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On 3 and 4 September 2021 the international conference “Diversity of Enforcement titles in Cross-border debt Collection in the EU” will take place in hybrid mode – online and onsite in Maribor, Slovenia. The conference will feature speeches from several distinguished experts including Judge at the Court of Justice of the European Union Marko Ilesic as a keynote speaker.

The conference is organised by the University of Maribor, Faculty of Law within the framework of the EU Justice project “Diversity of Enforcement titles in cross-border debt collection in the EU – EU-En4s“, which is a consortium of 16 partners from 12 EU Member States and a third State. Registration is free of charge and available here.

EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU) is an EU-funded Project conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, the University of Heidelberg, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.

The fourth EFFORTS Newsletter has just been released, giving access to up-to-date information about the Project, save-the-dates on forthcoming events, conferences and webinars, and news from the area of international and comparative civil procedural law.

Regular updates are also available via the Project’s website, and  LinkedIn and Facebook pages.

Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union

On Friday, together with my learned colleague at both Bar and Faculty Isabelle Larmuseau, I was asked to put my environmental law hat on at the Flemish Parliament. I was heard  on the current scandal hitting Flanders following PFAS (‘forever chemicals’) emissions by 3 M at the port of Antwerp. For background to PFAS see here.

Isabelle’s slidedeck for same is here (updated at 09:28 on 31 August to correct earlier pdf which contained an earlier version of the slides), and mine here. Both are in Dutch, with Isabelle’s focusing on the Flemish environmental law angle (albeit with strong EU law influence, necessarily) and mine on the EU and international law context).

Focus of the debate is on environmental /public health law however for my conflicts followers there is a treat. A civil law suit by Belgian and /or other [the port of Antwerp is very close for instance to the Dutch border. Emissions in air, water and soil (for the latter, particularly if exported) clearly impact Dutch citisens, say] claimants against 3M’s Belgian corporate presence is easily pursued both in Belgium (Article 4 Brussels Ia) and in other Member States (Article 7(2) locus damni). Residual private international law in all these States would fairly straightforwardly allow for the suit to be extended to 3M’s corporate mother, based at St Paul, Minnesota.

The more exciting bit is applicable law. The impact of common US (State) law on forever chemicals suits is well documented. Despite EU courts not willing to apply the punitive damages elements of these suits, an application of the other elements of US tort law may well be very attractive to claimants here. Those US laws are certainly within reach of claimants, using Article 7 Rome II. There is no question the damage ‘arises out of’ environmental damage (unlike the hesitation in Begum v Maran). There is certainly merit in the suggestion that locus delicti commissi is in St Paul, Minessota. Like with its fellow manufacturers and industrial users of PFAS, 3M’s worldwide grip on corporate communication and legal strategy on the issue is tight. More importantly, the decision tree on the manufacture, use and emissions of PFAS is arguably equally located at holding level. Reference here can be made to the relevance of Shell’s holding policy in lex causae determination in the recent climate ruling.

Clearly, via A17 Rome II, Flemish and of course European environmental law would play a role (cue Isabelle’s slidedeck for an excellent starter).

A collective action procedure in say The Netherlands in my view would be an ideal strategy to test these most murky waters.

Geert.

EU Private International Law, 3rd. ed. 2021, Chapter 4, Heading 4.6.3 (4.54 ff).

On 9 and 10 September 2021, the Max Planck Institute Luxembourg for Procedural Law will host the 7th Conference of Young Procedural Scholars on Europeanisation of Civil Procedural Law: Disruption or Consolidation? The event will trace the influences of the ever-increasing European activities on national procedural law, and offers the opportunity to discuss whether Europeanisation consolidates or rather disrupt the coherence of national law.

The German-language conference aims to bring together young researchers with an interest in the field of procedural law – be it civil, criminal or pertaining to public law –, thereby recognizing the manifold intersections, overlaps and similarities of the sub-disciplines of procedural law. The wide-ranging activities of the European legislator as well as the case law of ECJ and ECtHR, having left their mark on all branches of procedural legal studies, particularly prompt such an overarching approach to questions of efficient procedural law enforcement.

Aimed at postdocs, PhD candidates and other researchers in an early stage of their academic career, the conference intends to create a forum for new and upcoming voices of procedural law. Further information is available at the MPI website or by reaching out to the organizers of the conference, Dr Lena Hornkohl and Dr Wiebke Voß (both Senior Research Fellows at the MPI Luxembourg) at jungesprozessrecht@mpi.lu.

On 17 September 2021 the conference ‘Taking Stock: International Commercial Courts in Europe and Asia‘ will take place (hybrid, online/London). Reknown academic experts and practitioners will shed light on new developments, experiences, the interaction with arbitration, and global challenges.

In recent years, International Commercial Courts have been established across Europe and in Asia. Now that these courts have been dealing with international cases for a while, it is time to take stock and look at various questions: the reasons behind the recent proliferation of these courts and their international features in terms of court language, judicial composition, parties and disputes; the perspectives of court users and judges on key features of these courts, their suitability for specific kinds of disputes and the handling of international commercial disputes in practice; the interface between International Commercial Courts and arbitration, in particular in jurisdictions with well-developed arbitration centres; and the ever more important question how these courts deal with global challenges such as Covid 19, Digitalisation & AI.

The conference is co-organized by BICCL, Erasmus University Rotterdam (ERC project team Building EU Civil Justice) and the University of Lausanne. The conference takes place in a hybrid format, online and in London (limited places). You can register through the website of BIICL.

More information and the program available here.

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

B. Heiderhoff: International Product Liability 4.0

While the discussion on how liability for damages caused by autonomous systems, or “artificial intelligence”, should be integrated into the substantive law is well advanced, the private international law aspect has, so far, been neglected. In this contribution, it is shown that unilateral approaches – such as the EU Parliament has suggested (P9_TA-PROV(2020)0276) – are unnecessary and detrimental. It is preferable to develop a classical conflict of laws rule with connecting factors, which mirror the assessments of the substantive law. It is shown that a mere reinterpretation of the existing Article 5 Rome II Regulation might lead to legal insecurity, and that an addition of the provision is preferable. In particular, the notion of marketing, and its importance as a connecting factor, should be revised.

 

K. Vollmöller: The determination of the law applicable on claims for infringement of trade secrets in contractual relationships

Subject of the article is the determination of the applicable law in cross-border situations when a lawsuit is based on the violation of trade secrets within a contractual relationship. According to German Law, claims for infringement of trade secrets are regulated in the German Trade Secrets Act (Geschäftsgeheimnisgesetz – GeschGehG) that has implemented the European Directive 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure. The focus is on the question how tort claims are connected if the contracting partners have agreed on confidentiality terms, in particular under a non-disclosure agreement. In case the agreement of the parties is ruled by the laws of a Non-European state, it is doubtful whether the harmonized European trade secret law is applicable. The author comes to the conclusion that a secondary connection to the jurisdiction governing the agreement according to Art. 4 Paragraph 3 Rome II Regulation should be limited to relationships where the parties have assumed further contractual obligations beyond confidentiality. In this case, the law applicable on the contract overrides the harmonized European trade secret law regulations which cannot be considered as mandatory rules either.

 

T. Lutzi: Ruth Bader Ginsburg – Internationalist by Conviction

In Ruth Bader Ginsburg, the Supreme Court has not only lost an icon of gender equality and towering figure, but also a great internationalist. Ginsburg’s jurisprudence was characterised by her own academic background as a proceduralist and comparativist, a decidedly international perspective, and a firm belief in a respectful and cooperative coexistence of legal systems. An English version of this text can be found at www.iprax.de/de/dokumente/online-veroeffentlichungen/

 

C. Kohler: Dismantling the „mosaic principle“: defining jurisdiction for violations of personality rights through the internet

In case C-194/16, Bolagsupplysningen, the ECJ ruled that, according to Article 7(2) of Regulation (EU) No 1215/2012, a legal person claiming that its personality rights have been infringed by the publication of incorrect information on the internet and by a failure to remove comments relating to it can bring an action for rectification of that information, removal of those comments and compensation in respect of all the damage sustained before the courts of the Member State in which its centre of interests is located. On the other hand, an action for rectification of that information and removal of those comments cannot be brought before the courts of each Member State in which the information published on the internet is or was accessible. Thus, the ECJ’s decision in case C-509/09 and C-161/10, eDate Advertising a.o., also applies where the aggrieved party is a legal person. However, the “mosaic principle” defined in that judgment is inapplicable because an action for rectification and removal of information on the internet is “single and indivisible” and can, consequently, only be brought before a court with jurisdiction to rule on the entire damage. The author welcomes this limitation and advocates that the mosaic principle be given up entirely, particularly as it does not find resonance on the international level.

 

P. Mankowski: Consumer protection under the Brussels Ibis Regulation and company agreements

Company agreements pose a challenge to Arts. 17–19 Brussels Ibis Regulation; Arts. 15–17 Lugano Convention 2007 since these rules are designed for bipolar contracts whereas the formers typically are multi-party contracts. This generates major problems, amongst them identifying the “other party” or answering how far a quest for equal treatment of shareholders might possibly carry. Arguments from the lack of a full-fledged forum societatis might weigh in, as do arguments from the realm of European private law or possible consequences for jurisdiction clauses in company statutes. The picture is threefold as to scenarios: founding and establishing a company; accession to an already established company; and derivative acquisition of a share in an already established company.

 

W. Wurmnest/C. Grandel: Enforcement of consumer protection rules by public authorities as a „civil and commercial matter“

In case C-73/19 (Belgische Staat ./. Movic) the European Court of Justice once again dealt with the delineation of “civil and commercial matters” (Art. 1(1) of the Brussels Ibis Regulation) when public authorities are involved. The Court correctly classified an action brought by Belgian authorities against Dutch companies seeking a declaration as to the unlawfulness of the defendants’ business practices (selling tickets for events at prices above their original price) and an injunction of these practices as a “civil and commercial matter”, as the position of the authorities was comparable to that of a consumer protection association. Furthermore, the Court clarified its case law on the thorny issue as to what extent evidence obtained by public authorities based on their powers may turn the litigation into a public law dispute. Finally, the judgment dealt with the classification of various ancillary measures requested by the Belgian authorities. Most notably, a request by the authorities to be granted the power to determine future violations of the law simply by means of a report “under oath” issued by an official of the authorities was not a “civil- and commercial matter” as private litigants could not be granted similar powers under Belgian law.

 

R. Wagner: Jurisdiction in a dispute with defendants in different member states of the European Union

The article discusses a court ruling of the Higher Regional Court of Hamm on jurisdiction concerning the “Diesel emission scandal”. The plaintiff had his domicile in Bielefeld (Germany). He bought a car in Cologne (Germany) where the seller had his domicile. Later on, the plaintiff brought an action for damages and for a declaratory judgment against the seller, the importer of the car (domicile: Darmstadt, Germany) and the producer of the car (domicile: in the Czech Republic) before the District Court of Bielefeld. The plaintiff argued that the producer of the car had used illegal software to manipulate the results of the emissions tests. He based his claim on tort. Against the first defendant he also claimed his warranty rights. In order to sue all three defendants in one trial the plaintiff requested the District Court of Bielefeld to ask the Higher Regional Court of Hamm to determine jurisdiction. In its decision the Court in Hamm took into account Article 8 No. 1 of the Brussels Ibis Regulation and § 36 I No. 3, II of the German Code of Civil Procedure.

 

J. Wolber: Jurisdiction for an Application opposing Enforcement in cross-border Enforcement of a Maintenance Decision

The question, whether the maintenance debtor should be entitled to raise the objection that he has predominantly discharged his debt in the Member State of enforcement is highly relevant in practice and disputed in the scientific literature. The European Court of Justice (ECJ) has decided on this question – upon a request for a preliminary ruling by a German court – in the case FX ./. GZ with judgment of 4th June 2020. The ECJ confirms the jurisdiction of the German court based on Article 41 of Regulation No 4/2009. This judgment has effects beyond the enforcement of maintenance decisions on other instruments of European Law of Civil Procedure. While this judgment deserves approval in the result, the reasoning of the court is not convincing. The ECJ judgment does not cover the question of the territorial scope of such a judgment.

 

P. Schlosser: Clarification of the service of documents abroad

In extending the term “demnächst” (“soon”) the judgment of the Bundesgerichtshof ruled that a person interested in serving a document to somebody (in particular the initial claim) must only request the court to care for the translation and pay immediately thereafter the estimated costs of the translation for correctly initiating the litigation and thus meeting the term of limitation. The rest of time needed for the translation is irrelevant. The author is developing the impact of this decision for the three variants of serving a document to someone abroad in the European Union:

(1) Serving the document spontaneously in time together with the translation,

(2) Serving the document belated together with the translation after

the court has asked whether the respective person wants a translation,

(3) Serving initially without a translation but serving the document again together with a translation after the addressee has refused to accept service without any translation.

 

A. Dutta: European Certificate of Succession for administrators of insolvent estates?

German law provides for a special insolvency procedure for insolvent estates (Nachlassinsolvenzverfahren) which is subject to the European Insolvency Regulation. The Oberlandesgericht Frankfurt am Main came to the conclusion that nevertheless the liquidator of such an insolvency procedure can apply for a European Certificate of Succession under the Succession Regulation being an “administrator of the estate”. The case note argues that the German Nachlassinsolvenzverfahren falls within the scope of the Insolvency and the Succession Regulation (section II & III) and that issuing a Certificate causes only indirect frictions between both instruments which are not grave enough to invoke the conflict rule in Article 76 of the Succession Regulation (section IV). The case shows that the model of the Certificate could be extended to other areas (section V).

 

E. Jayme: The restitution of the „Welfenschatz“ before the U.S. Supreme Court

The US Supreme Court, in a case involving the restitution of the treasure of the Guelphs and the question of state immunity of the Federal Republic of Germany, decides that the FSIA’s exception concerning property taken in violation of the international law of expropriation does not refer to property owned by German nationals (“domestic takings rule”). The heirs of German Jewish Art dealers who had acquired a large part of the art treasure of the Guelphs from the Ducal family of Braunschweig asked for the restitution of such parts of the treasure which they had sold to Prussia in 1935 alleging that they had been unlawfully coerced to sell the pieces for a third of its value. The defendants were the Federal Republic of Germany and the Stiftung Preußischer Kulturbesitz. The plaintiffs argued inter alia that the forced purchase of the treasure had been an act of genocide in violation of international law and, therefore, justified an exception to State immunity. The District Court denied Germany’s motion to dismiss, and the D.C. Circuit Court affirmed. The Supreme Court held that the phrase “rights in property taken in violation of international law” refers to violations of the international law of expropriation and thereby incorporates the domestic takings rule. The case was remanded to the D.C. Circuit Court of Appeals for further proceedings which inter alia will concern the question whether the Jewish art dealers were German nationals at the time of the sale of the treasure (1935).

 

The 15th Global Digital Encounter organized by Fide Foundation and TIPSA (Transatlantic Intellectual Property Academy) will take place on 8 September 2021, under the title Towards A More Predictable Legal Framework for Cross-Border Intellectual Property Disputes.

It will discuss the main lines of the Kyoto Guidelines on Intellectual Property and Private International Law drafted by a group of 36 renowned scholars from 19 jurisdictions under the auspices of the International Law Association.

Intellectual Property controversies and disputes become more and more cross border in the context of the IV Industrial Revolution and the enforcement of IP rights in this global environment raises new and complex challenges to the traditional models of solving conflicts through national courts. Issues like the rules for adjudication of international disputes (jurisdiction), the applicable law and the cross-border recognition and enforcement of judgments involving IP claims still differ widely from country to country, fostering therefore the development of an environment deprived of legal certainty which severely affects the enforcement of IP rights all over the world. Consequently, the adoption of model provisions on the private international law aspects of IP which could be used as guiding for national and international legislation has become an urgent matter.

The panel, composed by Marketa Trimble (University of Nevada), Toshiyuki Kono (Kyushu University) and Axel Metzger (Humboldt University of Berlin), will be moderated by Pedro de Miguel Asensio (Complutense University of Madrid).

For further information and registration, see here. 

A conference titled Diversity of Enforcement Titles in Cross-border Debt Collection in the EU will take place in Maribor on 3 and 4 September 2021, in the framework of the The EU-En4S project. The event will be live streamed online for those who cannot attend in person.

Speakers include Marko Ilešič, Friderik Sjövall, Samuel Rudvall, Željko Pajalić, Lionel Decotte, Jens Bormann, Paolo Pasqualis, Wendy Kennett, Achilleas Demetriades, as well as participants from the several institutions that take part in the project.

The agenda of the conference may be found here. See here for registration.

Chambre de l'instruction - droits de la défense

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Paul B. Stephan from University of Virginia School of Law has posted recently on SSRN an article titled Antibribery Law, which will constitute a chapter of the book Challenges to the International Legal Order, edited by David L. Sloss. The book is supposed to be published by Oxford University Press in 2021. The article may be downloaded here.

The abstract reads as follows:

The first part of this chapter describes the rise of transborder antibribery law in this century against the background of its twentieth century origins. It focuses on the role of a hegemon, namely the United States, and the impact of its conduct on other rich-world states. During the last century, other states passively resisted U.S. initiatives. Then, at the dawn of the new century, some undertook their own antibribery programs in response to U.S. regulation. At the international level, this response took the form of treaties accepting national regulation but not parceling out primary regulatory jurisdiction among states. Cooperation among prosecutors grew, but almost entirely through informal mechanisms. What resulted is a remarkably robust regulatory regime with almost all of the action occurring at the national level.

The next two parts ask why this kind of international cooperation unfolded as it did. The first focuses on striking parallels between the development of transborder antibribery enforcement and the rise of transborder anticartel law a generation earlier. International cooperation exists, but through informal fora and other contacts among prosecutors, rather than by the creation of international legal obligations and international institutions to administer them. As with the later antibribery project, anticartel policy thrived through the scaling back of international-law-based claims about the limits of prescriptive jurisdiction, not through creation of new international institutions. 

Part III then explores the political economy of transborder antibribery law. It considers why states regulate behavior that, as a first-order matter, harms foreigners while enriching domestic firms (unlike anticartel policy, which focuses on injury to domestic consumers). It rebuts arguments that altruism and a cosmopolitan sense of justice motivates states. Rather, this regulation, like the earlier anticartel actions, can best be explained as an effort to save the system of global markets, international business and investment, and transnational private ordering from itself. States have come to embrace these efforts, but have not sought to enforce them through international law. This approach instead puts the onus on powerful states acting as norm entrepreneurs to promote the rule of domestic law internationally.

On balance, the development of antibribery law during this century suggests a process of evolutionary adaptation, not revolutionary change and disruption. The paper considers, however, whether the forces that have undone the liberal internationalist aspirations of the 1990s pose a threat to the contemporary transborder antibribery regime. That transborder antibribery efforts have prospered during this period of unrest may indicate something about the resilience of global capitalism, but is not proof of the durability of the liberal international order that existed at the end of the twentieth century.

The Hague Academy of International Law has made known the programme of the summer course of Private International Law of 2022.

The course will be opened by Dominique Hascher with a lecture on The Role of International Law in the Review of Awards.

The general course, titled Towards Worldwide Law Consistency, will be given by Louis d’Avout (Paris II University).

The special courses will be as follows: Marco Frigessi di Rattalma (University of Brescia), New Trends in the Private International Law of Insurance Contracts; João Bosco Lee (Universidade Positivo), The Application of International Conventions by Arbitrators in International Trade Disputes; Ulla Liukkunen (University of Helsinki), Mandatory Rules in International Labour Law; Kermit Roosevelt III (University of Pennsylvania Carey Law School), The Third Restatement of Conflict of Laws; Tiong Min Yeo (Singapore Management University), Common Law, Equity, and Statute: Effect of Juridical Sources on Choice of Law Methodology; Arnaud Nuyts (Université Libre de Bruxelles), The Forum for Cyber Torts.

Special lectures in tribute to Professor Emmanuel Gaillard will be delivered by Yas Banifatemi, Diego P. Fernández Arroyo, Dominique Hascher, Horatia Muir Watt and Luca Radicati di Brozolo.

The directors of studies will be Marie Linton (Uppsala University) and Luciana Beatriz Scotti (University of Buenos Aires). 

More information on the Academy’s programmes, including the upcoming Winter Course, may be found here.

- Au regard des articles L. 141-4 devenu R 632-1 du code de la consommation, 6 du code civil, L. 110-4 du code de commerce et de la lecture par la Cour de justice de l'Union européenne de la directive n° 2008/48/CE du 23 avril 2008 relative au rôle du juge dans le respect des dispositions d'un ordre public économique européen, le juge peut-il soulever d'office la nullité d'un contrat de crédit à la consommation, notamment en application de l'article L. 312-25 du code de la consommation, au-delà de l'expiration du délai quinquennal de prescription opposable à une partie ?

Au regard des articles L. 141-4 devenu R 632-1 du code de la consommation, 6 du code civil, L. 110-4 du code de commerce , 4 et 5 du code de procédure civile et de la lecture par la Cour de justice de l'Union européenne de la directive n° 2008/48/CE du 23 avril 2008 relative au rôle du juge dans le respect des dispositions d'un ordre public économique européen, le juge peut-il prononcer la nullité d'un contrat de crédit à la consommation, notamment en application de l'article L 312-25 du code de la consommation, en l'absence de toute demande d'annulation émanant de l'une des parties ?

- Au regard des articles L. 141-4 devenu R 632-1 du code de la consommation, 6 du code civil, L. 110-4 du code de commerce et de la lecture par la Cour de justice de l'Union européenne de la directive n° 2008/48/CE du 23 avril 2008 relative au rôle du juge dans le respect des dispositions d'un ordre public économique européen, le juge peut-il soulever d'office la nullité d'un contrat de crédit à la consommation, notamment en application de l'article L. 312-25 du code de la consommation, au-delà de l'expiration du délai quinquennal de prescription opposable à une partie ?

Au regard des articles L. 141-4 devenu R 632-1 du code de la consommation, 6 du code civil, L. 110-4 du code de commerce , 4 et 5 du code de procédure civile et de la lecture par la Cour de justice de l'Union européenne de la directive n° 2008/48/CE du 23 avril 2008 relative au rôle du juge dans le respect des dispositions d'un ordre public économique européen, le juge peut-il prononcer la nullité d'un contrat de crédit à la consommation, notamment en application de l'article L 312-25 du code de la consommation, en l'absence de toute demande d'annulation émanant de l'une des parties ?

The forth edition of Prof. Dan Jerker B. Svantesson’s book on Private International Law and the Internet is being published with Wolters Kluwer.

The book furnishes an exhaustive and insightful account of what has emerged as the most crucial current issue in private international law; that is, how the Internet affects and is affected by the five fundamental questions: When should a lawsuit be entertained by the courts? Which state’s law should be applied? When should a court that can entertain a lawsuit decline to do so? How wide ‘scope of jurisdiction’ should be afforded to a court with jurisdiction over a dispute? And will a judgment rendered in one country be recognized and enforced in another?

Professor Dan Svantesson identifies and investigates twelve characteristics of Internet communication relevant to these questions and then proceeds with an in-depth discussion of what is required of modern private international law rules.

The analysis focuses is on several issues that have far-reaching practical consequences in the Internet context, including the following: cross-border defamation; cross-border business contracts; cross-border consumer contracts; and cross-border intellectual property issues.

A comprehensive survey of private international law solutions encompasses insightful and timely analyses of relevant laws adopted in various jurisdictions, including Australia, England, Hong Kong SAR, the United States, Germany, Sweden, and China, as well as in a range of international instruments. There is also a chapter on advances in geo-identification technologies and their exceptional value for legal practice. The book concludes with two model international conventions, one on cross-border defamation and one on cross-border contracts, as well as a set of practical checklists to guide legal practitioners faced with cross-border matters within the discussed fields.

The book collates a wealth of research findings in the overlapping disciplines of law and technology that will be of particular utility to practitioners and academics working in this complex and rapidly changing field. The author’s thoughtful analysis of the interplay of the developing Internet and private international law will also prove to be invaluable, as will the tools he offers to anticipate the future. Private International Law and the Internet provides an extraordinary stimulus to continue working towards globally acceptable private international law rules for communication via the Internet.

More information about the book is available here.

On Tuesday, July 6, 2021 at 11:00-12:30 CEST, the Hamburg Max Planck Institute will host its thirteenth monthly virtual workshop in the series  Current Research  in private international law. Yuko Nishitani (Kyoto University) will speak, in English, on the topic Global Governance and Corporate Social Responsibility The presentation will be followed by open discussion. All are welcome. More information and sign-up here. If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de

The French Committee for Private International Law will hold a panel discussion on private international law and Brexit (Le droit international privé au défi du Brexit) in the afternoon of 8 October 2021, in Paris (3 pm CET).

The chairman will be Dominique Foussard. Speakers include Louis d’Avout, Stewart Leech, Eva Lein, Philippe Lortie and Michael Wilderspin.

The exact location is to be announced on the website of the Committee (here).

On August 19, 2021, the U.S. Court of Appeals for the Eleventh Circuit issued its latest decision on foreign forum selection clauses and cruise ship contracts.  The case was Turner v. Costa Crociere S.P.A.  The plaintiff was an American cruise ship passenger, Paul Turner, who brought a class action in federal district court in Florida alleging that the cruise line’s “negligence contributed to an outbreak of COVID-19 aboard the Costa Luminosa during his transatlantic voyage beginning on March 5, 2020.”

The cruise line moved to dismiss the case on the basis of a forum selection clause in the ticket mandating that all disputes be resolved by a court in Genoa, Italy. The contract also contained a choice-of-law clause selecting Italian law. By way of background, it is important to note that (1) the parent company for the cruise line was headquartered in Italy, (2) its operating subsidiary was headquartered in Florida, (3) the cruise was to begin in Fort Lauderdale, Florida, and (4) the cruise was to terminate in the Canary Islands.

The Eleventh Circuit never reached the merits of the plaintiffs’ claims.  Instead, it sided with the cruise line, enforced the Italian forum selection clause, and dismissed the cases on the basis of forum non conveniens.  A critique of the Eleventh Circuit’s reasoning in Turner is set forth below.

Years ago, the U.S. Congress enacted a law imposing limits on the ability of cruise lines to dictate terms to their passengers.  46 U.S.C. § 30509 provides in relevant part:

The owner . . . of a vessel transporting passengers . . . between a port in the United States and a port in a foreign country, may not include in a . . . contract a provision limiting . . . the liability of the owner . . . for personal injury or death caused by the negligence or fault of the owner or the owner’s employees or agents . . . . A provision described in paragraph (1) is void.

Boiled down to its essence, the statute provides that any provision in a cruise ship contract that caps the damages in a personal injury case is void.  If the cruise ship were to write an express provision into its passenger contracts capping the damages recoverable by plaintiffs such as Paul Turner at $500,000, that provision would be void as contrary to U.S. public policy.

The cruise lines are sharp enough, however, to know not to write express limitations directly into their contracts.  Instead, they have sought to achieve the same end via a choice-of-law clause.  The contract in Turner had a choice-of-law clause selecting Italian law.  Italy is a party to an international treaty known as the Athens Convention.  The Athens Convention, which is part of Italian law, caps the liability of cruise lines at roughly $568,000 in personal injury cases.  If a U.S. court were to give effect to the Italian choice-of-law clause and apply Italian law on these facts, therefore, it would be required to apply the liability cap set forth in the Athens Convention.  It seems highly unlikely that any U.S. court would enforce an Italian choice-of-law clause on these facts given the language in Section 30509.

Enter the forum selection clause.  If the forum selection clause is enforced, then the case must be brought before an Italian court.  An Italian court is likely to enforce an Italian choice-of-law clause and apply the Athens Convention.  If the Athens Convention is applied, the plaintiff’s damages will be capped at roughly $568,000.  To enforce the Italian forum selection clause, therefore, is to take the first step down a path that will ultimately result in the imposition of liability caps in contravention of Section 30509.  The question at hand, therefore, is whether the Eleventh Circuit was correct to enforce the forum selection clause knowing that this would be the result.

While the court clearly believed that it reached the right outcome, its analysis leaves much to be desired.  In support of its decision, the court offered the following reasoning:

[B]oth we and the Supreme Court have directly rejected the proposition that a routine cruise ship forum selection clause is a limitation on liability that contravenes § 30509(a), even when it points to a forum that is inconvenient for the plaintiff. Shute, 499 U.S. at 596–97 (“[R]espondents cite no authority for their contention that Congress’ intent in enacting § [30509(a)] was to avoid having a plaintiff travel to a distant forum in order to litigate. The legislative history of § [30509(a)] suggests instead that this provision was enacted in response to passenger-ticket conditions purporting to limit the shipowner’s liability for negligence or to remove the issue of liability from the scrutiny of any court by means of a clause providing that ‘the question of liability and the measure of damages shall be determined by arbitration.’ There was no prohibition of a forum-selection clause.”)

The problem with this argument is that there was no evidence in Shute­—none—suggesting that the enforcement of the forum selection clause in that case would lead to the imposition of a liability cap.  Indeed, the very next sentence in the passage from Shute quoted above states that “[b]ecause the clause before us . . . does not purport to limit petitioner’s liability for negligence, it does not violate [Section 30509].”  This language suggests that if enforcement of a forum selection clause would operate to limit the cruise line’s liability for negligence, it would not be enforceable.  The Eleventh Circuit’s decision makes no mention of this language.

The Turner court also cites to a prior Eleventh Circuit decision, Estate of Myhra v. Royal Caribbean Cruises, for the proposition that “46 U.S.C. § 30509(a) does not bar a ship owner from including a forum selection clause in a passage contract, even if the chosen forum might apply substantive law that would impose a limitation on liability.”  I explain the many, many problems with the Eleventh Circuit’s decision in Myhra here.  At a minimum, however, the Myhra decision is inconsistent with the Supreme Court’s admonition in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc that “in the event the choice-of-forum and choice-of-law clauses operated in tandem as a prospective waiver of a party’s right to pursue statutory remedies . . . we would have little hesitation in condemning the agreement as against public policy.” There is no serious question that the cruise line is here attempting to use an Italian choice-of-law clause and an Italian forum selection clause “in tandem” to deprive the plaintiffs in Turner of their statutory right to be free of a damages cap.  This attempt would seem to be foreclosed by the language in Mitsubishi.  The Eleventh Circuit does not, however, cite Mitsubishi in its decision.

At the end of the day, the question before the Eleventh Circuit in Turner was whether a cruise company may deprive a U.S. passenger of rights guaranteed by a federal statute by writing an Italian choice-of-law clause and an Italian forum selection clause into a contract of adhesion. The Eleventh Circuit concluded the answer is yes.  I have my doubts.