation shall be conducted first, unless the parties refuse mediation. According to Article 96 of Civil Procedure Law of China, in trying civil cases, a people’s court shall conduct mediation to the merits of case under the principle of voluntary participation of the parties and based on clear facts. Article 97 Paragraph 1 states that mediation conducted by a people’s court may be presided over by a single judge or by a collegiate bench. Thus, with the consent of parties, judges are entitled to make a judicial mediation settlement. Once a written mediation statement based on the mediation agreement reached by parties is made by the judges and served to litigant parties, the judicial mediation settlement shall come into effect.

Secondly, the effective judicial mediation settlement has the enforceability. As paragraph 3 of Article 52 of Civil Procedure Law represented, the parties must exercise their litigation rights in accordance with the law, abide by the litigation order, and perform legally effective judgments, rulings and mediation decisions. Therefore, assumed China is the state of origin to make a judicial mediation settlement, which has effect, and it is enforceable in the state of origin.

2. Similarity between judicial mediation settlement and judgment

Although the mediation and judgment exist under different articles of the Chinese Civil Procedure Law (an MTS under art 97, an MPS under art 155), the judicial mediation settlement has more common points than difference compared with a civil judgment. First of all, in terms of adjudicative power, the judicial mediation settlement is not only a verification of the parties’ agreement as the judges are involved in the whole of mediatory process and they exercise the power of adjudication. The consent of parties to mediation is a premise, but the judicial mediation settlement is not only to do with the parties’ consent. For example, according to Article 201 of the Civil Procedure Law of China, where a mediation agreement is reached through mediation by a legally established mediation organization and an application for judicial confirmation is to be filed, both parties shall jointly submit the application to the prescribed court within 30 days from the date when the mediation agreement takes effect. After the people’s court accepts the application and review it, if the application complies with the legal provisions, the mediation agreement will be ruled as valid, and if one party refuses to perform or fails to perform in full, the other party may apply to the people’s court for enforcement; if the application does not comply with the legal provisions, the court will make a ruling to reject the application. Moreover, the written mediation statement shall be signed by the judicial officers and the court clerk, be affixed with the seal of the people’s court, which also means the judges or courts are responsible for the mediation decision they have made.

Secondly, the judicial mediation settlement has the almost same enforceability with the civil judgment. On the one hand, the judicial mediation settlement and other legal documents that should be enforced by the people’s court must be fulfilled by the parties. If one party refuses to perform, the other party may apply to the people’s court for enforcement. On the other hand, a legally effective civil judgment or ruling must be performed by the parties. If one party refuses to perform, the other party may apply to the people’s court for enforcement, or the judge may transfer the execution to the executioner.

Thirdly, the judicial mediation settlement has the legal effect of finality similar with a final civil judgment. According to article 102, if no agreement is reached through mediation or if one party repudiates the agreement prior to service of the mediation settlement, the people’s court shall promptly make a judgment. Therefore, once a written mediation statement (MTS) served and signed by both parties, it has the same binding force as a legally effective judgment.

It is worth noting that mediation can take place in several different stages: if mediation is possible before the court session, the dispute shall be resolved in a timely manner by means of mediation; after the oral argument is over, a judgment shall be made in accordance with the law. If mediation is possible before the judgment, mediation may still be conducted; if mediation fails, a judgment shall be made in a timely manner. The people’s court of second instance may conduct mediation in hearing appeal cases. When an agreement is reached through mediation, a mediation statement shall be prepared, signed by the judges and the clerk, and affixed with the seal of the people’s court. After the judicial mediation settlement is served, the judgment of the first instance and original people’s court shall be deemed to be revoked. Therefore, the mediation is a vital part of adjudication power of people’s court has in China.

Additionally, under the common law, a “judgment” is an order of court which gives rise to res judicata. According to Article 127 (5) of Civil Procedure Law of China (2021): “if a party to a case in which the judgment, ruling or civil mediation has become legally effective files a new action for the same case, the plaintiff shall be notified that the case will be handled as a petition for a review…” , which represents that a legally effective civil mediation by the court establishes res judicata and embodies a judgment.

3. Conclusion

To conclude, Chinese civil mediation could be recognized and enforced by foreign countries as a judgment. For now, China and Australia have neither signed a bilateral judicial assistance treaty, nor have they jointly concluded any convention on the recognition and enforcement of foreign court judgments, but de facto reciprocity should have been established between China and Australia (or at least the states of Victoria and NSW). Although there was the precedent of Bao v Qu; Tian (No 2) [2020] NSWSC 588 judgment recognized and enforced by the Supreme Court of New South Wales, the civil mediation judgment marks the first time that foreign courts of common law jurisdictions may recognize and enforce Chinese mediation judgments, which means important reference for other common law jurisdictions. Also, it has broadened the path for many domestic creditors who have obtained judicial claims through civil mediation, especially financial institutions, to recover and enforce the assets transferred by the debtor and hidden overseas.

Chinese Judicial Mediation Settlement should not be treated as ‘judgment’

Jingru Wang, Wuhan University Institute of International Law

1. Applicable Law

Whether a foreign document that seeks recognition and enforcement is a ‘judgment’ is a question of law. Therefore, the first question one needs to consider is which law applies to decide the nature of the foreign document. In Bank of China Limited v Chen, Harrison AsJ held that this matter should be determined under the law of Australia, which is the country where recognition is sought.

Interestingly, the Singapore High Court gave a different answer to the same question. In Shi Wen Yue v Shi Minjiu and another, the Assistant Registrar held that it was indeed the law of the foreign country where an official act occurs that determines whether that official act constitutes a final and conclusive judgment. Therefore, he applied Chinese law to determine the nature of the judicial mediation settlement.

It is argued applying the law of the state of origin is more appropriate. When the parties seek recognition of a foreign judgment, they anticipate that the foreign judgment is viewed as having the effect it has in its state of origin. But by applying the law of the state of recognition, a document may have greater or less effect in the state of recognition than in the state of origin. In Bank of China Limited v Chen, the plaintiff advocated for applying the Australian Law, stating that applying the law of the state of origin may lead to absurd mistakes. For example, if a ticket were regarded as a judgment by a foreign state, the Australian would have to treat it as a judgment and enforce it. The argument can hardly be the case in reality. Firstly, it is suspicious that a civilized country in modern society may randomly entitle any document as “judgment”. Secondly, even if the state of origin and the state of recognition have different understandings of the notion of judgment, a state usually will not deny the effect of a foreign state’s act in order to preserve international comity, unless such classification fundamentally infringes the public order of the state of recognition in some extreme occasions. Therefore, out of respect for the state of origin, the nature of the judicial mediation settlement shall be determined by Chinese law as a question of fact.

2. The Nature of Judicial mediation settlement

In Bank of China Limited v Chen, Harrison AsJ made an analogy to a consent judgment in common law jurisdiction when determining the nature of judicial mediation settlement. It was held that both were created by the parties’ consent but nevertheless are judgments being mandatorily enforceable and having coercive authority. On the contrary, the Assistant Registrar in Shi Wen Yue v Shi Minjiu and another specifically pointed out that “a common law court must be conscious of the unexamined assumptions and biases of the common law”. The common law and civil law view the notion of judicial power differently. The common law embodies an adversarial system of justice. Thus, the common law courts do not take issue with settlement agreements being given the imprimatur of consent judgments. However, in civil law countries, judges play an active inquisitorial role. They are “responsible for eliciting relevant evidence” while party-led discovery is anathema and seen as a usurpation of judicial power. Therefore, it is the proper and exclusive province of judges to judge and issue judgments. It would almost be a contradiction in terms for a party-negotiated settlement to be given the moniker of a consent judgment. For these reasons, judicial mediation settlements are not labelled as judgments.

Chinese law explicitly differentiates the judicial mediation settlement from judgment. Primarily, court judgments and judicial mediation settlements fall under different chapters in the Chinese Civil Procedure Law, while the former belongs to Part II “Adjudication Process”. It is further evidenced by the principle that the parties reaching an agreement during judicial mediation cannot request the court to make a judgment based on such an agreement.

A judgment reflects the court’s determination on the merits issue after adjudication. The judicial mediation settlement is a document issued by the court which records the settlement agreement reached between the parties during the judicial mediation. The differences between them are as follows. Firstly, the judicial mediation settlement shall be signed by the judicial officers and the court clerk, be affixed with the seal of the people’s court and shall be served on both parties. It comes into force once the parties sign after receiving. The parties are entitled to repudiate the agreement prior to service of the mediation agreement. Namely, the court’s confirmation per se is insufficient to validate a judicial mediation settlement. The effectiveness of judicial mediation settlement depends on the parties’ consent. Conversely, a judgment does not require the parties’ approval to become effective.

Secondly, a judicial mediation settlement could be set aside if it violates the law or party autonomy, which are typical grounds for invalidating a contract. The grounds for nullifying a judgment include erroneous factual findings or application of law and procedural irregularities, which put more weight on the manner of judges.

Thirdly,the content of the judicial mediation settlement shall not be disclosed unless the court deems it necessary for protecting the national, social or third parties’ interests. However, as required by the principle of “Public Trial” and protection for people’s right to know, a judgment shall be pronounced publicly. Disclosing the judgment is important for the public to supervise the judicial process. Compared to court judgments, since a judicial mediation settlement is reached internally between the parties for disposing of their private rights and obligations, naturally, it is not subject to disclosure.

Fourthly, while the judicial mediation settlement is a document parallel to judgment in the sense of putting an end to the judicial proceedings, the effect of the judicial mediation settlement is more limited. An effective judicial mediation settlement settles the parties’ rights and obligations on the merits and refrains them from filing another lawsuit based on the same facts and reasons. A judicial mediation settlement is enforceable against the debtor immediately without requiring further order or judgment from the Chinese court. However, unlike judgments, judicial mediation settlements lack the positive effect of res judicata. In other words, matters confirmed by judicial mediation settlements cannot be the basis of the lawsuits dealing with different claims afterwards.

It is fair to say that the judicial mediation settlement combines party autonomy and the court’s confirmation. But it would be far-reaching to equate the court’s confirmation with exercising judicial power. Judges act as mediators to assist the parties in resolving the dispute instead of making decisions for them. The judicial mediation settlement is intrinsically an agreement but not barely a private agreement since it has undertaken the court’s supervision.

3. Conclusion

It is understandable that the plaintiff sought to define judicial mediation settlements as judgments. The judgment enforcement channel is indeed more efficient than seeking enforcement of a private agreement. However, considering the nature of the judicial mediation settlement, it is doubtful to define it as court judgment. In the author’s opinion, since the original court has confirmed the justification of the judicial mediation settlement, it shall be recognized by foreign states. At the same time, a different approach to recognition is worth exploring.

Council Decision (EU) 2022/1206 of 12 July 2022 concerning the accession of the European Union to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters was published at the OJEU today (JOEU, L 187, 14.7.2022, p. 1).

Its Article 1 states: “The accession of the European Union to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters is hereby approved on behalf of the Union”.

Source: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2022.187.01.0001.01.ENG&toc=OJ%3AL%3A2022%3A187%3ATOC

The Court of Justice delivered today its judgment in case C‑572/21 (CC v VO), which is about Brussels II bis and the transfer, during court proceedings, of the habitual residence of a child from a Member State to a third State party to the 1996 Hague Convention. The judgment is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

« L’article 8, paragraphe 1, du règlement (CE) no 2201/2003 du Conseil, du 27 novembre 2003 […] lu en combinaison avec l’article 61, sous a), de ce règlement, doit être interprété en ce sens qu’une juridiction d’un État membre, saisie d’un litige en matière de responsabilité parentale, ne conserve pas la compétence pour statuer sur ce litige au titre de cet article 8, paragraphe 1, lorsque la résidence habituelle de l’enfant en cause a été transférée légalement, en cours d’instance, sur le territoire d’un État tiers qui est partie à la convention concernant la compétence, la loi applicable, la reconnaissance, l’exécution et la coopération en matière de responsabilité parentale et de mesures de protection des enfants, conclue à La Haye le 19 octobre 1996 ».

Source : https://curia.europa.eu/juris/document/document.jsf?docid=262946&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=FR&cid=148720

AG Szpunar delivered today his opinion in case C‑354/21 (R.J.R., Registrų centras), which is about the delimitation of the lex successionis and the lex registrii, with suggested decision in favour of the first one. The opinion is currently available in the vast majority of EU official languages, albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

Context : « Une femme vit en Allemagne, de même que son fils. Elle décède, laissant celui-ci pour seul héritier. Elle possédait des biens immobiliers en Allemagne et en Lituanie. Son fils obtient un certificat successoral européen des autorités allemandes, spécifiant qu’il est l’unique héritier de l’intégralité du patrimoine de la défunte. Il présente ce certificat aux autorités lituaniennes en demandant l’inscription au registre foncier d’un bien immobilier. Celles-ci refusent d’accéder à cette demande au motif que ledit certificat est incomplet.

2. La présente demande de décision préjudicielle soulève donc la question délicate de la délimitation des domaines d’application respectifs de la lex successionis  et de la lex registrii et, plus concrètement, de la répartition des compétences entre l’autorité émettrice d’un certificat successoral européen et l’autorité en charge du registre foncier, située dans un autre État membre ».

Suggested decision : « L’article 1er, paragraphe 2, sous l), l’article 68, sous l), et l’article 69, paragraphe 5, du règlement (UE) no 650/2012 […] s’opposent à l’application de dispositions de droit national en vertu desquelles un bien immobilier acquis par un héritier unique en vertu d’un droit successoral régi par le principe de la succession universelle, ne peut être inscrit au registre foncier de l’État membre sur le territoire duquel ce bien est situé sur le fondement d’un certificat successoral européen qu’à la condition que toutes les données d’identification du bien immeuble requises par le droit national de cet État membre soient indiquées dans ce certificat ».

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=262971&pageIndex=0&doclang=fr&mode=req&dir=&occ=first&part=1&cid=1845309

“From 4 to 8 July 2022, the Fifth Meeting of the Special Commission on the Practical Operation of the 1993 Adoption Convention was held […] The Special Commission reviewed the draft Toolkit on Preventing and Addressing Illicit Practices in Intercountry Adoption, developed by the Working Group on Preventing and Addressing Illicit Practices in Intercountry Adoption, as well as the draft Recommended Model Forms for use under the 1993 Adoption Convention, and approved them, in principle, subject to certain amendments. Both will be submitted to the Council on General Affairs and Policy in 2023 for final approval and publication. Post-adoption matters featured prominently in the discussions, resulting in several recommendations to Contracting Parties aimed at developing specialised and quality post-adoption services, including in the search for origins. Intrafamily adoptions and alternatives to full adoption, such as simple and open adoptions, were also discussed.

[…] The Special Commission adopted over 50 Conclusions & Recommendations, available” at https://assets.hcch.net/docs/d56b7ba3-6695-4862-b49c-75c730e9d599.pdf

Source: https://www.hcch.net/en/news-archive/details/?varevent=866

First Advocate-General Szpunar opined in C-265/21 AB, AB-CD v Z EF a few weeks back. The case-name is a victim of the anonymisation rules and I propose we name it ‘the São Paulo Panels’, this being its ultimate subject: 20 panels exhibited at the 1977 São Paulo Art Biennial (this much information one can read in the publicly available referral decision and the AG Opinion). Tobias Lutzi has summary of the most relevant sections in the Opinion here and in the interest of disclosure I should add I am instructed for Belgium in the case.

Early in the 1980s the original German artists handed over the panels to an art gallery in Belgium. The nature of the deposit (sale or deposit) is contested. The owner of the art gallery later sold the panels to her daughter and son-in-law, who requested Christie’s of London to sell the panels. That sale has been suspended since 2013 (hence the case is subject to Brussels I, not Brussels Ia however there is no material difference) in light of one of the original artists, the wife (her husband had passed away) claiming ownership; the wife in the meantime has passed away, too, and the proceedings are continued by their son. (The CJEU may find this of note, seeing as the original proceedings at the outset involved at least one of the original contracting parties).

Current proceedings result from the Belgian-domiciled claimants having requested the Belgian courts to confirm their ownership of the objects. The Belgian courts are asking the CJEU whether the case involves A7(1) special jurisdiction for contract and if so, where the forum contractus lies. Claimants argue the claim engages A7(1) on the basis of the original contract which they argue is one in sale, with performance in Belgium. The defendant argues the original contract was one of deposit, and that a declaratory claim such as the one at issue, with the parties to the proceedings not being parties to the original contract, does not engage A7(1) at all, instead only being subject to Article 4, domicile of the defendant.

Clearly the questions will enable the Court to clarify whether its Feniks, Flight Right etc case-law, with their extended notion of ‘contract’, applies across the board, without much need to take the specific context of those cases into account; or whether there ought to be some restraint on the reach of the forum contractus. One assumes it may seek some inspiration in its approach to distinguishing contracts and torts, eg in Wikingerhof (or Sharpston AG’s earlier ‘ancestry’ test for the Rome I and II distinction in Ergo). Without restraint, CJEU De Bloos’ great window of opportunity for claim formulation hence forum shopping is likely to be reinvigorated.

The AG (44) ff explains the initial restrictive approach to forum contractus per CJEU Handte, and (53) confesses not to be a fan of a restrictive interpretation of A7, arguing such interpretation would undermine the Regulation’s intention, in formulating the special jurisdictional rules, of ensuring that courts with a particular suitability to hear the case will have jurisdiction to do so. The alternative view is that too wide an interpretation undermines the Regulation’s DNA of predictability and the statutorily expressed view that A4 forum rei is the core principle of the Regulation, and the established case-law in support of this principle that exceptions to it need to be restrictively interpreted. The AG refers more than once in his Opinion to scholarship of one of my Doktorkinder, Dr Michiel Poesen, to substantiate the scholarly debate.

He subsequently discusses the later wider CJEU wider approach, starting with Engler and culminating in flight right, concludes that the current claim falls within that wider framework but does emphasise that the contract must lie at the foundation of the claim: ‘et sur laquelle se fonde l’action du demandeur’ (75).

(76) ff discusses the important question how far the judge, faced with opposition to her /his jurisdiction, must go in the consultation or interpretation of the contract, to establish whether or not the claim finds its foundation in contract. Per Kolassa and Universal Music, both the claimant’s and the defendant’s arguments to that effect are said by the AG to be of relevance. (83) Seeing as both parties argue their position with reference to a contract, the AG advises that on the facts of the case, the contractual foundation is clear; (84) that the contract which is the initial source of the rights and obligations (“la source originale des droits et obligations litigieux”) is the anchor point for the forum contractus, i.e. the disputed 1980s contract and not the later contract of sale; and (86) ff, that the judge will have to apply the classic A7(1) cascade: if the initial contract cannot be qualified as one for the sale of movable goods or a service, the CJEU Tessili Dunlop method of looking over the fence will have to be applied. (The referral decision is short on factual elements to help the AG opine on this point).

Fun with contracts…..

Geert.

EU Private International Law, 3rd ed. 2021, 2.419 ff.

Opinion @maciejszpunar AG last week in C-265/21: yet more on 'contract' for jurisdictional purposes, A7(1) Brussels Ia. More later this week – I am a bit swamped.https://t.co/CPoq3x1PLS

— Geert Van Calster (@GAVClaw) June 20, 2022

In Case C-652/20 HW, ZF, MZ v Allianz Elementar Versicherungs AG, the CJEU held (no English version of the judgment is as yet available) end of June that A11(1)(b) Brussels Ia, determines jurisdiction not just of ‘the’ courts in a Member State (leaving territorial jurisdiction to be determined by national civil procedure rules) but rather of a specific court within that Member State. The judgment is a bit longer than might have been expected: that is because the referring judge did not qualify one or two elements which, particularly in an insurance context, can be quite convoluted. (Such as the nature and deliniation of ‘beneficiaries’, ‘insureds’, ‘victims’).

In accordance with the Article, ‘An insurer domiciled in a Member State may be sued: …(b) in another Member State, in the case of actions brought by the policyholder, the insured or a beneficiary, in the courts for the place where the claimant is domiciled’.

[35] The Court observes that in the Romanian (the language of the case) as well as the English and Finnish version of Brussels Ia use the plural ‘courts’ while in the other language versions, the singular is used. (Regular readers of the blog may be familiar with my earlier work on languages and interpretation). Coupled with the indications of territorial jurisdiction in the relevant section of the Report Jenard, and with the similar language in A7(1) and (2) and relevant case-law there (ex multi: Kareda, Volvo), the CJEU concludes that where A11(1)(b) and all its conditions apply, the Article identifies both national and territorial jurisdiction indeed.

Geert.

 

CJEU today in Allianz today. Brussels Ia insurance title determines national as well as territorial jurisdiction https://t.co/tnv51a8qWx

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

C-176/19 P & Commission/Servier e.a. et C 201/19 P & Servier e.a./Commission
Concurrence
Commercialisation du périndopril : l’avocate générale Kokott propose à la Cour de juger que tous les accords conclus par le groupe Servier avec des sociétés de médicaments génériques constituaient des restrictions de la concurrence par objet et d’annuler les constatations du Tribunal concernant les accords entre Servier et Krka, d’une part, et la définition du marché pertinent aux fins de l’application de l’article 102 TFUE, d’autre part

Puig Gordi e.a.
Espace de liberté, sécurité et justice
Selon l’avocat général Richard de la Tour, une autorité judiciaire ne peut pas refuser d’exécuter un mandat d’arrêt européen en se fondant sur le risque de violation du droit à un procès équitable de la personne réclamée si l’existence de défaillances systémiques ou généralisées touchant le système judiciaire de l’État membre d’émission n’est pas démontrée

C 128/20 GSMB Invest, C-134/20 Volkswagen et C 145/20 Porsche Inter Auto et Volkswagen
Rapprochement des législations
Un logiciel, équipant des véhicules Diesel, qui réduit l’efficacité du système de contrôle des émissions lors de températures habituelles et durant la majeure partie de l’année, constitue un dispositif d’invalidation interdit

C-59/18 & Italie/Conseil et C-182/18 & Comune di Milano/Conseil, dans les affaires jointes C-106/19 & Italie/Conseil et Parlement et C-232/19 & Comune di Milano/Parlement et Conseil, et dans l’affaire C-743/19 & Parlement/Conseil
Droit institutionnel
Fixation du siège de l’EMA et de l’ELA : la compétence pour en décider appartient au législateur de l’Union et non aux États membres

CC (Transfert de la résidence habituelle de l’enfant vers un État tiers)
Espace de liberté, sécurité et justice
Une juridiction d’un État membre ne demeure pas compétente pour statuer en matière de garde d’enfant sur la base du règlement Bruxelles II bis  lorsque la résidence habituelle de l’enfant a légalement fait l’objet d’un transfert, en cours de procédure, sur le territoire d’un État tiers qui est partie à la convention de La Haye de 1996

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