Mukarrum Ahmed (University of Lancaster) authored a book titled Brexit and the Future of Private International Law in English Courts with Oxford University Press.
The author considers the Brexit impact upon classical private international law issues (jurisdiction, applicable law and recognition of foreign judgments) in civil and commercial matters. By providing an assessment on the main post-Brexit changes in England, comments included, an attempt at the future of private international law before English courts is offered. In addition to analysing the basic fundamentals of the discipline, suggesting adjustments and law reform are provided for.
Further info on the book are available here.
In a widely reported trip, members of the 5th Civil Chamber of the Higher Regional Court of Hamm, Germany, together with two court-appointed experts, travelled to Peru to collect evidence in one of Germany’s first climate-change lawsuits. The highly symbolic case has been brought by Saúl Luciano Lliuyas, a Peruvian farmer, who claims that man-made climate change and the resulting increased flood risk threatens his house in the Andes, which is located right below a glacial lake. Supported by two German NGOs, he seeks compensation from RWE, Europe’s single biggest emitter of carbon dioxide, for the equivalent of its contribution to worldwide human carbon dioxide emissions, i.e. 0.47 percent, of the additional protective measures he had to take to flood-prove his house.
The trip had already been scheduled in 2019 but was delayed by the Covid-19 pandemic. Its main purpose appears to have been the proper instruction of the two experts, who are charged with assessing the climate-change-related risk for the claimant and the extent of RWE’s potential contribution to it.
In terms of private international law, the case is straightforward. The German courts have international jurisdiction on the basis of Articles 4(1), 63(1) Brussels Ia as RWE has its statutory seat and central administration in Germany. As far as the applicable law is concerned, the claimant can rely on the privilege awarded to the (alleged) victims of environmental torts by Art 7 Rome II, according to which they may opt for the law of the country in which the event giving rise to the damage occurred (as opposed to the law of the country in which the damage occurred, which generally applies pursuant to Art. 4(1) Rome II), i.e. for German law in the case of pollutions caused by RWE’s power plants in Germany. Thus, the usual PIL problems of climate-change lawsuits (international jurisdiction based on Art. 7(2) or 8(1) Brussels Ia, immunity of state-owned corporations, predictability of the law of the place of the damage, application of Art. 17 Rome II, …) do not arise in this case.
Regarding the application of substantive German law, the case is much more open. In the first instance, the Regional Court of Essen outright rejected the claim for lack of a sufficient causal connection between RWE’s contribution to climate change and the specific risk of the claimant. This is in line with what might still be the majority position in German scholarship, according to which individual contributions to global climate change cannot trigger civil liability in tort or property law. The fact that the second-instance court has now started to collect evidence implies, however, that it considers the claim to succeed on the basis of the claimant’s submissions. Seen together with the German Constitutional Court quashing national legislation for being incompatible with Article 20a of the Constitution and international commitments to limit global warming in 2021, the lawsuit in Hamm may be a sign of German courts slowly adopting a more active position in the global fight against climate change, including with regard to civil liability.
Meetings & Events
From 17 to 19 May 2022, the First Meeting of the Special Commission on the 2007 Child Support Convention and 2007 Maintenance Obligations Protocol was held in The Hague in hybrid format, attended by over 200 delegates representing HCCH Members, Contracting Parties and Observers. More information is available here. The meeting resulted in the adoption of over 80 Conclusions & Recommendations, providing guidance to (prospective) Contracting Parties on a wide range of issues relating to the implementation and practical operation of these instruments. More information is available here.
Publications & Documentation
On 25 May 2022, the Permanent Bureau announced the launch of the post-event publication of HCCH|Approach, “Advancing and Promoting the Protection of All Children”, an HCCH initiative organised in celebration of the 25th anniversary of the HCCH 1996 Child Protection Convention. More information is available here.
Upcoming Events
Registrations are now open for the upcoming Conference on Conflicts of Jurisdiction, organised by the Journal of Private International Law and the Singapore Management University, with the support of the HCCH. The conference will be held online on 23 and 24 June 2022. More information is available here.
The inaugural CODIFI Conference will be held online from 12 to 16 September 2022. CODIFI will examine issues of private international law in the Commercial, Digital, and Financial (CODIFI) sectors, highlighting developments in the digital economy and fintech industries as well as clarifying the roles of core HCCH instruments: the 1985 Trusts Convention, the 2006 Securities Convention, and the 2015 Choice of Law Principles.?More information is available here.
These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.
What’s new in EU family law?
High-level conference on the Brussels IIb Regulation
8 September 2022 13h-16h CET
Hybrid Conference – European Parliament Brussels and Online
Hosted by
Ewa Kopacz
Vice President and European Parliament Coordinator on Children’s Rights
and
Didier Reynders
Commissioner for Justice
Please click here to register and to view the draft conference programme.
This high-level conference aims to draw attention to the novelties and important changes introduced by the Brussels IIb Regulation, which enters into application on 1 August 2022, and to provide a forum for an exchange of views with legal practitioners on cross-border family disputes involving children in the European Union.
The conference will provide participants with an opportunity to hear from experts in EU family law on the key changes to the Regulation and to engage in a moderated discussion on the topic through a Q & A session.
The event will be hosted online with the limited possibility to participate in person in Brussels*. Interpretation of the conference will be provided in 10 languages (DE, EN, FR, IT, EL, ES, PT, PL, BG, RO).
*Participation in this event is free. Please note that persons planning to attend this event in the European Parliament in Brussels do so at their own expense.
EAPIL has established a working group on Reforming Regulation (EU) No 1215/2012 (Brussels I bis). In the light of the evaluation of the Brussels I bis Regulation which is currently being conducted by the European Commission, the aim of the working group is to assess the functioning of the Regulation and make proposals for its improvement.
The Working group is chaired by Burkhard Hess and Geert van Calster.
The members of the group include Apostolos Anthimos, Katarina Burdova, Gilles Cuniberti, Andrew Dickinson, Tanja Domej, Aleksandrs Fillers, Pietro Franzina, Cristina González Beilfuss, Viktória Harsági, Boriana Musseva, Nikitas E. Hatzimihail, Christian Kohler, Xandra Kramer, Thalia Kruger, Alexander Layton, Vesna Lazic, Eva Lein, Peter Lysina, Ulla Liukkunen, François Mailhe, Chrisoula Michailidou, Dario Moura Vincente, Maire Ni Shuilleabhain, Anna Nylund, Paul Oberhammer, Alina Oprea, Krzysztof Pacula, Thomas Pfeiffer, Fausto Pocar, Marta Requejo Isidro, Vesna Rijavec, Camelia Toader, Peter F. Schlosser, Andreas Stein, Maciej Szpunar, Vigita Vebraite, Ilaria Viarengo, Francesca Villata, Jan von Hein, Hans van Loon and Eiríkur Elís Þorláksson.
The project is co-organised and generously funded by the Max Planck Institute Luxembourg.
ConferenceThe working group will present its results and discuss proposals for reform in a conference organized by the Max Planck Institute Luxembourg on 9 September 2022.
The conference will be held in an hybrid format and it will be possible to participate either in person or online.
Members Consultative CommitteeAny EAPIL member interested in following the work of the working group is invited to join the Members Consultative Committee (MCC). The chair of the MCC is Gilles Cuniberti, who can be contacted at gilles.cuniberti@uni.lu.
Members of the MCC will be invited to make any suggestion of reform that they may have before 1 July 2022. The suggestions will be forwarded to the WG for discussion.
After the September conference, the working group will circulate in the MCC its preliminary report for comments.
The EAPIL founding conference is now just a few days away. As the readers of this blog know, the event will take place in Aarhus on 2, 3 and 4 June 2022.
On 2 June, Peter-Arnt Nielsen (Copenhagen Business School) will provide kick-off the event with a key-note speech followed by a Report from Brussels, by Andreas Stein (Head of Unit, European Commission), and a Report from Luxembourg, by Maciej Szpunar (Advocate General, Court of Justice of the European Union).
The conference itself will start on 3 June, and will feature three blocks: the first will discuss the digitalization in European Private International Law, the second will be about fragmentation in European Private International Law, while the third block will address the future challenges for European Private International Law.
Further information on the conference can be found here.
The first General Assembly of the European Association of Private International Law will be held on 3 June 2022, as part of the conference.
EAPIL members are called upon to elect the chair of the General Assembly, renew the Board of the Association and elect the members of Scientific Council. All three votes will occur online.
Three e-mails have recently been sent to all EAPIL members with instructions on how to cast their vote for each of the above positions, through a voting platform called Abstimmen Online. If you are member and you haven’t received such e-mails, please check your spam folder. Feel free to reach out to the Secretary General (secretary.general@eapil.org) if you need assistance.
The poll, which is currently open, ends on 2 June 2022 at 8 pm CET. The results will be announced during the General Assembly.
See you in Aarhus!
La Cour de justice se prononce de l’Union européenne, pour la première fois, sur la détermination de la loi applicable à l’obligation alimentaire lorsqu’un enfant est retenu par sa mère, malgré l’opposition de son père, dans un État dans lequel il n’avait pas initialement sa résidence habituelle.
La France préside le Conseil de l’Union européenne pour six 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.
The Hague Special Commission on the Practical Operation of the 2007 Child Support Convention and 2007 Maintenance Obligations Protocol was held from 17 to 19 May 2022. The meeting resulted in the adoption of over 80 Conclusions & Recommendations, released this week.
“Among other things, HCCH Members and Contracting Parties:
Confirmed that the Convention and Protocol are fit for purpose and reaffirmed their global scope;
Discussed effective access to legal assistance for children, including children studying abroad, for the recovery of maintenance obligations arising from a parent-child relationship;
Emphasised that the right of the child to child support takes precedence over the right of the debtor to privacy in financial matters;
Discussed the enforcement of child support against the debtor’s assets located in another State;
Discussed that child support can be established without necessarily establishing parentage;
Discussed the non-disclosure of personal information when the health, safety or liberty of a person involved in child support recovery could be jeopardised;
Discussed the use of secure means of communication for the recovery of child support, including the iSupport electronic case management and secure communication system for the recovery of cross-border maintenance under the EU 2009 Maintenance Regulation and the 2007 HCCH Child Support Convention;
Reaffirmed their commitment towards the abolition of cheques in their international transfer of maintenance funds;
Took note of the Report of the International Transfer of Maintenance Funds Experts’ Group which highlighted the potential benefits of the Universal Postal Union’s Postal Payment Services Agreement of 6 October 2016 as a cost-effective way to transfer maintenance funds internationally”.
Source: https://www.hcch.net/en/news-archive/details/?varevent=859
The conclusions and recommendations may be found at https://assets.hcch.net/docs/ee328db7-1d7a-4e8a-b765-2e35e937a466.pdf.
On Tuesday, June 7, 2022, the Hamburg Max Planck Institute will host its 23rd monthly virtual workshop Current Research in Private International Law at 11:00-12:30 CEST. Rosario Espinosa Calabuig (Universidad de Valencia) will speak, in English, about the topic
“Sorority, Equality and Private International Law“.
Gender perspective in Private International Law (PIL) can be claimed through the so-called Sorority: Solidarity between women against sexual discrimination. PIL becomes an ethical tool to fight for solidarity and against phenomena such as misogyny and sexism, among others. Different topics (such as application of Islamic law by national authorities, child abduction in cases of gender violence or transnational surrogacy) show how PIL can be a tool to promote equality rights and how sorority can reinforce this equality. So, there is a reciprocal influence between all of them.
The presentation will be followed by open discussion. All are welcome. More information and sign-up here.
If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.
Edward Elgar has recently published the second edition of Gilles Cuniberti’s Conflict of Law – A Comparative Approach.
Now in its second edition, and with significant updates and new material, Gilles Cuniberti’s innovative textbook offers a comparative treatment of private international law, a field of great importance in an increasingly globalized world. Written by a leading voice in the field, and using a text and cases approach, this text systematically presents and compares civil law and common law approaches to issues primarily within the United Kingdom, United States, France and the EU, as well as offering additional updated insights into rules applicable in other jurisdictions such as Japan, China and Germany.
The second edition offers materials and comments on several topics which were not addressed in the first edition. They include the presentation of doctrines inspired from forum non conveniens adopted in the EU (Brussels II ter regulation), China and Japan, a discussion of the various doctrines founding the enforcement of foreign judgments (comity, reciprocity, doctrine of obligation, enforcement as a fundamental right) and a discussion of the distinction between torts and contracts under the EU and English laws of jurisdiction.
Another novelty is the establishment of a companion website for the book. The website offers additional materials which could not be included in the print version of the book in order to keep its size and price reasonable. At the present time, it includes a European Civil and Commercial Litigation Supplement and a Family Law Supplement.
More information available here.
Private International Law areas of knowledge of the Universities Rovira i Virgili (Tarragona), Barcelona and Lleida have organised the I International Seminar on rights in rem in the European Union: general aspects and international jurisdiction. The seminar will be held in presence on the 10 and 11 November 2022 at the Faculty of Ciencias Jurídicas, Universitat Rovira i Virgili in Tarragona; online access is also available upon request.
This seminar seeks, on the one hand, to define the concept of rights in rem in the framework of European Private International Law and of Comparative Law, and, on the other hand, to identify the problematic aspects arising from the characterisation of such a concept in terms of both the delimitation of the legal instruments applicable to this matter, and of its application in the Spanish legal system as the representative of a State in which several systems of law coexist. Moreover, in terms of jurisdiction, the Seminar will also address the problems of the delimitation of the rule of jurisdiction applicable under Regulation (EU) 1215/2012.
Those interested in presenting a communication are invited to write to mireia.eizaguirre@urv.cat before 12 September 2022.
For further information, see here.
The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. As always, it contains a number of articles and case comments on issues of jurisdiction and applicable law (including one by me). The table of contents of the issue is available here. The following abstracts have been kindly provided to us.
Hay: On the Road to a Third American Restatement of Conflicts Law
American private international law (Conflict of Laws, “Conflicts Law”) addresses procedure (jurisdiction of courts, recognition of judgments) as well as the choice of the applicable law. The last of these has been a mystery to many scholars and practitioners – indeed, even in the United States. Since 2014 the American Law Institute now seeks to draft a new “Restatement” – the Third – of the subject, with the aim to clarify and perhaps to bring more uniformity to the resolution of conflict-of-laws problems. The following comments first recall the role of restatements in American law. The second part provides some historical background (and an assessment of the current state of American conflicts law, as it relates to choice of law) in light of the Second Restatement, which was promulgated in 1971. The third part addresses the changes in methodology adopted and some of the rules so far proposed by the drafters of the future new Restatement. Examples drawn from existing drafts of new provisions may serve to venture some evaluation of these proposed changes. In all of this, it is important to bear in mind that much work still lies ahead: it took 19 years (1952–1971) to complete the Second Restatement.
L. Hübner: Climate change litigation at the interface of private and public law – the foreign permit The article deals with the interplay of private international law, substantive law, and public law in the realm of international environmental liability. It focuses on the question, whether the present dogmatic solution for the cognizance of foreign permits in “resident scenarios” can be extended to climate change scenarios. Since there exists significant doubts as to the transferability of this concept, the article considers potential solutions under European and public international law. C. Kohler: Recognition of status and free movement of persons in the EU In Case C-490/20, V.M.A., the ECJ obliged Bulgaria to recognise the Spanish birth certificate of a child in which two female EU citizens, married to each other, were named as the child’s parents, as far as the implementation of the free movement of persons under EU law was concerned, but left the determination of the family law effects of the certificate to Bulgarian law. However, the judgment extends the effects of the recognition to all rights founded in Union law, including in particular the right of the mobile Union citizen to lead a “normal family life” after returning to his or her country of origin. This gives the ECJ the leverage to place further effects of recognition in public law and private law under the protection of the primary and fundamental rights guarantees of EU law without regard to the law applicable under the conflict rules of the host Member State. The author analyses these statements of the judgment in the light of European and international developments, which show an advance of the recognition method over the traditional method of referral to foreign law in private international law. W. Hau: Interim relief against contracting authorities: classification as a civil and commercial matter, coordination of parallel proceedings and procedural autonomy of the Member States After a Polish authority awarded the contract for the construction of a road to two Italian companies, a dispute arose between the contracting parties and eventually the contractors applied for provisional measures in both Poland and Bulgaria. Against this background, the ECJ, on a referral from the Bulgarian Supreme Court of Cassation, had to deal with the classification of the proceedings as a civil and commercial matter and the coordination of parallel interim relief proceedings in different Member States. The case also gave the ECJ reason to address some interesting aspects of international jurisdiction under Article 35 of the Brussels Ibis Regulation and the relationship between this provision and the procedural laws of the Member States. M. Thon: Jurisdiction Clauses in General Terms and Conditions and in Case of AssignmentChoice of court agreements are one of the most important instruments of international civil procedure law. They are intended to render legal disputes plannable and predictable. The decision under discussion comes into conflict with these objectives. In DelayFix, the CJEU had to deal with the question of whether (1.) Art. 25 of the Brussels Ibis Regulation is to be interpreted as precluding a review of unfairness of jurisdiction clauses in accordance with Directive 93/13/EEC and whether (2.) an assignee as a third party is bound by a jurisdiction clause agreed by the original contracting parties. The first question is in considerable tension between consumer protection and the unification purpose of the Brussels Ibis Regulation considering that the Member States may adopt stricter rules. For the latter question, the CJEU makes it a prerequisite that the assignee is the successor to all the initial contracting party’s rights and obligations, which regularly occurs in the case of a transfer of contract, but not an assignment. In this respect, too, the CJEU’s decision must be critically appraised.
C.F. Nordmeier: International jurisdiction and foreign law in legal aid proceedings – enforcement counterclaims, section 293 German Code of Civil Procedure and the approval requirements of section 114 (1) German Code of Civil Procedure
The granting of legal aid in cases with cross-border implications can raise particular questions. The present article illustrates this with a maintenance law decision by the Civil Higher Regional Court of Saarbrücken. With regard to international jurisdiction, a distinction must be made between an enforcement counterclaim and a title counterclaim. The suspension of legal aid proceedings analogous to section 148 of the German Code of Civil Procedure with pending preliminary ruling proceedings before the European Court of Justice in a parallel case is possible. When investigating foreign law in accordance with section 293 of the German Code of Civil Procedure, the court may not limit itself to “pre-ascertaining” foreign law in legal aid proceedings. In principle, the party seeking legal aid is not obliged to provide information on the content of foreign law. If the desired decision needs to be enforced abroad and if this is not possible prospectively, the prosecution can be malicious. Regardless of their specific provenance, conflict-of-law rules under German law are not to be treated differently from domestic norms in legal aid proceedings. R.A. Schütze: Security for costs under the Treaty of Friendship, Commerce and Navigation between the Federal Republic of Germany and the United States of AmericaThe judgment of the Regional Court of Appeal Munich deals with the application of the German-American Treaty of Friendship, Commerce and Navigation as regards the obligation to provide security of costs in German civil procedure, especially the question whether a branch of plaintiff in Germany reliefs him from his obligation under section 110 German Code of Civil Procedure. The Court has based its judgment exclusively on article VI of the Treaty and section 6 and 7 of the protocol to it and comes to the conclusion that any branch of an American plaintiff in Germany reliefs him from the obligation to put security of costs.
Unfortunately, the interpretation of the term “branch” by the Court is not convincing.
The court has not taken into regard the ratio of section 110 German Code of Civil Procedure. The right approach would have been to distinguish whether the plaintiff demands in the German procedure claims stemming from an activity of the branch or from an activity of the main establishment.
P. Mankowski: Whom has the appeal under Art. 49 (2) Brussels Ibis Regulation to be (formally) lodged with in Germany?Published appeal decisions in proceedings for the refusal of enforcement are a rare breed. Like almost anything in enforcement they have to strike a fine balance between formalism and pragmatism. In some respects, they necessarily reflect a co-operative relationship between the European and the national legislators. In detail there might still be tensions between those two layers. Such a technical issue as lodging the appeal to the correct addressee might put them to the test. It touches upon the delicate subject of the Member States’ procedural autonomy and its limits.
K. Beißel and B. Heiderhoff: The closer connection under Article 5 of the Hague Protocol 2007According to Article 5 of the Hague Protocol 2007 a spouse may object to the application of the law of the creditor’s habitual residence (Article 3 of the Protocol) if the law of another state has a “closer connection” with the marriage. The Local Court of Flensburg had to decide whether there was a “closer connection” to the law of the state, in which the spouses had lived together for five years in the beginning of their marriage. The criteria which constitute a “closer connection” in the sense of Article 5 of the Protocol have received comparatively little discussion to date. However, for maintenance obligations, the circumstances at the end of marriage are decisive in order to ascertain the claim. Therefore, they should also have the greatest weight when determining the closest connection. This has not been taken into account by the Local Court of Flensburg, which applied the law of the former common habitual residence, the law of the United Arab Emirates (UAE).
The authors also take a critical stance towards the Court’s assessment of public policy under Article 13 of the Protocol. As the law of the UAE does not provide for any maintenance obligations of the wife (as opposed to maintenance obligations of the husband), the Court should not have denied a violation.
M. Lieberknecht: Transatlantic tug-of-war – The EU Blocking Statute’s prohibition to comply with US economic sanctions and its implications for the termination of contracts In a recent preliminary ruling, the European Court of Justice has fleshed out the content and the limitations of the EU’s Blocking Statute prohibiting European companies from complying with certain U.S. economic sanctions with extraterritorial reach. The Court holds that this prohibition applies irrespective of whether an EU entity is subject to a specific order by U.S. authorities or merely practices anticipatory compliance. Moreover, the ruling clarifies that a termination of contract – including an ordinary termination without cause – infringes the prohibition if the terminating party’s intention is to comply with listed U.S. sanctions. As a result, such declarations may be void under the applicable substantive law. However, the Court also notes that civil courts must balance the Blocking Statute’s indirect effects on contractual relationships with the affected parties’ rights under the European Charter of Fundamental Rights. E. Piovesani: The Falcone case: Conflict of laws issues on the right to a name and post-mortem personality rightsBy the commented decision, the LG Frankfurt dismissed the action of two Italian claimants, namely the sister of the anti-mafia judge Falcone and the Falcone Foundation, for protection of their right to a name and the said judge’s postmortem personality right against the owner of a pizzeria in Frankfurt. The decision can be criticized on the grounds that the LG did not apply Italian law to single legal issues according to the relevant conflict of laws rules. The application of Italian law to such legal issues could possibly have led to a different result than that reached by the court.
M. Reimann: Jurisdiction in Product Liability Litigation: The US Supreme Court Finally Turns Against Corporate Defendants, Ford Motor Co. v. Montana Eighth Judicial District Court / Ford Motor Company v. Bandemer (2021)In March of 2021, the US Supreme Court handed down yet another important decision on personal jurisdiction, once again in a transboundary product liability context. In the companion cases of Ford Motor Co. v. Eighth Montana District Court and Ford Motor Co. v. Bandemer, the Court subjected Ford to jurisdiction in states in which consumers had suffered accidents (allegedly due to a defect in their vehicles) even though their cars had been neither designed nor manufactured nor originally sold in the forum states. Since the cars had been brought there by consumers rather than via the regular channels of distribution, the “stream-of-commerce” theory previously employed in such cases could not help the plaintiffs (see World-Wide Volkswagen v. Woodson, 444 U.S. 286, 1980). Instead, the Court predicated jurisdiction primarily on the defendant’s extensive business activities in the forum states. The problem was that these in-state activities were not the cause of the plaintiffs’ harm: the defendant had done nothing the forum states that had contributed to the plaintiffs’ injuries. The Court nonetheless found the defendant’s business sufficiently “related” to the accidents to satisfy the requirement that the defendant’s contacts with the forum state be connected to the litigation there. The consequences of the decision are far-reaching: product manufacturers are subject to in personam jurisdiction wherever they are engaged in substantial business operations if a local resident suffers an accident involving merely the kind of product marketed in the forum state, regardless how the particular item involved arrived there. This is likely to apply against foreign corporations, especially automobile manufacturers, importing their products into the United States as well. The decision is more generally remarkable for three reasons. First, it represents the first (jurisdictional) victory of a consumer against a corporation in the Supreme Court in more than half-a-century. Second, the Court unanimously based in personam jurisdiction on the defendant’s extensive business activities in the forum state; the Court thus revived a predicate in the specific-in-personam context which it had soundly rejected for general in personam jurisdiction just a few years ago in Daimler v. Baumann (571 U.S. 117, 2014). Last, but not least, several of the Justices openly questioned whether corporations should continue to enjoy as much jurisdictional protection as they had in the past; remarkably these Justices hailed from the Court’s conservative camp. The decision may thus indicate that the days when the Supreme Court consistently protected corporations against assertions of personal jurisdiction by individuals may finally be over.
R. Geimer: Service to Foreign States During a Civil War: The Example of an Application for a Declaration of Enforceability of a Foreign Arbitral Award Against the Libyan State Under the New York Convention With the present judgment, the UK Supreme Court confirms a first-instance decision according to which the application to enforce an ICC arbitral award against the state of Libya, and the later enforcement order (made ex parte), must have been formally served through the Foreign, Commonwealth and Development Office under the State Immunity Act 1978, despite the evacuation of the British Embassy due to the ongoing civil war. The majority decision fails to recognize the importance of the successful claimant’s right of access to justice under Art 6(1) ECHR and Art V of the 1958 New York Convention.Bälz: Arbitration, national sovereignty and the public interest – The Egyptian Court of Cassation of 8 July 2021 (“Damietta Port”)
The question of whether disputes with the state may be submitted to arbitration is a recurrent topic of international arbitration law. In the decision Damietta Port Authority vs DIPCO, the subject of which is a dispute relating to a BOT-Agreement, the Egyptian Court of Cassation ruled that an arbitral award that (simultaneously) rules on the validity of an administrative act is null and void. The reason is that a (private) arbitral tribunal may not control the legality of an administrative decision and that the control of the legality of administrative action falls into the exclusive competency of the administrative judiciary. This also applies in case the legality of the administrative decision is a preliminary question in the arbitral proceedings. In that case, the arbitral tribunal is bound to suspend the proceedings and await the decision of the administrative court. The decision of the Egyptian Court of Cassation is in line with a more recent tendency in Egypt that is critical of arbitration and aims at removing disputes with the state from arbitration in order to preserve the “public interest”.The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on 26 May 2022 at 3:00 pm (Mexico City time – CDT), 10:00 pm (CEST time). The topic of the webinar is The impact of artificial intelligence on Private International Law and will be presented by Professor Wendolyne Nava, Professor Yaritza Pérez and Roberto Falcón (in Spanish).
The details of the webinar are:
Link: https://us02web.zoom.us/j/84254265759?pwd=0r4SHVY24q8DByvWf236cKaQo1mPXF.1
Meeting ID: 842 5426 5759
Password: BMAAMEDIP
Participation is free of charge.
This event will also be streamed live: https://www.facebook.com/AmedipMX
This is the second of a series of posts on the French draft code of private international law of March 2022. The previous post in the series dealt with the issue of renvoi.
The draft code of private international law proposes to reform significantly the regime of choice of law rules before French courts. Unfortunately, the new provisions are silent on proof of foreign law.
Mandatory Application of Choice of law rulesArticle 9, para. 1, of the draft code would establish an obligation for French courts to apply the applicable law. In other words, choice of law rules would become mandatory for courts.
Art. 9, para. 1: “L’application du droit internationalement désigné est impérative pour le juge.”
This would be a significant departure from the current regime. Since 1999, French courts have had the obligation to apply ex officio choice of law rules only in matters where the parties may not dispose of their rights (e.g. parenthood). In contrast, in matters where the parties may dispose of their rights (e.g. an international sale of goods), the application of choice of law rules was not mandatory for courts, unless one of the parties would raise their application.
The explanatory report makes clear that the drafters wanted to discard this regime and abandon the distinction based on whether the parties may dispose of their rights. It is explained that the goal is to make the law clearer and more coherent. The reference to coherence is likely a reference to the general principle that courts ought to apply applicable rules.
Readers might recall that the French Supreme Court for private and criminal matters (Cour de cassation) has initiated an evolution by ruling that it would consider certain EU choice of law rules mandatory (see the reports on this blog here and here). The precedent would obviously lose significance, as all choice of law rules would become mandatory.
Contrary Agreement of the PartiesHowever, the drafters propose to maintain the rule according to which the parties may agree to avoid the application of foreign law and apply French law instead in matters where they may dispose of their rights. The Cour de cassation has long ruled that such agreement could be reached implicitly by arguing the case under French law only.
In practice, such “agreement” was typically reached by parties (and counsels) unaware of the potential application of foreign law. This was more of a waiver mechanism. The drafters propose to strengthen the conditions for finding such agreement. Article 9, para. 2, provides that the agreement could either be express, or result from written pleadings which would be “concurring and non equivocal.” The explanatory report clarifies that, in this context, “non equivocal” would mean that it should be clear from the pleadings that the parties were aware that the case was international and that foreign law might apply. If the court is not satisfied that the parties were so aware, Article 9 para. 4 further provides that the court should raise the applicability of foreign law and, if necessary, apply it ex officio.
Finally, Article 9, para. 3, provides that such an agreement is valid in divorce cases if it is express. The rationale for this exception is to ensure compliance with Article 7 of the Rome III Regulation.
Art. 9:
(…)
Lorsque les parties ont la libre disposition de leurs droits, elles peuvent, par un accord procédural, soumettre leur litige au droit français. Cet accord est exprès ou résulte d’écritures concordantes et non-équivoques.
En matière de divorce, l’accord procédural doit être exprès.
Lorsque les parties s’abstiennent de s’expliquer sur le droit applicable, le juge les y invite et applique, au besoin d’office, la règle française de conflit de lois.
Proof of Foreign lawMost unfortunately, the draft code is silent on proof of foreign law in judicial proceedings. It includes one provision on proof of foreign law before judicial officers, which insists that the burden of proof lies with the party raising the applicability of foreign law.
One could think that the obligation in Article 9, para. 1, to apply the applicable law entails an obligation for the court to establish the content of foreign law. Whether or not this is true, it is unrealistic to expect that French courts would suddenly become able to conduct extensive research in foreign law. They do not, and thus likely will not in the future. The current judicial practice is to rely on litigants and the evidence that they can adduce. It is admissible for the parties to produce primary materials of foreign law (statutes, cases), or to produce opinions of private experts that they have hired (certificat de coutume).
A number of French scholars have argued that relying on private experts is highly unsatisfactory. The reason why is that such experts will never appear in court and be cross examined on their expert reports, for the simple reason that French courts do not hear anybody (parties, witnesses or experts) in civil and commercial cases. Experts have no serious incentive to faithfully report on the content of foreign law.
On the other hand, French courts routinely appoint judicial experts to report to the court on questions of fact. Such experts conduct investigations in the presence of the parties, hear them (and their private expert) and eventually write an independent expert report. The reason why French courts do not appoint judicial expert to establish the content of foreign law is unclear.
The future code would be a great opportunity to include a provision incentivising courts to appoint judicial experts for the purpose of ascertaining the content of foreign law.
Based on a tweet by the ‘enfant terrible of tech’, Elon Musk, Michael Douglas recently discussed ‘Conflict of Laws of Freedom of Speech on Elon Musk’s Twitter’ on this blog. In a new volume published by Mohr Siebeck, Anna Bizer adresses similar questions, from the point of view of German and European PIL. Starting from the observation that social media challenges the existing legal framework (even more so than the internet itself) by incentivizing the sharing of, and interaction with content, and thus perpetuating violations of personality rights, even where the original author of a post has already deleted it, the author focuses on three areas of law: contract law, tort law, and data protection.
As far as questions of contract law are concerned, Bizer rightly puts an emphasis on the fact that social media platforms often involve a triangle (or pyramid) of contractual relationships between the hosts and at least two users. Regarding the relationship between the host and individual users, she identifies the delineation between private and professional use (only one of which triggers the consumer rules in the Brussels Ia and Rome I Regulations) as the main problem and argues in favour of a much wider understanding of the consumer definition. Regarding the relationship between multiple users of the same service, she rightly acknowledges the potential of the platform contract to influence the applicable law via Art. 4(3) Rome I.
Concerning tort law, Bizer is generally critical of the existing legal framework under Art. 40–42 of the German EGBGB (infringements of personality rights being excluded from the Rome II Regulation). Instead of giving the claimant a choice between Handlungsort (place of acting) and Erfolgsort (place of damage), potentially leading to a mosaic of applicable laws, the applicable law should be determined by identifying the objective centre of the violation, with the intended readership of a given publication as the guiding criterion, which may be supplemented, if necessary, by the CJEU’s centre-of-interests criterion and the place of acting. Again, the author acknowledges that the contract for the social media platform might be taken into account via an escape clause (i.e. Art. 41 EGBGB).
In addition to questions of data protection, the author also addresses the role of the e-Commerce Directive’s country-of-origin rule and the ordre public in what is a well-argued, excellently researched book on a highly topical question.
Theme by Danetsoft and Danang Probo Sayekti inspired by Maksimer