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Pourvoi c/ Cour d'appel de Nîmes, 23 octobre 2020

Pourvoi c/ Cour d'appel de Lyon, 26 mai 2020

Cour d'appel de Rennes, 5 janvier 2021

Pourvoi c/ Cour d'appel de Douai, 9 juillet 2020

Tribunal judiciaire de Versailles, 6 janvier 2021

Pourvoi c/ Cour d'appel de Lyon, 26 novembre 2020

Pourvoi c/ Cour d'appel de paris, 1er décembre 2020

Cour d'appel d'Angers, 12 janvier 2021

Instruction - Chambre de l'instruction

Digital teaching formats have been in discussion since they became technically possible. Nevertheless, in law and Private International Law, they never became the standard until spring 2020, when Covid-19 led to a general closure of university buildings in many countries. Thus, universities were forced to switch from in-class teaching to digital formats.

As in general teaching Private International Law already is a challenging task, the digital format does not make things easier. Private International Law faces the problem that it is a very abstract field. Therefore, for teachers it is even more paramount than in other fields to revise and ascertain that the content reaches the students in the correct ways and does not get lost in the communication process.

EAPIL takes this finding as an occasion to devote its Second Virtual Seminar to the digital teaching of Private International Law and it challenges in Corona times. The aim of the Seminar is twofold. First, it will discuss and present tools that may help to improve the digital teaching of our discipline, in particular, by making it more “present” and interactive. Second, it will compare problems and approaches from the perspective of both professors/lecturers and students.

The Seminar will be structured into two parts. The first part will focus on the perspective of professors/lecturers and the challenges of teaching Private International Law in digital formats. Speakers will be Morten Midtgaard Fogt (University of Aarhus) and Marion Ho-Dac (Polytechnic University of Hauts-de-France, Valenciennes). The second part will take the students’ perspective and discuss and present different digital teaching tools. Speakers will include Susanne Lilian Gössl (University of Kiel), María-Asunción Cebrián Salvat, Isabel Lorente Martínez and Javier Carrascosa González (all three University of Murcia).

The Seminar will take place on 27 January 2021 from 5 to 7 p.m. (MET) via Zoom.

If you wish to join, please register here by 25 January 2021 at noon. Registered participants will receive the details to join the Seminar on 26 January 2021.

The Seminar’s programme is as follows:

5:00 p.m.
Opening and Introduction
Susanne Gössl

— PART ONE

5:10 p.m.
Digital Teaching of Private International Law – The Danish Perspective
Morten Midtgaard Fogt

5:20 p.m.
Digital Teaching of Private International Law – The French Perspective
Marion Ho-Dac

5:35 p.m.
Discussion

— PART TWO

5:55 p.m.
Digital Teaching of Private International Law – the Students’ Perpective
Susanne Gössl

6:10 p.m.
Experiences with Certain Tools

“Presence” in Digital Teaching of Private International Law
María-Asunción Cebrián Salvat

Tools to Support Digital Teaching of Private International Law
Isabel Lorente Martínez

Good Things from a Bad Time: Open Experiences in Private International Law Digital Teaching
Javier Carrascosa González

6:35 p.m.
Discussion

7 p.m.
Conclusions

For more information, please write an e-mail to Susanne Gössl at sgoessl@law.uni-kiel.de.

Tribunal judiciaire de Bobigny, 15 décembre 2020

Wright v Granath [2021] EWCA Civ 28 is not the only litigation involving Mr Wright, defamation and bitcoin gossip: see my review of Wright v Ver [2020] EWCA Civ 672 (judgment to which Popplewell LJ refers for connections between Mr Wright and the UK) here. The judgment appealed here is Wright v Granath [2020] EWHC 51 (QB). Jurisdictional grounds evidently include the CJEU case-law right up to Bolagsupplysningen.

The title of this post is courtesy of Greg Callus, one of counsel for the claimant.

Defendant, Magnus Granath, is a citizen of Norway, resident in Oslo. He has tweeted on various technology issues, including cryptocurrencies, and has an interest in Bitcoin and its development. He believes that Dr Wright’s claim to be Satoshi Nakamoto (the developer of bitcoin) is false, a statement that was also tweeted at the since deleted @Hodlonaut account. By 15 May 2019 Dr Wright’s advisers thought they had identified Mr Granath as the owner of the @Hodlonaut account, and sent a further letter via Facebook and LinkedIn seeking confirmation. The letter was served by hand on Mr Granath on 20 May 2019. Meanwhile on the previous day, 19 May 2019, Mr Granath issued proceedings in the Oslo District Court seeking in effect a declaration of non-liability aka NDR: Negative Declaratory Relief: a classic (and as Popplewell LJ justifiably suggests, CJEU-blessed) flip side of the coin action to avoid jurisdiction of the English courts. 

It is common ground that the Norwegian court was first seised. Jurisdiction was accepted by the Norwegian courts right through to the Supreme Court (talk about speedy proceedings: within a year the jurisdictional issue was considered at first instance, appeal and SC) on the basis that the relief sought was “global” in the sense that it was not limited to any harm or loss suffered in Norway, and that A5(3) Lugano was applicable because the “harmful event” occurred in Norway, that being where Mr Granath lived and published the tweets (locus delicti commissi).

CJEU Gubish Machinenfabrik and The Tatry clarify for the English version of Brussels I hence also of Lugano (assuming the requirement of parrallel interpretation of the lis alibi pendens rule) what was already clearer in other language versions:  A27 Lugano requires three identities: identity of parties; identity of object or ‘ subject-matter ’; and identity of cause.

In the establishment of identity of cause of action, the ‘ cause of action’ comprises the facts and the rule of law relied on as the basis of the action (CJEU Gubbisch). 

Coming then to the decision, Popplewell J dissented, with Singh LJ and Moylan LJ allowing the appeal. At 41 ff Popplewell J discusses the cause of action criterion, with the core at 48-49: he identifies two core differences between the English and the Norwegian claims: 

there are two differences between the English and Norwegian Claims whose significance requires examination. The first is that the Norwegian Claim identifies negligence as a necessary ingredient of liability under Norwegian law, and asserts the absence of negligence on Mr Granath’s part. This gives rise to the possibility that Mr Granath could succeed in Norway on a basis that would not be inconsistent with liability to Dr Wright in England under English law: if the Norwegian Court were to hold that the tweet was untrue because Dr Wright is Satoshi Nakamoto, and there was no defence of lawfulness by way of public interest or freedom of expression, but that Mr Granath was entitled to his declaration on the grounds that although the tweet was wrong it was not negligently so, Dr Wright would have established all the ingredients of an English law defamation claim. However the consequence of the Court now declining jurisdiction under article 27 would be to preclude him from pursuing that English law claim or obtaining the relief it would provide.

The second difference between the claims is that were Mr Granath to fail in full in Norway, the relief available there to Dr Wright by way of counterclaim would not be co-extensive with that available in a successful English law claim. It would not include a s.12 statement; and it might not include an injunction. I say “might not” because it was in dispute as to whether that was so. Dr Wright sought to adduce expert evidence of Norwegian law before the Judge below, but permission was refused on the grounds that it came too late, with the result that there was no relevant evidence of Norwegian law or practice before the Court. Mr Tomlinson asserted that an injunction must be available in Norway as an effective remedy guaranteed by the EU Charter, but later confirmed that Norway was not a signatory to the Charter and not bound by it. He submitted in the alternative that such relief would be available as part of Dr Wright’s article 8 rights under the European Convention on Human Rights, but that is not self-evident to me and the point was not explored in argument. I shall assume for the purposes of my analysis that an injunction is not available in Norway because for the reasons explained below I do not regard any such unavailability as precluding the application of article 27.

At 51 ff, Popplewell J’s important take-aways from Gubisch, are that  when considering objet, the search is not for complete identity, but for identity on a question “which lies at the heart of” the two actions. Same does not mean same. The two claims need not be “entirely identical” (at 55). And at 56 that there can be the necessary identity of cause without complete identity of legal issues in the two sets of proceedings. Here too same does not mean same.

Further precedent is considered extensively (much of it discussed on the blog) leading to summary of the principles at 90 and application in fact at 93 ff: Popplewell J would have held that the claims have the same cause and the same objet and that A27 Lugano requires the EN claim to be dismissed.

At 99 ff he dismisses the argument,  which was encouraged (wrongly in my view, as readers know) by Vedanta and EuroEco, that the application of A27 to Mozaic claims as here, be an abuse of EU law. There is no authority to suggest that A27 is inapplicable to defamation claims, and no sound reason for restricting its applicability, and on this Singh LJ and Moylan LJ agree.

Of note is that Popplewell LJ is spot on at 101 where he says

in any tort claim in which article 5(3) confers a choice of jurisdiction on the claimant for a global claim, the choice is equally conferred on a defendant by way of an NDR claim; in each case the option is circumscribed by the simple and automatic mechanism (per Gantner paragraph 30) in article 27 of who starts first. That is not an abuse of the regime established by the Convention, but rather its implementation.

Singh LJ and Moylan LJ allowed the appeal, however: Moylan LJ for the majority summarises at 160 ff, largely on the basis of the same authority as that discussed by Popplewell (with The Alexandros at the core). At 168:

Although I agree with Popplewell LJ when he says, at paragraph 81, that irreconcilability may be a helpful tool in evaluating whether the article 27 test is met, the potential for conflicting decisions will not determine whether the causes of action are the same.

I should like to refer to the litmus test proposed by Adrian Briggs and applied eg in Awendale: whether a decision in one set of proceedings would have been a conclusive answer in the other. If it would, then there is identity of cause of action.

The appeal is allowed, the case may continue in E&W – clearly irreconcilability at the recognition stage might still be an issue.

Should the UK be successful in its Lugano accession attempt, this case will be crucial authority post The Alexandros. In the alternative, it will be among the last echoes of Lugano in the E&W courts.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.15.1.

Lis alibi pendens, Lugano, defamation claims
Held: A27 does not apply because the proceedings in Norway and the proceedings in England do not involve the same cause of action. https://t.co/1pijVLyvib

— Geert Van Calster (@GAVClaw) January 15, 2021

Burkhard Hess (Max Planck Institute, Luxembourg) has published the second edition of his treatise on European Civil Procedural Law (Europäisches Zivilprozessrecht).

The English abstract of the book reads:

The book explores the European law of civil procedure from a systematic and dogmatic perspective by comprehensively assessing and providing a detailed explanation of all the instruments adopted in this area of the law. Based on the case law of the Court of Justice of the European Union (CJEU), the book expounds on the legislative powers of the European Union (EU), the different regulatory levels of European procedural law, its underlying concepts and legislative techniques. Against this background, it addresses the interfaces of the European law of civil procedure with the civil procedures of the EU Member States and the judicial cooperation with third States. 

This treatise also focusses on latest developments such as the protection the independence of the judiciary and of the rule of law in the Member States of the EU. Moreover, it tackles alternative dispute resolution and arbitration, as well as the latest policy of the European Commission in the digitization of national justice systems. To further contextualize the development of the European law of civil procedure, it also provides the reader with a thorough understanding of preliminary reference procedures before the CJEU. In its final chapter, it addresses the current policy debate towards a European code of civil procedure.

This reference book is an essential reading for academics, regulators, and practitioners seeking reliable and comprehensive information about the European law of civil procedure. It also addresses trainee lawyers and students interested in cross-border litigation and dispute resolution, as well as those who wish to specialize in European business law.

More information is available here.

Issue 1/2021 of RabelsZ is now available online! It contains the following articles:

Reinhard Zimmermann (Hamburg): Zwingender Angehörigenschutz im Erbrecht ­- Entwicklungslinien jenseits der westeuropäischen Kodifikationen (Mandatory Family Protection in the Law of Succession), RabelsZ 85 (2021) 1–75 – DOI: 10.1628/rabelsz-2020-0092

Following on from an earlier contribution devoted to the development of the notions of forced heirship and compulsory portion, this contribution pursues the development of mandatory family protection for legal systems beyond the West European codifications: in postsocialist countries of Central and Eastern Europe, in Nordic states, in South and Central American codifications, and in countries without a code of private law, i.e. England and the legal systems originally based on English law. An interesting panorama of different solutions thus presents itself, in particular legal systems operating with fixed shares in the estate, those making available a fixed share only in cases of need, those awarding asum substituting for maintenance claims, or those turning the claim of the closest relatives into a discretionary remedy. Overall, an observation made in the previous essay is confirmed: a tendency towards achieving greater flexibility in legal systems traditionally operating with fixedshares. The concept of family provision originating in New Zealand, while providing a maximum degree of flexibility, cannot however serve as a model to be followed. The question thus arises whether maintenance needs are the criterion balancing legal certainty and individual justice in the comparatively best manner.

Florian Eichel (Bern): Der „funktionsarme Aufenthalt“ und die internationale Zuständigkeit für Erbscheinverfahren (International Jurisdiction in Simple Succession Cases with an “Habitual Residence of Minor Significance”), RabelsZ 85 (2021) 76–105 – DOI: 10.1628/rabelsz-2020-0093

In order to prevent inefficient parallel proceedings in international succession cases, the EU Succession Regulation concentrates jurisdiction in a single Member State. In the Oberle case (C-20/17), the ECJ decided that this jurisdiction also extends to non-contentious proceedingsregarding the issuance of certificates of succession. In cases in which the deceased had moved abroad late in life, this could lead to a “remotejustice”, as the certificate of succession would have to be issued there, even when the heirs and the assets are located in another MemberState. This concerns in particular non-contentious succession cases which are of a simple nature, but such cases were not in the focus of lawmakers. The article shows that the Succession Regulation crafts solutions so as to avoid “artificial jurisdictions”. Whereas a flexibledetermination of the habitual residence is not a viable solution, there is room to allow proceedings in the Member State whose law isapplicable by way of exception and thus to establish jurisdiction in that state. In the cases WB (C-658/17) and EE (C-80/19), the ECJ hasshown another way of dealing with these cases and thereby enabling a citizen-friendly way of treating international succession cases.

Leonhard Hübner (Heidelberg): Die Integration der primärrechtlichen Anerkennungsmethode in das IPR (The Primary Law Recognition Method and Its Integration into Private International Law), RabelsZ 85 (2021) 106–145 – DOI: 10.1628/rabelsz-2020-0094

Since Savigny, private international law (PIL) has been chiefly shaped by the referral method. More recently, EU primary law has appeared on the scene as a rival that threatens to override the traditional system as a result of the influence that the fundamental freedoms and the freedom of movement have on PIL. This can be observed in the case law of the ECJ dealing with the incorporation of companies and names as personal status rights. The ECJ has determined certain results based on EU primary law without touching upon the (national) conflict rules. This “second track” of determining the applicable law was already labelled as the recognition method almost twenty years ago. According to previous interpretations of case law, it is limited to the two areas of law mentioned above. In particular, controversial topics in the culturallysensitive area of international family law, such as the recognition of same-sex marriages, are according to the prevailing opinion not coveredby the recognition method. However, various developments, such as the ECJ’s Coman decision and the discussion on underage marriage in German PIL, raise doubts as to whether this purported limitation is in line with the integration concept of EU primary law. The questiontherefore arises as to how a meaningful dovetailing of conflict-of-law rules and EU primary law can be achieved in PIL doctrine.

Christiane von Bary / Marie-Therese Ziereis (München): Rückwirkung in grenzüberschreitenden Sachverhalten: Zwischen Statutenwechsel und ordre public (Retroactive Effect in International Matters, Change of the Applicable Law, and Public Policy), RabelsZ 85 (2021) 146–171 – DOI: 10.1628/rabelsz-2020-0095

While German law does provide for a detailed differentiation as regards retroactive effect in the domestic context (II.), retroactivity has rarelybeen discussed in transnational cases relating to civil matters. The national solutions cannot generally be transferred to the international level; instead, it is crucial to rely on the methods of private international law – in particular rules dealing with a change of the applicable law and withpublic policy. German private international law largely prevents retroactive effects from occurring through the methodology developed for dealing with a change of the applicable law (III.). Distinguishing between completed situations, ongoing transactions and divisible as well as indivisible long-term legal relationships, it is possible to ensure adherence to the principle of lex temporis actus. If the retroactive effect iscaused by foreign law, it may violate public policy, which allows and calls for an adjustment (IV.). When determining whether a breach of publicpolicy occurred in a case of retroactivity, it is necessary to consider the overall result of the application of foreign law rather than just the decision as to which foreign law is applicable. For guidance on whether such a result violates public policy, one has to look at the national principles dealing with retroactive effect.

The author of this post is Lorenzo Acconciamessa, a PhD student at the University of Palermo and a teaching assistant at the Catholic University of the Sacred Heart in Milan.

By a ruling of 4 November 2020, the Italian Constitutional Court declared that the combination of Italian rules precluding the formation of a child’s birth certificate that mentions two women as mothers is not at odds with the Italian Constitution. However, it acknowledged that the Constitution does not preclude the Parliament from reforming such rules and, therefore, from allowing the formal and direct recognition of same-sex parenthood in Italy.

The case concerned a same-sex couple of Italian nationals who had entered into a registered civil union in Italy and had decided to have a child. However, provided that the Italian Statute on Medically Assisted Procreation precludes same-sex couples from resorting to such practice in Italy, they went abroad, where one of them conceived a child. Then, they went back to Italy, where the biological mother gave birth to the child. The Registrar of the Municipality dismissed their request to have the intended mother indicated as parent in the birth certificate and, accordingly, the latter only mentioned the biological mother.

The couple asked the Tribunal of Venezia to rectify the birth certificate, since they wanted both of them be mentioned. However, the Tribunal acknowledged that the legislation in force in Italy does not allow for such a ruling. In particular, it considered that the prohibition of direct recognition of same-sex parenthood arises from the combined application of the Italian Statute on same-sex partnerships and the Regulation concerning the Registry of births and deaths, as interpreted in the light of the above-mentioned prohibition to access to medically assisted procreation.

According to the Tribunal, such combination of norms is at odds with the Italian Constitution and with some rules of international human rights law, namely those stipulated in Articles 8 (right to private and family life) and 14 (prohibition of discrimination) of the European Convention on Human Rights, Article 24, paragraph 3 (right to a relationship with both the child’s parents), of the Charter of Fundamental Rights of the European Union, and Article 2 (right to equality and non-discrimination) of the UN Convention on the Rights of the Child.

In a previous post in this blog I have explained that, under Article 117, paragraph 1, of the Italian Constitution, as interpreted by the Constitutional Court, international treaties in force for Italy cannot be derogated from through legislation. Thus, domestic legislation inconsistent with an international obligation of Italy must be considered to be unconstitutional and declared void.

In the Tribunal’s view, the result of the combined application of the said rules violates the parents’ and the child’s fundamental rights. As for the formers, it breaches their right to parenthood and to procreation, as well as the prohibition of discrimination on grounds of sexual orientation and financial status. As a matter of fact, if the couple had the possibility of giving birth to the child abroad, they would had the right to obtain the record of the foreign birth certificate mentioning both of them as parents, pursuant to the case-law of the Italian Supreme Court (which refers to same-sex female couples, not same-sex male couples). As for the child, the Tribunal considered that the latter’s best interests demand the parental relationship be established with the biological and the intended mother.

The Constitutional Court considered that the non-recognition of same-sex parenthood is not at odds with the Italian Constitution, nor with the international human rights norms invoked by the Tribunal: it does not violate the parent’s and/or the child’s fundamental rights.

Those instruments, in the Court’s view, do not guarantee a right to become parents, nor a right to same-sex parenthood. At the same time, given the natural infertility of same-sex couples, limiting their access to parenthood does not involve an illegitimate form of discrimination and falls within the State’s margin of appreciation, as established by the European Court of Human Rights (ECtHR) in the 2019 Advisory Opinion.

In this regard, it should be considered that in 2018 the ECtHR had the opportunity to rule on same-sex couples’ right to access to medically assisted procreation. It dismissed the case on admissibility grounds, given that the applicants had not exhausted the domestic remedies provided for by the French legal order (Charron and Merle-Montet v. France). Therefore, in the view of the subsidiarity principle, the ECtHR held that domestic courts should have had the possibility to rule on the matter.

The (in)admissibility decision, however, does not exclude that the ECtHR could rule in the future that Articles 8 and 14 of the ECHR do require to allow same-sex married couples to have access to medically assisted procreation at the same conditions than heterosexual couples.

It remains that, according to the Constitutional Court, the right to same-sex parenthood is not currently recognized as a fundamental right and, therefore, cannot be invoked for declaring void the domestic rules allegedly violating it. On the other hand, the Constitutional Court admitted that the Constitution and international human rights law do not preclude Italy from recognizing that right. Nevertheless, provided that it is a sensitive issue involving a delicate balancing of interests, it falls within the Parliament’s exclusive margin of appreciation.

As for the best interests of the child, the Constitutional Court recognized that it is true that Italy has a duty to recognise the relationship between the child and the intended mother. However, provided that the conditions established by the ECtHR in the above-mentioned Advisory Opinion are fulfilled (namely, (i) effective recognition of the relationship, (ii) rapidity and (iii) assessment of all the relevant circumstances in the child’s best interests), the State enjoys a wide margin of appreciation in choosing the legal instrument for establishing such relationship.

The Constitutional Court considered, again, that Article 44, paragraph 1, of the Italian Statute on Adoption allows the intended mother to adopt her partner’s child. The so-called “adoption in particular cases”, however, does not create a full parent-child relationship from a legal point of view.

In my view, the Court failed to take into consideration the recent developments in the ECtHR’s case-law, notably as expressed in its recent ruling in the D. v. France case. In that case, the ECtHR concluded that Article 8 had not been violated precisely because the French legal order allows the intended mother to apply for the full adoption of the partner’s child. Even in this regard, however, the Constitutional Court concluded that a “different and wider protection of the child’s best interest” would be constitutionally legitimate, and that therefore the Parliament could reform – in the exercise of its own political discretion – the current legislation with the view of allowing the full-establishment of the relationship between the intended mother and the child.

The Constitutional Court did not rule, as the Tribunal had asked, that the recognition of same-sex parenthood is required by the Italian Constitution and international human rights law. The Court merely recognized that, in any case, neither the Constitution nor international human rights law prohibit same-sex parenthood. It remains to be seen whether the Parliament, in the exercise of its political discretion will decide to reform the current legislation in Italy concerning those issues.

Despite the timid recognition of the (hypothetical) constitutional legitimacy of same-sex parenthood, the Constitutional Court opted for exercising its self-restraint in favour of the legislator. It seems that the Court is not ready to rule on such sensitive and ethical issues.

In the meantime, the Court has announced that on 27 January 2021 it will hold a public hearing in the case concerning the constitutional legitimacy of the Italian rules of private international law (currently) precluding the recognition of a foreign birth certificate attesting the existence of a parent-child relationship between a child born abroad by resorting to gestational surrogacy and his intended parent.

Will the Court continue to exercise its self-restraint approach?