Feed aggregator

On 8 February 2024, the CJEU ruled in Inkreal s.r.o. v. Dúha reality s.r.o. (Case C‑566/22) that Article 25 of the Brussels I bis Regulation applies to clauses stipulated in domestic contracts if such clauses provide for the jurisdiction of the court of another Member State.

Most early commentators have welcomed this judgment, including Geert van Calster, Pedro de Miguel Asensio and Matthias Weller.

The Advocate General, however, had opined differently. Should Inkreal be praised for promoting party autonomy? Should it be criticised, instead, for extending the reach of EU law beyond its competence?

In the coming days, the EAPIL Blog will host an online symposium on Inkreal. Readers interested in participating should contact the editors of the blog (blog@eapil.org), or directly comment on the posts in the symposium.

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on Thursday 29 February 2024 at 14:30 (Mexico City time – CST), 21:30 (CET time). The topic of the webinar is the role of Private International Law in the development and deployment of digital currencies and will be presented by Dr. Israel Cedillo Lazcano (in Spanish).

The details of the webinar are:

Link: https://us02web.zoom.us/j/83223220677?pwd=ejcyTysxbUFwLzRIMFhYRGkzV2VpQT09

Meeting ID: 832 2322 0677

Password: AMEDIP

Participation is free of charge.

This event will also be streamed live: https://www.facebook.com/AmedipMX

Emiliou AG opined the day before yesterday in C‑339/22 BSH Hausgeräte GmbH v Electrolux AB. I flagged the case and discussed its context here.

The case in essence concerns two issues: the extent of the exclusive jurisdiction of the Article 24(4) court in infringement (as opposed to direct invalidity actions); and the question whether A24 works reflexively: ie whether the surrender of jurisdiction should also be applied in cases where the A24(4) court is not in an EU Member State.

The AG’s extensive contextualisation has the merit of summarising established authority on Article 24(4). This allows the AG for instance to reflect on the oddity of GAT v Luk. Despite the ‘object of the proceedings’ often being infringement of intellectual property rights, the CJEU held in that case that the moment the validity of the patent (or other relevant intellectual property rights) is at issue, exclusive jurisdiction of the A24(4) court is triggered. The CJEU rather unsuccessfully attempted to justify the distinction with its approach on the remainder of A24 eg in CJEU BVG.

The AG justifiably signals his disapproval with the fall-out of the GAT v Luk authority, seeing ia that (54)

the judgment in GAT makes the consolidation of infringement claims concerning the different ‘parts’ of a European patent before those courts an unattractive option. It encourages patent holders to start separate proceedings in the various States of registration of those ‘parts’ instead, since, at least, it is certain that the courts of those States are competent to rule on both the infringement and validity of ‘their part’ (as explained in points 26, 28 and 29 above). This creates, in turn, a risk that different courts take contradictory views on the same infringement dispute.

Also note (59) the strong rebuke of the GAT v LUK line in terms of the very nature of private international law

…such considerations do not reveal why, with respect to proceedings concerned with the registration or validity of patents, those courts should have jurisdiction to the exclusion of all others. In particular, the patent law of the State of registration is not so unique that only the courts of that State would have the ability to comprehend it. While it may be harder for them to do so, the courts of another Member State are perfectly capable of applying such a foreign law. To imply the contrary would be tantamount to questioning the very foundations of the Brussels regime (and the entire field of private international law). …

Ia (64) the AG however points out that unfortunately any call for the CJEU to reverse is futile seeing as Brussels Ia has codified it.

The extent of the exclusive jurisdiction of the Article 24(4) court in infringement proceedings.

Ia (37) the remaining unclarity therefore lies in the GAT v Luk consequences. National practice varies. Some courts practice a stay of the infringement proceedings until the A24(4) court holds on validity, and then insist on a return to the ‘infringement’ court: the “narrow reading” of GAT v LUK. Others carry out a complete referral of the case, including infringement, to the A24(4) court: the “broad” reading”.

In both of these scenarios the stay or referral decision is precarious (73) for there is no procedure under EU law for such referral or mutually respected temporary stay: there is no guarantee the court referred to will act as the first seized court might prefer.

The AG is in favour of the narrow reading: (69) this fits with the exceptional nature of A24; (71) it serves predictability (an echo of A24(2) in BVG): in the broad reading the reach of the jurisdiction of the court seized would depend on the invalidity  raised or not raised as a defence; (73) the possibility under national civil procedure rules to raise an invalidity defence even for the first time upon appeal would lead to a constant threat of torpedoing and once the proceedings stayed, the court first seized loses all grip on the claim and (74) by the time the case returns at all, claimant’s case in infringement proceedings started afresh may meet with statutes of limitation.

(77) ff bifurcation or as the AG calls it the ‘split’ in the proceedings is far from ideal, as (78) is the general implication of GAT v LUK that it forms an exception to the principle that points of defence ought not to impact on jurisdiction, or the reliance on national CPR, the delays etc. Yet the AG calls this route even if ‘less than ideal’, the ‘lesser of two evils’.

He then offers practical guidelines, seeking to give these a foundation in (88) the TRIPS Agreement, the finding in CJEU C‑365/88 Hagen that national CPR must not impact the effet utile of EU law, the TRIPS Agreement, Directive 2004/48, on the patent holder side the right to an effective remedy and, on the alleged infringer’s side, the rights of defence, both protected under Article 47 of the Charter.

(92) the AG suggests in particular that courts should only consider granting a stay where that challenge has a genuine prospect of success (taking into account the presumption of validity following the patent office’s assessment).

In general I have much sympathy for the AG’s narrow reading of GAT v LUK (and one would have hoped the review of Brussels Ia might trigger a proposal to solidify it in the Regulation). I am also genuinely curious to see how far the CJEU will go in picking up some of the guidelines.

The reflexivity issue.

The CJEU 3 judge chamber in IRNova f FLIR was very brief on this question and answered it promptly in the negative. The AG (97) agrees the answer is obvious in the sense that BIa cannot instruct third States courts to hear specific cases.

Unlike the AG however in my view the answer to the question that ‘in essence’ (98) is implied (whether A24(4) deprives Member State courts of the power to adjudicate the validity of third-State patents in the same way that those courts are deprived with respect to patents registered in other Member States) is, rebus sic stantibus, also obvious. Namely that unless the conditions of Articles 33-34 (the forum non conveniens “light” regime) are fulfilled, Article 4 domicile jurisdiction simply stands. Or as the Commission puts it (113), the Courts are “bound” to exercise A4 jurisdiction save in a narrow set of circumstances (i.e. the A33-34 set).

The AG (108) refers to IRNova to suggest A24-25 BIa cannot apply, as such, to dispute having connections of the kind envisioned therein with third States.

The AG posits ia that (117) BIa was not designed to take into account circumstances such as these and that the CJEU therefore should fill the gap. First of all I believe this is incorrect. A4 BIa arguably is a well documented express policy choice to accept EU courts jurisdiction in principle even over matters prima facie strongly linked with territory etc out off the EU. Further, that only A33-34 (and then only in the recital of the Regulation) entertain the possibility to take into account exclusive non-EU courts jurisdiction is a very strong a contrario statutory argument against CJEU freewheeling. The suggestion (118) borrowed from Briggs and Mills that “nothing in the wording of those provisions or in the related recitals indicates that they are meant to regulate exhaustively the possibility for Member State courts to decline jurisdiction in favour of the courts of third States”, echoes Ferrexpo and  imho is simply wrong, and neither Coreck Maritime (121) nor Mahamdia (122) have displaced Owusu.

The AG’s link (128) to public international law and the general appeal of the Moçambique rule are interesting but really just to remote in my view from Brussels Ia’s travaux and statutory provisions and the AG does not I believe properly present A33-34’s travaux or intention (139) ff.

The “implicit derogation from the mandatory effect of Article 4(1)” BIa which the AG posits (147) ff for both A24 and A25 (choice of court) jurisdiction, even construed as a “narrow discretion” (159) ff, is a most optimistic view on inviting the CJEU to rewrite Brussels Ia.

In conclusion, while the CJEU is likely to follow the AG on the narrow reading of A24(4), I would wager it will succinctly reject the arguably contra legem reflexive effect construction. But then as I have said before, I am not a betting man.

Geert.

EU Private International Law, 4th ed. 2024, 2.217 ff.

1/2 ! Emiliou AG on 'reflexive effect' of exclusive jurisdictional rule (EU courts declining jurisdiction where third States would have had exclusive jurisdiction, had they been in the EU)https://t.co/naD1t51NQb
C‑339/22 BSH Hausgeräte

— Geert Van Calster (@GAVClaw) February 22, 2024

We are happy to share the following announcement from the organisers.

On 12 April 2024, a hybrid conference will take place at the Skylounge of the University of Vienna to discuss the reform of the Brussels Ibis Regulation; the fundamental reference-instrument of cross-border judicial cooperation in civil matters within the European Union. The reform is expected to begin this year under the new European Commission. The conference is organised by the Institute for Civil Procedure and continues the work already done within the European Association for Private International Law (EAPIL) and the former Max Planck Institute (MPI) Luxembourg.

In 2021, Burkhard Hess wrote a Working Paper on a possible reform of the Brussels Ibis Regulation, identifying problems and suggesting solutions. In the same year, a Working Group was set up within the network of the EAPIL. The members of the Working Group provided information on the application and possible shortcomings of the Brussels Ibis Regulation in their jurisdictions by means of a questionnaire. The results of the questionnaire provided the basis for the conference on the Brussels Ibis reform held at the former MPI Luxembourg on 9 September 2022, where more than 80 participants discussed reform proposals in five panels (report).

Following the 2022 Luxembourg conference, Burkhard Hess and a team of researchers of the MPI prepared a second Working Paper, which put forward 32 proposals for the reforms of the Brussels Ibis Regulation. Members of the EAPIL Working Group were invited to express again their opinion and to vote on these proposals in an online poll. The poll was later opened to the public, as announced on the EAPIL-blog and ConflictofLaws.net. The purpose of this poll was to give the academic public as well as other stakeholders an opportunity to express their view on the proposals. An extensive documentation and analysis of the poll will be published soon, which serves as a basis for discussion at the upcoming conference.

The 2024 Vienna conference features speakers from various parts of the European Union. In the morning, the prospects of the reform process and overarching issues of the Brussels Ibis Regulation are addressed by Andreas Stein (EU Commission), Astrid Stadler (Konstanz), Cristina González Beilfuss (Barcelona), Gilles Cuniberti (Luxembourg), as well as Karol Weitz and Bartosz Wo?odkiewicz (Warsaw). The various proposals for the reform of the Brussels Ibis Regulation will be addressed from a practical perspective in the afternoon during a roundtable featuring, inter alia, Anthony Collins (EU Court of Justice), Georg Kodek (Austrian Supreme Court), Petra Leupold (VKI), Sabine Leupold (Freshfields Bruckhaus Deringer) and Andreas Stein (EU Commission). The full program can be found on the flyer.

Burkhard Hess, Christian Koller and Paul Oberhammer of the Institute of Civil Procedure look forward to your participation in the Vienna conference. Please send your registration to reformingbrussels-Ibis.zvr@univie.ac.at and indicate whether you will participate in person or online.

The question which law applies to the blockchain and assets recorded thereon, such as cryptocurrencies, stablecoins or other token, is one of the most hotly debated issues in the conflict of laws (see e.g. the recent book ‘Blockchain and Private International Law‘).

A conference on this topic will take place on 11 and 12 April 2024 in Vienna and remotely. It is organised by the University of Vienna, in cooperation with the Interdisciplinary Association of Comparative and Private International Law (IACPIL) and the European Banking Institute (EBI).

The conference will bring together academics, technology experts, and lawyers, from various EU member states, the UK, Switzerland, and Japan. Two of the international organisations active in this field – the HCCH and UNIDROIT – will also be represented.

Topics include the law governing crypto-custody, secured transactions in digital assets, and the law applicable to Decentralized Finance (DeFi). Fundamental issues such as the need for a ‘blockchain revolution’ in Private International Law or the role of consumer law will also be discussed.

The full programme can be downloaded here. Participation is free of charge. Please register for either physical attendance or online participation by 6 April 2024 at service.rechtsvergleichung@univie.ac.at.

I. Introduction

It is widely recognized that choice of court and choice of law agreements are powerful tools for structuring and planning international dispute resolution. These agreements play an important role in “increasing legal certainty for the parties in cross-border transactions and reducing incentives for (the harmful version of) forum shopping.” (Alex Mills, Party Autonomy in Private International Law (CUP, 2018) p. 75). However, the realization of these objectives depends on the enforcement of the parties’ choice. Unfortunately, general practice in the MENA (North Africa and the Middle East) region shows that, with a few exceptions, the status quo is far from satisfactory. Choice-of-court agreements conferring jurisdiction on foreign courts are often disregarded or declared null and void. Similarly, the foreign law chosen as the governing law of a contract is often not applied because of the procedural status of foreign law as a matter of fact, the content of which must be ascertained by the party invoking its application. The recent judgment of the High Court of Bahrain (a first instance court in the Bahraini judicial system) in the Case No. 2/13276/2023/02 of 17 January 2024 is nothing but another example of this entrenched practice that can be observed in the vast majority of countries in the region.

 

II. Facts

X (plaintiff, an English company) entered into a pharmaceutical distribution and sales agreement with Y1 (defendant, a Bahraini company), in 2017 in Bahrain. The agreement provided that disputes arising out of or in connection with the agreement would be subject to the exclusive jurisdiction of the courts of England and Wales. The parties also agreed that English law should be the governing law.

Following Y1’s failure to make due payments as agreed, X initiated legal proceedings against Y1, Y2 and Y3 (both Bahraini nationals and partners in Y1) in the High Court of Bahrain, seeking payment and some other related costs under Bahraini law. The defendants challenged the jurisdiction of the Bahraini court based on the forum selection clause, but did not present any claim as to the merits of the case.

 

III. The Ruling

The High Court ruled as follow to affirm its jurisdiction and the application of Bahraini law:

[Regarding international jurisdiction]

“[The defendants] challenge the jurisdiction of the Bahraini courts to hear the dispute on the basis that the contract contains a jurisdiction clause which confers exclusive jurisdiction on the English courts to hear any dispute arising out of or relating to the contract. However, according to Articles 14 and 15 of the Code of Civil Procedure, the Bahraini courts have jurisdiction over actions brought against Bahraini nationals, regardless of the nature of the dispute, as long as they have Bahraini nationality at the time the action is brought, without any further conditions, except for in rem actions relating to immovable property located outside Bahrain. Thus, the jurisdiction of the Bahraini courts is based on personal nexus, i.e. the nationality of the defendant, and any agreement to deviate from this jurisdiction is inadmissible because of its connection with public policy. This is because it is the State that determines the jurisdiction of its courts in order to serve the public interest, i.e. to ensure justice, which is one of its primary functions, and to maintain order and peace within its territory. (Underline added).

[Since Y1 is a Bahraini limited liability company and Y2 and Y3, who are partners in Y1, are Bahraini nationals,] it is not permissible to waive the jurisdiction of the Bahraini courts, which retain jurisdiction over the [present] dispute.

[Regarding the applicable law]

It is clear from the contract that the parties agreed that any disputes arising out of the contract should be governed by the laws of England and Wales. Pursuant to Article 4 of Law No. 6 of 2015 on Conflict of Laws in Civil and Commercial Matters with Foreign Elements, the parties may choose the applicable law. [However], Article 6(a) of the same law requires the parties to the dispute to submit the text of the applicable law, failing which Bahraini law shall be deemed applicable. [In the present case], neither party has submitted the agreed law governing the dispute, and X, which [as the foreign party] , requested the application of Bahraini law and relied on the provisions of the Bahraini Commercial Companies Law in its statement of claim. Since the court is not required to ask the parties [to provide the content] the applicable law, as this obligation rests with the parties themselves, Bahraini law shall be applied to the [present] dispute”.

 

IV. Comments:

1. Sources of Law

It should be indicated from the outset that in Bahrain, rules governing international jurisdiction are primarily found in the Code of Civil and Commercial Procedure of 1971  (hereafter referred to as “CCCP,” articles 14-20). Regarding choice of law rules, those concerning family law and successions (i.e., personal status) are included in the CCCP (articles 21 and 22), while those concerning civil and commercial matters, including rules pertaining to general theory, are laid down in a special Law on Conflict of Laws in Civil and Commercial Matters with Foreign Elements (Law No. 6 of 2015).(*)

(*) One may wonder about the reasons behind keeping the choice of law rules in matters of family law and successions within a law dealing with civil and commercial procedure, especially since the Bahraini legislator codified the conflict of law rules in an autonomous act dealing with conflicts of laws (choice of law). There have been some calls to consolidate all private international law rules (including choice of law, international jurisdiction) in a single act dealing with legal relationships involving foreign elements (see eg., Awadallah Shaiba Al-Hamad Al-Sayed, “An Analytical and Critical Study of the Law No. 6 of 2015 on the Conflict of Laws in Civil and Commercial Matters – Kingdom of Bahrain”, Legal Studies, Vol. 2, 2019, pp. 224 ff (in Arabic)), however, no actions have been taken so far to implement this proposal.

 

2. International Jurisdiction

Interestingly, the rules of international jurisdiction contained in the CCCP deal mainly with actions brought against non-Bahraini nationals, either on the basis of their domicile/residence in Bahrain (general jurisdiction, Article 14 of the CCCP) or in certain other matters depending on the category of dispute (special jurisdiction, Article 15 of the CCCP). The fact that the rules on international jurisdiction refer only to foreign defendants raised the question of whether Bahraini courts could assume jurisdiction based on the nationality of the defendant (Cf. Hosam Osama Shaaban, Treatises on Bahraini Private International Law (Al-Bayan Media, 2016), p. 277 [in Arabic]).

In a number of cases, the Supreme Court has ruled in the affirmative. For example, in a decision issued in 2014, the Bahraini Supreme Court held that “even if the Bahraini legislator did not establish the rules of international jurisdiction of the Bahraini courts in the CCCP with regard to lawsuits filed against Bahraini nationals, it is understood that the jurisdiction of the national courts over [such lawsuits] stems from the consideration of [judicial jurisdiction] as a manifestation of the sovereignty of the State, which extends to what falls under this sovereignty” (Supreme Court, Appeal No. 531/2013 of 15 April 2014). In another case, the Supreme Court confirmed its ruling by considering that “persons holding Bahraini nationality are subject to the jurisdiction of Bahraini courts as a manifestation of the state’s sovereignty over its citizens”, thus recognizing the jurisdiction of Bahraini courts over Bahraini nationals even if they hold a second nationality and are not resident in Bahrain (Supreme Court, Appeal No. 77/2017 of 11 April 2018).

In this regard, it can be said that the High Court’s decision commented here is fully consistent with the well-established case law of the Supreme Court.

 

3. Choice of Court Agreements

With respect to the admissibility of choice of court agreements, it should be noted that agreements with prorogative effect, i.e., choice of court agreements that confer jurisdiction on Bahraini courts that are not otherwise competent, are generally admitted (see article 17 of the CCCP [dealing with explicit or tacit submission to the jurisdiction of Bahraini courts]; article 19 of Legislative Decree No. 30 for the year 2009 with respect to the Bahrain Chamber for Economic, Financial and Investment Dispute Resolution (BCDR) [on the jurisdiction of the BCDR based on the agreement of the parties]. See also, eg, Supreme Court, Appeals Nos. 154 and 165/2017 of 20 May 2017 [tacit submission to the jurisdiction of Bahraini courts]).

However, with respect to agreements with derogative effect, although the law is silent on the matter, the Supreme Court has ruled against their admissibility. This is particularly the case of the Supreme Court ruling in a decision rendered in 2006 (Supreme Court, Appeal No. 231/2005 of 27 February 2006). The case concerned a lawsuit filed by a former foreign employee against his Bahraini employer, claiming overdue employment rights. The employer relied on a choice of forum clause in favor of the English court, arguing that Bahrain’s rules on international jurisdiction (articles 14 and 15 of the CCCP) apply only in the absence of a written agreement between the parties when one of them is a foreigner, and that rules on international jurisdiction do not concern public policy; therefore, nothing should prevent the parties from displacing the jurisdiction of Bahraini courts in favor of a foreign court. The Supreme Court disagreed. However, instead of framing its decision in the particular context of the employment relationship, where the employee – as the weaker party – deserves special protection, the Court proclaimed the principle that any agreement by which the parties derogate from the jurisdiction Bahraini courts conferred under Bahraini law “shall be deemed null and void and shall not be invoked” to challenge the jurisdiction of courts in Bahraini (Supreme Court, Appeal No. 231/2005 of 27 February 2006).

The High Court’s decision commented here is consistent with this ruling. In fact, the underlying part of the first paragraph of the High Court’s decision quoted above is almost a verbatim copy from the Supreme Court’s decision of 27 February 2007 mentioned above.

Finally, it should be indicated that the position of the Bahraini courts on this issue is broadly similar to that of other countries in the region, as noted in the Introduction. (For a brief overview of some relevant Supreme Court decisions from various MENA Arab countries and the implications of this position for the enforcement of foreign judgments in the region, see Béligh Elbalti, “Perspective of Arab Countries,” in M. Weller et al. (eds.), The 2019 HCCH Judgments Convention – Cornerstones, Prospects, Outlook (Hart, 2023), p. 188.)

 

4. Party Autonomy – Principle

The principle of party autonomy is enshrined in Article 4 of Law No. 6 of 2015, which states that the “[p]arties may agree to choose the applicable law […]”. Bahraini courts have recognized the principle of freedom of parties to choose the applicable law (eg, Supreme Court, Appeal No. 641/2011 of 27 May 2011). The courts did so even in the absence of legislative guidance prior to the adoption of the current applicable rules (see eg, Supreme Court Appeal No. 143/1994 of 4 December 1994). The High Court in the present case did not deviate from this “well-established” principle, which is rooted in both Bahraini statutes and case law. (For a detailed study based on Bahraini case law, see Béligh Elbalti & Hosam Osama Shabaan, “Bahrain – Bahraini Perspectives on the Hague Principles”, in D. Girsberger et al. (eds.), Choice of Law in International Commercial Contracts – Global Perspective on the Hague Principles (OUP, 2021), pp. 414 ff).

 

5. Party Autonomy – Practice

In practice, however, as demonstrated by the High Court decision, there is a gap between the affirmation of the principle of party autonomy on the one hand and the actual application of the chosen law to a concrete case on the other. This gap arises from the fact that, under Bahraini  law as regularly confirmed by case law,  foreign law is treated as a fact, the content of which must be determined by the party requesting its application (see eg, Article 6 of Law No. 6 of 2015. For further details and examples, see Elbalti & Shaaban, op cit., at 420-421). Consequently, failure to ascertain the content of the foreign law would normally result in the application of Bahraini law. The same principle applies even in cases where the parties have made a choice of law agreement. For example, in the aforementioned Supreme Court decision in the Appeal No. 143/1994 of December 4, 1994, although the Court recognized that the parties had (implicitly) agreed on Pakistani law as the applicable law, it ultimately excluded the application of the chosen law because its content had not been established. (For further details and examples, see Elbalti & Shaaban, op cit.). The High Court did not deviate from this general approach showing by this some degree of consistency in the Bahraini courts’ practice.

 

6. Epilogue

In the case commented here, the court justified the application of Bahraini law on the grounds that the content of the law chosen by the parties had not been submitted to the court. To some extent, it may be questioned whether such a justification is acceptable, as it could be argued that there was a tacit agreement to apply Bahraini law instead of the chosen law (on the issue of tacit choice of law under Bahraini law and the relevant Supreme Court cases, see Elbalti & Shaaban, op cit., pp. 423-425). However, as evidenced by the facts of the case, the defendants in this case did not present any arguments on the merits, but merely challenged the jurisdiction of the Bahraini court. The mere fact that the plaintiff based its claim on Bahraini law by relying on the relevant provisions of the Bahraini Commercial Companies Law does not in itself constitute an “implied” agreement to apply Bahraini law.

On this particular point, it is interesting to compare the decision of the High Court discussed here with another decision issued by the same court just thirteen days earlier in a case involving similar legal issues, namely the admissibility of a choice of court agreement in favor of the Cayman Islands courts and the application of Cayman Islands law as the law chosen by the parties (High Court, Case No. 5/11341/2023/02 of 4 January 2024). In this case, the High Court ruled in exactly the same way as in the present case with regard to the admissibility of the choice of court agreement. However, with respect to the application of Cayman Islands law, the court held that there was an implied agreement to apply Bahraini law in lieu of the chosen law because both parties based their claim on the provisions of Bahraini law and relied on relevant Supreme Court decisions.

On February 21, 2024, the U.S. Supreme Court handed down its decision in Great Lakes Insurance SE v. Raiders Retreat Realty Company, LLC.

The question presented was whether, under federal admiralty law, a choice-of-law clause in a maritime contract can be rendered unenforceable if enforcement is contrary to the “strong public policy” of the U.S. state whose law is displaced. In a unanimous opinion authored by Justice Kavanaugh, the Court concluded that the answer to this question was no. It held that choice-of-law provisions in maritime contracts are presumptively enforceable as a matter of federal maritime law. It further held that while there are narrow exceptions to this rule, state public policy is not one of them.

Facts

Great Lakes Insurance SE (GLI) is a corporation organized under the laws of the Germany that is headquartered in the United Kingdom. Raiders Retreat Realty Co., LLC (Raiders) is a company organized under the laws of Pennsylvania. GLI insured a yacht owned by Raiders. The marine insurance contract signed by the parties contained the following choice-of-law clause:

It is hereby agreed that any dispute arising hereunder shall be adjudicated according to well established, entrenched principles and precedents of substantive United States Federal Admiralty law and practice but where no such well-established, entrenched precedent exists, this insuring agreement is subject to the substantive laws of the State of New York.

After the yacht ran aground in Florida and sustained significant damage, Raiders filed a claim. GLI denied the claim on the ground that the yacht’s fire-extinguishing equipment had not been recertified or inspected. Although the damage to the yacht was not caused by fire, GLI took the position that Raiders had misrepresented the vessel’s fire suppression system’s operating ability, thereby making the policy void from inception.

After denying the claim, GLI filed an action for a declaratory judgment in the U.S. District Court for the Eastern District of Pennsylvania. It asked the court to hold that the policy was void due to the alleged misrepresentations by Raiders with respect to the fire extinguishers. In response, Raiders asserted five counterclaims against GLI: (1) breach of contract, (2) breach of implied covenant of good faith and fair dealing, (3) breach of fiduciary duty, (4) bad faith liability under 42 Pa. Const. Stat. §8371, and (5) violation of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law.

GLI moved for judgment on the pleadings with respect to the fourth and fifth counterclaims. It argued that these claims were not viable because the policy’s choice-of-law provision had designated New York as the governing law in the absence of applicable federal maritime law. Because the claims were based on Pennsylvania statutes, it argued, they were barred by the choice-of-law clause. Raiders opposed this motion. It argued that the choice-of-law clause was unenforceable because it was contrary to Pennsylvania’s strong public policy of punishing insurers who deny coverage in bad faith.

The trial court ruled in favor of GLI. The Third Circuit ruled in favor of Raiders. The Supreme Court granted GLI’s cert petition and heard oral arguments on October 10, 2023.

Decision

The Court held that the issue of whether a choice-of-law clause in a maritime contract is enforceable is governed by federal law. In support of this conclusion, the Court noted that it had previously held that the enforceability of forum selection clauses in these contracts is governed by federal law. It would be strange, the Court reasoned, to adopt a different rule with respect to choice-of-law clauses. The Court further held that choice-of-law clauses in maritime contracts were “presumptively enforceable.” Again, this conclusion logically followed from the fact that the Court had previously held that forum selection clauses in maritime contracts are “prima facie valid.”

After discussing why the Court’s decision in Wilburn Boat Company v. Fireman’s Fund Insurance Company (1955) did not dictate a different outcome, the Court turned its attention to the question of when a choice-of-law clause in a maritime contract should not be enforced. It held that courts should disregard these clauses in situations where applying the chosen law would “contravene a controlling federal statute” or “conflict with an established federal maritime policy.” It also held that these clauses should not be given effect when there was no “reasonable basis” for selecting the law of the chosen jurisdiction. However, the Court expressly rejected the argument advanced by Raiders that a choice-of-law clause in a maritime contract was unenforceable if applying the law of the chosen state would be contrary to a fundamental policy of a state with a greater interest in the dispute.

In rejecting this argument, the Court explained that a federal presumption of enforceability “would not be much of a presumption if it could be routinely swept aside based on 50 States’ public policy determinations.” It reasoned that the “ensuing disuniformity and uncertainty caused by such an approach would undermine the fundamental purpose of choice-of-law clauses in maritime contracts: uniform and stable rules for maritime actors.” The Court also noted that nothing in its previous decisions relating to the enforceability of forum selection clauses in maritime contracts suggested that state public policy was relevant to whether these clauses should be given effect.

Finally, the Court declined to adopt the argument—advanced by me and Kim Roosevelt in an amicus brief prepared with the assistance of the North Carolina School of Law Supreme Court Program—that it should resolve the question of enforceability by looking to Section 187(2) of the Restatement (Second) of Conflict of Laws. The Court reasoned that the rule laid down in Section 187 “arose out of interstate cases and does not deal directly with federal-state conflicts, including those that arise in federal enclaves like maritime law.” The Court also pointed out that Section 187 was a “poor fit” for maritime cases in part because it would “prevent maritime actors from prospectively identifying the law to govern future disputes.”

Analysis

I had two great fears going into this case. Thankfully, neither was realized.

First, I was concerned that the Court might take the test it had previously articulated for determining whether a forum selection clause should be given effect as a matter of federal maritime law and apply that test to choice-of-law clauses. This is, in essence, what the Third Circuit did in its decision below. Such an approach would, in my view, have generated a great deal of mischief. Although choice-of-law clauses and forum selection clauses are often invoked in the same breath, they are not the same and the courts should utilize different tests to evaluate whether they should be enforced. I was relieved that the Court chose not to go down this path. The test laid down in Great Lakes for determining whether a choice-of-law clause in a maritime contract is enforceable is distinct and different from the test for determining whether a forum selection clause laid down in The Bremen and Carnival Cruise.

Second, I was concerned that the Court’s test for enforcing choice-of-law clauses might be couched in such broad language that it would eventually supplant Section 187 in non-maritime cases. This is essentially what happened when the Court decided The Bremen in 1972. Although that decision only applied to forum selection clauses in maritime contracts, the sweeping language utilized by the Court ultimately brought about a significant change in practice in non-maritime cases. The language in Great Lakes, by comparison, is much more carefully drawn. Throughout the opinion, Justice Kavanaugh consistently frames the issue as whether a choice-of-law clause is enforceable in a maritime contract rather than in a more general sense. The rationales articulated by the Court for declining to adopt the rule laid down in Section 187 are similarly encouraging. The Court stated that Section 187 was not the right rule because it “arose out of interstate cases and does not deal directly with federal-state conflicts.” This language suggests that Section 187 should provide the relevant rule of decision in cases relating to the enforceability of choice-of-law clauses when the conflict of laws is between two states—or between a state and foreign country—rather than between state and federal law.

[This post is cross-posted at Transnational Litigation Blog]

This post was written by Prof. Dr. Bea Verschraegen, Verena Wodniansky-Wildenfeld and Laurenz Faber.

On 28 November 2023, the Interdisciplinary Association of Comparative and Private International Law (IACPIL) held a conference on the legal protection of vulnerable adults in Central and Eastern Europe.

Against the backdrop of demographic and scientific developments impacting this field of the law, the event was attended with great interest by internationally renowned academics and practitioners.

The conference, held in the historic premises of the University of Vienna, commenced with a welcome address by Professor Matthias Lehmann (University of Vienna, Raboud Universiteit Nijmegen). Professor Bea Verschraegen (University of Vienna) then led through the first half of the event, which focused on a comparative analysis of vulnerable adults’ protection in Central and Eastern Europe.

Professor Masha Antokolskaia (Vrije Universiteit Amsterdam) presented first results of a comparative examination by FL-EUR (Family Law in Europe: Academic Network), a research platform consisting of experts from 31 jurisdictions. Professor Antokolskaia explained that FL-EUR conducted a detailed assessment of the protection of vulnerable adults in European countries with the aim of promoting cooperation “in books and in action”. Pointing to the adoption of the UN Convention on the Rights of Persons with Disabilities (UN CRPD), she outlined the need for substantial reform in the overwhelming majority of European countries. Professor Antokolskaia explained that the status of these reforms was assessed based on extensive country reports received from 31 jurisdictions. Providing an insight into the work of FL-EUR, she highlighted the methodological difficulties that arise in the comparative examination of vulnerable adult protection, inter alia due to the lack of a historic ius commune in this area.
While the project is still in progress, FL-EUR was already able to identify trends among the European countries: while some have undergone major reforms either before or after the adoption of the UN CRPD, many have only passed “patchwork” reforms or no sufficient reforms at all. Professor Antokolskaia underlined these differences by examining specific examples of vulnerable adult protection, such as the transition towards “support before representation”. In the bigger picture, the presentation observes that many Eastern European countries have not yet undergone the necessary “paradigm shift” but a minority are already far along or have completed this process.

After a spirited discussion on the implications of the comparative analysis presented by Professor Antokolskaia, the second part of the conference, led through by Professor Matthias Lehmann, was dedicated to cross-border issues.

Professor Bea Verschraegen examined current conflict of laws issues relating to the protection of vulnerable adults. She drew attention to the Hague Convention on the Protection of Adults, which focuses on adults who, because of an impairment or insufficiency of their personal faculties, are unable to protect their interests in cross-border situations.

Professor Verschraegen highlighted the increasing number of adults in need of protection and the variety of protective measures prescribed by the national law of their place of residence. These measures range from court-ordered protection to the assistance of pre-arranged third parties.
She expressed concern about the limited regional scope of the Hague Convention, as only 11 EU Member States are parties, and its complexity, which poses challenges to its effective application. In practice, it is not entirely clear what kind of ex ante and ex post measures are covered by the Convention. The same may apply to private mandates.

She pointed out that there is no EU instrument governing judicial cooperation in the field of adult protection. The proposed regulation aims to change this. In this context, Professor Verschraegen argued for a broader perspective beyond the dominant narrative of an ageing society, advocating the inclusion of all adults from the age of eighteen. Citing alarming statistics predicting a significant increase in new cancer cases by 2040, she stressed the urgency of implementing comprehensive policies that address both age-related diseases such as dementia and the unforeseen challenges faced by young adults.

The ongoing debate about the possible reorientation of the Convention and the proposal in line with the UN Convention on Disability or its effectiveness in its own right was also the focus of the presentation. While acknowledging the complexities, Professor Verschraegen suggested that a robust articulation of private international law rules and human rights instruments might suffice, underlining the need for careful consideration.

The discussion went on to explore issues arising from the Convention on the Rights of Persons with Disabilities, including private autonomy, self-determination and dignity. Professor Verschraegen questioned the fact that both Conventions monitor fundamental rights from a bird’s eye view, without a feasibility test. In societies that define individuals as worthy members of society if they work and earn enough money, individuals tend to define themselves in this way. Employment is therefore the test of worth in society and for individuals. This may be one of the reasons why the ageing population and the vulnerable and disabled are seen as a burden. However, younger adults face enormous problems, they too may be unable to work, impaired and vulnerable.

She highlighted that private autonomy, self-determination, and dignity are driving principles used in many countries, more specifically in the context of living and dying wills. However, their qualification shows a wide variety. As the EU Proposal aims at guaranteeing EU-wide recognition, clarification of what exactly ought or ought not to be recognized would be most useful.

Professor Verschraegen’s presentation was followed by a lively discourse on the complexities of the protection of vulnerable adults in cross-border settings. The event was concluded with closing remarks by Professor Florian Heindler (Sigmund Freud University, Vienna).

Over the course of the conference, the consensus emerged that the legal protection of vulnerable adults, specifically in Central and Eastern Europe, remains a highly topical issue with meaningful developments to be expected both on a substantive and a conflict-of-laws level. In this context, new questions raised during the discussions may have already foreshadowed future publications and conferences.

I. (Vente d’une base de données)
Principes du droit communautaire
Selon l’avocat général Priit Pikamäe, une base de données à caractère personnel peut être, sous certaines conditions, vendue dans le cadre d’une procédure d’exécution forcée, même si les personnes concernées par ces données n’y ont pas consenti

Roumanie / Commission
Droit institutionnel
La décision d’enregistrer partiellement la proposition d’initiative citoyenne européenne (ICE) « Politique de cohésion pour l’égalité des régions et le maintien des cultures régionales » est confirmée par suite du rejet du pourvoi de la Roumanie

Deutsche Rentenversicherung Bund
Libre circulation des personnes
Prise en compte de périodes d’éducation accomplies dans un autre État membre lors du calcul d’une pension pour incapacité totale de travail

Direcţia pentru Evidenţa Persoanelor şi Administrarea Bazelor de Date
Citoyenneté européenne
Citoyenneté : le refus d’un État membre de délivrer à l’un de ses ressortissants, en plus d’un passeport, une carte d’identité ayant valeur de document de voyage, au seul motif qu’il est domicilié dans un autre État membre, est contraire au droit de l’Union

 

The organisers of the 2024 edition of the INSOL Europe Academic Forum kindly shared with us the following call for papers. Please note the deadline for submission is 1 March 2024:

 

The INSOL Europe Academic Forum (IEAF) is inviting submission for its 20th annual conference, taking place from Wednesday 2 – Thursday 3 October 2024 in Sorrento (Italy). Expressions of interest are invited for the delivery of research papers within the overall theme of the academic conference: ‘The Evolution or Revolution of European Insolvency Law’.

The conference is intended to focus on, inter alia, the following overall topics:

• Asset tracing (including crypto assets)
• Cross-border issues (recognition, coordination)
• Public and social policy and the impact on corporate rescue, and vice versa
• Sustainability and corporate restructuring
• Environmental claims in insolvency
• Transaction avoidance
• Pre-packs
• Modern issues surrounding directors’ duties to file for insolvency
• The impact and benefit (or not) of creditors’ committees
• EU Preventive Restructuring Directive implementation progress and challenges
• EU Harmonising Insolvency Directive
• Competition for cases as a driving force for legislative reform
• International organisations update

The IEAF board also invites submissions on other topics that fall with in the scope of the overall theme of the conference.

 

Conference methodology

In line with the practice established in our past academic conferences, the intention for the Autumn conference is to have research papers that challenge existing approaches, stimulate debate and ask, and attempt to answer, comparative and interdisciplinary questions within the above broadly defined theme. Accordingly, proposals are invited that do more than just outline a topic of interest in respect of any given jurisdiction, but seek to understand, analyse and critique the fundamentals of insolvency and restructuring systems in ways that are relevant across jurisdictions and across fields of academic inquiry. Contributions must be in English.

 

Presenting at the IEAF conference

Expressions of interest in delivering a paper should be sent by email on or before 1 March 2024 to the IEAF’s Deputy Chair, Dr. Jennifer Gant.

Authors of papers selected for presentation will benefit from a waiver of the participation fee (one per paper) for the academic conference, however, they will be responsible for their own travel and accommodation costs. A limited number of travel grants are available for junior scholars invited to present.

 

For further information, see: www.insol-europe.org/academic-forum-events

 

 

 

Justin Borg-Barthet, Katarina Trimmings, Burcu Yüksel Ripley and Patricia Živković, from the University of Aberdeen, have accepted the invitation of the editors of the blog to present their co-edited book, titled ‘From Theory to Practice in Private International Law: Gedächtnisschrift for Professor Jonathan Fitchen’, published by Bloomsbury Publishing. The text below is cross-posted on Conflictoflaws.net.

When our colleague and friend Prof Jonathan Fitchen passed away on 22 January 2021, we were comforted in our grief by an outpouring of messages of condolence from private international lawyers around the world. We had known, of course, of the impact and importance of Jonathan’s work to the world of private international law scholarship. His monograph on authentic instruments, for example, will remain an essential reference on that subject for many years to come. Jonathan’s impact on the world of private international law scholars was, to a degree, less obvious. He was an unassuming man. He did not seek to command the attention of every gathering he attended, and he might have been surprised to realise how often he did just that. He was tremendously well-liked and well-respected for his wit, his self-deprecating sense of humour, and his empathy.

This book seeks to capture in it some of the immense esteem in which Jonathan was held. That much will of course be of interest to the many scholars and practitioners who had the privilege of Jonathan’s acquaintance. The intellectual generosity of the contributing authors will ensure, however, that this volume will also be of great value to those who encounter Jonathan for the first time in these pages. Taken together, the chapters in this book address the major conceptual and practical challenges of our time: from stubborn definitional dilemmas, such as the deployment of key terms in international child abduction cases, to contemporary concerns about disruptive technologies like cryptocurrencies, to core conceptual challenges regarding the unintended consequences of our discipline’s professed neutrality.

The collection is divided into three main parts. Following a preface in which Prof Xandra Kramer paints a vivid picture of Jonathan’s humanity, humour and wit, and an introduction by ourselves as the editors, Part I includes four chapters which address conceptual matters relating to the nature and scope of private international law. Part II is made up of seven chapters concerning civil and commercial matters in private international law. Part III includes two chapters on family matters in private international law.

Part I: The Evolving Nature and Scope of Private International Law

The first substantive chapter is a tour de force by Alex Mills in which he explores the unsettled relationship between private international law and legal pluralism. Mills observes that private international law is both a product and producer of pluralism, in addition to being internally pluralist in its self-conception. Mills’ analysis will be of great interest to readers seeking to discern private international law’s place in the taxonomy of the study of law, whether they are observing that taxonomy from the perspective of a comparatist, a conflicts scholar, or a public international lawyer.

The following chapter also engages with the problem of pluralism in private international law. Thalia Kruger focuses specifically on mediated settlements with a view to illuminating their meaning for the purposes of transnational law. Kruger does a wonderful job of building on Jonathan Fitchen’s work by providing technical and normative analysis of the public faith to be accorded to private agreements. Ultimately, she welcomes a movement towards the upholding of settlement agreements but cautions against potential abuse of vulnerable parties.

The problem of vulnerability is the central focus of the next chapter, by Lorna Gillies. Gillies provides robust, systematic analysis of the theory and practice of our discipline’s treatment of vulnerable parties. This is, of course, one of the central problems in a discipline whose professed neutrality is capable of furthering and entrenching inequalities. Gillies argues persuasively that the application of Fredman’s four pillars of asymmetrical substantive equality would equip private international law better to address inherent risks of vulnerability.

Asymmetries of private power remain the focus of discussion in the following chapter on the under-explored relationship between our discipline and feminist scholarship, authored by two of the editors. Justin Borg-Barthet and Katarina Trimmings set out to contribute to a nascent discussion about sex-based vulnerability and how this is (un)seen by much of the literature and law. It is argued, ultimately, that private international law requires more sustained engagement with feminist scholarship if it is to avoid acting as an instrument for the entrenchment of substantive inequalities.

Part II: Civil and Commercial Matters in Private International Law

Unsurprisingly, given the focus of much of Jonathan Fitchen’s written work, Part II on civil and commercial matters makes up around half of the volume. It begins with Andrew Dickinson’s meticulous analysis of the meaning of “damage” in EU private international law. Dickinson notes that, despite the central importance of the term to the operation of much of EU private international law, there is little clarity as to its meaning. His chapter sets out to remedy this shortcoming through the articulation of a hitherto undeveloped taxonomy of “damage” which promises to become an essential tool in the arsenal of students, teachers, practitioners, and adjudicators of private international law.

Another editor, Burcu Yüksel Ripley, authored the next chapter, which addresses cryptocurrencies. Our discipline’s continued preoccupation with definitional clarity remains very much in evidence in this discussion of challenges posed by disruptive technologies. Yüksel Ripley notes that attempts to characterise cryptocurrencies as a thing/property are unsatisfactory in principle, and that they therefore lead to conceptually unsound outcomes. She proposes instead that analogies with electronic fund transfers provide more promise for the determination of the applicable law.

In the next chapter, by Laura Carballo Piñeiro, the volume returns to another major theme of Jonathan Fitchen’s scholarly output, namely the effectiveness of collective redress mechanisms. Carballo Piñeiro observes that access to justice remains restricted in most jurisdictions, and that a common EU approach remains lacking. Although the courts have provided some routes to collective redress, Carballo Piñeiro argues that a robust legislative response is paramount if corporate accountability for environmental harm is to be realised in Europe.

Private international law’s ability to engage with concerns regarding environmental sustainability remains a key focus of analysis in Carmen Otero García-Castrillón’s chapter concerning the discipline’s place in international trade agreements. The chapter advocates the bridging of an artificial systemic separation between the private and the public in the international system. It is argued that the extent of private power in the international system merits attention in trade agreements if sustainable development goals are to be attained.

Giesela Rühl also addresses concerns regarding private international law’s ability to be deployed in matters which are traditionally reserved to public and public international law. Her chapter considers innovations introduced through the German Supply Chain Due Diligence Act (Lieferkettensorg-faltspflichtengesetz – LkSG) which establishes mandatory human rights due diligence obligations in German companies’ international supply chains. Rühl laments the lack of attention paid to private international law in German law. She makes an especially compelling case for any future EU interventions to recognise the need to engage with private international law if legislation is to be effective.

The uneasy public-private divide in transnational law remains in evidence in Patricia Živković’s chapter concerning what she describes as “creeping substantive review” in international arbitration. Živković decries a lack of conceptual clarity in courts’ treatment of arbitral determinations, particularly insofar as public policy is deployed as an instrument of substantive review of private adjudication. She argues that international legislative intervention is needed if prevailing inconsistencies of treatment are to be resolved.

Fittingly, Part II is rounded off with a discussion of that part of private international law to which Jonathan Fitchen made his most enduring scholarly contribution, namely authentic instruments. Zheng Tang and Xu Huang discuss authentic instruments in Chinese private international law. Like Jonathan’s work, this chapter provides readers of English language scholarship with a rare example of in-depth analysis of concepts which are unfamiliar in the Anglo-American tradition. The chapter’s compelling arguments for legal refinements will also be of use, however, to readers who wish to identify possible improvements to Chinese law.

Part III: Family Matters in Private International Law

The final part of the book turns to family law, an area in which Jonathan provided ample instruction to students, but which was not especially in evidence in his written work. In keeping with the previous parts of the book, our discipline’s need for definitional clarity and consistency are very much apparent in the chapters in this part, as is the somewhat existential concern regarding the proper delineation of the public and the private. As the authors in this part observe, each of these matters has far-reaching effects on the apportioning of rights and obligations in circumstances which are deeply meaningful to the lives of litigants.

Aude Fiorini’s chapter considers flawed reasoning in the US Court of Appeals judgment in Pope v Lunday. Fiorini illustrates the substantive flaws in the Court’s treatment of the habitual residence of neonates, but also highlights a broader concern regarding the potential for unconscious bias in judicial decision-making. Through the judgment in Pope, Fiorini raises alarms regarding inconsistent judicial treatment of similar situations which turn on appreciation of circumstances establishing the habitual residence of a child. She argues, particularly compellingly in our view, that the interests of justice require greater conceptual clarity and consistency.

In the final chapter, by Anatol Dutta, the interactions of the public and the private return to the fore. Taking his cue from Jonathan Fitchen’s work on authentic instruments, Dutta explores the concept of private divorce under the Brussels IIter Regulation. Concerns regarding decisional autonomy are very much in evidence in this chapter, which considers the meaning of private divorces and the extent to which they enjoy recognition in the EU private international law system. Ultimately, Dutta welcomes measures which restrict private divorce tourism in the EU.

Conclusions

This book was born of a collective wish to remember and honour a much-loved scholar of private international law. In that, we trust that it has already fulfilled its purpose. However, each chapter individually and the book taken as a whole also capture the state of the art of private international law. Ours remains a discipline in search of systemic normative clarity and in episodic need of technical refinement. This collection provides tantalising glimpses of possible answers to both the essential question of the treatment of the private in the attainment of public goods, and in relation to longstanding vexing technical questions.

To preserve and further Jonathan Fitchen’s legacy as an educator of private international lawyers, editorial royalties from the sale of the book will be donated to the Jonathan Fitchen Fund of the Development Trust at the University of Aberdeen. Direct individual donations to the fund are also welcome and appreciated.

Written by Justin Borg-Barthet, Katarina Trimmings, Burcu Yüksel Ripley and Patricia Živkovic

Note: This post is also available via the blog of the European Association of Private International Law.

When our colleague and friend Prof Jonathan Fitchen passed away on 22nd January 2021, we were comforted in our grief by an outpouring of messages of condolence from private international lawyers around the world. We had known, of course, of the impact and importance of Jonathan’s work to the world of private international law scholarship. His monograph on authentic instruments, for example, will remain an essential reference on that subject for many years to come. Jonathan’s impact on the world of private international law scholars was, to a degree, less obvious. He was an unassuming man. He did not seek to command the attention of every gathering he attended, and he might have been surprised to realise how often he did just that. He was tremendously well-liked and well-respected for his wit, his self-deprecating sense of humour, and his empathy.

This book seeks to capture in it some of the immense esteem in which Jonathan was held. That much will of course be of interest to the many scholars and practitioners who had the privilege of Jonathan’s acquaintance. The intellectual generosity of the contributing authors will ensure, however, that this volume will also be of great value to those who encounter Jonathan for the first time in these pages. Taken together, the chapters in this book address the major conceptual and practical challenges of our time: from stubborn definitional dilemmas, such as the deployment of key terms in international child abduction cases, to contemporary concerns about disruptive technologies like cryptocurrencies, to core conceptual challenges regarding the unintended consequences of our discipline’s professed neutrality.

The collection is divided into three main parts. Following a preface in which Prof Xandra Kramer paints a vivid picture of Jonathan’s humanity, humour and wit, and an introduction by ourselves as the editors, Part I includes four chapters which address conceptual matters relating to the nature and scope of private international law. Part II is made up of seven chapters concerning civil and commercial matters in private international law. Part III includes two chapters on family matters in private international law.

 

Part I: The Evolving Nature and Scope of Private International Law

The first substantive chapter is a tour de force by Alex Mills in which he explores the unsettled relationship between private international law and legal pluralism. Mills observes that private international law is both a product and producer of pluralism, in addition to being internally pluralist in its self-conception. Mills’ analysis will be of great interest to readers seeking to discern private international law’s place in the taxonomy of the study of law, whether they are observing that taxonomy from the perspective of a comparatist, a conflicts scholar, or a public international lawyer.

The following chapter also engages with the problem of pluralism in private international law. Thalia Kruger focuses specifically on mediated settlements with a view to illuminating their meaning for the purposes of transnational law. Kruger does a wonderful job of building on Jonathan Fitchen’s work by providing technical and normative analysis of the public faith to be accorded to private agreements. Ultimately, she welcomes a movement towards the upholding of settlement agreements but cautions against potential abuse of vulnerable parties.

The problem of vulnerability is the central focus of the next chapter, by Lorna Gillies. Gillies provides robust, systematic analysis of the theory and practice of our discipline’s treatment of vulnerable parties. This is, of course, one of the central problems in a discipline whose professed neutrality is capable of furthering and entrenching inequalities. Gillies argues persuasively that the application of Fredman’s four pillars of asymmetrical substantive equality would equip private international law better to address inherent risks of vulnerability.

Asymmetries of private power remain the focus of discussion in the following chapter on the under-explored relationship between our discipline and feminist scholarship, authored by two of the editors. Justin Borg-Barthet and Katarina Trimmings set out to contribute to a nascent discussion about sex-based vulnerability and how this is (un)seen by much of the literature and law. It is argued, ultimately, that private international law requires more sustained engagement with feminist scholarship if it is to avoid acting as an instrument for the entrenchment of substantive inequalities.

 

Part II: Civil and Commercial Matters in Private International Law

Unsurprisingly, given the focus of much of Jonathan Fitchen’s written work, Part II on civil and commercial matters makes up around half of the volume. It begins with Andrew Dickinson’s meticulous analysis of the meaning of “damage” in EU private international law. Dickinson notes that, despite the central importance of the term to the operation of much of EU private international law, there is little clarity as to its meaning. His chapter sets out to remedy this shortcoming through the articulation of a hitherto undeveloped taxonomy of “damage” which promises to become an essential tool in the arsenal of students, teachers, practitioners, and adjudicators of private international law.

Another editor, Burcu Yüksel Ripley, authored the next chapter, which addresses cryptocurrencies. Our discipline’s continued preoccupation with definitional clarity remains very much in evidence in this discussion of challenges posed by disruptive technologies. Yüksel Ripley notes that attempts to characterise cryptocurrencies as a thing/property are unsatisfactory in principle, and that they therefore lead to conceptually unsound outcomes. She proposes instead that analogies with electronic fund transfers provide more promise for the determination of the applicable law.

In the next chapter, by Laura Carballo Piñeiro, the volume returns to another major theme of Jonathan Fitchen’s scholarly output, namely the effectiveness of collective redress mechanisms. Carballo Piñeiro observes that access to justice remains restricted in most jurisdictions, and that a common EU approach remains lacking. Although the courts have provided some routes to collective redress, Carballo Piñeiro argues that a robust legislative response is paramount if corporate accountability for environmental harm is to be realised in Europe.

Private international law’s ability to engage with concerns regarding environmental sustainability remains a key focus of analysis in Carmen Otero García-Castrillón’s chapter concerning the discipline’s place in international trade agreements. The chapter advocates the bridging of an artificial systemic separation between the private and the public in the international system. It is argued that the extent of private power in the international system merits attention in trade agreements if sustainable development goals are to be attained.

Giesela Rühl also addresses concerns regarding private international law’s ability to be deployed in matters which are traditionally reserved to public and public international law. Her chapter considers innovations introduced through the German Supply Chain Due Diligence Act (Lieferkettensorg-faltspflichtengesetz – LkSG) which establishes mandatory human rights due diligence obligations in German companies’ international supply chains. Rühl laments the lack of attention paid to private international law in German law. She makes an especially compelling case for any future EU interventions to recognise the need to engage with private international law if legislation is to be effective.

The uneasy public-private divide in transnational law remains in evidence in Patricia Živkovi?’s chapter concerning what she describes as “creeping substantive review” in international arbitration. Živkovi? decries a lack of conceptual clarity in courts’ treatment of arbitral determinations, particularly insofar as public policy is deployed as an instrument of substantive review of private adjudication. She argues that international legislative intervention is needed if prevailing inconsistencies of treatment are to be resolved.

Fittingly, Part II is rounded off with a discussion of that part of private international law to which Jonathan Fitchen made his most enduring scholarly contribution, namely authentic instruments. Zheng Tang and Xu Huang discuss authentic instruments in Chinese private international law. Like Jonathan’s work, this chapter provides readers of English language scholarship with a rare example of in-depth analysis of concepts which are unfamiliar in the Anglo-American tradition. The chapter’s compelling arguments for legal refinements will also be of use, however, to readers who wish to identify possible improvements to Chinese law.

 

Part III: Family Matters in Private International Law

The final part of the book turns to family law, an area in which Jonathan provided ample instruction to students, but which was not especially in evidence in his written work. In keeping with the previous parts of the book, our discipline’s need for definitional clarity and consistency are very much apparent in the chapters in this part, as is the somewhat existential concern regarding the proper delineation of the public and the private. As the authors in this part observe, each of these matters has far-reaching effects on the apportioning of rights and obligations in circumstances which are deeply meaningful to the lives of litigants.

Aude Fiorini’s chapter considers flawed reasoning in the US Court of Appeals judgment in Pope v Lunday. Fiorini illustrates the substantive flaws in the Court’s treatment of the habitual residence of neonates, but also highlights a broader concern regarding the potential for unconscious bias in judicial decision-making. Through the judgment in Pope, Fiorini raises alarms regarding inconsistent judicial treatment of similar situations which turn on appreciation of circumstances establishing the habitual residence of a child. She argues, particularly compellingly in our view, that the interests of justice require greater conceptual clarity and consistency.

In the final chapter, by Anatol Dutta, the interactions of the public and the private return to the fore. Taking his cue from Jonathan Fitchen’s work on authentic instruments, Dutta explores the concept of private divorce under the Brussels IIter Regulation. Concerns regarding decisional autonomy are very much in evidence in this chapter, which considers the meaning of private divorces and the extent to which they enjoy recognition in the EU private international law system. Ultimately, Dutta welcomes measures which restrict private divorce tourism in the EU.

 

Conclusions

This book was born of a collective wish to remember and honour a much-loved scholar of private international law. In that, we trust that it has already fulfilled its purpose. However, each chapter individually and the book taken as a whole also capture the state of the art of private international law. Ours remains a discipline in search of systemic normative clarity and in episodic need of technical refinement. This collection provides tantalising glimpses of possible answers to both the essential question of the treatment of the private in the attainment of public goods, and in relation to longstanding vexing technical questions.

To preserve and further Jonathan Fitchen’s legacy as an educator of private international lawyers, editorial royalties from the sale of the book will be donated to the Jonathan Fitchen Fund of the Development Trust at the University of Aberdeen. Direct individual donations to the fund are also welcome and appreciated.

On Tuesday, March 5, 2024, the Hamburg Max Planck Institute will host its 42nd monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CET). Marta Pertegás Sender (Maastricht University and University of Antwerp) will speak, in English, about the topic

Current Developments in Cross-Border Enforcement of Patent Rights: Revisiting Territoriality and Reflexive Effect?

The CJEU preliminary ruling in BSH Hausgeräte Case C-339/22 is eagerly awaited by those involved or interested in cross-border enforcement of patent rights. The forthcoming judgment may have broader repercussions for the position of territoriality in international litigation on intellectual property rights or for the private international law of property more generally.

On the basis of AG Emiliou’s Opinion expected on 22 February 2023, this paper revisits some of the positions defended in my doctoral research almost 25 years ago (on still controversial issues such as the articulation of exclusive jurisdiction rules when validity is contested in infringement cases, or the ‘reflexive effect’ (effet réflexe) of such exclusive jurisdiction rules in favour of courts in non-EU States).

The presentation will be followed by an 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.

We are please to announce that registration for the  next bi-annual conference of the European Association of Private International Law (EAPIL) is now open!

The conference will take place in Wroclaw (Poland) from 6 to 8 June 2024 and will be devoted to “Private International Law and Global Crises”. Topics to be discussed will include the interplay of private international law and 1) war and armed conflicts, 2)  the rule of law, 3) climate change and 4) global supply chains. Speakers will be:

• Raffaele Sabato (European Court of Human Rights)
• Vincent Kronenberger (Court of Justice of the European Union)
• Andreas Stein (European Commission)
• Patrick Kinsch (University of Luxembourg)
• Veronica Ruiz Abou-Nigm (University of Edinburgh)
• Iryna Dikovska (Taras Shevchenko National University Kyiv)
• Tamasz Szabados (ELTE Eötvös Loránd University)
• Alex Mills (University College London), Matthias Weller (University of Bonn)
• Eduardo Alvarez Armas (Universidad Pontificia Comillas)
• Olivera Boskovic (Université Paris Cité)
• Rui Dias (University of Coimbra)
• Klaas Eller (University of Amsterdam)
• Laura Carpaneto (University of Genova)

To register for the conference please click here.

For questions, please get in touch with the local organizer, Agnieszka-Frackowiak-Adamska, at 2024.EAPIL.Wroclaw@uwr.edu.pl.

 

Papouis Dairies e.a. / Commission
Agriculture
Le Tribunal rejette un recours formé contre l’enregistrement de la dénomination « Halloumi » en tant qu’appellation d’origine protégée

PAN Europe / Commission
Agriculture
Produits phytopharmaceutiques : l’identification de certains risques liés à l’utilisation des insecticides n’exclut pas le renouvellement de l’approbation d’une substance active

This post was written by Silvia Marino, Professor of EU law at the University of Insubria in Como, and Director of the EAPIL Winter School.

The first edition of the EAPIL Winter School in European Private International Law took place at the Department of Law, Economics and Cultures of the University of Insubria in Como from 12 to 16 February 2024.

The five-day course was organized by the University of Insubria in partnership with the University of Murcia, the Jagiellonian University in Kraków and the J.J. Strossmayer University of Osijek. Financial support was provided by the International Insubria Summer/Winter Schools programme and through a Jean Monnet Module named “European Private International Law: Recent Trends and Challenges” (EuPILART).

The School’s programme, set out by a dedicated EAPIL Working Group consisting of Javier Carrascosa González, Silvia Marino and Anna Wysocka-Bar, addressed a broad range of concerning Personal Status and Family Relationships.

Thirty people, coming from Belgium, Germany, Italy, Panama, Poland, Portugal, Romania, Spain, Turkey, the United Kingdom and Ukraine, attended the School. Most were either PhD students with an interest in European Private International Law or young practicing lawyers.

12 February

Camelia Toader, former Judge at the Court of Justice of the European Union, and Ioan-Luca Vlad, attorney at law, kicked off the Winter School with an introductory lecture on cross-borders families and the free movement of persons within the EU. They discussed the historical development of the law in this area, the relevance of judicial cooperation to the enjoyment of fundamental rights and the freedom of movement enshrined in EU law. They stressed the need for a uniform and coherent set of rules of private international law governing the broad range of issues that cross-border families experience in practice.

Pietro Franzina, Professor of International Law at the Catholic University of Sacred Hearth in Milan, provided an overview of the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union, delving into their mutual relationships and their impact on private international law. He noted that human rights concern may require, depending on the circumstances, that private international law rules.

In the afternoon, Satu Heikkilä, lawyer and non-judicial Rapporteur at the European Court of Human Rights, went through the case law of the Strasbourg Court relating to Article 8 of the European Convention on Human Rights, which enshrines the right for respect of private and family life.

Special attention was devoted in her lecture to the concern for continuity of personal and family status across national borders and the rulings of the Court that address that concern.

13 February

Day two started with a discussion with participants aimed to identify the main problems faced by cross-borders families in Europe, moderated by Silvia Marino. The attendees exchanged views on what they perceived to be the most relevant challenges. The discussion put the bases for the closing workshop scheduled for day five, aimed to assess whether the current rules of private international law in force in the EU properly address such challenges.

Michael Wilderspin, former Legal Advisor of the European Commission, discussed the concept of mutual recognition, as understood in EU law for the purposes of free movement and in the context of private international law. The lecture presented the relevant case law of the Court of Justice of the European Union.

In the afternoon, Anna Wysocka-Bar, Senior Lecturer at the Jagiellonian University, offered a comparative overview of some European Countries legislations on sex reassignment and went through the pertinent case law of the European Court of Human Rights and the Court of Justice of the European Union.

Katja Karjalainen, Senior Lecturer at the University of Eastern Finland, examined the issues that surround the protection of vulnerable adults in cross-border situations, stressing the importance of cooperation among States in this area, notably in light of the 2000 Hague Convention on the Protection of Adults.

14 February

On day three, Laura Carpaneto, Associate Professor at the University of Genova, provided an overview of the provisions on parental responsibility in the Brussels II ter Regulation. She also introduced the issue of surrogacy, especially in light of the ongoing Parentage Project at the Hague Conference of Private International Law.

Ester di Napoli, Research Fellow at the University of Ferrara,  discussed a number of issues relating to adoption, covering both inter-country adoption and the recognition of foreign adoption decrees. Starting from a human rights perspective, she focused, in particular, on the 1993 Hague Convention and the issues raised by its practical operation.

Cristina González Beilfuss, Full Professor at the University of Barcelona, addressed the sensitive issue of surrogacy. She shared some inspiring views on parenthood grounded on non-genetic ties, and outlined the policies that are likely to shape any harmonisation effort in this area through EU  legislation.

Finally, Nadia Rusinova, attorney at law in the Netherlands and in Bulgaria, presented the topic of child abduction. She discussed a practical case showing the interplay of the 1980 Hague Child Abduction Convention, the 1996 Hague Child Protection Conventions and the Brussels II ter Regulation.

15 February

Day four started with a lecture by Etienne Pataut, Full Professor at the Paris 1 – Sorbonne University, on Acceptance and recognition of personal status. He discussed the relationship between the European Union and the International Commission on Civil Status, stressing the important role played by the latter and the potential of continuing cooperation between the two.

Ian Summer, Judge and Full Professor at Tilburg University, addressed the cross-border recognition of marriages and registered partnerships. He provided a comparative overview before encouraging participants to discuss in groups about the issue of recognition in cases involving unknown legal institutions.

Máire Ní Shúilleabháin, Associate Professor at the University College of Dublin, focused on cross-border separations and divorce, in light of the 1970 Hague Convention on the Recognition of Divorces and Legal Separations, the  Brussels II ter Regulation and Rome III Regulation, in light domestic and European case law.

The closing lecture of the day,  by Javier Carrascosa González, Full Professor at the University of Murcia, dealt with remedies against infringements to rights of personality. The focus was on the interaction of family law rules with tort law, and the potential of the latter for the protection of indivudals from the violation of rights related to private life.

16 February

Day five started with three parallel sessions. The first one, on The recognition of unknown family status: the pillar cases: Coman, Pancharevo and beyond, was chaired by Anna Wysocka-Bar; the second one, on The right to name according to ECtHR and CJEU case-law, was guided  by Silvia Marino; Javier Carrascosa González led the discussion on The notion of habitual residence: comparing HCCH and EU systems.

Participants were invited to choose among the three and take part in the discussion, based, among other things, on reading materials that had been shared before the start of the Winter School.

Raffaele Sabato, judge at European Court of Human Rights, held the final lecture. He illustrated the key principles arising from the case law of the European Court of Human Rights on the right to respect for private and family life, and discussed the need for private international law rules that reflect the evolving notion of family and the emerging challenges faced by people on the move.

— The topic of the next edition of the EAPIL Winter School will be announced in the coming weeks. Stay tuned!