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Entreprise en difficulté (loi du 26 juillet 2005)

Bundesrepublik Deutschland (Détermination des taux des péages pour l'utilisation d'autoroutes)
Fiscalité
Les coûts liés à la police de la route ne peuvent pas être pris en compte pour le calcul des péages pour l’utilisation du réseau routier transeuropéen par les poids lourds

Shenzhen Senior Technology Material Co Ltd v Celgard, LLC [2020] EWCA Civ 1293 concerns an appeal against service out of jurisdiction (the judgment appealed is [2020] EWHC 2072 (Ch)). Celgard allege that the importation and marketing by Senior of battery separator film involves the misuse of Celgard’s trade secrets.

Senior (of China) contend that the judge fell into error in concluding, first, that Celgard (incorporated in Delaware) had established a serious issue to be tried (here part of the jurisdictional threshold) assuming that English law applies to its claims and, secondly, that England is the proper forum to try the claims. As to the latter the core argument is that in limiting its claims to remedies in respect of acts in the UK, Celgard could not establish the requisite degree of connection to England. As for the former, they argue the law applicable to Celgard’s claims is Chinese law, which would count against jurisdiction.

Strategically, Celgard’s case against Senior is not based on breach of the NDA applicable between Celgard and one of its former employees,  Dr Zhang who, when he left Celgard, told its then COO that he was going to work for General Electric in California, which does not compete with Celgard in the field of battery separators. It later transpired that he had in fact joined Senior in China, where he was using the false name “Bin Wang”. This element of the facts triggers the question whether Senior is liable for the acts of another, even if that other is its employee.

The Celgard – Zhang NDA is governed by the law of South Carolina, application of which would also have triggered A4(3)(b) or (c) of the Trade Secrets Directive 2016/943. Celgard do rely on the NDA as supporting its case that the trade secrets were confidential. Rather Celgard claim that Senior’s employee acted in breach of an equitable obligation. This engages Rome II,  specifically Article 6(2) because Celgard’s claims are concerned with an act of unfair competition affecting exclusively the interests of a specific competitor, namely Celgard. In such circumstances, Article 6(2) provides that “Article 4 shall apply”.

Of note is that this is one of those cases that show that Rome II applies to more than just tortious obligations: as Arnold LJ notes at 51, as a matter of English law, claims for breach of equitable obligations of confidence are not claims in tort.

Celgard’s case, accepted by Trowe J at the High Court, is that A4(1) leads to English law because the ‘direct damage’ (per Rome II and CJEU Lazard indirect damage needs to be ignored) caused by the wrongdoing it complains of has occurred (and will, if not restrained, continue to occur) in the UK, that being the country into which the infringing goods (namely the shipment to the UK Customer and any future shipments of the same separator) have been (and will be) imported, causing damage to Celgard’s market here.

Senior’s case is that confidential information is intangible property and that damage to intangible property is located at the time and place it became irreversible (support is sought in extracts from Andrew Dickinson’s Rome II volume with OUP). At 58 ff Arnold LJ gives 7 reasons for rejecting the position. I will not repeat them all here. Of note is not just the (most justifiable) heavy leaning on the travaux but also the support sought in secondary EU law different from private international law (such as the Trade Secrets Directive 2016/943) as well as in the consistency between Brussels Ia and the Rome Regulations [on which Szpunar AG has written excellently in Burkhard Hess and Koen Lenaerts (eds.), The 50th Anniversary of the European Law of Civil Procedure]. This is not an easy proposition however given the lack of detail in Rome I and the need for autonomous EU interpretation, understandable.

The Trade Secrets Directive is further discussed at 65 ff for in A4(5) it makes importation of infringing goods an unlawful use of a trade secret “where the person carrying out such activities knew, or ought, under the circumstances, to have known that the trade secret was used unlawfully within the meaning of paragraph 3”. One of the possibilities embraced by paragraph 3 is (a), the person “having acquired the trade secret unlawfully”. Arnold LJ then asks: what law is to be applied to determine whether it was acquired “unlawfully”? Is A4(5) read together with A4(3)(a) an implicit choice of law rule pointing to the law of the place where the trade secret was acquired? Arnold LJ suggests this is not acte clair and may need CJEU clarification however not at this stage for his provisional view (with an eye on the jurisdictional threshold test) is that the Directive is not an implicit choice of law rule and that per Rome II, English law applies.

Plenty applicable law issues to discuss at the merits stage.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 4, Heading 4.6.2. Third ed. forthcoming February 2021.

 

 

Service out of jurisdiction with core role for applicable law considerations: Article 6 junto 4 Rome II, unfair competition. https://t.co/BUUjFlzY9P

— Geert Van Calster (@GAVClaw) October 9, 2020

The author of this post is Jorg Sladič, associate professor of International and European Law at the European Faculty of Law in Ljubljana.

On 11 August 2020, the Slovenian Supreme Court dismissed an appeal challenging the enforcement of an Austrian judgement compelling the judgment debtor to pay levies to the Austrian Construction Workers’ Annual Leave and Severance Pay Fund, known as BUAK (Bauarbeiter-Urlaubs- und Abfertigungskasse). The sums (claims for wage supplements regarding annual leave pay) to be paid to BUAK even though rather a matter of Austrian public law are under interpretation of Brussels I bis Regulation a civil and commercial matter (case Cpg 8/2020, ECLI:SI:VSRS:2020:CPG.8.2020).

Facts

A Slovenian judgment debtor was condemned by an Austrian court upon application of the Austrian person of public law BUAK to pay a sum of money as capital and a levy for claims for wage supplements regarding annual leave to BUAK on 3 May 2018.

The Austrian judgment-creditor moved to enforce the judgment. A Slovenian court granted a writ of execution on 16 June 2019. The judgement-debtor appealed and the appeal arrived at the Slovenian Supreme Court and raised among others a plea in law according to which such an Austrian judgement is contrary to Slovenian public policy. As it was alleged that the liabilities to be paid under the Austrian judgement were already paid under Slovenian law, the enforcement would mean a double payment of the same obligation. Anyhow, according to the judgment-debtor the said Austrian judgment is not a civil or commercial matter governed by Brussels I bis Regulation as the judgment-creditor BUAK is a legal person of public law, the obligation to be paid under the said Austrian judgement (claim for wage supplements regarding annual leave pay) is an obligation of public law or even a levy

Ruling

The Supreme Court dismissed the appeal on the following grounds.

Civil and Commercial Matters

Article 1(1) of the Brussels I Regulation provides that it applies to civil and commercial matters, but does not cover tax, customs or administrative matters or the State’s liability for acts and omissions in the exercise of State authority (acta iure imperii). Point (c) of the second paragraph of Article 1 of the Regulation explicitly states that it does not apply to social security.

As the Court of First Instance rightly explained, the question of the applicability of the Brussels I bis Regulation has already been settled by the Court of Justice in a preliminary ruling in the case of Korana, decided in 2019 (Case C-579/17). The Court of Justice clarified that the term “civil and commercial matters” must be interpreted autonomously under the regulation and that the fact that BUAK has the status of a collective body governed by public law is not decisive. The legal basis of the relationship from which the claim originates shall be decisive.

The employer’s obligation to pay wage supplements regarding annual leave claimed by BUAK before the Austrian forum is inextricably linked to the employees’ right to annual leave paid under civil law, so the nature of BUAK’s claim is also that of a right under civil law. In addition, a distinction must be made between cases where BUAK itself can issue a certificate of unpaid debts, which is an enforceable title, and cases – such as the case under consideration – where BUAK has to claim unpaid wage supplements regarding annual leave belonging to posted workers not having their habitual place of work in Austria before a court, which is also an argument in favour of the nature of the claim as being a claim of civil law.

The Court of Justice of the EU has in addition also ruled that this is not a benefit in the sense of the“social security” exception, which would also be excluded from the scope of the Brussels I bis Regulation. A social security benefit exists where it would be granted to beneficiaries on the basis of a legally defined position without any individual or discretionary assessment of personal needs. In the present case, however, the issue is the remuneration for annual leave, which in turn depends on the wage supplements, which are the legal basis for employer’s payment. Remuneration for annual leave in connection with work performed by a posted worker must be paid by the employer, even if the payment is made through the BUAK.

Decisions of the Court of Justice of the EU on preliminary questions are binding on the national courts of the Member States, therefore the applicants’ disagreement with the position of the Court of Justice cannot lead to different conclusions than those already reached by the Court of First Instance in the contested order. The Brussels I bis Regulation also applies to claims of BUAK for wage supplements regarding annual leave of posted workers, as these claims are of a civil nature.

Ordre public defense

The applicants’ plea that the levies or contributions claimed by the judgement-creditor in the enforcement proceedings referring to the Austrian judgment had already been paid in Slovenia, as a result the recognition and enforcement of the judgment of the Republic of Austria is allegedly contrary to Slovenian ordre public does not have any merits. In the appeal, the appellants (judgment-debtors) themselves claim that the Slovenian legal order does not provide for the payment wage supplements regarding annual leave of posted workers in the construction sector, as foreseen in Austrian law, therefore as a consequence the performance of obligations under the challenged judgement cannot already notionally constitute a double payment of the same claim. The mere fact that the Slovenian legal system does not legislate on a certain contribution or that it enacts contributions differently does not mean that the payment of a claim under the impugned judgment is contrary to the Slovenian ordre public. Namely, ordre public does not include all mandatory provisions of domestic law, but only those imperative legal norms and moral rules, the violation of which would endanger the integrity of the Slovenian legal order. However, the payment of contributions in favour of workers does not justify such opposition.

Conclusion

The ruling does completely comply with the judgment of the Court of Justice in the 2019 Korana case. The Slovenian and the ECJ cases both refer to Slovenian posted workers in the construction sector in Austria (Slovenia and Austria are neighbouring countries). At the economic level both cases show how the freedom of movement and freedom to provide services operate between East- and West EU. Whereas the Korana case concerned a litigation before the Labour and Social Court of Vienna, the discussed Slovenian case shows the next stage, i.e. the enforcement of Austrian rulings in Slovenia.

The only surprising element in this case is the timing. The Korana case was decided by the ECJ on 28 February 2019, the first ruling by the highest national court of another EU Member State where an enforcement of Austrian judgements based on that ruling is sought was handed down already on 11 August 2020. Considering the translation issues, the service of judicial and extrajudicial documents in civil or commercial matters between two EU Member States and then the Coronavirus pandemics, the cross-border cooperation between Slovenia and Austria seems to work quite fast.

Depuis le 19 octobre, les ressortissant.e.s britanniques et leur.e.s familles peuvent déposer en ligne leur demande de titres de séjour. 

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On Monday, 16 November 2020, starting at 9.15 am CET, the Young EU Private International Law Research Network of the European Association of Private International Law (EAPIL), organizes a webinar on “Overriding Mandatory Rules in the Law of the EU Member States”.

In two sessions, Young PIL researchers from various EU Member States will discuss selected issues related to overriding mandatory rules, such as their explicit legislative characterization in recent EU directives and their application by arbitral tribunals.

Subsequently, the General Report of the second Young EU PIL project, namely “The Application of Overriding Mandatory Norms outside the Scope of Application of the EU Private International Law Regulations” as well as some national perspectives will be presented. The concluding discussion of the webinar is dedicated to future initiatives and projects of the Research Network.

All young PIL researchers who are interested in joining the webinar and/or the Young EU Private International Research Network are cordially invited to send an e-mail to youngeupil@gmail.com. Attendance is free of charge. Details regarding the virtual attendance will be sent to all registered participants.

The programme reads as follows:

9.15 am   Opening of the conference – Tamás SZABADOS (ELTE)

Session I – Chair: Florian HEINDLER (Sigmund Freund University Vienna)

9.20 am   Ennio PIOVESANI (University of Turin/University of Cologne): Overriding Mandatory Rules in the Context of the Covid-19 Pandemic

9.35 am   Martina MELCHER (University of Graz): Substantive EU Regulations as Overriding Mandatory Provisions?

9.50 am   Johannes UNGERER (University of Oxford): Explicit Legislative Characterization of Overriding Mandatory Provisions in EU Directives

10:05 am   Uglješa GRUŠI? (University College London): Some Recent Developments Regarding the Treatment of Mandatory Rules of Third Countries

10.20-10:35 am   Discussion

Session II – Chair: Dr. Eduardo Alvarez-Armas (Brunel University London)

10.45 am   Katarzyna BOGDZEVI? (Mykolas Romeris University): Overriding Mandatory Provisions in Family Law and Personal Status Issues

11.00 am   Markus PETSCHE (Central European University): The Application of Mandatory Rules by Arbitral Tribunals

11.15 am   István ERD?S (ELTE): Imperative Rules in Investment Arbitration

11.30-11.45 am   Discussion

Young EU PIL Project: The Application of Overriding Mandatory Norms outside the Scope of Application of the EU Private International Law Regulations

2.00 pm   Tamás SZABADOS (ELTE): Presentation and Discussion of the General Report

2.15 pm   Stefano DOMINELLI (University of Genoa) and Ennio PIOVESANI (University of Turin/University of Cologne): Italian Perspective

Holger JACOBS (University of Mainz): German Perspective

Dora ZGRABLJI? ROTAR (University of Zagreb): Croatian Perspective. Overriding Mandatory Rules and the Proposal on the Law Applicable to the Third-party Effects of Assignments of Claims

3.00 -3.30 pm   Future of the Young EU Private International Law Network (Chair: Martina MELCHER and Tamás SZABADOS)

Professor Chris Thomale, University of Vienna and Roma Tre University, has kindly provided us with his thoughts on the recent EP Draft Report on corporate due diligence and corporate accountability.

 

In recent years, debate on Corporate Social Responsibility (CSR) has picked up speed, finally reaching the EU. The Draft Report first and foremost contains a draft Directive on corporate due diligence and corporate accountability, which seems a logical step ahead from the status quo developed since 2014, which so far only consists of reporting obligations (see the Non-Financial Reporting Directive) and sector specific due diligence (see the Regulations on Timber and Conflict Minerals). The date itself speaks volumes: Precisely, to the very day (!), 8 years after the devastating fire in the factory of Ali Enterprises in Pakistan, which attracted much international attention through its follow-up litigation against the KiK company in Germany, the EU is taking the initiative to coordinate Member State national action plans as required under the Ruggie Principles. Much could be said about this new Directive in terms of company law and business law: The balancing exercise of on the one hand, assuring effective transparency of due diligence strategies and, on the other hand, avoiding overregulation in particular with regard to SMEs still appears somewhat rough and ready and hence should see some refinement in due course. The same applies to the private enforcement of those due diligence duties: By leaving the availability and degree of private enforcement entirely to the Member States (Art. 20), the Directive seems to gloss over one of the most pressing topics of comparative legal debate. The question of availability, conditions and extent of private liability imposed on parent companies for human rights violations committed in their value chains abroad, must be addressed by the EU eventually.

To this forum, however, the private international implications of the Draft Report would appear even more important:

As regards the conflicts of laws solution, the proposed Art. 6a Rome II Regulation seeks to make available, at the claimant’s choice, several substantive laws as conveniently summarized by Geert van Calster in the terms of lex loci damni, lex loci delicti commissi, lex loci incorporationis and lex loci activitatis. Despite my continuous call for a choice between the first two de regulatione lata, to be reached by applying a purposive reading of Art. 4 para 1 and 3 Rome II (see JZ 2017 and ZGR 2017), the latter two, lex loci incorporationis and lex loci activitatis, seem very odd to me. First, they are supported, to my humble knowledge, by no existing Private International Law Code or judicial practice. Second, the lex loci incorporationis has no convincing rationale, why it should in any way be connected with the legal relationship as created by the corporate perpetrator’s tort. Lex loci activitatis is excessively vague and will create threshold questions as well as legal uncertainty. Third, I would most emphatically concur with Jan von Hein’s opinion of a quadrupled choice being excessive and impractical in and of itself.

The solution proposed in terms of international jurisdiction, I will readily admit, looks puzzling to me. I fail to see, which cases the proposed Art. 8 para 5 Brussels Ibis Regulation is supposed to cover: As far as international jurisdiction is awarded to the courts of the “Member State where it has its domicile”, this adds nothing to Art. 4, 63 Brussels Ibis Regulation. In fact, it will create unnecessary confusion as to whether this venue of general jurisdiction is good even when there is no “damage caused in a third country [which] can be imputed to a subsidiary or another undertaking with which the parent company has a business relationship.” Thus, we are left with the courts of “a Member State […] in which [the undertaking] operates.” As already pointed out, this term itself will trigger a lot of controversy regarding certain threshold issues. But there is more: Oftentimes this locus activitatis will coincide with the locus delicti commissi, e.g., when claimants want to rely on an omission of oversight by the European parent company. In that case, Art. 7 No. 2 Brussels Ibis Regulation offers a venue at the very place, i.e. both in terms of international and local jurisdiction, where that omission was committed. How does the new rule relate to the old one? And, again, which cases exactly are supposed to be captured by this provision? In my view, this is a phantom paragraph that, if anything, can only do harm to the fragile semantic and systematic architecture built up by the Brussels Ibis Regulation and CJEU case law.

The same seems true of the proposed Art. 26a Brussels Ibis: First, there is no evident need for such a forum necessitatis, rendering Member State courts competent to hear foreign-cubed cases with no connection to the EU whatsoever. To the contrary, recent development of the US Alien Torts Statute point in the opposite direction. Second, the EU might be overreaching its legislative jurisdiction: Brussels Ibis Regulation is based on the EU’s competence to legislate on judicial cooperation in civil matters (Art. 81 para 2 TFEU). Such a global long-arm statute may not be covered by that competence, if it is legal at all under the public international confines incumbent upon civil jurisdiction (for details, see here). Third, it will be virtually anybody’s guess what a court seized with a politicised and likely emotional case like the ones we are talking about will deem a “reasonable” Third State venue. In fact, this would be a forum non conveniens test with inverted colours, i.e. the very test the CJEU, in 2005, deemed irreconcilable with the exigencies of foreseeability and legal certainty within the Brussels Ibis Regulation.

 

A webinar, organised by the Young EU Private International Law Research Network (an EAPIL activity), will take place on 16 November 2020, from 9.15 to 15.30. The webinar’s topic is Overriding Mandatory Rules in the Law of the EU Member States.

Speakers include Katarzyna Bogdzevič (Mykolas Romeris University), Stefano Dominelli (University of Genoa), István Erdős (ELTE), Uglješa Grušić (University College London), Holger Jacobs (University of Mainz), Martina Melcher (University of Graz, co-chair of the Network), Markus Petsche (Central European University), Ennio Piovesani (University of Turin/University of Cologne), Johannes Ungerer (University of Oxford), Tamás Szabados (ELTE, co-chair of the Network), Dora Zgrabljić Rotar (University of Zagreb).

The sessions will be chaired by Florian Heindler (Sigmund Freud University Vienna) and Eduardo Alvarez-Armas (Brunel University London).

The full of programme of the event is available here.

Attendance is free of charge, but those interested in attending are asked to register via email at youngeupil@gmail.com before 12 November 2020.

 

 

 

 

 

 

 

 

The HCCH 2019 Judgments Convention:

Prospects for Judicial Cooperation in Civil and
Commercial Matters between the EU and Third Countries

Pre-Conference Video Roundtable
University of Bonn / HCCH

Thursday, 29 October 2020, 6.30 p.m. (UTC+1) (via Zoom)

 

Speakers:

Dr Christophe Bernasconi, Secretary General of the HCCH

Colin Brown, Unit Dispute Settlement and Legal Aspects of Trade Policy, DG Trade, European Commission

Dr Alexandra Diehl, White & Case LLP, Frankfurt, Chair of the Arbitration/Litigation/Mediation (“ALM”) Working Group of the German-American Lawyers Association (DAJV)

Dr Veronika Efremova, Senior Project Manager GIZ, Open Regional Funds for South East Europe-Legal Reform

Andreas Stein, Head of Unit, DG JUST – A1 “Civil Justice”, European Commission

Dr Jan Teubel, German Federal Ministry of Justice and Consumer Protection

Moderators:                         

Dr João Ribeiro-Bidaoui, First Secretary, HCCH

Prof Dr Matthias Weller, University of Bonn

The largest proportion of EU economic growth in the 21st century is expected to arise in trade with third countries. This is why the EU is building up trade relations with many states and other regional integration communities in all parts of the world. The latest example is the EU-MERCOSUR Association Agreement concluded on 28 June 2019. With the United Kingdom’s exit of the Union on 31 January 2020, extra-EU trade with neighbouring countries will further increase in importance. Another challenge for the EU is China’s “Belt and Road Initiative”, a powerful global development strategy that includes overland as well as sea routes in more than 100 states around the globe. The USA are currently the largest trade partner of the EU. The increasing volume of trade with third states will inevitably lead to a rise in the number and importance of commercial disputes. This makes mechanisms for their orderly and efficient resolution indispensable. China is already setting up infrastructures for commercial dispute resolution alongside its belts and roads. In contrast, the EU still seems to be in search of a strategy for judicial cooperation in civil matters with countries outside the Union. The HCCH 2019 Judgments Convention may be a valuable tool to establish and implement such a strategy, in particular alongside the EU’s external trade relations. These prospects will be discussed by the speakers and a global audience in this Pre-Conference Video Roundtable.

We warmly invite you to participate and discuss with us. In order to do so, please register with sekretariat.weller@jura.uni-bonn.de. You will receive the access data for the video conference via zoom per email, including our data protection concept, the day before the event.

If you have already registered and received a confirmation from our office (please allow us a couple of days for sending it back to you), your registration is valid and you do not need to re-register.

Please do not hesitate to forward our invitation to friends and colleagues if you wish.

 

Main Conference “The HCCH 2019 Judgments Convention”, 13 and 14 September 2021

Our event intends to prepare the main conference on the HCCH 2019 Judgments Convention at the University of Bonn (Professors Moritz Brinkmann, Nina Dethloff, Matthias Lehmann, Wulf-Henning Roth, Philipp Reuss, Matthias Weller), co-hosted by the HCCH (Dr Chistophe Bernasconi, Dr João Ribeiro-Bidaoui), on 13 and 14 September 2021 (originally scheduled for 25 and 26 September 2020, but rescheduled to avoid Covid-19 risks). At this conference on the campus of the University of Bonn, leading experts will present on the legal concepts and techniques of the Convention, and policy issues will be further developed.

Speakers will include (listed chronologically):

Hans van Loon (key note), Former Secretary General of the Hague Conference on Private International Law, The Hague;

Prof Dr Xandra Kramer, Erasmus University Rotterdam;

Prof Dr Wolfgang Hau, Ludwig-Maximilians-Universität Munich;

Prof Dr Pietro Franzina, Catholic University of Milan;

Prof Dr Francisco Garcimartín Alférez, Autonomous University of Madrid;

Dr Ning Zhao, Senior Legal Officer, HCCH;

Prof Paul Beaumont, University of Stirling;

Prof Dr Marie-Elodie Ancel, University Paris 2 Panthéon-Assas;

Dr Pippa Rogerson, Reader in Private International Law, Faculty of Law, Cambridge;

Ass. Prof Dr Ilija Rumenov, Ss. Cyril and Methodius University, Skopje, Macedonia;

Dr Veronica Ruiz Abou-Nigm, Director of Internationalisation, Senior Lecturer in International Private Law, School of Law, University of Edinburgh;

Prof Zheng (Sophia) Tang, University of Newcastle;

Jose Angelo Estrella-Faria, Principal Legal Officer and Head, Legislative Branch International Trade Law Division, Office of Legal Affairs, United Nations, Former Secretary General of UNIDROIT.

 

For the full programme see https://www.jura.uni-bonn.de/professur-prof-dr-weller/conference-on-the-hcch-2019-judgments-convention-on-13-and-14-september-2021/. You will receive an invitation for registration in due time. A registration fee of € 100.- will be asked for participating.

The Universities of Genoa, Valencia, Turiba, the Institute of Private International Law in Sofia, the European Association for Family and Succession Law, and Defence for Children Italy are currently conducting a research Project to collect and develop best practices on the right of the child to information in cross-border family proceedings.

The “MiRI Project” (Minor’s Right to Information in EU civil actions), co-funded by the European Union (JUST/2018/JCOO/AG/CIVI/831608), foresees the involvement of lawyers and judges which may contribute to a truthful reconstruction of how children are effectively informed of their rights, of the circumstances litigated before courts, of the consequences following specific decisions, etc. during cross-border proceedings.

Lawyers and judges may provide their knowledge and expertise by fulfilling a questionnaire – answers to the questionnaire will help Partners to the Project to identify, disseminate already existing good practices, and possibly elaborate new ones.

The questionnaire is available in English, Spanish, Bulgarian, Latvian, French and Italian.

Answering the questionnaire takes approximately 25-30 minutes; consultations are open until the end of November 2020. Answers are anonymous and will not be published. Answers can be sent to info@europeanfamilylaw.eu

The Partners to the Project appreciate your involvement!

The October issue of International and Comparative Law Quarterly was recently published. It features two articles on private international law:

S Donelly, “Conflicting Forum-Selection Agreements in Treaty and Contract” (2020) 69  International and Comparative Law Quarterly 759 – 787.

When an investor submits a claim to arbitration under a treaty that falls within the scope of an existing, contractual forum-selection clause between it and the host State, which prevails: the agreement to arbitrate under the treaty or the contractual clause? This is a vexed and commonly arising question. This article argues that by placing it in the context of both private and public international law and reasoning from first principles it is possible to arrive at a coherent, reliable and satisfactory approach. The true question is whether the contractual clause is a waiver of the investor’s right to recourse to an investment tribunal.

 

TC Hartley, ““Recent Developments under the Brussels I Regulation” (2020) 69  International and Comparative Law Quarterly 779 – 790.

This article considers recent CJEU case law on the Brussels I Regulation. Two aspects of Article 7(1) (which applies to matters relating to a contract) are considered: the first is whether the contract must be between the parties to the case; the second is whether membership of an association should be regarded as constituting implied consent to be bound by decisions of the association so that jurisdiction to enforce them may be taken under Article 7(1). The article also discusses recent case law on who counts as a ‘consumer’ in terms of Article 17.

Le 30 septembre dernier, la Commission européenne publiait son premier rapport sur l’État de droit. Celui-ci analyse l’évolution du respect de l’État de droit dans les États membres sur le fondement de quatre critères : le système judiciaire, les mécanismes de lutte contre la corruption, l’équilibre des pouvoirs dans les institutions et la liberté de la presse et le pluralisme. Il pointe des défaillances importantes, notamment en Hongrie et en Pologne et rappelle plus généralement la nécessité de préserver ces garanties même durant la pandémie.

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Complaints about the inefficiency of enforcement mechanisms at national and transnational level are not new. The insufficiency of existing national and international legal frameworks is a growing cause for concern at all levels. Academics and practitioners acknowledge the fundamental importance of procedures and mechanisms for the effective enforcement of creditors’ claims both in domestic and in cross border situations. They also agree on the existence of numerous obstacles for enforcement in most jurisdictions, and on the need for a comprehensive and  detailed international instrument providing for guidance for national legislators to overcome such challenges.

In the agenda UNIDROIT (the International Institute for the Unification of Private Law) has published for the triennial period 2020 – 2022, transnational principles of civil procedure are included with
– high priority:  Formulation of regional rules;
– medium priority : Principles of effective enforcement (NoA: priority was moved to “high” by the UNIDROIT Governing Council at its 99th session);
– low priority:  International Civil Procedure in Latin America.

As a matter of fact, UNIDROIT has been actively working towards a soft harmonisation of civil procedural rules – mainly to be applied in transnational disputes but also meant to provide guidance in domestic law reforms- already for a while. In 2004, the Governing Council of UNIDROIT adopted the so-called ALI/UNIDROIT Principles of Transnational Civil Procedure (ALI=American Law Institute), which the organization itself defines as its “landmark instrument in this area”.

The ‘Principles’ consist of 31 provisions accompanied by a commentary. They aim to reconcile differences among various national rules of civil procedure, taking into account the peculiarities of transnational disputes as compared to purely domestic ones. They are intended to serve as guidelines for code projects in countries without long procedural traditions; also, as a basis for reform in countries with long and high-quality procedural traditions. They may also be applied by analogy in international commercial arbitration.

In 2013, UNIDROIT and the European Law Institute (ELI) started working together towards the development of European Rules of Civil Procedure. The ELI – UNIDROIT Rules were presented in an International Workshop Webwinar held as a closing event of the 99th session of the UNIDROIT Governing Council, on 25 September 2020.

In addition, UNIDROIT Work Programme 2017-2019 envisaged the preparation of Transnational Principles of Effective Enforcement to bridge the gaps of the ALI/ UNIDROIT Principles of Transnational Civil Procedure in this regard. A preliminary feasibility study was conducted by Rolf Stürner, Emeritus Professor at the University of Freiburg (Germany) and former co-reporter of the ALI/UNIDROIT Principles of Transnational Civil Procedure, and submitted to the Governing Council at its 95th session (2016). According to its final conclusion

Principles will set common minimum standards of enforcement, they will motivate legislatures to evaluate and improve the quality of their laws and thereby strengthen the efficiency of enforcement in foreign countries. Common minimum standards will be a source of increasing harmonization of enforcement laws, as well as predictability of the results of enforcement measures in foreign countries and facilitation of enforcement in cross border cases. A certain degree of harmonization is a necessary precondition of international cooperation in the field of cross border enforcement, which is designed to avoid conflicts of sovereignty and conflicting or superfluous parallel and cost intensive enforcement measures. Worldwide, there is sufficient common ground for specific principles of individual modes of enforcement and for overarching general principles of an overall system of efficient civil enforcement. The variety of organizational structures should not be considered a decisive obstacle to harmonizing principles. It will be possible to develop principles, which define managerial standards to be met by the enforcement mechanisms and the individual enforcement authorities and which at the same time leave necessary leeway for successful regional traditions and local needs. Co-operation with other organizations dealing with the harmonization of law could result in a helpful increase of human and financial resources. The experience of the first joint project with the American Law Institute was very encouraging.

At the time, the topic was nevertheless accorded low priority, which meant the work would only commence after the completion of the preparation of European Rules of Civil Procedure. In this context, the Secretariat received in December 2018 a proposal for the 2020-2022 Work Programme by the World Bank regarding a project on the “Development of a Working Paper to Outline Best Practices on Debt Enforcement”, which it presented on the occasion of the discussion of the 2020-2022 Work Programme at the 98th Session of the Governing Council. The proposal was discussed as a continuation, and a refinement, of the scope of the  “Principles of Effective Enforcement”, and eventually included in the new Work Programme by the General Assembly.

On 21 September 2020, the UNIDROIT Secretariat, as mandated by the Governing Council at the first meeting of the 99th  session, convened an internal consultation workshop on the project on Best Practices of Effective Enforcement. The UNIDROIT Governing Council, at its 99th session, approved the guidelines provided by the Secretariat regarding the proposed scope of the project, and authorised the establishment of a Working Group, to meet in Rome and on Zoom on 30-November – 2 December 2020. The composition of the group has not yet been disclosed; the MPI Luxembourg will be represented as an observer.

If the initial schedule is kept, the project will be a quick one, coming to an end already in 2022. No doubt it is worth to follow its development and to reflect on its potential impact on the law and practice of cross-border enforcement within the EU and beyond.

Ilaria Viarengo and Francesca C Villata recently published a new book titled: “Planning the Future of Cross Border Families: A Path Through Coordination“ under the prestigious Hart Studies in Private International Law. The abstract reads as follows:

This book is built upon the outcomes of the EUFam’s Project, financially supported by the EU Civil Justice Programme and led by the University of Milan. Also involved are the Universities of Heidelberg, Osijek, Valencia and Verona, the MPI in Luxembourg, the Italian and Spanish Family Lawyers Associations and training academies for judges in Italy and Croatia. The book seeks to offer an exhaustive overview of the regulatory framework of private international law in family and succession matters. The book addresses current features of the Brussels IIa, Rome III, Maintenance and Succession Regulations, the 2007 Hague Protocol, the 2007 Hague Recovery Convention and new Regulations on Property Regimes.
The contributions are authored by more than 30 experts in cross-border family and succession matters. They introduce social and cultural issues of cross-border families, set up the scope of all EU family and succession regulations, examine rules on jurisdiction, applicable law and recognition and enforcement regimes and focus on the current problems of EU family and succession law (lis pendens in third States, forum necessitatis, Brexit and interactions with other legal instruments). The book also contains national reports from 6 Member States and annexes of interest for both legal scholars and practitioners (policy guidelines, model clauses and protocols).

This CEPEJ report, published on 22nd October 2020, contains data on the functioning of the judicial systems of 45 European States and 3 Observer States (Morocco, Israel and Kazakhstan). The findings are the following:

“Budget

– In 2018, European States spent on average more than 1 billion Euros for their judicial systems, equal to 72 € per inhabitant (8 € more than in 2016) and 0,33% of GDP. On average, member States allocated 65% of judicial system budget to courts, 24% to prosecution services and 11% to legal aid. Switzerland and Monaco are the countries that spend the most significant amount per inhabitant (220 € and 197 €), while Montenegro and Bosnia and Herzegovina dedicate to judicial system the highest percentage of their GDP (0.88% and 0.72%).

– Countries with a higher GDP per capita invest more per inhabitant in judicial systems, while less wealthy countries allocate more budget as a percentage of GDP, showing a greater budgetary effort for their judicial systems.

– Between 2010 and 2018, the member States and entities have slightly increased the average budget allocated to the judicial system. In 2018, all States and entities have increased the budget allocated to their judicial systems (+8%). The most significant increase (between 2016 and 2018), equal to 13% on average, has been recorded for courts’ budget and it concerns, in particular, investments in new buildings and computerisation.

– Less wealthy countries invest proportionally more on prosecution services (32% on average), while States and entities with higher GDP per capita spend relatively more in legal aid (19% on average).

– The budget allocated to courts seems to be related not only to the wealth of the country, but also to the number of courts. This may seem logical given that 65% of the court budget is spent on salaries.

– In order to rationalise budgetary resources of courts and, at the same time, reinforce specialisation and expertise, an increasing trend to outsource certain services is confirmed.

– Generally speaking, all the countries have implemented a legal aid system in criminal and other than criminal matters (representation by a lawyer before the court or legal advice), in compliance with the requirements of the European Convention on Human Rights and the case-law of the European Court which advocates an appropriate legal aid system to ensure access to justice for everyone.

– Some countries tend to have a low cost per legal aid case and a high number of cases granted legal aid, while others choose to provide a higher amount for a smaller number of cases.

Professionals

– While the number of professional judges remains globally stable, 21 judges per 100 000 inhabitants on average, significant differences are still noticed between States and entities (from 3.1 in UK-England and Wales to 101.8 in Monaco per 100 000 inhabitants). The latter can be partly explained by the diversity of judicial organisations, use of occasional professional judges and/or lay judges. Variations over the years have not led towards harmonisation.

– The number of prosecutors is tending to increase, on average 12 prosecutors per 100 000 inhabitants (in 2018, the number varies from 2.2 in Ireland to 25.1 in Ukraine).

– 31 Member States of 47 declared that public prosecutors are statutorily independent.

– While the number of prosecutors increased, their workload decreased since 2010 from 4.2 to 3.1 cases per 100 inhabitants.

– The trend towards the feminisation of judges and prosecutors is confirmed but the glass ceiling remains a reality: in 2018, at the level of all instances, there was 46% of men and 54% of women judges but 66 % male court presidents as opposed to 34 % of female court presidents; for the prosecutors : 48% of men and 52% of women but 64% of male and 36 % of female head of public prosecution offices. More and more States and entities seem to be focusing on the topic of specific provisions in favour of

– gender parity in the procedures for the recruitment and promotion of judges and prosecutors. Taking measures to promote gender balance in the higher and highest justice functions should be encouraged.

– The ratio between non-judge staff and professional judges is about 4 in 2018, this figure being quite stable through the years, the minimum being 1 in Luxembourg and the maximum 10 in UK – Northern Ireland.16 European States set up Rechtspfleger.

–  Salaries of judges vary widely between States and entities, but also between instances. The changes in salaries in recent years are not uniform and do not lead to harmonisation. The ratio between salaries of judges and national average salary shows significant disparities in Europe: from 0.9/1.6 in Germany (at the beginning /the end of career) to 4.8/31.5 in Ukraine (at the beginning /the end of career).

– Meaningful disparities also persisted in the salaries of prosecutors. The ratio between salaries of prosecutors and national average salary shows significant disparities in Europe: from 0.8 in Ireland and 4.0 in Romania (at the beginning of the career); 1.6 in Germany and 6.4 in Italy (at the end of the career). 

– Prosecutors’ salaries are, on average, lower than those of judges.

– The number of lawyers is also continuing to increase in Europe, with an average of 164 lawyers per 100 000 inhabitants, with important disparities between States (in 2018, from 16 per 100 000 inhabitants in Azerbaijan to 488 per 100 000 inhabitants in Luxembourg). This constant increase between 2010 and 2018 (27%) is mainly due to economic growth.

– Recent developments suggest that the topic of gender balance with regard to lawyers is being taken into account by an increasing number of States and entities. Currently, however, European lawyers are still predominantly male.

Courts

– Between 2010 and 2018 there was a reduction in the number of courts in Europe, both in terms of legal entities (-19% on average for the first instance courts of general jurisdiction) and geographical locations (-10 % on average).

–  For the same period, we can also notice an increase in the specialization of courts (the average share of specialized courts increased from 21% to 26,7% from 2010 to 2018).

– Small claims were only slightly affected by the above-mentioned developments. Only the average amount of what constitutes a small claim has increased (from 4 029 € in 2016 to 4 836 € in 2018).

Court users

– More and more member States provide specific information to users, both on the judicial system in general and on individual court proceedings.

– States address more and more specific information and arrangements to vulnerable categories of users (the complaints procedures regarding functioning of justice exist in 43 States, implementation of compensation systems (the average amount of compensation is 6 353 € in 2018), user satisfaction surveys, establishment of monitoring mechanisms in respect of violations of the European Convention on Human Rights).

– In order to improve further social responsibility and trust in the judicial system, member States should devote additional resources and staff to improvecommunication with the users of justice.

– The analyses and use of data, gathered through quantitative and qualitative research into the satisfaction of court users, increases the legitimacy of judicial systems and helps court leaders and administrations provide a better and more efficient service of justice.

– The use of information systems to support such activities is crucial. However, it is “interactional justice “- the human touch, the treatment of all involved in judicial proceedings with dignity and respect, that substantially helps to provide just decisions and consequently build trust in justice.

Information and communication technology (ICT)

–  ICT has become a constitutive part of justice service provision. States have focused their efforts on court and case management tools, more then on decision support and communication tools. The general ICT index (court and case management, decision support and communication with courts) varies from 1.52 in Cyprus to 9.79 in Latvia.

– European judicial systems are increasingly moving from paper-based procedures to electronic ones. This is true for the activities carried out within the courts, as well as for the communication exchanges between courts and all parties.

– The economic cost of this innovation should be considered with caution as the ICT budget may vary considerably during the development, deployment and maintenance phases.

– Court systems with comparatively higher resources generally tend to invest a higher percentage of the court budget in ICT.

– ICT are an integral component of the judicial systems, which is reflected both in the regulatory and governance choices implemented by the member States.

– Member States and entities have set up various solutions regarding leadership in ICT governance: most States tend to consider both of them equally relevant, with a slight prevalence of the judicial one.

– As basic technologies are now generally fully deployed in member States and entities, this analysis has focused on court and case management tools, decision support tools and tools for communication between courts, professionals and/or court users, showing very high levels of deployment.

– The high levels achieved in the areas of decision support, e-communication and remote proceedings increase the need to monitor the impact of these tools on principles such as fairness, impartiality and judicial independence.

Justice in the context of the Covid-19 crisis

– ICTs have proven to be valuable and even indispensable tools for the continued work of judicial systems during the COVID-19 crisis in Europe.

– In many cases, their use has required not only changes in legislation but also technical improvements, as has been observed in member States and entities.

– Concerns have been expressed about the use of certain ICT tools in court proceedings, but it is still too early to assess their actual impact on the parties’ rights.

– To address these issues, the CEPEJ has adopted on 10 June 2020 a  Declaration on lessons learnt and challenges faced by the judiciary during and after the Covid-19 Pandemic.

Efficiency

– The clearance rates give a generally positive balance sheet (stable and close to 100%) and conclusions can be more usefully drawn from the disposition time analysis. Criminal justice is the most effective at all three levels of court (disposition time at first instance: 122 days; second instance: 104 days ; third instance: 114 days) and the second instance courts appear as the most efficient in all areas (disposition time in civil and commercial cases: 141 days; administrative cases: 209 days; criminal cases: 104 days). It should be noted that although the results are unquestionably positive, they have deteriorated over time in several States and entities analysed.

– Conversely, it is at first instance and in the field of administrative law that the courts have proven to be the least efficient. Administrative cases tend to record the highest DT (241 days at 1st instance, 209 days at 2nd instance, 228 days at 3rd instance) with, however, considerable disparities between States and entities.

– Cases concerning asylum seekers and the right to entry and stay for aliens continue to have a strong impact on European jurisdictions. Many States and entities reported productivity problems related to these case types. In 2018, States received 291 443 cases concerning asylum seekers or 8 % fewer than in 2016. 183 920 incoming cases pertaining to the right to entry and stay for aliens represent an increase of 84 %. The highest number of incoming cases concerning asylum seekers was recorded in Germany, 149 593 cases. The second highest inflow is in France which received 58 671 asylum seekers cases and 79 807 right of entry and stay for aliens cases. Italy, then, received 48 891 asylum seekers cases and 2 224 right of entry and stay for aliens cases.

– The share of cases older than two years is available for a limited set of States and entities. Within these, the shares of cases older than two years do not vary over time.

– A number of States and entities have undergone or are currently undergoing significant justice sector reforms which have influenced the performance of their systems. The results of these States and entities need to be monitored cautiously and with an understanding of the context”.

Source: https://rm.coe.int/link-to-the-presentation-note-en/16809fdc75

For further information, see https://www.coe.int/en/web/cepej/special-file-publication-of-the-report-european-judicial-systems-cepej-evaluation-report-2020-evaluation-cycle-2018-data-

The ANNUAL MEETING OF THE ROYAL NETHERLANDS SOCIETY OF INTERNATIONAL LAW (ILA Dutch Branch) is online accessible on Friday 6 NOVEMBER 2020 (13:30 – 16:30 CET).  

 Over the decades, international law adapted in many ways to the quickly evolving, multi-facetted digital reality, and one of the central questions now is whether or not concepts and ideas developed in the ‘predigital era’ still fit the digitalised world. Is international law, both public and private, ready for the digital era or has it rather been a ‘fragmented follower of developments’ and should it fundamentally rethink a number of notions and approaches? 

Four speakers will present their papers on the adaptability of (private) international law to the digital environment. Two officials of the Dutch Ministry of Foreign Affairs (M. BUSSTRA and W. THEEUWEN) will give an overview on “International Law in the Context of Cyber Operations”. Y. BURUMA, a Justice of the Supreme Court of The Netherlands, will present his views on “International Law and Cyberspace – Issues of Sovereignty and the Common Good”, while D. SVANTESSON, Professor at the University of Bond (Australia) will consider whether “International Law [Is] Ready for the (Already Ongoing) Digital Age: Perspectives from Private and Public International Law”. 

There is ample room for debate after these presentations. Given the topical theme and the open debate with public and private international lawyers, this event may be of interest to some readers of this blog. Should you be interested, please register no later than 3 November 2020 by sending an email to info@knvir.org.

Thanks to Marta Pertegás Sender for providing the text