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On 15 and 16 April 2021, the GLaw Research Network (Maastricht University) will host an online workshop on Article 47 of the EU Charter and effective judicial protection: The Court of Justice’s perspective.

Senior and junior academics specialising in EU law will discuss various aspects of the impact of Article 47 Charter on the EU constitutional order. On the first day of the workshop, the presentations will cover constitutional aspects of Article 47 of the EU Charter. On the second day, the speakers will discuss the application of this provision in selected EU policy areas.

The principle of effective judicial protection is one of the cornerstones of the EU legal order. Mentioned by the Court of Justice for the first time in the 1980s, and originally emanating from Articles 6 and 13 ECHR, this principle had a pivotal role in ensuring access to adequate remedies to protect the rights deriving from Union law. Since its inception, this principle was linked also to the protection of the rule of law, one of the founding values of the EU. Effective judicial protection is therefore one of the facets of the EU constitutional identity.

Following the entry into force of Lisbon Treaty, this principle has been constitutionalised in Article 19 TEU and Article 47 of the EU Charter of Fundamental Rights, the latter laying down the right to an effective remedy and to a fair trial. Currently, Article 47 of the EU Charter is the most invoked EU Charter provision before national and EU courts. Article 47 Charter has also been at the centre of recent EU jurisprudence on the protection of the rule of law in the EU. This case law has confirmed the pivotal role of effective judicial protection in the EU architecture. It is not an overstatement that Article 47 is almost ‘omnipresent’ in the EU judgments as a result of a growing number of preliminary rulings and direct actions regarding the application of that provision. Novel questions thus arise regarding the impact of Article 47 Charter on the EU constitutional order, which require scientific observation and reflection. 

On Monday, 12 April 2021, from 14:00 to 15:00 (CET), the Hamburg Max Planck Institute will host the first presentations in a new monthly  “Private International Law in Africa” series, chaired by Justin Monsenepwo, the new head of the Africa desk. Professor Jan L Neels (University of Johannesburg) will be speaking on the topic:

“An Introduction to the African Principles of Commercial Private International Law”

The zoom presentation will be followed by an open discussion. All are welcome. After having registered no later than 9 April 2021 using this link you will receive the login details on Friday afternoon. More information and sign-up here.

The “Private International Law in Africa” series intends to discuss new scholarly work on private international law in Africa and advance solutions on how the current framework of that field can be improved on the continent. In an environment of growing international transactions in both civil and commercial matters, private international law can play a significant role in enhancing legal and judicial security and predictability in Africa.

In May 2021 the next speaker will be Dr. Abubakri Yekini (Lagos State University), who will speak on the topic “Enforceability of Jurisdiction Agreements in Nigeria”.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

Shocking, completely unexpected news: Emmanuel Gaillard, the leading scholar and practitioner of international arbitration and a giant in the field, died on April 1, at age 69. Pierre Mayer calls this “an immense loss;” Jean-Dominique Merchet calls him a “star”. Le Monde du droit collected some further reactions from French colleagues. Some eulogies in English are here and here. The International Chamber of Commerce also published a brief statement, as did the International Academy of Comparative Law.

Only two months ago, Gaillard had left  Sherman Sterling, whose international arbitration department he had founded in 1989 and led since then, and founded a spinoff with six other former Shearman Sterling colleagues,  Gaillard Shelbaya Banifatemi. His new law firm, announcing the death, called him “a totem in the world of international arbitration and a source of inspiration for lawyers around the world.” The law firm asks to share memories for a memorial book to be shared with his family and close ones.

Gaillard was well known as a practitioner (his biggest case may have been Yukos, though he had countless others) as well as a scholar (his Hague lectures on the “Legal theory of arbitration”, republished as a book and translated into several languages,, were a crucial step towards a more theoretical understanding of the field.) Most recently, he had been instrumental for OHADA’s decision to let Sherman Sterling draft a new private international law code for the region. The firm’s own statement of that decision is, however, down. The project, if continued, will need to go on without him. RIP.

The new issue of the Revue Critique de Droit International Privé (1/2021) is out.

It contains four articles and numerous case notes. The editorial by Horatia Muir Watt (Sciences Po), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on the Dalloz website (Dans le désordre planétaire…).

In the first article, Didier Boden (University of Paris 1 Panthéon-Sorbonne) proposes to rethink the private international law lexicon in order to achieve a uniform analysis of the coordination between legal orders (« Erga- » : Contribution sémantique et lexicale à une étude unifiée des relations entre ordres juridiques).

Private international law and the other sets of rules of a legal order which touch upon its relations with other legal orders are poorly named and poorly defined. This article proposes to remedy that lexical impropriety and that semantic deficiency by presenting a new collection of names and a new collection of definitions.

In the second article, Frederick T. Davis (Columbia Law School) and Charlotte Gunka (Lawyer at the New York bar) discusse the possibilities offered by the American CLOUD Act in terms of criminal and digital sovereignty, under a European and global perspective (Perquisitionner les nuages – CLOUD Act, souveraineté européenne et accès à la preuve dans l’espace pénal numérique).

At a time when the Covid-19 crisis has raised awareness over the urgent need for European Member States to enhance their national sovereignty through the European Union, it is essential to go back to the possibilities offered by the U.S. CLOUD Act with regard to criminal and digital sovereignty. The CLOUD Act proposes a reform of current mutual legal assistance mechanisms by establishing access to digital evidence as the benchmark authorizing computer searches outside state borders, regardless of the location of the relevant data. Although this benchmark allows for more extensive extraterritorial application of U.S. criminal proceedings, an analysis of European regulations and legislation currently in force in France and the United Kingdom confirms that the European approach is not so different from the one introduced by the U.S. government. The emergence of the computer world and the acceleration of new technologies have created a “criminal digital space”, ephemeral and borderless, which requires a fundamental transformation of criminal procedures allowing for faster and more efficient international cooperation against transnational crime. This should give an opportunity to Europe, in particular through its new European Public Prosecutor’s Office, to assert its digital sovereignty through the individual fundamental rights that it continues to promote without undermining the security and strategic interests of its Member States.

In the third article, Vincent Richard (MPI Luxembourg) also deals with (digital) evidence in international dispute resolution, but within the European cooperation in civil matters. The author analyses the recast of the “Taking of Evidence” Regulation (La refonte du règlement sur l’obtention des preuves en matière civile).

Regulation (EU) n°2020/1783 adopted on 25 november 2020 recasts Regulation (EC) n° 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters. Requests for the taking of evidence between Member States shall be transmitted through a decentralised IT system such as e-CODEX. The recast also aims at enhancing the attractiveness of the Regulation by broadening the concept of court and by encouraging direct taking of evidence by the requesting court.

In the fourth article, Thibaut Fleury Graff (University of Rennes) addresses the topical issue of international migration under a legal perspective (Droit des étrangers et des migrations : entre protection de l’ordre public et définitions de la liberté).

 The full table of contents is available here.

Dans une affaire concernant la Grèce, la Cour européenne juge que la condamnation pour diffamation d’un employeur pour des propos visant une ancienne collaboratrice dans le cadre d’un litige du travail a enfreint son droit à la liberté d’expression.

en lire plus

Laura Carpaneto, Stefano Dominelli and Chiara Enrica Tuo (all University of Genova) have edited Brussels I bis Regulation and Special Rules – Opportunities to Enhance Judicial Cooperation. The book, which has just been published by Aracne, may be accessed for free here in its entirety.

Contributors include, in addition to the editors themselves, Jean-Sylvestre Bergé, Pierangelo Celle, Silvana Çinari, Chirouette Elmasry, Rosario Espinosa Calabuig, Paula-Carmel Ettori, Giulio Cesare Giorgini, Aida Gugi Bushati, Flutura Kola Tafaj, Rosa Lapiedra Alcami, Guillermo Palao Moreno, Francesco Pesce, Ilaria Queirolo, Isabel Reig Fabado and Jessica Sanchez.

The blurb reads as follows.

The volume collects the results of the EU co-funded Project Enhancing Enforcement under Brussels Ia – EN2BRIa, European Union Justice Programme 2014-2020, JUST-JCOO-AG-2018 JUST 831598. It critically and thoroughly addresses art. 67 Brussels I bis Regulation, which determines the relationships between the Regulation and other EU law instruments governing jurisdiction or the free movement of decisions. Also tackling “indirect” relevant relationships between international civil procedure and material law, the Volume rationalizes the main criticalities examined, and offers Principles, Recommendations and Guidelines to increase capacity of practitioners to address such issues, to improve awareness of stakeholders, and to support uniform application of EU law.

For further information see here.

Andrea Bonomi and Patrick Wautelet have authored an article-by-article commentary, in French, of Regulations 2016/1103 and 2016/1104 on the property regimes of international couples, with the assistance of Ilaria Pretelli, Eva Lein, Guillaume Kessler, Sara Migliorini and Konstantinos Rokas.

The book has just been published by Larcier under the title Le droit européen des relations patrimoniales de couple – Commentaire des Règlements (UE) 2016/1103 et 2016/1104.

The authors have kindly provided the following presentation in English.

Professionals in the area of family law and estate planning are increasingly confronted with cross-border couples and families whose assets may be scattered in different countries. The determination of the law governing the family assets has often become an indispensable step in order to advise spouses or partners about the financial implications of their union, the consequences of a change of residence, or to share out their property in the case of divorce or death. In all these scenarios, it is often necessary to assess the validity and effects of a property agreement entered into in a foreign jurisdiction. And in the case of disputes, the determination of the competent court and of the cross-border effects of a court decision will be crucial. All these questions are made more complex by the fact that most relationships extend over several years, if not decades, by the possible involvement of third parties, and by the connection with other areas of the law.

The European regulations on matrimonial property and on the property consequences of registered partnerships intend to provide answers to some of these problems and to ensure more legal certainty. However, the interpretation of these complex instruments also raises a great number of new and intriguing questions.

This new commentary provides for a very detailed and fine-tuned analysis of the two regulations. The textual and systematic interpretation rests on a solid comparative law background and is enriched by numerous practical examples. Drafted by an international team of experts, it offers a genuinely European reading of the new instruments, taking into account their multiple connections with the other EU regulations in the area of civil justice, notably the Succession Regulation and the Brussels II-terRegulation, as well as the guidance provided by the Court of Justice of the European Union.

This book intends to serve as reference for researchers dealing with two major regulations adopted by the EU. It also aims to stir up the conversation among researchers and policy makers interested in private international law and the economic aspects of family law by pointing to the advantages of the European instruments, while not ignoring the shortcomings and imperfections of two regulations which will guide cross-border activity in family law in the years to come.

For more information, see here.

Accès au juge et prévisibilité du droit

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) is seeking a(n) (Assistant) Legal Officer. The successful candidate will begin work in the field of international commercial and financial law and will gradually also be expected to carry out work in other areas, including family law.

Applications should be submitted by Sunday 2 May 2021 (00:00 CEST). For more information, please visit the Recruitment section of the HCCH website.

This post is published by the Permanent Bureau of the Hague Conference of Private International Law (HCCH). 

I was unaware of a fashion blogosphere war of words and more between Dolce & Gabbana and the founders of Diet Prada until I was asked to comment (in Dutch) on the pending lawsuit in Italy. The suit has an echo of SLAPP – Strategic Lawsuit Against Public Participation.

Among others this post on The Fashion Law gives readers the necessary background and also links to the defendants’ lawyers reply at the jurisdictional level. It is this element of course that triggered the interview request, rather than my admittedly admirable sense of style (with sentences like these, I think I may be in need of a break).

Readers might be surprised to find the legal team discussing A7(2) Brussels Ia’s forum delicti, and CJEU authority such as Bolagsupplysningen seeing as per A6 BIa the Regulation does not apply, rather the Italian residual rules. However as Andrea Bonomi and Tito Ballarino review in the Encyclopedia of Private International Law, Italy has extended the scope of application of BIa to its internal sphere. Hence an interesting discussion of the CJEU case-law on locus damni, centre of interests etc. As well as a probably ill-fated attempt to encourage the Italian courts, in subsidiary fashion, to exercise forum non should the A7(2) arguments fall on deaf ears. Probably futile seeing as the Italian regime does not know a foum non rule, however if BIa is extended, would that not also extend to forum non-light in A33-34? As far as I could tell from the submission, however, no reference was made  to an 33-34 challenge.

Enfin, lots of interesting things to ponder at a different occasion. Happy Easter all.

Geert.

EU Private International Law 3rd ed. 2021, para 2.437 ff.

There is much to be said about the refusal of the courts at Zurich at the end of February, to recognise a September 2020 High Court judgment under the 2007 Lugano Convention. Rodrigo Rodriguez says it all here and I am happy to refer. The guillotine fashion in which the courts rejected application of Lugano 2007 even for a procedure that was initiated before Brexit date 1 January 2021 leaves much to be discussed. As does the question whether the demise of Lugano 2007 might not resurrect Lugano 1988 (Rodrigo points ia to the dualist nature of the UK in his discussion of same).

Whether correct or not in the specific case at issue, the judgment does show the clear bumpy ride ahead for UK judgments across the continent, following the Hard Brexit in judicial co-operation.

Geert.

EU Private International Law, 3rd ed., 2021, Chapter 1, Heading 1.7.

This ruling might, as Rodrigo Rodriguez argues, wrongly apply Lugano A63 'legal proceedings instituted'. Even then it is a clear sign of the bumpy ride ahead for UK courts to maintain their position in international litigation. https://t.co/99xLg0jDTH

— Geert Van Calster (@GAVClaw) March 10, 2021

A quick note on the suit in The Netherlands against “Norsk Hydro” of Norway, for alleged pollution caused by aluminium production in Brasil. No court decisions or orders are available as yet hence I write simply to log the case. I have put Norsk Hydro in inverted commas for the suit really is against Norsk Hydro subsidiaries incorporated in The Netherlands, who are said to control the Brazilian entities. The jurisdictional basis therefore is A4 BIa. As far as the reporting on the case  indicates, there seems little likelihood of A33-34 BIa’s forum non conveniens light making an appearance seeing as no Brazilian proceedings are reported to be underway which could sink the Dutch proceedings like the High Court did in Municipio de Mariana. That is not to say of course that the defendants might not discover some.

Geert.

EU Private International Law., 3rd ed. 2021, Heading 7.3.1.

1/2 Jurisdictional basis for #NorskHydro suit is A4 BIa: Netherlands is where subsidiaries controlling the local (BRA) entities at issue are headquartered. (Pulling the mother into the bath would require A6 Lugano) https://t.co/JdBWdGWOXM @financialtimes #CSR #bizhumanrights

— Geert Van Calster (@GAVClaw) March 1, 2021