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From 7 to 13 February 2022, Università degli Studi, Milan and the European Court of Arbitration organize, in cooperation with Comitato Italiano dell’Arbitrato, the Milan-based international law firms Bonelli Erede and DLA Piper, with the support of the Centre of Research on Domestic, European and Transnational Dispute Settlement, the Milan Arbitration Week which, through various events, deals with domestic arbitration, international commercial arbitration and arbitration in the field of international investment.

All the information is available at this link: https://www.transnational-dispute-management.com/news/20220207.pdf

Brill launched a new Journal, The Italian Review of International and Comparative Law, which is managed by a group of professors from the University of Naples and the Scuola Superiore Sant’Anna in Pisa. The aim of the Journal is to publish contributions on International law, private International law, EU law and comparative law. In this regard, see the recently launched a call for papers on “The European Union and International Arbitration”.

Polskie Górnictwo Naftowe i Gazownictwo / Commission (Rejet de plainte)
Concurrence
Le Tribunal annule la décision de la Commission rejetant la plainte déposée par un grossiste polonais

Scania e.a. / Commission
Concurrence
Le Tribunal rejette le recours de Scania et maintient l’amende de 880,52 millions d’euros infligée par la Commission pour sa participation à l’entente entre constructeurs de camions

Polskie Górnictwo Naftowe i Gazownictwo / Commission (Engagements de Gazprom)
Concurrence
Le Tribunal rejette le recours à l’encontre de la décision de la Commission rendant obligatoires les engagements présentés par Gazprom en vue de remédier aux préoccupations concurrentielles de la Commission relatives aux marchés nationaux de la fourniture de gaz de gros en amont dans les pays de l’Europe centrale et orientale

Due to the ‘semaine blanche’, February is usually a short month at the Court of Justice. However, several PIL-related activities are worth noting this particular February. They start this Thursday with the judgment in C-20/21, LOT Polish Airlines. A chamber of three judges (Rodin, Bonichot, Spineanu-Matei) will decide on the request by the Regional Court, Frankfurt am Main, addressing jurisdiction under Article 7(1), of the Brussels I bis Regulation:

Must Article 7(1)(b) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters be interpreted as meaning that the place of performance, within the meaning of that provision, in respect of a flight consisting of a confirmed single booking for the entire journey and divided into two or more legs, can also be the place of arrival of the first leg of the journey where transport on those legs of the journey is performed by two separate air carriers and the claim for compensation brought on the basis of Regulation (EC) No 261/2004 arises from the delay of the first leg of the journey and is brought against the operating air carrier of that first leg?

An advocate general’s opinion was deemed not necessary.

A public hearing in case C-646/20, Senatsverwaltung für Inneres und Sport, will take place on Tuesday 8th. The request focuses on Regulation Brussels II bis. The main proceedings concern the question of whether a private divorce granted in Italy further to concurring statements by the spouses before the civil registrar can be recorded in the German register of marriages without any additional recognition procedure.

The Bundesgerichtshof is asking the Court of Justice two short, straight-forward questions:

1. Is the dissolution of a marriage on the basis of Article 12 of Decreto Legge (Italian Decree-Law) No 132 of 12 September 2014 (‘DL No 132/2014’) a divorce within the meaning of the Brussels IIa Regulation?
2. If Question 1 is answered in the negative: Is the dissolution of a marriage on the basis of Article 12 of DL No 132/2014 to be treated in accordance with the rule in Article 46 of the Brussels IIa Regulation on authentic instruments and agreements?

The reporting judge is M. Safjan, for the Grand Chamber (Lenaerts, Bay Larsen, Arabadjiev, Prechal, Regan, Rodin, Jarukaitis, Ilešič, Bonichot, Safjan, Kumin, Arastey Sahún, Gavalec, Csehi, Spineanu-Matei). After the hearing, Advocate General Collins will announce the date of publication of his opinion.

Two days later (10 February), the Court will hand down the judgment in the case of C-595/20, ShareWood Switzerland, on the interpretation of the Rome I Regulation. The requesting court is the Austrian Oberster Gerichtshof:

Is Article 6(4)(c) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations to be interpreted as meaning that a contract for the purchase of teak and balsa trees between an undertaking and a consumer, which is intended to confer ownership of the trees, which are then managed, harvested and sold for profit, and which includes for that purpose a lease agreement and a service agreement, is to be regarded as ‘a contract relating to a right in rem in immovable property or a tenancy of immovable property’ within the meaning of that provision?

Once again M. Safjian is the reporting judge, sitting with judges Jääskinen and Gavalec. The preliminary ruling will be taken without opinion.

On the same day, a chamber composed by judges Prechal, Passer, Biltgen, Wahl and Rossi (reporting), will rule on C-522/20, OE. The referring court – the Oberster Gerichtshof, Austria, acting as Court of Cassation in a matter of divorce- has asked the following to the Court in Luxembourg:

1. Does the sixth indent of Article 3[(1)](a) of Council Regulation (EC) No 2201/2003 of 27 November 2003 infringe the prohibition of discrimination in Article 18 TFEU on the ground that it provides, as a precondition to the jurisdiction of the courts of the State of residence, depending on the nationality of the applicant, for a shorter period of residence than the fifth indent of Article 3[(1)](a) of Council Regulation (EC) No 2201/2003 of 27 November 2003?
2. If the answer to Question 1 is in the affirmative: Does that infringement of the prohibition of discrimination mean that, based on the fundamental rule laid down in the fifth indent of Article 3[(1)](a) of Council Regulation (EC) No 2201/2003 of 27 November 2003, a period of residence of 12 months is required for all applicants, irrespective of their nationality, in order to rely upon the jurisdiction of the courts in the place of residence or is it to be assumed that a period of 6 months’ residence is the precondition for all applicants?

Among other, the applicant submits that under fifth and sixth indents of Article 3[(1)](a) of Regulation No 2201/2003 (Brussels II bis), jurisdiction for divorce proceedings is established for nationals of the forum State after just 6 months’ residence in that State, whereas nationals of other Member States must have been resident for at least 1 year; that this is unequal treatment solely on grounds of nationality and therefore infringes Article 18 TFEU.

No advocate general’s opinion has been asked for.

Finally, on 24 February Advocate General Szpunar will deliver his opinion in the case of C-501/20, M P A, giving us his views on habitual residence, forum necessitatiss and denial of justice in family matters. The request to the Court comes from the Audiencia Provincial of Barcelona; it relates to divorce proceedings of spouses who happen to be employees of the European Commission in its delegation in Togo. At stake are as well the dissolution of the matrimonial property regime, the determination of the regime and procedures for exercising custody and parental responsibility over the minor children, the grant of a maintenance allowance for the children and rules for the use of the family home in Togo. The interpretation requested affect the Brussels II bis Regulation, Regulation No 4/2009, and Article 47 of the Charter of Fundamental Rights of the European Union.

The questions are:

1. How is the term ‘habitual residence’ in Article 3 of Regulation No 2201/2003 and Article 3 of Regulation No 4/2009 to be interpreted in the case of the nationals of a Member State who are staying in a non-Member State by reason of the duties conferred on them as members of the contract staff of the European Union and who, in the non-Member State, are recognised as members of the diplomatic staff of the European Union, when their stay in that State is linked to the performance of their duties for the European Union?
2. If, for the purposes of Article 3 of Regulation No 2201/2003 and Article 3 of Regulation No 4/2009, the determination of the habitual residence of the spouses depended on their status as EU contract staff in a non-Member State, how would this affect the determination of the habitual residence of the minor children in accordance with Article 8 of Regulation No 2201/2003?
3. In the event that the children are not regarded as habitually resident in the non-Member State, can the connecting factor of the mother’s nationality, her residence in Spain prior to the marriage, the Spanish nationality of the minor children and their birth in Spain be taken into account for the purposes of determining habitual residence in accordance with Article 8 of Regulation No 2201/2003?
4. If it is established that the parents and children are not habitually resident in a Member State, given that, under Regulation No 2201/2003 there is no other Member State with jurisdiction to decide on the applications, does the fact that the defendant is a national of a Member State preclude the application of the residual clause contained in Articles 7 and 14 of Regulation No 2201/2003?
5. If it is established that the parents and children are not habitually resident in a Member State for the purpose of determining child maintenance, how is the forum necessitatis in Article 7 of Regulation No 4/2009 to be interpreted and, in particular, what are the requirements for considering that proceedings cannot reasonably be brought or enforced or prove impossible in a non-Member State with which the dispute is closely connected (in this case, Togo)? Must the party have initiated or attempted to initiate proceedings in that State with a negative result and does the nationality of one of the parties to the dispute constitute a sufficient connection with the Member State?
6. In a case like this, where the spouses have strong links with Member States (nationality, former residence), is it contrary to Article 47 of the Charter of Fundamental Rights if no Member State is considered to have jurisdiction under the provisions of the Regulations?

The case has been entrusted to Judges Prechal, Passer, Biltgen, Wahl, and Rossi (reporting).

Le Conseil constitutionnel prononce un non-lieu à statuer sur une question prioritaire de constitutionnalité portant sur les articles L. 2141-1 et L. 3123-1 du code de la commande publique excluant de plein droit des procédures de passation des marchés publics et des contrats de concession. Il considère que les principes de nécessité et d’individualisation des peines et le droit à un recours juridictionnel effectif ne constituent pas des principes inhérents à l’identité constitutionnelle de la France. 

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The 35th Annual Survey of Choice of Law in the American Courts (2021) has been posted to SSRN. The authors of this year’s survey owe an enormous debt to Symeon Symeonides who has, over the past three decades, provided an extraordinary service by authoring the previous thirty annual surveys. Having now finished our first survey, we are all the more impressed with his work. Thank you Symeon — and thank you all for reading.

John Coyle (University of North Carolina School of Law)
William Dodge (University of California, Davis School of Law)
Aaron Simowitz (Willamette University College of Law)

The appeal in The Public Institution for Social Security v Banque Pictet & Cie SA & Ors [2022] EWCA Civ 29 has been dismissed. I reviewed the first instance judgment here. I conclude that review writing ‘Those criticising the intensity of jurisdiction squabbles will find ammunition in this 497 para judgment.’ The Court of Appeal judgment is another 152 paras and as Andrew Dickinson also notes, Carr LJ, too, is critical: [12]

There will of course be cases where a novel and/or complex point of law needs to be debated fully and decided and, as foreshadowed above, this litigation raises some new, albeit relatively short, legal issues. Further, the sums involved are substantial and the allegations made are serious. However, these features did not create a licence to turn a jurisdictional dispute into an extensive and essentially self-standing piece of litigation. The costs incurred below ran to many, many millions of pounds: the interim payment orders in respect of the Respondents’ costs amounted to £6.88 million against a claimed total of some £13.5 million.

The issues on appeal are listed [41] ff and they of course reflect the discussion I summarised in my post on the first instance findings. I list them below and summarise the Court’s findings.

Article 23 formal requirements (involving Banque Pictet and Mr Bertherat only):

i) For the purposes of the requirement in Article 23(1)(a) that a jurisdiction agreement must be in or evidenced in writing, was the Judge right to conclude that it was unnecessary for the GBCs containing the EJCs (‘exclusive jurisdiction clauses, GAVC) actually to have been communicated to PIFSS?

ii) If so, was the Judge right to find that Banque Pictet did not have the better of the argument that the GBCs were communicated to PIFSS prior to 2012?

Lady Justice Carr is right in my view e.g. [67] that CJEU authority does not require material communication of GTCs etc which contain EJCs. Rather, the judge needs to establish ‘real consent’,  in the spirit of the Raport Jenard with a rejection of excessive formality.

Article 23 material validity (involving all Pictet and Mirabaud Respondents (save for Pictet Asia, Pictet Bahamas and, for the avoidance of doubt, also Mr Amouzegar and Mr Argand)):

i) Was the Judge right to conclude that the “particular legal relationship(s)” in connection with which the EJCs were entered into for the purpose of Article 23 was the totality of the legal relationships between the parties forming part of the banker/customer relationship between them?

ii) Was the Judge right to conclude that the relevant Respondents had the better of the argument that the disputes relating to (a) the Pictet/Mirabaud bribery claims; (b) the Pictet/Mirabaud accessory claims “ar[o]se out of” those “particular legal relationship(s)”?

The term ‘material validity’ is employed both in first instance and at the Court of Appeal although it is not quite correct; what is really meant is what Henshaw J called the ‘proximity’ requirement: which ‘disputes’ ‘relate to’ the matters covered by the EJCs? Here, Carr LJ sides eventually [98] with the judge mostly as a matter of factual analysis: neither CJEU Apple nor CDC require a restrictive approach where parties have formulated the EJC very widely. The judge carefully considered the wording of the clause and on contractual construction was right to find that the disputes at issue fell within it.

Scope of EJCs (as a matter of the relevant domestic law) (involving all Pictet and Mirabaud Respondents (save for Pictet Asia and Pictet Bahamas and again, for the avoidance of doubt, Mr Amouzegar and Mr Argand)):

i) Was the Judge right to find that PIFSS had the better of the argument that, on the true construction of the relevant EJCs, the disputes relating to the wider accessory claims fell outside the scope of the applicable EJCs?

ii) (Mr Mirabaud only): Was the Judge right to conclude that PIFSS had the better of the argument that claims against Mr Mirabaud relating to events after 1 January 2010 fell outside the scope of the relevant EJCs?

This issue relates to whether the EJCs, as a matter of construction under Swiss (or Luxembourg) law – which the judge had discussed obiter, did not extend to cover the wider accessory claims. [101]: in summary the relevant parties suggest that, having correctly recognised that what was alleged by PIFSS were unitary schemes arising out of continuing courses of conduct, the Judge was then wrong to conclude that they did not have the better of the argument that the wider accessory claims also fell within the EJCs.

Carr LJ deals rather swiftly with these discussions, again I feel finding mostly that the judge’s analysis was mostly factual (albeit seen from the viewpoint of Swiss and /or Luxembourg law) and not incorrect.

Article 6: (the number of Respondents to whom the Article 6 challenge is relevant will depend on the outcome of the appeals on the issues above, but on any view the issue of principle arises in relation to Mr Amouzegar and Mr Argand):

i) Was the Judge right to conclude that, for the purpose of Article 6, the Court was not required to consider solely the risk of irreconcilable judgments between the claim against the anchor defendant and the claim(s) against the proposed Article 6 defendant(s) but rather was permitted to consider other relevant circumstances including, in particular, the risk of irreconcilable judgments between the claims sought to be made against the proposed defendant and other claims in other member states?

ii) Did the Judge apply the test correctly in relation to each relevant Respondent?

This I find is the most important part of the judgment for it is in my view the one which most intensely deals with a point of law. Readers may want to refer to my earlier post for a summary of the A6 (Lugano) issues. The judge had found against A6 jurisdiction, also following Privatbank‘s ‘desirability’ approach. Parties upon appeal argue [110] that the Judge’s interpretation results in exclusive jurisdiction clauses having practical effects well beyond the scope of their application, with the collateral effect of conferring on them a “gravitational pull” which is inconsistent with the proper interpretation of A23 Lugano. PIFSS submits that it undermines the drive for legal certainty that motivates the strict approach to A6 identified in the authorities. They also suggested (in oral submission) that for A6 purposes only actual, and not merely potential, proceedings are properly to be taken into account. 

The CA however [112] confirms the relevance of future as well as extant claims and generally supports the flexible approach to A6. Carr J concedes [131] that this approach can be said to give “gravitational pull” to A23 and suggests ‘(t)here is nothing objectionable about that, given the respect to be accorded to party autonomy.’

I do not think this is correct. Including broadly construed ‘related’ claims in choice of court would seem to deny, rather than protect party autonomy: for if parties had really wanted to see them litigated in the choice of court venue, they ought to have contractually include them.

The issue of desirability per Privatbank is not discussed and therefore remains open (compare EuroEco Fuels).

Forum non conveniens: Pictet Asia and Pictet Bahamas:

i) Depending on the outcome of the issues above, was the Judge right to conclude that PIFSS had not shown that England was clearly the appropriate forum for the resolution of the claims against Pictet Asia and Pictet Bahamas?

Here the swift conclusion [143] is that the judge’s finding that PIFSS had not shown that England was clearly the proper forum is unimpeachable.

A lot is riding on this jurisdictional disagreement.  Permission to appeal to the Supreme Court was refused by the CA but may still be sought with the SC itself.

Geert.

EU Private International Law, 3rd ed. 2021, big chunks of Chapter 2.

 

Choice of court and anchor defendants, Lugano Convention, Brussels Ia.
Appeal dismissed. For the 1st instance judgment see https://t.co/7d1LGpleY4
Public Institution for Social Security v Banque Pictet & Ors [2022] EWCA Civ 29 (26 January 2022)https://t.co/WvbXbk1o59

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

The new issue of International & Comparative Law Quarterly (Volume 71, Issue 1) is out. Some of articles concern directly or indirectly questions of private international law. Their abstracts are provided below.

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

F. Rielaender, Aligning the Brussels Regime with the Representative Actions Directive

European private international law has long been recognised as improperly set up to deal with cross-border collective redress. In light of this shortcoming, it seems unfortunate that the private international law implications of the Representative Actions Directive (Directive (EU) No 2020/1828) have not yet been addressed coherently by the European legislator. This article examines to what extent the policy of promoting collective redress can be supported, even if only partially, through a reinterpretation of the jurisdictional rules of the Brussels Ia Regulation. Furthermore, it discusses which legislative measures need to be adopted to better accommodate collective redress mechanisms within the Brussels regime.

M. Risvas, International Law as the Basis for Extending Arbitration Agreements Concluded by States or State Entities to Non-Signatories

This article explores the role of international law in relation to the extension of arbitration agreements contained in contracts concluded by States (or State entities) with non-signatory State entities (or States). As contract-based arbitrations involving States or State entities are on the rise, identifying the legal framework governing which parties are covered by the relevant arbitration agreements is of practical importance. The analysis demonstrates that international law forms part of the relevant law, alongside other applicable laws including law of contract, law of the seat and transnational law, concerning the extension of arbitration agreements concluded by States or State entities to non-signatories. Previous analyses have neglected the role of international law by not distinguishing contract-based arbitrations involving private parties from contract-based arbitrations involving States or State entities. Public international law recognises that arbitration agreements can be extended to non-signatories on the basis of implied consent, or abuse of separate legal personality and estoppel. Therefore, foreign investors can rely on international law to extend arbitration agreements to non-signatories in arbitrations conducted under investment contracts concluded by States or State entities, even if the relevant domestic law is agnostic or hostile to this. This has significant legal, and practical, importance.

T. Hartley, Basic Principles of Jurisdiction in Private International Law: The European Union, the United States and England

This article consists of a comparative study of the basic principles underlying the rules of jurisdiction in private international law in commercial cases in the law of the European Union, the United States and England. It considers the objectives which these rules seek to achieve (protection of the rights of the parties and respect for the interests of foreign States) and the extent to which these objectives are attained. It takes tort claims, especially in the field of products-liability, as an example and considers which system has the most exorbitant rules. It suggests explanations for the differences found.

Giovanni Zarra (University of Naples) authored a book titled Imperativeness in Private International Law – A View from Europe, with Springer/T.M.C. Asser Press.

This book centres on the ways in which the concept of imperativeness has found expression in private international law (PIL) and discusses “imperative norms”, and “imperativeness” as their intrinsic quality, examining the rules or principles that protect fundamental interests and/or the values of a state so as to require their application at any cost and without exceptions.

Discussing imperative norms in PIL means referring to international public policy and overriding mandatory rules: in this book the origins, content, scope and effects of both these forms of imperativeness are analyzed in depth. This is a subject deserving further study, considering that very divergent opinions are still emerging within academia and case law regarding the differences between international public policy and overriding mandatory rules as well as with regard to their way of functioning.

By using an approach mainly based on an analysis of the case law of the CJEU and of the courts of the various European countries, the book delves into the origin of imperativeness since Roman law, explains how imperative norms have evolved in the different conceptions of private international law, and clarifies the foundation of the differences between international public policy and overriding mandatory rules and how these concepts are used in EU Regulations on PIL (and in the practice related to these sources of law).

Finally, the work discusses the influence of EU and public international law sources on the concept of imperativeness within the legal systems of European countries and whether a minimum content of imperativeness – mainly aimed at ensuring the protection of fundamental human rights in transnational relationships – between these countries has emerged.

The book will prove an essential tool for academics with an interest in the analysis of these general concepts and practitioners having to deal with the functioning of imperative norms in litigation cases and in the drafting of international contracts.

The table of contents can be accessed here.

Annexes A and B to the insolvency Regulation list, respectively, the national insolvency proceedings and national insolvency practitioners (as notified by Member States) to which that Regulation applies. They have been replaced by Regulation (EU) 2021/2260 of 15 December 2021.

The new Annexes are operative as of 9 January 2022

The reasons for the amendment are explained given in Recital 2 of the Regulation:

In October 2020, the Netherlands notified the Commission of recent changes in its national insolvency law which introduced a new preventive insolvency scheme, as well as new types of insolvency practitioners. That notification was followed in December 2020 by notifications from Italy, Lithuania, Cyprus and Poland relating to recent changes in their national law which introduced new types of insolvency proceedings or insolvency practitioners. Following the submission by the Commission of its proposal for an amending Regulation, further notifications were received from Germany, Hungary and Austria relating to recent changes in their national law which introduced new types of insolvency proceedings or insolvency practitioners. Subsequently, Italy clarified the date of entry into force of its new provisions on insolvency and restructuring which it had notified to the Commission in December 2020, and notified an amendment to a previous notification. Those new types of insolvency proceedings and insolvency practitioners comply with.

Neither Ireland nor Denmark are taking part in the adoption of the Regulation. Accordingly, they are not bound by it or subject to its application.

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.

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Sātiņi-S
Agriculture
La Cour interprète les dispositions du droit de l’Union en matière de paiements compensatoires octroyés au titre de Natura 2000

Ligue des droits humains
Espace de liberté, sécurité et justice
Selon l’avocat général Pitruzzella, le transfert ainsi que le traitement automatisé généralisé et indifférencié des données PNR sont compatibles avec les droits fondamentaux au respect de la vie privée et à la protection des données à caractère personnel

The second issue of 2021 of Giustizia Consensuale (published by Editoriale Scientifica) has just been released and it features:

Silvia Barona Vilar (Professor at the University of València) Sfide e pericoli delle ADR nella società digitale e algoritmica del secolo XXI (Challenges and Pitfalls of ADR in the Digital and Algorithmic Society of the XXI Century; in Italian)

In the XX century, dispute resolution was characterized by the leading role played by State courts: however, this situation has begun to change. With modernity and globalization has come the search of ways to ensure the ‘deconflictualisation’ of social and economic relations and solve conflicts arising out of them. In this context, ADR – and now ODR – have had a decisive impulse in the last decades and are now enshrined in the digital society of the XXI century. ADR mechanisms are, in fact, approached as means to ensure access to justice, favouring at the same time social peace and citizens’ satisfaction. Nevertheless, some uncertainties remain and may affect ADR’s impulse and future consolidation: among such uncertainties are the to-date scarce negotiation culture for conflict resolution, the need for training in negotiation tools, the need for State involvement in these new scenarios, as well as the attentive look at artificial intelligence, both in its ‘soft’ version (welfare) and its ‘hard’ version (replacement of human beings with machine intelligence).

Amy J. Schmitz (Professor at the Ohio State University), Lola Akin Ojelabi (Associate Professor at La Trobe University, Melbourne) and John Zeleznikow (Professor at La Trobe University, Melbourne), Researching Online Dispute Resolution to Expand Access to Justice

In this paper, the authors argue that Online Dispute Resolution (ODR) may expand Access to Justice (A2J) if properly designed, implemented, and continually improved. The article sets the stage for this argument by providing background on ODR research, as well as theory, to date. However, the authors note how the empirical research has been lacking and argue for more robust and expansion of studies. Moreover, they propose that research must include consideration of culture, as well as measures to address the needs of self-represented litigants and the most vulnerable. It is one thing to argue that ODR should be accessible, appropriate, equitable, efficient, and effective. However, ongoing research is necessary to ensure that these ideals remain core to ODR design and implementation.

Marco Gradi (Associate Professor at the University of Messina), Teoria dell’accertamento consensuale: storia di un’incomprensione (The Doctrine of ‘Negotiation of Ascertainment’: Story of a Misunderstanding; in Italian)

This article examines the Italian doctrine of ‘negotiation of ascertainment’ (negozio di accertamento), by means of which the parties put an end to a legal dispute by determining the content of their relationship by mutual consent. Notably, by characterizing legal ascertainment as a binding judgment vis-à-vis the parties’ pre-existing legal relationship, the author contributes to overcoming the misunderstandings that have always denoted the debate in legal scholarship, thus laying down the foundations towards a complete theory on consensual ascertainment.

Cristina M. Mariottini (Senior Research Fellow at the Max Planck Institute Luxembourg for Procedural Law), The Singapore Convention on International Mediated Settlement Agreements: A New Status for Party Autonomy in the Non-Adjudicative Process

The United Nations Convention on International Settlement Agreements Resulting from Mediation (the ‘Singapore Convention’), adopted in 2018 and entered into force in 2020, is designed to facilitate cross-border trade and commerce, in particular by enabling disputing parties to enforce and invoke settlement agreements in the cross-border setting without going through the cumbersome and potentially uncertain conversion of the settlement into a court judgment or an arbitral award. Against this background, the Convention frames a new status for mediated settlements: namely, on the one hand it converts agreements that would otherwise amount to a private contractual act into an instrument eligible for cross-border circulation in Contracting States and, on the other hand, it sets up an international, legally binding and partly harmonized system for such circulation. After providing an overview of the defining features of this new international treaty, this article contextualizes the Singapore Convention in the realm of international consent-based dispute resolution mechanisms.

 

Observatory on Legislation and Regulations

Ivan Cardillo (Senior Lecturer at the Zhongnan University of Economics and Law in Wuhan), Recenti sviluppi della mediazione in Cina (Recent developments in mediation in China; in Italian)

This article examines the most recent developments on mediation in China. The analysis revolves around, in particular, two prominent documents: namely, the ‘14th Five-Year Plan for National Economic and Social Development and Long-Range Objectives for 2035’ and the ‘Guiding Opinions of the Supreme People’s Court on Accelerating Steps to Motivate the Mediation Platforms of the People’s Courts to Enter Villages, Residential Communities and Community Grids.’ In particular, the so-called ‘Fengqiao experience’ ? which developed as of the 1960s in the Fengqiao community and has become a model of proximity justice ? remains the benchmark practice for the development of a model based on the three principles of self-government, government by law, and government by virtue. In this framework, mediation is increasingly identified as the main echanism for dispute resolution and social management: in this respect, the increasing use of technology proves to be crucial for the development of mediation platforms and the efficiency of the entire judicial system. Against this background, the complex relationship becomes apparent between popular and judicial mediation, their coordination and their importance for governance and social stability: arguably, such a relationship will carry with it in the future the need to balance the swift dispute resolution with the protection of fundamental rights.

Angela D’Errico (Fellow at the University of Macerata), Le Alternative Dispute Resolution nelle controversie pubblicistiche: verso una minore indisponibilità degli interessi legittimi? (Alternative Dispute Resolution in Public Sector Disputes: Towards an Abridged Non-Availability of Legitimate Interests?; in Italian)

This work analyzes the theme of ADR in publicity disputes and, in particular, it’s understood to deepen the concepts of the availability of administrative power and legitimate interests that hinder the current applicability of ADRs in public matters. After having taken into consideration the different types of ADR in the Italian legal system with related peculiarities and criticalities, it’s understood, in the final part of the work, to propose a new opening to the recognition of these alternative instruments to litigation for a better optimization of justice.

 

Observatory on Jurisprudence

Domenico Dalfino (Professor at the University ‘Aldo Moro’ in Bari), Mediazione e opposizione a decreto ingiuntivo, tra vizi di fondo e ipocrisia del legislatore (Mediation and Opposition to an Injunction: Between Underlying Flaws and Hypocrisy of the Legislator; in Italian)

In 2020, the plenary session of the Italian Court of Cassation, deciding a question of particular significance, ruled that the burden of initiating the mandatory mediation procedure in proceedings opposing an injunction lies with the creditor. This principle sheds the light on further pending questions surrounding mandatory mediation.

 

Observatory on Practices

Andrea Marighetto (Visiting Lecturer at the Federal University of Rio Grande do Sul) and Luca Dal Pubel (Lecturer at the San Diego State University), Consumer Protection and Online Dispute Resolution in Brazil

With the advent of the 4th Industrial Revolution (4IR), Information and Communication Technology (ICT) including the internet, computers, digital technology, and electronic services have become absolute protagonists of our lives, without which even the exercise of basic rights can be harmed. The Covid-19 pandemic has increased and further emphasized the demand to boost the use of ICT to ensure access to basic services including access to justice. Specifically, at a time when consumer relations represent the majority of mass legal relations, the demand for a system of speedy access to justice has become necessary. Since the early ’90s, Brazil has been at the forefront of consumer protection. In the last decade, it has taken additional steps to enhance consumer protection by adopting Consumidor.gov, a public Online Dispute Resolution (ODR) platform for consumer disputes. This article looks at consumer protection in Brazil in the context of the 4IR and examines the role that ODR and specifically the Consumidor.gov platform play in improving consumer protection and providing consumers with an additional instrument to access justice.

In addition to the foregoing, this issue features the following book review by Maria Rosaria Ferrarese (Professor at the University of Cagliari): Antoine Garapon and Jean Lassègue, Giustizia digitale. Determinismo tecnologico e libertà (Italian version, edited by M.R. Ferrarese), Bologna, Il Mulino, 2021, 1-264.

Commission / Espagne (Obligation d’information en matière fiscale)
Libre circulation des personnes
La législation nationale obligeant les résidents fiscaux espagnols à déclarer leurs biens ou leurs droits situés à l’étranger est contraire au droit de l’Union

The new issue of the Revue Critique de Droit International Privé (4/2021) is out. It contains four articles and numerous case notes.

The editorial by Horatia Muir Watt (Sciences Po), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on Dalloz website (Autour de l’enfant. Interpréter les signes : retour au calme ou déraison du monde ?).

In the first article, Etienne Pataut (University of Paris 1, Sorbonne Law School) discusses the (changing) role of effectiveness in nationality matter (Contrôle de l’État ou protection de l’individu ? Remarques sur l’effectivité de la nationalité).

Effectiveness of nationality seems to be changing. Its traditional role, in the matter of conflicts of nationalities and the international opposability of nationality, seems indeed contested and effectiveness does not seem in a position to oppose the more attentive consideration of the subjective rights of individuals. Conversely, this concern could reinforce the consideration of effectiveness when it makes it possible to demonstrate the existence of a link between the individual and the State which could lead to a challenge to a measure of deprivation of nationality. This development could bear witness to a profound change in the nationality itself.

In the second article, Sabine Corneloup (University of Paris II) analyses the parallel application of the 1980 Hague Child Abduction Convention and the 1951 Geneva Refugee Convention in the context of a recent decision of the UK Supreme Court (Demande de retour d’un enfant enlevé et principe de non-refoulement des réfugiés : lorsque la Convention de La Haye de 1980 rencontre la Convention de Genève de 1951).

Over the past years, there has been an increase in the number of applications for a return of abducted children within families applying for asylum. The parallel application of the 1980 Hague Child Abduction Convention and the 1951 Geneva Refugee Convention may prove to be problematic. Whereas the objective of the former is to ensure the child’s prompt return, the latter establishes the fundamental principle of non-refoulement to the State from which the refugee fled. In France, no case law has emerged so far, making the decision rendered by the UK Supreme Court on 19 March 2021 in G v. G even more interesting, not only as a source of inspiration, but also for the parts raising strong concern. In summary, the Supreme Court ruled that a child named as a dependant on her parent’s asylum request has protection from refoulement pending the determination of that application so that until then a return order in the 1980 Hague Convention proceedings cannot be implemented. In the relationships between two EU Member States, the conflict of the rationales underpinning the regulations Brussels II and Dublin III appears less acute as, in principle, the asylum applicant has no fear of persecution in any of these countries, but difficulties of articulation exist nevertheless, as the recent decision of the Court of Justice of 2 August 2021 in A v. B demonstrates.

In the third article, Rachel Pougnet (Bristol & Manchester Universities) examines a recent decision of the UK Supreme Court in the field of deprivation of nationality (La déchéance de nationalité devant la Cour suprême du Royaume-Uni : déférence judiciaire et sécurité nationale).

For the third time in ten years, the UK Supreme Court has been confronted with a deprivation of nationality order issued by the UK government. In this “Begum” decision of February 2021, the Supreme Court decided that Shamima Begum should not be allowed back into the country to conduct her appeal against the deprivation of her citizenship. The Court enshrined wide deference to the executive on national security grounds. Indeed, the court granted a wide margin of appreciation to the government when exercising its discretion to implement a deprivation order, due to the proximity of the measure with national security interests. In “Begum”, the Supreme Court also put the right to a fair trial on balance with security arguments.

In the fourth article, Christelle Chalas (University of Lille) analyses several rulings of the French Cour de Cassation in the specific context of international child abductions within Franco-Japanese families (La convention de La Haye du 25 octobre 1980 à l’épreuve de l’enlèvement international d’enfants franco-japonais).

Malgré ses avantages indéniables, la réservation d’un titre de transport aérien via une plateforme électronique n’en comporte pas moins de sérieux inconvénients, dès lors qu’il s’agit d’horaires d’embarquement soumis à variation dont le passager n’en a pas été informé.

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Intel Corporation / Commission
Concurrence
Le Tribunal annule pour partie la décision de la Commission infligeant à Intel une amende de 1,06 milliard d’euros