Feed aggregator

Steve Peers (University of Essex) has just published a series of Brexit-related documents on Twitter, two of which appear to confirm that by leaving the European Union, the UK also (believes to have) ceased to be a party to the 1968 Brussels Convention and the 1980 Rome Convention – which many have argued might revive between the UK and those EU Member States who are parties to them.

The two letters, sent by the UK Government to the Council of the EU, both contain the following paragraph:

The Government of the United Kingdom hereby notifies the Secretary-General of the Council of the European Union that it considers that the [Brussels Convention] / [Rome Convention] ceased to apply to the United Kingdom and Gibraltar from 1 January 2021, as a consequence of the United Kingdom to be a Member State of the European Union and of the end of the Transition Period.

 

Gustavo Cerqueira, Nicolas Nord (dir.), La connaissance du droit étranger: À la recherche d’instruments de coopération adaptés. Études de droit international privé comparé, Préface : Hélène Gaudemet-Tallon, Paris : Société de législation comparée, coll. “Colloques”, vol. 46, 2020, 268 p. Click here.

The authors’ foreword reads as follows (English translation):

“On November 28, 2019, jurists from various backgrounds met at the french Cour de cassation in Paris to reflect on suitable instruments for international cooperation in establishing the content of foreign law.

This conference is in line with the work previously carried out within the Société de législation comparée on the subject of foreign law. In particular, it continues the reflections started at the conference concerning the controls on constitutionality and conventionality of foreign law, which was held on September 23, 2016 at the Cour de cassation. This event brought together academics and practitioners from several European, North and South American countries and resulted in the publication of a book in 2017 by the Society.

This approach is also part of the continuity of research carried out in other learned societies at the global or regional level.

The conference of November 28, 2019 confirmed the need for such reflection. On the one hand, all of the contributors affirmed the important place now given to foreign law in the settlement of disputes. This is due, among other things, to the growth of international family and business relationships, the growing demand for recognition of situations established abroad and the possibilities for those concerned to choose the applicable law. On the other hand, the participants attested to the increased role of different legal professions in the application of foreign law. While judges and civil registrars were more traditionally exposed to such a burden, notaries and lawyers in their dual mission of advice and drafting of acts are currently called upon to take into account or implement foreign law.

In this context, while it appears that European Union law is often at the origin of the involvement of these different actors in the application of foreign law, another, more recent phenomenon seems to increase occurrences of dealing with such a law: the extensive jurisdictional competition to which the European States are engaged because of Brexit. Indeed, Paris, Amsterdam, Brussels and other capitals are establishing courts and chambers specialized in international litigation and in the application of foreign law. This phenomenon is also spreading to major cities, either international, such as Frankfurt am Main or Hamburg, or regional, such as Saarbrücken, in Germany.

The stakes are crucial. The search for suitable instruments for a good knowledge of foreign law is essential for national laws in full legislative and jurisprudential evolution. Indeed, these changes specific to each system reinforce the need for access to reliable content of foreign law in order to guarantee the legal certainty of litigants, as well as to avoid civil liability of legal service providers or even fraud in manipulation of foreign solutions.

The research envisaged in this colloquium is unfolding, of course, in an environment in which there are formal and informal cooperation mechanisms, the effectiveness of which is only partial in the face of the complexity of the phenomena that cover the application of foreign law. Indeed, they were conceived to deal with a foreign law that supposed to be stable and simple and not shifting and plural in its sources. These mechanisms, not very visible, are also unknown to the practitioners themselves. Current discussions at European (EU) and international (Hague Conference) level attest to the urgency of thinking about responses in this area, using one or more relevant and effective instruments.

This is what the conference on knowledge of foreign law: in search of suitable cooperation instruments meant to answer. To this end, based on an indicative and non-exhaustive questionnaire, the issue of establishing an inventory was first raised, and then discussions ensued on the solutions adapted to the various requirements revealed both by the type of situation to be treated and by the category of professional involved. In this last respect, the needs of the judge and the notary were different, as were those of the registrar and the lawyer.

The adaptation was also considered in the light of the various questions specific to the original system. While the objective may a priori be to achieve the adoption of a general instrument with the widest possible geographical scope, it quickly appeared vain to try to favor such an approach at present. On the one hand, each profession has different needs, on the other hand, the level of development of the different systems compared is not the same. While some countries lag behind and struggle to adopt satisfactory rules in this area, others are at the forefront and therefore are not really in demand for a cooperation instrument whose usefulness does not seem obvious to them.

In this perspective, different paths for reflection have been explored. They range from the revitalization of old instruments to the creation of specialized institutions at internal, international or European level, including the establishment of specific mechanisms or the use of artificial intelligence. Such abundance shows the crucial nature of the issue and the vitality of the reflections carried out, but also the relevance of having debated it and the need to continue doing so.

In this sense, the next stage of this debate could be that of the opportunity of adopting a European regulation on the matter. In addition to the interest of such an instrument at the European level, it could serve as an impetus for other regional groups, such as Mercosur.” (our emphasis)

 

Prefaced by Professor emeritus Hélène Gaudemet-Tallon (Paris II Panthéon Assas), the book contains the following contributions (most of them in French).

Préface

Hélène GAUDEMET-TALLON

Avant-propos

Gustavo CERQUEIRA and Nicolas NORD

Introduction

Cyril NOURISSAT, Connaissance du droit étranger et coopération internationale : entre nécessité impérieuse et difficultés à surmonter

 

 I. État des lieux

En France

La magistrature

François ANCEL, La connaissance du droit étranger. État des lieux – La magistrature

Cyril ROTH, Le droit étranger, irréductiblement inconnaissable : leçons tirées de la création d’une collection de lois exotiques

L’avocature

Dominique FOUSSARD, Le point de vue d’un avocat au Conseil d’État et à la Cour de cassation

Olivier BERG, L’avocat et le droit étranger : entre connaissance et représentation

L’état civil

Nicolas NORD, Le droit étranger devant l’officier de l’état civil. État des lieux

Dans le voisinage

Jochen BAUERREIS, La connaissance du droit étranger en Allemagne

Guillermo PALAO MORENO, La connaissance du droit étranger en Espagne

Pietro FRANZINA, La connaissance du droit étranger : cadre juridique et moyens disponibles en Italie

Lukas HECKENDORN URSCHELER, La connaissance du droit étranger en Suisse. Une multitude de moyens

En Amérique Latine

Gustavo Ferraz DE CAMPOS MONACO, La connaissance du droit étranger en Amérique

 

 II. Solutions envisageables

Du point de vue des universitaires

Patrick KINSCH, La preuve de la loi étrangère par renvoi préjudiciel

Gustavo CERQUEIRA, Fondamentalisation du droit et justice prédictive. Deux phénomènes à prendre en compte pour la connaissance du droit étranger

Guillermo PALAO MORENO, La connaissance du droit étranger : évaluation de la situation en Espagne et propositions dans une perspective européenne

Maria Rosa LOULA, The challenges in accessing applicable foreign law and international cooperation in Brazil

 

Du point de vue des praticiens

Le magistrat

Jean-Noël ACQUAVIVA, Connaissance du droit étranger et coopération internationale. Solutions prospectives : l’opinion d’un juge

Le notaire

Jean-Louis VAN BOXSTAEL, La connaissance du droit étranger. Le point de vue d’un notaire

 

Du point de vue des institutions

Marie VAUTRAVERS, Le point de vue du Bureau du droit de l’Union, du droit international privé et de l’entraide civile, direction des affaires civiles et du Sceau, France

Rodrigo RODRIGUEZ, Knowledge of Foreign Law and the London Convention of 1968 – Council of Europe’s CDCJ

Wolfgang ROSCH, La connaissance du droit étranger et la Cour de justice de l’Union européenne

Nicolas NORD, La Commission Internationale de l’État Civil

 

Propos conclusifs

Françoise Monéger

 

Annexes

Questionnaire envoyé aux contributeurs

Programme du Colloque

Liste des contributeurs (auteurs, orateurs, et présidents des séances)

 

The full table of contents, the preface and the forewords are available here (in French).

More information: https://legiscompare.fr/ecommerce/fr/197-la-connaissance-du-droit-etranger-a-la-recherche-d-instruments-de-cooperation-adaptes

 

The author of this post is Estelle Gallant, professor of private law at the University of Toulouse 1 Capitole.

On 30 September 2020, the French Supreme Court for civil and criminal matters ruled on the respective scopes of the Brussels II bis Regulation and the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children in a parental conflict between France and Switzerland (Cass. 1st Civil Chamber, 30 Sept. 2020, no. 19-14.761). The difficulty arose following a change in the habitual residence of the child while proceedings concerning his custody were pending before French courts.

Facts and Legal Issues 

The dispute concerned the divorce proceedings of a multinational couple: the husband was of French-Swiss national while the wife was of Swiss, Irish and Danish national. They lived in Switzerland before separating and setting up a cross-border alternating residence between Switzerland and France for their children. It was at that time that a petition for divorce was filed in France. However, after the father’s imprisonment, and with his agreement, the children’s residence was transferred exclusively to the mother’s home in Switzerland. This created an issue with respect to the international jurisdiction of French court.

Judgment of the French Supreme Court

French lower courts had concluded that they had jurisdiction on the basis of the Brussels II bis Regulation. But, before the Supreme Court, the mother invoked the jurisdiction of the Swiss authorities on the basis of the 1996 Hague Convention applicable in both Switzerland and France. In accordance with Article 5 of the 1996 Hague Convention and Article 61 of the Brussels II bis Regulation, the Supreme Court set aside the decision of the Court of Appeal which had retained jurisdiction on the basis of the Brussels II bis Regulation. According to the Supreme Court, since habitual residence had been lawfully transferred to a third State of the European Union but a Contracting State to the 1996 Convention, only that Convention was applicable and French courts therefore had no jurisdiction.

Assessment

How can this conflict between the Brussels II bis Regulation and the 1996 Hague Convention be resolved?

The 1996 Hague Convention has been in force in France since 1 February 2011. The Brussels II bis Regulation has been applicable since 1 March 2005. The two competing instruments have a common material scope of application since they both deal with conflicts of jurisdiction in matters of parental responsibility and child protection. Since both are applicable in France, it is necessary to find out which one should be preferred over the other: a rule of compatibility is therefore necessary.

Article 61 of the Brussels II bis Regulation provides a specific rule on the respective scopes of the Regulation and the 1996 Hague Convention. The Regulation provides that it prevails over the Convention “where the child concerned has his or her habitual residence on the territory of a Member State”.

In this case, the whole question was therefore where the children resided and then to determine the applicable instrument. If the habitual residence was in Switzerland – a third State to the European Union but a party to the Hague Convention –, the 1996 Hague Convention applied; if it were in France, however, the Brussels II bis Regulation applied.

However, the determination of the children’s habitual residence in this case was complicated by the change of habitual residence during the proceedings. At the time of the divorce petition filed in France in January 2016, the habitual residence was a cross-border alternating residence between Switzerland and France. But, when the French Court of Appeal ruled, the habitual residence had been exclusively and lawfully transferred to Switzerland. This new residence was not under discussion. The discussion in this case is therefore not about the location of the children’s habitual residence (initially alternating between France and Switzerland and then transferred exclusively to Switzerland), but about the time at which it should be assessed.

Thus, while the distributive criterion used in Article 61 of the Regulation is perfectly clear – habitual residence in or outside a Member State of the European Union – it does not offer any temporal rule, which would have been eminently useful in this case.

The only area where temporal details can be found is that of the rules of jurisdiction. The latter, based in both texts on the criterion of the child’s habitual residence, resolve the change in the connecting factor.  In this respect, two situations must be distinguished, depending on whether the change of habitual residence occurs outside any pending proceedings or, conversely during the proceedings.

In the event of a “classic” change of habitual residence, outside of any pending proceedings, the two texts resolve the difficulty in favour of the child’s new habitual residence (explicit solution in the Hague Convention ; resulting from a combined reading of Articles 8, 9 and 10 of the Regulation).

If, on the other hand, there is a change of habitual residence in the course of proceedings, the solution is not identical. While the Regulation states that the habitual residence must be assessed “at the time the court is seised” (Article 8(1)), the 1996 Hague Convention provides for the jurisdiction of the authorities of the “new habitual residence”. The difference in wording means that under the Brussels II bis Regulation, once seised, the court retains jurisdiction, even if the child is subsequently lawfully moved to another Member State, whereas under the 1996 Hague Convention, a change of habitual residence during the course of proceedings entails an immediate transfer of jurisdiction to the authorities of the new habitual residence.

The temptation might have been great, in order to resolve the question of the location of the habitual residence in the context of Article 61, i.e. for the purposes of determining the applicable instrument, to use the temporal criterion contained in the rules of jurisdiction. This seems to have been the reasoning of the Court of Appeal, which ruled that although the children’s habitual residence has since been transferred to Switzerland, the habitual residence was in France at the time the first court was seised, thus maintaining the jurisdiction of French courts on the basis of the Brussels II bis Regulation. However, while the reasoning is strictly correct from the point of view of jurisdiction based on the Brussels II bis Regulation, it is not correct from the point of view of the implementation of Article 61.

The Supreme Court does not go down this road. The solution it favours can be summarised as follows: admittedly, under the Brussels II bis Regulation, the French court had jurisdiction, since the children’s habitual residence was in France at the time the French court was seised. However, at the time when the court ruled, the Brussels II bis Regulation was no longer applicable under Article 61 of the Regulation, since the children’s habitual residence was in Switzerland, a third State of the European Union but a Contracting State of the Hague Convention. Under that Convention, and on the basis of Article 5 thereof, French courts therefore no longer had jurisdiction; Swiss courts did.

At last, in order for the change of habitual residence to be effective, both in terms of the relationship between the Regulation and the Convention and in terms of jurisdiction, the judgment suggests that there are two conditions.

Firstly, the new habitual residence must of course be in a Contracting State to the Hague Convention, which is the case of Switzerland. If not, it is not certain that the Brussels II bis Regulation would have ‘lost’ its applicability, but the situation would certainly have led to a conflict of proceedings. The solution provided by the French Supreme Court thus illustrates one of the benefits of judicial cooperation between states.

Secondly, the change of habitual residence must be lawful. In the event of a wrongful change of habitual residence to Switzerland, the Brussels II bis Regulation would have remained applicable and thus led to the French authorities retaining jurisdiction (Article 10). If the abductor brought the case before a Swiss court, the Swiss court could have adopted the same solution and declined jurisdiction on the basis of Article 7 of the 1996 Hague Convention.

Finally, it may be objected that, by reasoning in this way, the Court added criteria to Article 61, which does not contain any: a temporal criterion and a criterion of lawfulness of the change of habitual residence. The solution must, however, be approved, as it is both the most pragmatic and the most consistent with the spirit of the compatibility clause contained in Article 61 of the Regulation. It avoids the – undesirable – diversion through the rules of jurisdiction and allows account to be taken of the reality of the children’s actual situation, to which the criterion of habitual residence adopted by all the texts, undoubtedly aspires.

Par un arrêt du 27 janvier 2021, la première chambre civile précise les conditions de mise en œuvre de l’article 145 du code de procédure civile au regard du régime des mesures provisoires ou conservatoires instauré par le règlement Bruxelles I bis.

en lire plus

As has now become tradition, the Annual Conference of the Society of Legal Scholars (SLS) will feature a section dedicated to Conflict of Laws. In 2021, the conference will take place between 31 August and 3 September at the University of Durham and virtually (further information on the conference can be found here). The new conveners of the Conflict of Laws section, Lauren Clayton-Helm and Bobby Lindsay, have kindly provided the following Call for Papers.

SLS Conflict of Laws Section: Call for Papers/Panels for 2021 SLS Annual Conference at Durham University and virtually

This is a call for papers and panels for the Conflict of Laws section of the 2021 Society of Legal Scholars Annual Conference to be held at the University of Durham, from Tuesday 31st August – Friday 3rd September.  The Conflict of Laws section will meet in the first half of the conference on 31st August – 1st September and will have four sessions, each lasting 90 minutes.

If you are interested in delivering a paper or organising a panel, please submit your paper abstract or panel details by 11:59pm UK time on Friday 26th March 2021.  All abstracts and panel details must be submitted through the Oxford Abstracts conference system which can be accessed using the following link – https://app.oxfordabstracts.com/stages/2483/submitter – and following the instructions (select ‘Track’ for the relevant subject section). If you registered for Oxford Abstracts for last year’s conference, please ensure that you use the same e-mail address this year if that address remains current. For those whose papers are accepted, the original submission offers the facility to upload a full paper nearer the time. If you experience any issues in using Oxford Abstracts, please contact http://slsconference@mosaicevents.co.uk.

We intend to host the 2021 conference in person, with an online option for those who would prefer to participate virtually. The precise format of the conference will be confirmed by the end of April. When submitting an abstract you will be asked to indicate whether you would wish to present in person or virtually. Please note that this indication is not binding and it is merely to assist with conference planning.

Decisions will be communicated by the end of April.

We welcome proposals for papers and panels on any issue relating to the conflict of laws/private international law. We welcome proposals representing a full range of intellectual perspectives and methodological approaches in the subject section, and from those at all stages of their careers.

Those wishing to present a paper should submit a title and abstract of around 300 words. Those wishing to propose a panel should submit a document outlining the theme and rationale for the panel and the names of the proposed speakers (who must have agreed to participate) and their abstracts.  Sessions are 90 minutes in length and so we recommend panels of three to four speakers, though the conference organisers reserve the right to add speakers to panels in the interests of balance and diversity.

As the SLS is keen to ensure that as many members with good quality papers as possible are able to present, we discourage speakers from presenting more than one paper at the conference.  With this in mind, when you submit an abstract via Oxford Abstracts you will be asked to note if you are also responding to calls for papers or panels from other sections.

Please also note that the SLS offers two prizes. First, The Best Paper Prize, which can be awarded to academics at any stage of their career and which is open to those presenting papers individually or within a panel.  The Prize carries a £300 monetary award and the winning paper will, subject to the usual process of review and publisher’s conditions, appear in Legal Studies.  To be eligible:

• speakers must be fully paid-up members of the SLS (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members. The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final.)
• papers must not exceed 12,000 words including footnotes (as counted in Word);
• papers must be uploaded to the paperbank by 11:59pm UK time on Monday 23rd August;
• papers must not have been published previously or have been accepted or be under consideration for publication; and
• papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.

Last year the Society launched the Best Paper by a Doctoral Student Prize, which is open to currently registered doctoral students who are members of the Society. The Prize is £300. There is no link to publication in Legal Studies arising from this award, but any winner would be welcome to submit their paper for consideration by the Society’s journal. To be eligible:

• speakers must be fully paid-up members of the SLS who are Doctoral students. (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members and all authors must be Doctoral students, whatever their discipline). The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final;
• papers must not exceed 12,000 words including footnotes (as counted in Word);
• papers must be uploaded to the paperbank by 11:59pm UK time on Monday 23rd August;
• papers must not have been published previously or have been accepted or be under consideration for publication; and
• papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.

We have also been asked to remind you that all speakers will need to book and pay to attend the conference and that they will need to register for the conference by Friday 18th June 2021 in order to secure their place within the programme, though please do let us know if this deadline is likely to pose any problems for you. Booking information will be circulated in due course, and will open after the decisions on the response to the calls are made.

With best wishes,

Dr Lauren Clayton-Helm (l.clayton-helm@northumbria.ac.uk)

Dr Bobby Lindsay (bobby.lindsay@glasgow.ac.uk)

Co-convenors, Conflict of Laws Section

I am busy on many fronts and not complaining, yet I am sorry if some posts are therefore a little later than planned. A quick flag of Duffy v Centraal Beheer Achmea [2020] EWHC 3341 (QB) in which Coe J noted parties agreed that interim payments are included in the Rome II exemption of evidence and procedure: at 8:

The claim is brought in the English Court against a Dutch motor insurer and it is agreed that the law of the Netherlands applies to this claim in tort. The claimant, as a result of Dutch law has a direct right of action against the insurer and, following the decision in FBTO v Odenbreit [2007] C 463-06, the jurisdiction of the English Court is not an issue. The law of the Netherlands applies (pursuant to Article 41(1) of the Rome II Regulation on applicable law in tort (Regulation 864/2007)). Dutch law will govern limitation, breach of duty and causation as well as the existence of, the nature of and the assessment of damages to which the claimant might be entitled. Matters of procedure and evidence are nonetheless reserved to the forum court (see Article 15 (c) of the Rome II Regulation and Article 1(3)). This is an application for an interim payment which is a procedural application and thus governed by English law. However, when it comes to any assessment of the damages to which the claimant might be entitled on which to base the interim payment decision, Dutch law has to be applied.

Coe J has little reason to disagree however I imagine she would have entertained the issues more had the distinction between Dutch and English law on the interim payment issue been materially different, hence had counsel made diverging noise. For as I have signalled before, the extent of the evidence and procedure exemption is not clear at all.

Geert.

EU Private International Law. 3rd ed. 2021, Chapter 4, Heading 4.8.

 

Application for interim payment.
Parties agree it is a procedural application under Rome II, governed by English law, lex fori.
To the assessment of damages to which claimant might be entitled on which to base the interim payment decision, Dutch law applies as lex causae. https://t.co/QztZJzSKyy

— Geert Van Calster (@GAVClaw) December 4, 2020

In 2020, the Court of Justice of the European Union (CJEU) ruled twice on whether sovereign immunities are relevant to define the material scope of the European law of jurisdiction. The first case was concerned with the immunity from jurisdiction of the state of Panama (Rina, case C-641/18: see reports here, here and here). The second was concerned with the immunity from enforcement of an international organisation, the headquarters of NATO (SHAPE, case C-186/19: see reports here and here).

Since the 1968 Brussels Convention, the European law of jurisdiction and judgments has been limited to civil and commercial matters. Most other instruments of European civil procedure have incorporated the same limitation. Since the Eurocontrol case in 1976, the European Court of Justice has consistently defined civil and commercial matters as excluding actions by public authorities acting in the exercise of their powers, i.e. powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals. This definition has now been codified in Article 1(1) of the Brussels I bis Regulation, which refers to “the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii)”.

The test of acta iure imperii is also widely used to define the scope of sovereign immunities and, in particular, the scope of jurisdictional immunities. It was only logical, therefore, to ask whether the concept of civil and commercial matters should be defined by reference to the definition of sovereign immunities. As explained (but not endorsed) by AG Szpunar in the Rina case, one could argue “that the concept of ‘civil and commercial matters’ should coincide with the negative scope of jurisdictional immunity” (para. 43). The consequence of such an analysis would be that the scope of the Brussels Ibis Regulation would not be defined autonomously, but by reference to other norms which are external to the EU. Sovereign immunities are governed by customary international law but also, to a large extent, by national laws.

The Relevance of International Law: Rina

In Rina, the CJEU seemingly endorsed the idea that international law is relevant to define the scope of the Brussels Ibis Regulation.

The Court started by recognising that “the immunity of States from jurisdiction is enshrined in international law”, which nobody doubts.

The Court, then, reached the troubling conclusion that the test for defining civil and commercial matters should depend on international law. The Court held:

57 In the present case, as the Advocate General stated in points 108 to 128 of his Opinion, the immunity from jurisdiction of bodies governed by private law, such as the Rina companies, is not generally recognised as regards classification and certification operations for ships, where they have not been carried out iure imperii within the meaning of international law.

58  Accordingly, it must be held that the principle of customary international law concerning immunity from jurisdiction does not preclude the application of Regulation No 44/2001 in a dispute relating to an action for damages against bodies governed by private law, such as the Rina companies, on account of the classification and certification activities carried out by them, upon delegation from and on behalf of a third State, where the court seised finds that such bodies have not had recourse to public powers, within the meaning of international law.

The idea that international law should influence the definition of civil and commercial matters raises a number of issues, many of which were pointed out by the AGs in both the Rina and SHAPE cases. In this post, I would like to insist on two of them.

The first is that the content of international law is unclear. As pointed out by AG Szpunar, the international conventions which were adopted in this field were either ratified by few Member States, or never entered into force. A number of courts have stated that the 2004 UN Convention on on Jurisdictional Immunities of States and Their Property is representative of customary public international law, but as the International Court of Justice itself has pointed out, a number of its provisions were hotly debated during the negotiations, and thus cannot be considered as representing any form of international consensus. The truth of the matter is that the international law of sovereign immunities is, on many issues, vague and not clearly defined. In addition, states have long regulated sovereign immunities at national level, whether by statutes or by the courts. If the CJEU were to interpret international law to define civil and commercial matters, it might contribute to the development of international law, but it would also displace the law of sovereign immunities of the Member States and, in effect, engage into a process of harmonisation for which its competence is doubtful.

Conceptually Different Questions Need Not Receive the Same Answer

The second reason why the international law of sovereign immunities should not influence the interpretation of the European law of jurisdiction is that sovereign immunities and international jurisdiction are conceptually different questions. One is concerned with the power of the national courts to entertain actions against foreign states. The other is concerned with the allocation of international cases as between the courts of different states based on the subject matter of the dispute and the connections of the parties with the relevant states. A contractual case like the SHAPE case raises two separate questions. One is whether an international organisation can be sued in the courts of the forum. Another is whether the relevant obligation of the contract was performed on the territory of the forum, or the organisation can be considered to be domiciled there.

This conceptual difference is better perceived in those states where immunities and jurisdiction are sanctioned by different rules.  This is the case, for instance, under French law. A court does not lack jurisdiction to entertain a claim against a foreign state enjoying an immunity, it lacks power. Lack of power may be raised at any point in the proceedings, while objections to jurisdiction must be raised in limine litis.

The Relevance of International law: SHAPE

The SHAPE Court might have wished to deviate from Rina and endorse a different analysis. The Court continued to apply the same test to define civil and commercial matters. However, it refrained from stating “within the meaning of international law“.

Indeed, it referred to, and partly repeated paragraph 58 of the Rina judgment (see above), but omitted those words.

60 So far as concerns, secondly, the immunity from jurisdiction of bodies governed by private law, the Court has held that it does not preclude the application of Regulation No 1215/2012, where the court seised finds that such bodies have not had recourse to public powers (see, to that effect, judgment of 7 May 2020, Rina, C‑641/18, EU:C:2020:349, paragraph 58).

The Court also underlined that immunities and international jurisdiction are two separate questions:

64 In this connection, as the Advocate General observed in point 67 of his Opinion, the mere fact that the national court has assumed international jurisdiction, in the light of the provisions of Regulation No 1215/2012, does not adversely affect the protection of immunity under international law invoked by the international organisation that is party to that dispute.

Let’s forget about international law when interpreting the concept of civil and commercial matters for the purposes of European procedural law.

Immunity from Enforcement

The issue raised in SHAPE was that of the immunity from enforcement of an international organisation. The creditors of the headquarters in Europe of NATO had attached monies on a bank account. The international organisation argued that the funds were covered by its immunity from enforcement, and that the action fell outside of the Brussels I bis Regulation.

The SHAPE Court replied without distinguishing between immunity from enforcement and immunity from jurisdiction. It seemingly considered that both raise the same issue with respect to the influence of sovereign immunities on the definition of civil and commercial matters.

Yet, there are important differences between the two types of immunities. For present purposes, the most important is that the purpose of each immunity is different. Immunity from enforcement does not prevent courts from deciding disputes, it prevents enforcement over assets. In SHAPE, the issue was whether the creditors of NATO could freeze its assets.  The question, therefore, was not whether the action on the merits could be entertained by the forum, but whether it could issue a provisional attachment. The CJEU has consistently held, however, that the question of whether provisional measures in general and provisional attachments in particular fall within the scope of the Brussels I bis Regulation is defined by the substantive rights that the the measures aim to protect (see, in particular, the De Cavel and Van Uden cases). In other words, provisional measures are transparent for defining the concept of civil and commercial matters. If this is the case, specific obstacles to carry out such measures must be irrelevant as well.

The only immunity which could be logically relevant for defining civil and commercial matters is immunity from jurisdiction. And even immunity from jurisdiction should not be.

La Cour de cassation définit les obligations de la partie soulevant l’incompétence du juge français au regard des dispositions de l’article 75 du code de procédure civile.

en lire plus

Procédure civile

All the recent studies I am aware of on the application in practice of the EU private international law instruments claim that legal practitioners are not aware of the regulations/directives, or do not know how to apply them. They conclude there is a need for training.

Having been a University professor for now some years, my first spontaneous reaction to such assertion is always inward-looking: we (lecturers, professors) are being told that what is done at the Universities is not enough. Indeed, it would be naïve to believe law schools alone produce PIL experts. However, I can’t help wondering where higher education stands in the Commission’s pursuit of the “correct and uniform application of EU law” which should “built mutual trust in cross-border judicial proceedings, thus helping to develop the EU area of justice”.

The quotes belong to the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions Ensuring justice in the EU — a European judicial training strategy for 2021-2024, published in December 2020, which explains the focus and scope of training in EU law for the years to come: the rule of law (upholding fundamental rights), upscaling the digitalisation of justice (prepare justice professionals to embrace digitalisation and the use of artificial intelligence ), keeping pace with developing EU law. A strategy addressed to judges, but this time also to other stakeholders: mediators, legal interpreters and translators, court experts, court staff, lawyers, even probation officers.

Higher education is not mentioned once. It does not necessarily mean that the Commission has not it in mind. Surely there are other initiatives one could find digging further. And then, most probably there are also issues of competence; the responsibility of educating future professionals lies primarily with the Member States (which is why the Bologna process will, in my view, never achieve its ultimate goal).

Be it as it may: for PIL fans in general (ie., beyond the University crowd) there is in the Communication a further fact to worry about. Cross-border cooperation is expressly mentioned and reference made to key EU instruments for cross-border judicial cooperation, at p. 3:

European judicial training should enable justice practitioners to see the role of EU law in their daily practice, give it full effect and secure the respect of rights and obligations stemming from EU law in national judicial proceedings. It is also important that they keep up to date with the development of EU law. Any new legislation and CJEU case-law developments necessitate training if they are to have the intended effects and justice professionals are to have the requisite knowledge and skills. In particular, this applies to the key EU instruments for cross-border judicial cooperation.”

Great, except that thereafter only cross-border cooperation in criminal matters is referred to.

Has the Commission forgotten judicial training regarding the EU regulations in civil and commercial matters? What does this absence entail in terms of funding of training activities?

A look into the website of the European Judicial Training Network shows how little place is left for European private international law and procedural law. Until June there is no activity planned on any of our core topics. In June, there will be a seminar on “Cross-border civil cases” (program not available yet; which kind of cases are meant is therefore not clear); and another one entitled “Jurisdiction, recognition, enforcement of judgments and determination of the applicable law under Regulation 1215/2012 (sic). The new Insolvency Regulation 848/2015”. Nothing else afterwards.

Of course, the EJTN is not the only training service provider. Three other well-known ones are the Academy of European Law (ERA), the European Institute of Public Administration (EIPA), and the European University Institute (EUI). In addition, the Justice Programme of the European Union supports as well national projects, such as FRICoRE. It may be that one or some of those offer seminars covering cross-border cooperation in civil and commercial matters. After consulting the program at the ERA until June, I am not too optimistic, though: there are many interesting activities, but only two relate directly to “our” topics.

In addition, I am not sure about what it means to be a “service provider”, in terms of how much of the training is publicly funded and how much attendants have to pay themselves; if I am not wrong, the seminars and workshops of the EJTN are for free, while the rest are not. On the side of the training experts there is probably not much difference: at least in our field colleagues are called to teach both by the EJTN and by the other providers; hence the quality of the training should be the same. But access to training is definitely not.

The European judicial training strategy of the Commission for the years to come foresees as well the launch of the European Training Platform (ETP), defined as “a search tool put at the service of legal practitioners and justice professionals who want to train themselves on any practice area of EU law or related matters”. It is too early to have an opinion on the platform. However, as of today, it is not a promise of open-access, neither to the courses nor to the materials. According to the information on the website, “The training providers inform potential trainees about the training activities they organise everywhere in the EU and in different languages.” So, at first sight the ETP will just be a repository of activities planned and undertaken by the four institutions indicated above. Not much of a step further regarding access to training.

On a less pessimistic note, it is true that the message goes on saying “The European Commission contributes to the platform with ready-to-use training materials or handbooks produced notably thanks to EU financial support”. And later in the webpage one can read “You will find many training courses on EU law advertised on the European Training Platform as well as training material for self-learning”. Maybe this means that training packages and publications will at some point be available to all stakeholders as in a public library. To be seen but… let’s hope.

 

Issues relating to succession and administration of estate of a deceased person raise significant issues in Nigerian private international law (or conflict of laws), whether a person dies testate or intestate. In the very recent case of Sarki v Sarki & Ors,[1] the Nigerian Court of Appeal considered the issue of what court had territorial jurisdiction in a matter of succession and administration of estate of a deceased person’s property under Nigerian conflict of laws dealing with inter-state matters. While this comment agrees with the conclusion reached by the Court of Appeal, it submits that the rationale for the Court’s decision on the issue of territorial jurisdiction for succession and administration of estates under Nigerian private international law in inter-state matters is open to question.

In Sarki, the claimants/respondents were the parents of the deceased person, while the defendant/appellant was the wife of the deceased person. The defendant/appellant and her late husband were resident in Kano State till the time of his death. The deceased was intestate, childless, and left inter alia immovable properties in some States within Nigeria – Bauchi State, Gombe State, Plateau State, Kano State, Jigawa State and the Federal Capital Territory, Abuja. The deceased’s family purported to distribute his property in accordance with Awak custom (the deceased’s personal law) with an appreciable proportion to the defendant/appellant. The defendant/appellant was apparently not pleased with the distribution and did not cooperate with the deceased’s family, who tried to gain access to the deceased’s properties. The claimants/respondents brought an action against the defendant/appellant before the Gombe State High Court. The claimants/respondents claimed inter alia that under Awak custom, which was the personal law of the deceased person, they are legitimate heirs of his property, who died childless and intestate; a declaration that the distribution made on 22 August 2015 by the deceased’s family in accordance with Awak custom, giving an appreciable sum of the property to the defendant/appellant is fair and just; an order compelling the defendant/appellant to produce and hand over all the original title documents of the landed properties and boxer bus distributed by the deceased family on 22 August 2015; and cost of the action. In response, the defendant/appellant made a statement of defense and counter-claim to the effect that she and the deceased are joint owners of all assets and properties acquired during their marriage; a declaration that the estate of the deceased is subject to rules of inheritance as envisaged by marriage under the Marriage Act[2] and not native law and custom; a declaration that as court appointed Administratrix, she is entitled to administer the estate of the deceased person; an order of injunction restraining the claimants/respondents to any or all of the assets forming part of the estate of the deceased person based on custom and tradition; and costs of the action.

The Gombe State High Court held that the Marriage Act was applicable in distributing the estate of the deceased person and not native law and custom. However, he distributed the property evenly between the claimants/respondents and defendant/appellants evenly on the basis that it will be unfair for the claimants/respondents as parents of the deceased not to have access to the deceased property. The defendant/appellant successfully appealed this ruling and won on the substantive aspect of the case. The private international law issue was whether the Gombe State High Court had territorial jurisdiction in this case, rather than the Kano State High Court where the defendant/appellant alleged the cause of action arose? The defendant/appellant argued that the cause of action arose exclusively in Kano State because that is where the deceased lived and died, and the defendant/appellant had obtained letters of administration issued by the Kano State High Court. The defendant/appellant lost on this private international law issue.

The Court of Appeal began on the premise that the issue of whether Gombe State or Kano State had jurisdiction was a matter of private international law, and not an issue of that was governed by a States’ civil procedures rules that governs dispute within a judicial division.[3] It also held that it is the plaintiff’s statement of claim that determines jurisdiction.[4] The Court of Appeal then approved its previous decisions that in inter-state matters of a private international law matter, a State High Court is confined to the location of the cause of action.[5] In this connection, the Court of Appeal rejected the argument of counsel for the defendant/appellant and held that the cause of action arose both in Kano and Gombe State – the latter State being the place where the dispute arose with the deceased’s family on the distribution of the deceased’s estate. Thus, both the Kano State High Court and Gombe State High Court could assume jurisdiction over the matter.[6] The Court of Appeal further held that other States such as Kano, Bauchi and Plateau could also assume jurisdiction because letters of administration were granted by the State High Courts of these jurisdictions.[7] In the final analysis, the Court of Appeal held that the claimants/respondents could either institute its action in either Gombe, Kano, Bauchi and Plateau – being the place where the cause of action arose, but procedural economy (which leads to convenience, saving time, saving costs, and obviates the risk of conflicting orders) encouraged the claimants/respondents to concentrate its proceedings in one of these courts – Gombe State High Court in this case.[8] Accordingly, this private international law issue was resolved in favour of the claimants/respondents.

There are three comments that could be made about the Court of Appeal’s judgments. First, it appears the issue of territorial jurisdiction was raised for the first time on appeal. It does not appear that this issue was raised at the lower court. If this is the case, it is submitted that the defendant/appellant should have been deemed to have waived its procedural right on jurisdiction on the basis that it submitted to the jurisdiction of the Gombe State High Court. Matters of procedural jurisdiction can be waived by the parties but not substantive jurisdiction such as jurisdiction mandatorily prescribed by the constitution or enabling statutes in Nigeria.[9] The issue of territorial jurisdiction among various State High Courts was a procedural matter and should have been raised promptly by the defendant/appellant or it would be deemed to have waived its right to do so by submitting to the jurisdiction of the Gombe State High Court.

Second, the Court of Appeal appeared to miss the point that there are Nigerian Supreme Court authorities that addressed the issue before it. According to the Supreme Court of Nigeria, in matters of succession and administration of states, the lex situs is given a predominant role for matters of jurisdiction purposes so that a Nigerian court would ordinarily not assume jurisdiction over foreign property, whether in an international or inter-state matter. Nigerian courts, as an exception, apply the rule to the effect that, where the Court has jurisdiction to administer an estate or trust, and the property includes movables or immovables situated in Nigeria and immovables situated abroad, the court has jurisdiction to determine questions of title to the foreign immovables for the purpose of administration. Again Nigerian courts apply this rule both in inter-State and international matters.[10] This rule established by the Nigerian Supreme Court in accordance with the English common law doctrine should have guided the Court of Appeal to hold that since it had jurisdiction over the deceased immovable properties in Gombe State, it also had jurisdiction over other immovable properties constituting the deceased’s estate in other States in Nigeria. The issue of where the cause of action arose was clearly irrelevant.

This brings me to the third and final comment – the issue of territorial jurisdiction. The Nigerian Supreme Court has held in some decided cases that in inter-state matters, a State High Court cannot assume jurisdiction over a matter where the cause of action is exclusively located in another State, irrespective of whether the defendant is resident and willing to submit to the court’s jurisdiction.[11] This current approach by the Supreme Court may have influenced the Court of Appeal to be fixated on the issue of territorial jurisdiction and confining itself to where the cause of action arose. Looking at the bigger picture, the current approach of the Nigerian Supreme Court in relation to matters of action in personam demonstrates a clear misunderstanding of applying common law private international law matters of jurisdiction in inter-state matters.[12] If a defendant is resident in a State and/or willing to submit, it shouldn’t matter where the cause of action arose in inter-state and international matters. Indeed, there is no provision of the Nigerian 1999 Constitution or enabling statute that prohibits a State High Court from establishing extra-territorial jurisdiction in inter-state or international matters, provided the defendant is resident and/or wiling to submit to the Court’s jurisdiction. The approach of the Nigerian court also risks making Nigerian courts inaccessible in matters of international commercial litigation in matters that occur exclusively outside Nigeria, thereby making the Nigerian court commercially unattractive for litigation.[13] Therefore it is time for the Supreme Court to overrule itself and revert to its earlier approach that held that in inter-state or international matters a Nigerian court can establish jurisdiction, irrespective of where the cause of action arose, where the defendant is resident and/or submits to the jurisdiction of the Nigerian court.[14]

In my final analysis, I would state that the Court of Appeal in Sarki reached the right conclusion on the issue of private international law, but the rationale for its decision is open to question. Moreover, though this private international law issue was resolved against the defendant/appellant, it substantially won on the substantive issues in the case. If this case goes on appeal to the Supreme Court, it should be an opportunity for the Supreme Court to set the law right again on the concept of jurisdiction in matters of succession and administration and estates, and overrule itself where it held that in inter-state matters, a State High Court is restricted to the place where the cause of action arose, irrespective of whether the defendant is resident and/or willing to submit to its jurisdiction.

[1] (2021) LPELR – 52659 (CA).

[2] Cap 218 LFN 1990.

[3]Sarki (n 1) 13-14.

[4] Ibid  14.

[5] Ibid  14-18, approving Lemit Engineering Ltd v RCC Ltd (2007) LPELR-42550 (CA).

[6] Sarki (n 1) 21.

[7]Ibid 21-3.

[8] Ibid 23-5, approving Onyiaorah v Onyiaorah (2019) LPELR-47092 (CA).

[9] See generally Odua Investment Co Ltd v Talabi ( 1997 ) 10 NWLR (Pt. 523) 1 ; Jikantoro v Alhaji Dantoro ( 2004 ) 5 SC (Pt. II) 1, 21 . This is a point that has been stressed by Abiru JCA in recent cases such as Khalid v Ismail ( 2013 ) LPELR-22325 (CA ); Alhaji Hassan Khalid v Al-Nasim Travels & Tours Ltd ( 2014 ) LPELR-22331 (CA) 23 – 25 ; Nigerian National Petroleum Corporation v Zaria ( 2014 ) LPELR-22362 (CA) 58 – 60; Obasanjo Farms (Nig) Ltd v Muhammad ( 2016 ) LPELR-40199 (CA). See also The Vessel MT. Sea Tiger & Anor v Accord Ship Management (HK) Ltd (2020) 14 NWLR (Pt. 1745) 418.

[10] Ogunro v Ogedengbe (1960) 5 SC 137; Salubi v Nwariaku (2003) 7 NWLR 426.

[11] Capital Bancorp Ltd v Shelter Savings and Loans Ltd (2007) 3 NWLR 148; Dairo v Union Bank of Nigeria Plc (2007) 16 NWLR (Pt 1059) 99. See also Mailantarki v Tongo & Ors (2017) LPELR-42467.

[12]See generally Abiru JCA in Muhammed v Ajingi LPELR-20372 (CA) 23 – 25, 25 – 26;  CSA Okoli and RF Oppong, Private International Law in Nigeria (1st edition, Hart, Oxford, 2020) 95-103; AO Yekini, “Comparative Choice of Jurisdiction Rules in Cases having a Foreign Element: are there any Lessons for Nigerian Courts?” (2013) 39 Commonwealth Law Bulletin 333; Bamodu O., “In Personam Jurisdiction: An Overlooked Concept in Recent Nigerian Jurisprudence” (2011) 7 Journal of Private International Law 273.

[13] See for example First Bank of Nigeria Plc v Kayode Abraham (2003) 2 NWLR 31 where the Court of Appeal held the lower court did not have jurisdiction because the cause of action arose exclusively outside Nigeria. This decision was however overturned by the Supreme Court in First Bank of Nigeria Plc v Kayode Abraham (2008) 18 NWLR (Pt 1118) 172.

[14] See generally Nigerian Ports Authority v Panalpina World Transport (Nig) Ltd (1973) 1 ALR Comm 146.