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In Perform Content Services Ltd v Ness Global Services Ltd [2021] EWCA Civ 981 the Court of Appeal yesterday dismissed the appeal against the High Court judgment which I discussed here.

Two grounds of appeal were at play [34]:

(1) The Court was wrong as a matter of law to interpret Article 33 to mean that jurisdiction was not “based on” domicile by reason of a non-exclusive English court jurisdiction clause that conferred prorogated jurisdiction on the English Court pursuant to Article 25;

(2) The Court was wrong to conclude that a stay was not necessary for the proper administration of justice within the meaning of Article 33(1)(b). The court wrongly failed to place any or any sufficient weight on the fact that the NJ and English proceedings were mirror image proceedings giving rise to the risk of irreconcilable judgments, the core purpose of Article 33 and a core feature of the concept of the administration of justice under the Article. The court wrongly took account of the non-exclusive English court jurisdiction clause and/or an English governing law clause and/or wrongly took account of its assessment that the centre of gravity was Slovakia and/or failed to place any or any sufficient weight on the material connections between the parties and the United States and/or wrongly placed significant reliance on connections between the parties, the dispute and the UK.

On the first issue Flaux C refers ia to UCP and to Citicorp (the latter had not been referred to by the first instance judge, I suggested it could have been), to hold that choice of court under A25 BIa being exclusive or not has no relevance. Like the first instance judge, he rules that A33-34 cannot apply if choice of court has been made in favour of an EU court, exclusive or not.

He then deals obiter, like the judge had done, with the issue whether an A33-34 stay would have been in the interest of the sound administration of justice. He emphasises [66] the wide catchment area of ‘all the circumstances of the case’ per recital 24, and suggests this must potentially also include the connections which the case has with the EU Member State and indeed the specific court (per the choice of court clause) concerned.

On that he is right. But he is wrong in my view to support Turner J’s analysis at [67] in Municipio, without any nuance.

Turner J and Flaux C are both right that, the fact itself that the factors which a judge considers in holding that the proper administration of justice does not require a stay, might theoretically have also been relevant in a common law forum non conveniens exercise, does not invalidate the judge’s approach under A33-34. However the problem with the judge’s A33-34 analysis in Municipio is,

Firstly, that it is a case of the tail wagging the dog. The proper administration of justice analysis, exclusively populated by forum non criteria indeed with full reference to that forum non analysis, was put to the front without proper engagement with the substantive conditions for A33-34 to apply at all.

Further, the DNA of A33-34 as I have reported before ( I am preparing an overview for publication), is much, much different from the forum non DNA. By cutting and pasting of the criteria indeed by cross-reference to the forum non criteria without further ado, the A33-34 analysis is irreparably broken. It becomes a case of mixing the blank rounds with the live bullets.

It is worth emphasising that the limited A33-34  analysis are obiter findings only.

Geert.

European Private International Law, 3rd ed. 2021, 2.539 ff.

Perform Content Services v Ness Global Services [2021] EWCA Civ 981
Appeal dismissed in an A33-34 BIa, forum non conveniens (light) case
For the High Court judgment see https://t.co/z75qFQafqg
More soonhttps://t.co/CJhGxsamFQ

— Geert van Calster (@GAVClaw) July 1, 2021

The Nigeria Group on Private International Law held its inaugural lecture on June 21, 2021. The video recording of the event is now available on the Group’s website: here  

This post was drafted by Paul Lorenz Eichmüller, Vienna.

This year’s third issue of the German journal “Praxis des Internationalen Privat- und Verfahrensrechts” (IPRax) contains two articles and several other case discussions of interest for European private international law. 

In the first article, Andrew Dickinson (University of Oxford) discusses the applicable national and international rules of private international law that have been in force in the UK since the end of the transition period on 1 January 2021. He focuses primarily on jurisdiction matters and the recognition of foreign judgements, as well as choice of law for contract and tort claims. 

The abstract reads: 

At 11pm (GMT) on 31 December 2020, the United Kingdom moved out of its orbit of the European Union’s legal system, with the end of the transition period in its Withdrawal Agreement and the conclusion of the new Trade and Cooperation Agreement. This article examines the impact of this realignment on private international law, for civil and commercial matters, within the legal systems of the UK, the EU and third countries with whom the UK and the EU had established relationships before their separation. It approaches that subject from three perspectives. First, in describing the rules that will now be applied by UK courts to situations connected to the remaining EU Member States. Secondly, by examining more briefly the significance for the EU and its Member States of the change in the UK’s status from Member State to third country. Thirdly, by considering the impact on the UK’s and the EU’s relationships with third countries, with particular reference to the 2007 Lugano Convention and Hague Choice of Court Convention. The principal focus will be on questions of jurisdiction, the recognition and enforcement of judgments and choice of law for contract and tort.  

The second article by Susanne Zwirlein-Forschner (Ludwig-Maximilians-Universität Munich) concerns itself with the issue of foreign road charge claims brought in front of German courts. Particular emphasis is placed on questions of private international law.  

The abstract reads (translated from German): 

Tolling of public roads has experienced a renaissance in Europe for reasons of equivalence and climate protection. In some Member States, the modern toll systems are designed in such a way that the recovery of unpaid fees is carried out before civil courts. If such an action for payment of a foreign toll is brought before a German court, complex problems of PIL and international civil procedure arise, which will be examined in this article. 

Among the case discussions, two judgments by the CJEU shall be pointed out: firstly, the contribution by Wiebke Voß (Max Planck Institute Luxembourg for Procedural Law) on the decision C-215/18, Primera Air Scandinavia, which dealt with the delineation of contract and tort claims; and secondly, the case note by Chris Thomale (University of Vienna) on the decision C-433/19, Ellmes Property Services, which has already been discussed on this blog. 

A full table of contents can be found here. 

Jens M. Scherpe and Elena Bargelli are the editors of a collection of essays titled The Interaction between Family Law, Succession Law and Private International Law, recently published by Intersentia.

The blurb reads:

There can be no doubt that both substantive family and succession law engage in significant interaction with private international law, and, in particular, the European Union instruments in the field. While it is to be expected that substantive law heavily influences private international law instruments, it is increasingly evident that this influence can also be exerted in the reverse direction. Given that the European Union has no legislative competence in the fields of family and succession law beyond cross-border issues, this influence is indirect and, as a consequence of this indirect nature, difficult to trace.

This book brings together a range of views on the reciprocal influences of substantive and private international law in the fields of family and succession law. It outlines some key elements of this interplay in selected jurisdictions and provides a basis for discussion and future work on the reciprocal influences of domestic and European law. It is essential that the choices for and within certain European instruments are made consciously and knowingly. This book therefore aims to raise awareness that these reciprocal influences exist, to stimulate academic debate and to facilitate a more open debate between European institutions and national stakeholders.

The authors of the contributions are Elena Bargelli (Univ. Pisa), Anne Barlow (Univ. Exeter), Elena D’Alessandro (Univ. Turin), Elise Goossens (KU Leuven), Nigel Lowe (Cardiff Univ.), Robert Magnus (Univ. Bayreuth), Maire Ni Shuilleabhain (Univ. College Dublin), Walter Pintens (KU Leuven), Pablo Quinza Redondo (Univ. Valencia), Lukas Rass-Masson (Univ. Toulouse), Anne Sanders (Univ. Bielefeld), Jens M. Scherpe (Univ. Cambridge), Wendy Schrama (Utrecht Univ.) and Denise Wiedemann (MPI Hamburg).

Further information, including the table of contents can be found here.

Le RGPD s’oppose à une législation nationale qui fait obligation à l’organisme public chargé du registre dans lequel sont inscrits les points de pénalité imposés aux conducteurs de véhicules pour des infractions routières de rendre ces données accessibles au public.

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AG De La Tour delivered today his opinion in case C‑277/20 (UM), which is about the Successions Regulation. The opinion is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

« L’article 3, paragraphe 1, sous b), du règlement (UE) no 650/2012 […] doit être interprété en ce sens que relèvent de la notion de « pacte successoral » les actes de donation entre vifs en vertu desquels le transfert, au profit du donataire, de la propriété d’un bien ou des biens qui constituent même partiellement le patrimoine successoral du donateur n’intervient qu’à son décès ».

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=243669&pageIndex=0&doclang=FR&mode=req&dir=&occ=first&part=1&cid=23944552

The Court of Justice delivered today its judgment in case C‑301/20 (UE, HC v Vorarlberger Landes- und Hypothekenbank AG, intervening parties: Estate of VJ), which is about the Successions Regulation:

“1. Article 70(3) of Regulation (EU) No 650/2012 […] must be interpreted as meaning that a certified copy of the European Certificate of Succession, bearing the words ‘unlimited duration’, is valid for a period of six months from the date of issue and produces its effects, within the meaning of Article 69 of that regulation, if it was valid when it was presented to the competent authority;

2. Article 65(1) of Regulation No 650/2012, read in conjunction with Article 69(3) of that regulation, must be interpreted as meaning that the effects of the European Certificate of Succession are produced with respect to all persons who are named therein, even if they have not themselves requested that it be issued”.

Source: https://curia.europa.eu/juris/document/document.jsf;jsessionid=4EB7F36D35D24BF4E135A4654D292A60?text=&docid=243642&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=23943665

CNITAAT

Caution