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Plusieurs projets législatifs relatifs à la responsabilité sociale des entreprises sont actuellement à l’agenda de la Commission européenne. Éclairage.

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Droit de la défense

This post was written by Rodrigo Rodriguez who is Professor on Insolvency Law at the University of Lucerne.

Since 1 January 2021, as a result of the UK’s “hard Brexit” in respect of the field of cooperation in civil matters, the UK has not been a formal member of the 2007 Lugano Convention anymore. Much has been written and zoomed on this issue.

On 22 February 2021, the district court of Zurich issued an – as far as I know – first decision (courtesy of arrestpraxis.ch) regarding the (non-)recognition of the UK judgement in Switzerland post-Brexit.

The decision refuses to apply the 2007 Lugano Convention rationae temporis to a UK decision of the High Court of London made in September 2020 (while the Lugano Convention was still applicable by virtue of the Withdrawal Agreement).

Upon request for recognition filed on 18 February 2021, the Zurich court concludes, in a short reasoning, that since 1 January 2021, the 2007 Lugano Convention is not applicable anymore to situations involving Switzerland and the UK and must therefore be disregarded as a basis for recognition. As the provisional measure requested in the claim was ultimately granted on a different legal basis, the decision was not challenged.

It is respectfully submitted that the decision is ill-founded. The intertemporal provisions in the Convention are way more complex than the district court’s reasoning acknowledges.

The relevant Article 63(1) of the Convention (transitional provisions) reads as follows:

This Convention shall apply only to legal proceedings instituted and to documents formally drawn up or registered as authentic instruments after its entry into force in the State of origin and, where recognition or enforcement of a judgment or authentic instruments is sought, in the State addressed.

The district court’s decision makes no reference to that article or to doctrine but refers to different views expressed by Swiss governmental bodies: one by the Federal Office of Justice (FOJ), and one by the Federal Office of Foreign Affairs (FOFA). While the first clearly (and accurately…) states that “[t]he recognition and declaration of enforceability of judgments made before the withdrawal date shall continue to be governed by the Lugano Convention even after the date of withdrawal”, the latter states that “the Lugano Convention will cease to form the legal basis for Swiss–UK relations, at least temporarily. As a result, matters of jurisdiction and declarations of the enforceability of judgments between Switzerland and the UK will, in principle, once again be governed by national legislation”. While the term “in principle” would seem to leave some room for nuance, the district court of Zurich opted to openly dismiss the FOJ opinion and embrace the “no legal basis”-assertion of the FOFA.

Under Article 63(1), the relevant elements are that (1) the Convention was in force in the State where the decision to be recognized was issued (or even already when the proceedings were instituted? see below), and (2) the Convention was in force in the State of the recognition at the time recognition was sought. This was clearly the case in the situation at hand. The district court of Zurich erred in not applying this provision.

From a strictly grammatical point of view, one could read Article 63(1) as covering only the situation where the Convention is applicable in both States at the time of recognition. However, such hypothesis would not even raise an intertemporal question and Article 63(1) would be completely pointless. This cannot be assumed as the drafter’s will. It would also contravene general principles on acquired rights and favorem recognitionis.

It is submitted that this first decision is a bad start into a true marathon of (really) tricky issues around Brexit and the Lugano Convention.

One of those questions is whether Article 63(1) requires the proceedings in the UK to be final (in order to be recognized in Switzerland later), or if it is sufficient that the proceedings have been “initiated” – opening the way for enforcing decisions issued even after 1 January 2021. In my opinion, this is consistent with the purpose of Article 63(2), which is to enforce decision under transitional rules once it is clear that the originating court has applied the Lugano provisions on direct competence. Views are also split on this (see Fn 3 of the FOJ decision here), but at least this would be the right debate to have.

The second question is whether, assuming the 2007 Lugano Convention were not to be applicable, its predecessor, the Lugano Convention of 1988, would apply.

The 1988 Lugano Convention was “superseded” by the 2007 Lugano Convention (no further acts of rescission were agreed between the parties) by virtue of article 65 of that Convention. As the latter would cease to be applicable, that could automatically lead to the 1998 Lugano Convention being applicable again. The 1988 Lugano Convention is not cited in Annex VII of the 2007 Lugano Convention (Agreements “superseded” by the 2007 Lugano Convention under its article 65). And the 1988 Lugano Convention has been and is still applied to the French and Netherlands overseas territories (not being EU territories).

However, this view is contested. In Switzerland, which follows the monist approach to treaties, courts should, in my opinion, apply the 1988 Lugano Convention again. However, since the UK follows the dualist approach, one must also consider its national law and the fact that Article 3A of the Civil Jurisdiction and Judgments Act 1982, giving force to the 1988 Lugano Convention, has since been repealed. Whether this outweighs the principles of the Vienna Convention the law of treaties (see on this argument in respect of the Brussels Convention the post by Serena Forlati) will be up to the courts – if asked. Unfortunately, also that opportunity was missed.

Surprisingly, I have not come across any view of UK lawyers (or lawmakers) defending the potential applicability of the 1988 Lugano Convention, although it would provide the UK with a far better “fallback position” than national laws in the case of a non-accession to the 2007 Lugano Convention. As this possibility seems more and more plausible (no agreement of the EU yet on the UK’s accession), it is a case worth making in the next recognition proceeding.

I am co-coordinating together with other African private international law experts (Richard Frimpong Oppong, Anthony Kennedy, and Pontian Okoli) an extended and in-depth version of this blog post and more topics, titled “Investing in English-speaking Africa: A private international law toolkit”, which will be the topic of an online Master Class at TMC Asser Institute on June 24-25, 2021.

Introduction

In  the year 2020, the Nigerian Court of Appeal delivered at least three decisions on choice of court agreements.[1] I discussed two of those cases in this blog here and here. In the first two decisions delivered this year, the Nigerian Court of Appeal gave full contractual effect to the parties’ choice of court agreement.[2] In other words, the Nigerian Court of Appeal interpreted the parties’ choice of court agreement strictly according to is terms as it would do to a contractual document between commercial parties.

In November 30 2020, the Nigerian Court of Appeal delivered a third decision where it declined to enforce a Commonwealth of Virginia (in USA) Choice of Court Agreement.[3] In this connection, the author is of the view that the Court of Appeal’s decision was delivered per incuriam. This is the focus of this comment.

Facts

In this case, the claimant/respondent commenced action at the Kaduna High Court with a writ of summons and statement of claim dated the 18th December, 2018 wherein it claimed against the defendant/appellant, the sum of $18,103.00 (USD) being due and unpaid software licensing fee owed by them by virtue of the agreement between the parties dated 12th day of June, 2013.

The defendant/appellant filed a conditional appearance along with a Statement of defence and counter affidavit. Its argument, inter alia, was that by virtue of Article 12 and 13 of their agreement, the Nigerian court had no jurisdiction in this case. The relevant portion of their agreement reads as follows:

“ARTICLE 12
GOVERNING LAW: The Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, USA without regard to the principle of conflicts of any jurisdiction.”
“ARTICLE 13
With the exception of an action or suit for the Licensee’s failure to make any payment required hereunder when there was no suit or action arising under this Agreement may be brought more than one (1) year following the occurrence giving rise thereto. All suits and actions arising under this Agreement shall be brought in the Commonwealth of Virginia, USA and License hereby submits to the jurisdiction of the Courts of the Commonwealth of Virginia and the United States District Courts Sitting in Virginia.”

By a ruling delivered on the 11th December, 2019, the trial High Court entered judgment in favour of the claimant/respondent. The defendant/appellant appealed to the Nigerian Court of Appeal.

Decision

Though the Court of Appeal (Hussaini JCA) was of the view that the choice of court agreement in favour of the Commonwealth of Virginia (in USA) was clear and unambiguous and did not have any vitiating circumstances surrounding it (such as fraud), it unanimously held that it would not apply the principle of pacta sunt servanda (agreements between parties should be respected) in this case. It followed the obiter dictum of Oputa JSC which reads as follows:

“[Nigerian] Courts should not be too eager to divest themselves of jurisdiction conferred on them by the Constitution and by other laws simply because parties in their private contracts chose a foreign forum … Courts guard rather jealously their jurisdiction and even where there is an ouster clause of that jurisdiction by Statute it should be by clear and unequivocal words. If that is so, as is indeed it is, how much less can parties by their private acts remove the jurisdiction properly and legally vested in our Courts ? Our courts should be in charge of their own proceedings. When it is said that parties make their own contracts and that the courts will only give effect to their intention as expressed in and by the contract, that should generally be understood to mean and imply a contract which does not rob the Court of its jurisdiction in favour of another foreign forum.”[4]

In applying this obiter dictum to the facts of the case, Hussaini JCA held as follows:

“By reason of Section 6(1)(2)(6)(b) of the Constitution of FRN, 1999 (as amended)  the judicial powers vested in the Courts “extend to all matters between persons or between Government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person”. Consequently, no person or group of persons by their own private treaty or arrangements can agree to oust the jurisdiction and provisions vested in the Courts by the Constitution. Even where such clauses are put in place in or as a contract with international flavour to rob the Courts of the land of jurisdiction in favour of another foreign forum, the Courts of the land are obliged to apply the blue pencil rule to severe those clauses from the contract or ignore same by virtue of the Constitutional provision which confer on the Court, the jurisdiction and power to entertain those cases.
Talking about the jurisdiction of the Courts, the Court below, by virtue of Section 272 of the Constitution of Federal Republic of Nigeria, 1999 (as amended) has jurisdiction to entertain cases such as recovery of debts, as in the instant case on appeal. It is for this reason that clauses in the likes of Articles 12 and 13 in the Article of the Agreement should be ignored when determining the rights and liabilities between the parties herein in matters such as this and the trial Court took the right approach when it discountenanced same to reach the conclusion that it did.
In any case, is it for the recovery of the sum of $18,103, (USD) only claimed by the Respondents, that parties herein are required, by that contract or agreement to submit themselves to a foreign forum in Virginia, USA for adjudication of their case, without consideration of the concomitant procedural difficulties attendant thereto, as for instance, of having to return the case to Nigeria, the place where the contract was concluded initially, to register the judgment obtained at that foreign forum, in Virginia, USA, to be enforced in Nigeria? I think the Courts in Nigeria, fully seized of the case, will in the exercise of its discretion refuse the request to refer the case to a foreign forum for adjudication. It is for all the reasons already expressed in this discourse that I hold the firm view that the trial Court was competent or is competent when it entertained and adjudicated over the recovery suit or action filed by the Respondent against the Appellant.”[5]

Comments

There are five comments that could be made about the Court of Appeal’s decision (Hussaini JCA) in A.B.U. v VTLS.[6] First, the Court of Appeal (Hussaini JCA) in A.B.U. v VTLS[7] followed Oputa JSC’s obiter dictum in Sonnar (Nig) Ltd v Partenreedri MS Norwind.[8] It should be stressed that Oputa JSC’s obiter dictum is not binding on lower courts according to the Nigerian common law doctrine of stare decisis. In addition, Oputa JSC’s obiter dictum was a concurring judgment. Indeed, the Supreme Court in Sonnar (supra) had unanimously given preference to the enforcement of a foreign jurisdiction clause except where strong cause is advanced to the contrary.[9] The majority of the Supreme Court did not treat it as an ouster clause. It is incongruous to hold, on the one hand, that the Nigerian court would hold parties to their bargain in enforcing a foreign jurisdiction clause except where strong cause is shown to the contrary, and on the other hand, treat a foreign jurisdiction clause as if it were an ouster clause. In Sonnar, the choice of court agreement was not enforced because strong cause was shown to the contrary – the proceedings would be time-barred in a foreign forum, and the claimant would not have access to justice.

Furthermore, the Nigerian Supreme Court in another case held that where a plaintiff sues in Nigeria in breach of a foreign jurisdiction clause, Nigerian law “requires such discretion to be exercised by granting a stay unless strong cause for not doing so is shown. The burden of showing such strong cause for not granting the application lies on the doorsteps of…the plaintiff.”[10] The Supreme Court in this case enforced the choice of court agreement and stayed the proceedings in Nigeria because the plaintiff did not file a counter affidavit to demonstrate strong reasons why the proceedings should not be heard in a foreign forum chosen by the parties.[11]

If the ratio decidendi in the Supreme Court cases in Sonar and Nika are applied to the recent Court of Appeal’s decision in A.B.U. v VTLS (supra), it is clear that the Court of Appeal (Hussaini JCA) reached its decision per incuriam. There was nothing in the judgment to demonstrate that the plaintiff provided strong reasons (such as time bar in a foreign forum) why the choice of court agreement in favour of the Commonwealth of Virginia (in USA) should not be enforced. The argument that the choice of court agreement is an ouster clause without more is not a strong reason not to enforce the choice of court agreement.

Second, a choice of court agreement in favour of another court does not mean the Nigerian court’s jurisdiction no longer exists (without jurisdiction) under the Nigerian constitution, as the Court of Appeal (Hussaini JCA) held in this case. Such jurisdiction exists, but it is up to the Nigerian court in exercise of its jurisdiction to decide whether or not to stay proceedings. This view is consistent with the Nigerian Supreme Court’s decisions in Sonar and Nika. The fact that such proceedings are stayed and not dismissed means that a Nigerian court’s jurisdiction is not ousted.

Third, some Nigerian judges confuse choice of court with choice of law. The Court of Appeal (Hussaini JCA) also fell into this error. The choice of the law of the Commonwealth of Virginia is not the same thing as choosing the courts of the Commonwealth of Virginia. For example, the Nigerian courts could assume jurisdiction and apply the law of the Commonwealth of Virginia.

Fourth, looking at the bigger picture, I generally acknowledge that the principle of pacta sunt servanda in enforcing choice of court agreements are aimed at enhancing the efficacy of business transactions and, legal certainty and predictability in international commercial litigation. However, I must point out that despite the Nigerian Supreme Court decisions on the point that hold that choice of court agreements should be enforced except there are strong reasons to the contrary, I am generally not in favour of Nigerian courts declining jurisdiction in international commercial litigation. It ultimate hurts the Nigerian economy (e.g. less job for Nigerian lawyers), hampers access to Nigerian justice, and does not help Nigerian judges in strengthening our legal system. What is the solution? I suggest that in the future the Nigerian Supreme Court should apply the test of “interest of justice” in determining whether or not it will enforce a choice of court agreement. Thus, all the circumstances of the case should be considered as to whether the interest of justice will be served if the choice of court agreement is enforced. I also suggest that in such cases where a choice of court agreement is enforced in Nigeria, a stay for a maximum of six months should be granted. If the claimant does not institute the case in the chosen foreign court within six months, Nigerian courts should assume jurisdiction. In addition, if it is sufficiently demonstrated that the chosen foreign forum later becomes inaccessible or impracticable for the claimant to sue, the Nigerian court should retain jurisdiction to handle such claims.

Sixth, Nigeria should consider ratifying the Hague Choice of Court Convention, 2005. This Convention will work better in Nigerian courts if litigation is made attractive for international commercial actors, so they can designate Nigerian courts as the chosen forum. Speed, efficiency, legal aid for poor and weaker parties, and integrity of the Nigeria’s system are some of the issues that can be taken into account in enhancing Nigeria’s status as an attractive forum for international commercial litigation.

Conclusion

The Nigerian Court of Appeal has delivered three reported decisions on choice of court agreements in the year 2020. The recent Court of Appeal’s decision in A.B.U. v VTLS (supra) was reached per incuriam because it is inconsistent with Nigerian Supreme Court decisions that hold that a choice of court agreement should be enforced except there are strong reasons to the contrary.

The Nigerian Supreme Court in the future should rise to the occasion to create new tests for determining if a choice of court agreement should be enforced in Nigeria. These tests should reconcile the needs of access to Nigerian justice on the one hand, and respecting the contractual agreements of parties to designate a foreign forum.

The Nigerian government should create the necessary infrastructure and requirements that will enable Nigeria effectively ratify and implement the Hague Convention on Choice of Court agreements, 2005.

[1] Kashamu v UBN Plc (2020) 15 NWLR (Pt. 1746) 90; Damac Star Properties LLC v Profitel Limited (2020) LPELR-50699(CA); A.B.U. v VTLS (2020) LPELR-52142 (CA).

[2] Kashamu v UBN Plc (2020) 15 NWLR (Pt. 1746) 90; Damac Star Properties LLC v Profitel Limited (2020) LPELR-50699(CA).

[3] A.B.U. v VTLS (2020) LPELR-52142 (CA).

[4](1987) 4 NWLR 520, 544 – 45, approving Lord Denning’s statement in The Fehmarn [ 1958 ] 1 All ER 333 , 335 . Cf. Conoil Plc v Vitol SA (2018) 9 NWLR 463, 489 (Nweze JSC) – “our courts will only interrogate contracts which are designed to rob Nigerian courts of their jurisdiction in favour of foreign fora or where, by their acts, they are minded to remove the jurisdiction, properly and legally, vested in Nigerian courts.” See also LAC v AAN Ltd (2006) 2 NWLR 49, 81 (Ogunbiyi JCA as she then was).

[5]A.B.U. v VTLS (2020) LPELR-52142 (CA) 15 – 18.

[6] (2020) LPELR-52142 (CA),

[7] (2020) LPELR-52142 (CA),

[8](1987) 4 NWLR 520, 544 – 45

[9] Even Oputa JSC held thus: ‘Where a domestic forum is asked to stay proceedings because parties in their contract chose a foreign Court … it should be very clearly understood by our courts that the power to stay proceedings on that score is not mandatory. Rather it is discretionary which in the ordinary way, and in the absence of strong reasons to the contrary will be exercised both judiciously and judicially bearing in mind each parties right to justice ’ –Sonnar (supra) at 545 (emphasis added).

[10] Nika Fishing Company Ltd v Lavina Corporation (2008) 16 NWLR 509, 535 (Mohammed JSC, as he then was).

[11] Conoil Plc v Vitol SA (2018) 9 NWLR 463, 489 (Nweze JSC), 500-1 (Okoro JSC), 502 (Eko JSC).

Comparative Procedural Law and Justice (CPLJ) is a global project of the Max Planck Institute Luxembourg for Procedural Law, with the support of the Luxembourg National Research Fund (O19/13946847), involving more than one hundred scholars from all over the world.

CPLJ is envisioned as a comprehensive study of comparative civil procedural law and civil dispute resolution schemes in the contemporary world. It aims at understanding procedural rules in their cultural context, as well as at highlighting workable approaches to the resolution of civil disputes.

In this framework, the Max Planck Institute Luxembourg for Procedural Law will host its 3rd CPLJ Webinar on 16 April 2021, 3:00 – 5:15 pm (CET).

The programme reads as follows:

Chair:  Burkhard Hess (Director of the Max Planck Institute Luxembourg and CPLJ Editor)

3:00 pm  Oscar Chase (New York University)

Comparative Procedural Law and Culture

3:30 pm Discussion

4:00 pm Intermission

4:15 pm  Fausto Pocar (University of Milan)

Comparative Procedural Law: A View from Practice

4:45 pm Discussion

5:15 pm End of conference

The full programme is available here.

Participation is free of charge, but registration is required by 9 April 2021 via a short e-mail to events@mpi.lu.

(Image credits:  Rijksmuseum, Amsterdam)

Melissa Durkee (University of Georgia School of Law) has posted Interpretive Entrepreneurs on SSRN.

The abstract reads:

Private actors interpret legal norms, a phenomenon I call “interpretive entrepreneurship.” The phenomenon is particularly significant in the international context, where many disputes are not subject to judicial resolution, and there is no official system of precedent. Interpretation can affect the meaning of laws over time. For this reason, it can be a form of “post hoc” international lawmaking, worth studying alongside other forms of international lobbying and norm entrepreneurship by private actors. The Article identifies and describes the phenomenon through a series of case studies that show how, why, and by whom it unfolds. The examples focus on entrepreneurial activity by business actors and cast a wide net, examining aircraft finance, space mining, modern slavery, and investment law. As a matter of theory, this process-based account suggests that international legal interpretation involves contests for meaning among diverse groups of actors, giving credence to critical and constructivist views of international legal interpretation. As a practical matter, the case studies show that interpretive entrepreneurship is an influence tool and a driver of legal change.

The paper is forthcoming in the Virginia Law Review.

La possibilité d’imposer la visioconférence devant les juridictions pénales et la prolongation de plein droit des délais maximaux de détention provisoire sont contraires à la Convention européenne des droits de l’homme.

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by Fabrizio Marrella

Event: Brexit and International Business Law/ Brexit e diritto del commercio internazionale

When: 26 March 2021, at 14.30 CET

How: Free access upon enrolment by sending an email at  fondazione@ordineavvocatifirenze.eu  the contact person is: Ms. Giovanna Tello.

Working languages: English and Italian with no simultaneous translation.

Short description: Webinar on the most relevant legal profiles following the process following the Referendum of 23 June 2016, which led to BREXIT on 31 January 2020. The end of the transitional period on 31 December 2020 led to the Trade and Cooperation Agreement (“TCA”) of 24 December 2020 which avoided the “No Deal”. Since January 1st, 2021, the United Kingdom is no longer part of the EU’s customs and tax territory. The TCA creates a free trade area for goods without extra duties or quotas for products, but introduces new rules on rules of origin and labelling of Italian products exported to the United Kingdom as well as new rules for online international sales contracts. The TCA does not clearly regulate the area of financial services, nor it provides detailed regulation for automatic mutual recognition of professional qualifications. All in all, Brexit and TCA require an assessment of current and future international commercial contracts between EU and British companies as well as an evaluation of civil and commercial dispute resolution tools, including arbitration.

Here is the link : https://www.unive.it/data/agenda/3/47520

Prof. Fabrizio Marrella

Prorettore alle Relazioni internazionali e alla Cooperazione internazionale/ Vice Rector for International Relations and International Cooperation

Ordinario di Diritto Internazionale / Chair of International Law

Secret professionnel

Chasse

Juridiction correctionnelle

The author of this post is Priskila P. Penasthika, Ph.D. Researcher, Erasmus School of Law, and Lecturer in Private International Law at Universitas Indonesia.

For almost ten years I have been closely observing the discussions taking place between Indonesia and The Hague Conference on Private International Law (HCCH) on the matter of Indonesia becoming a contracting state to the 1961 Hague Apostille Convention. This endeavor has finally materialized at the beginning of 2021 when Indonesia decided to accede to The Hague Apostille Convention. The instrument of accession – Presidential Regulation Number 2 of 2021 – was signed by President Joko Widodo on 4 January 2021, and issued on 5 January 2021.

Although the Presidential Regulation required at national level to seal the accession has been signed and published, this good news will not lead to an immediate application of the Hague Apostille Convention in Indonesia. It will take some more months before this Convention enters into force for Indonesia. The latest update informs that the instrument of accession is at the moment being recorded in the Indonesian state gazette to comply with the enactment and publication requirement of a presidential regulation according to the Indonesian law. After the completion of this process, according to Articles 12 and 15 of the Convention, the instrument of accession needs to be deposited with the Ministry of Foreign Affairs of the Netherlands. Subsequently, there will be six months period for the other contracting states to the Convention to raise any objection to the Indonesian accession to the Convention. The 1961 Hague Apostille Convention will enter into force between Indonesia and the contracting states which have raised no objection to its accession on the sixtieth day after the expiry of the six months period. Even if this last part of the process is expected to run smoothly, it is likely that the interested parties will have to wait until the end of 2021 for the Convention to become applicable for Indonesia.

The accession to this Convention brings good news for many interested parties because the current legalization process for public documents in Indonesia is a lengthy, complicated, time-consuming, and a costly procedure.

As an illustration and based on my personal experience, there are at least four different institutions in Indonesia involved in the legalization process. We can take the example of an Indonesian birth certificate that would need to be used before a foreign authority. The first step in this process would be the legalization by the Indonesian Civil Registry Office that issues the document. Then, a second legalization is performed by the Ministry of Law and Human Rights of the Republic of Indonesia. This is to be followed by a subsequent legalization by the Ministry of Foreign Affairs of the Republic of Indonesia. Lastly, the birth certificate should also be legalized by the Embassy or the Representative Office in Indonesia of the foreign country in which the birth certificate is to be used. After all these steps, the birth certificate can finally be used in the designated foreign jurisdiction.

By the accession of the 1961 Hague Apostille Convention, the above lengthy procedure will be limited to one step and will involve only one institution – the designated Competent Authority in Indonesia. Although, there is not yet an official announcement about which institution will be appointed as the Indonesian Competent Authority, it is very likely that the Ministry of Law and Human Rights of the Republic of Indonesia will be entrusted with the task.

When it comes to its accession to the Hague Apostille Convention, Indonesia made a reserve declaration to exclude from the definition of public documents (Article 1(a) of the Convention) the documents issued by the Prosecutor Office of Indonesia.

Beyond facilitating and speeding up the process of recognition of documents, the decision to join the 1961 Hague Apostille Convention represents an important step for Indonesia.

The 1961 Hague Apostille Convention is the first HCCH’s convention that Indonesia accedes to. Given the fact that Indonesia is not yet a member to the HCCH, the accession to the Hague Apostille Convention will mark the first official connection Indonesia has with the organization. It is anticipated that this will lead to more accessions to the HCCH’s conventions by Indonesia in the coming future.

The other significance of this accession is related to the Visi Indonesia 2045 (Vision of Indonesia 2045). The Government of Indonesia has launched this Vision to commemorate the centenary of the Indonesian independence which will take place in 2045. This Vision aims to portray Indonesia as a strong sovereign, developed, fair, and prosperous country. To achieve this, one of the targets is to simplify procedures in order to boost public service, international cooperation and investment. A simplified legalisation procedure for public documents is thus a strategy that would contribute to an easiness of doing business, and eventually for the accomplishment of the Vision of Indonesia 2045’s targets.

A more in-depth analysis (in Indonesian) explaining the current legalization process in Indonesia and the urgency to accede to The Hague Apostille Convention 1961 can be accessed here.

by Aline Beltrame de Moura, Professor at the Federal University of Santa Catarina, in Brazil

On March 15th, 2021, at 5 pm (PT time – GMT 0), the Faculty of Law of the University of Lisbon will hold the conference “EU-Latin America trade and investment relations”. The conference is part of the Jean Monnet Network project “Building Rights and Developing Knowledge between European Union and Latin America – BRIDGE”.

Among the participants the Minister of State and Foreign Affairs of Portugal, the President of the European Parliament’s Delegation for relations with Brazil; the EU Ambassador to Brazil, the Undersecretary for Foreign Affairs of Mexico and a former Secretary of the Tribunal Permanente de Revisión del Mercosur.

A Workshop about the EU-Latin American trade and investment relations, will precede the conference (at 1 pm – PT time – GMT 0), with the presentation of the selected scientific papers from professors and researchers of nine different countries universities.

The Seminar will be held in Portuguese and Spanish, via zoom. For more information, click here.

by Felix M. Wilke, University of Bayreuth, Germany

Most readers of this blog will be well aware that, according to the ECJ, the “place of performance” of a contractual obligation within the meaning of Article 7(1)(a) Brussels Ibis is not a concept to be understood independently from national law. Rather, in order to determine this place, one must apply the substantive law designated by the forum’s conflict-of-law rules. The ECJ has held so for decades, starting with Tessili (Case C-12/76, ECLI:EU:C:1976:133, at 13). Recent decisions by the ECJ have led me to doubt that Tessili still is lex terrae Europaea, at least as far as contracts with some relation to a right in rem in immovable property are concerned. (And I am not alone: Just today, Marion Ho-Dac analyses this issue as well over at the EAPIL Blog.)

The applicability of Article 7(1)(a) Brussels Ibis in the context of co-ownership agreements

To begin with, it is necessary to establish what Article 7(1)(a) Brussels Ibis has to do with co-ownership agreements. Article 24(1) Brussels Ibis might appear to be the more natural jurisdictional rule in this context. But it does not suffice that a case has some connection to property law. Article 24(1) Brussels Ibis only applies if the action is based on a right in rem. The Court has been characterising rights as rights in rem independently from national law (a point I would agree with). The main feature of a right in rem is its effect erga omnes (Wirkung gegenüber jedermann; effet à l’egard de tous – see Case C-292/93, ECLI:EU:C:1994:241– Lieber, at 14). Thus, Art. 24(1) Brussels Ibis will not apply to a dispute concerning rights whose effect is limited to other co-owners and/or the association of co-owners. Rather, Article 7(1)(a) Brussels Ibis comes into play. The Court considers the corresponding obligations as freely consented to, as they ultimately arise from the voluntary acquisition of property, regardless of the fact that the resulting membership in the association of co-owners is prescribed by law (Case C-25/18, ECLI:EU:C:2019:376 – Kerr, at 27). This applies, e.g., to a co-owner’s payment obligation arising from a decision taken by the general meeting of co-owners.

From Schmidt to Ellmes Property

Kerr only concerned the question of whether Art. 7(1)(a) Brussels Ibis applies to such disputes at all. The Court had reasoned (to my mind quite correctly) in Schmidt (Case C-417/15, ECLI:EU:C:2016:881, at 39) earlier that an action based on the alleged invalidity of a contractual obligation for the conveyance of the ownership of immovable property is no matter falling under Article 24(1) Brussels Ibis. It then had gone beyond the question referred to it and stated that Article 7(1)(a) Brussels Ibis applies, noting that this contractual obligation would have to be performed in Austria (being the location of the immovable property in question). Ellmes Property (Case C-433/19, ECLI:EU:C:2020:900, reported on this blog here and here) now combines the two strands from Kerr and Schmidt. This recent case again concerns a dispute in the context of a co-ownership agreement. One co-owner sued the other for an alleged contravention of the designated use of the respective apartment building (i.e., letting an apartment out to tourists). If this designated use does not have effect erga omnes, e.g. cannot be relied on against a tenant, the CJEU would apply Article 7(1)(a) Brussels Ibis. But once again, the Court does not stop there. It goes on to assert that “[The obligation to adhere to the designated use] relates to the actual use of such property and must be performed in the place in which it is situated.” (at 44).

A Tessili-shaped hole in the Court’s reasoning

In other words, the Court seems at least twice to have determined the place of performance itself, without reference to the applicable law – even though there does not seem to be any pertinent rule of substantive law that the Court would have been competent to interpret. A reference to Tessili or any decision made in its wake is missing from both Schmidt and Ellmes Property. (In his Opinion on Ellmes Property, Advocate General Szpunar did not fail to mention Tessili, by the way.) And in Ellmes Property, the Court proceeds to argue that this very place of performance makes sense in light of the goals of Brussels Ibis and its Article 7 in particular. The Court thus uses jurisdictional arguments for a question supposedly subject to considerations of substantive law.

“Here’s your answer, but please make sure it is correct.”

Admittedly, the statement in Schmidt was made obiter, and the Court locates the place of performance only “subject to verification by the referring court” in Ellmes Property. The latter might be a veiled reference to Tessili. But why not make it explicit? Why not at least refer to the Advocate General’s opinion (also) in this regard? And why the strange choice of the word “verification” for question of law? But the Court has not expressly overruled Tessili. Furthermore, I do not want to believe that it has simply overlooked such an important strand of its case-law presented to it on a silver platter by the Advocate-General, one arguably enshrined in the structure of Article 7(1) Brussels Ibis, anyway. Hence, I (unlike Marion Ho-Dac, although I certainly agree with her as to the low quality of the judgment in Ellmes Property) still hesitate to conclude that Tessili must be disregarded from now on. This assumption, however, leads to one further odd result. While the referring court that had asked the ECJ for clarification of the place of performance does receive a concrete answer, it now has to check whether this answer is actually correct. Granted, it is not uncommon for the Court to assign certain homework to the referring court. Yet here, the former employed some new standard and tasked the latter to check whether the result holds up if one applies the old standard.  I fail to see the point of this exchange between the national court and the Court of Justice.

(A full case note of mine (in German) on Ellmes Property, touching on this issue as well as others, is forthcoming in the Zeitschrift für das Privatrecht der Europäischen Union (GPR).)