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The Court of Justice delivered today (7 September 2023) its decision in case C‑832/21 (Beverage City & Lifestyle GmbH, MJ, Beverage City Polska Sp. z o.o., FE v Advance Magazine Publishers Inc.), which is about the conditions of application of Article 8 Brussels I bis:

“Article 8(1) of [Brussels I bis] must be interpreted as meaning that a number of defendants, domiciled in different Member States, may be sued in the courts for the place where one of them is domiciled before which, in the context of an infringement action, claims have been brought against all of those defendants by the proprietor of an EU trade mark where they are each accused of having committed a materially identical infringement of that trade mark and they are connected by an exclusive distribution agreement”.

Source : https://curia.europa.eu/juris/document/document.jsf?mode=DOC&pageIndex=0&docid=277065&part=1&doclang=EN&text=&dir=&occ=first&cid=478516

The Court of Justice delivered today (7 September 2023) its decision in case C‑590/21 (Charles Taylor Adjusting Ltd, FD v Starlight Shipping Co., Overseas Marine Enterprises Inc.), which is about a “quasi anti-suit injunction” and recognition and enforcement of judgments from other Member States:

“Article 34(1) of [Brussels I] read in conjunction with Article 45(1) thereof, must be interpreted as meaning that a court or tribunal of a Member State may refuse to recognise and enforce a judgment of a court or tribunal of another Member State on the ground that it is contrary to public policy, where that judgment impedes the continuation of proceedings pending before another court or tribunal of the former Member State, in that it grants one of the parties provisional damages in respect of the costs borne by that party on account of its bringing those proceedings on the grounds that, first, the subject matter of those proceedings is covered by a settlement agreement, lawfully concluded and ratified by the court or tribunal of the Member State which gave that judgment and, second, the court of the former Member State, before which the proceedings at issue were brought, does not have jurisdiction on account of a clause conferring exclusive jurisdiction”.

One of the key points: “the judgment and orders of the High Court [of England and Wales] could be classified as ‘“quasi” anti-suit injunctions’. While the purpose of that judgment and those orders is not to prohibit a party from bringing or continuing legal action before a foreign court, they may be regarded as having, at the very least, the effect of deterring Starlight and OME, together with their representatives, from bringing proceedings before the Greek courts or continuing before those courts an action the purpose of which is the same as those actions brought before the courts of the United Kingdom, which matter is, in any event, for the referring court to determine” (paragraph 27). The Court adds, at paragraph 28, that “An injunction having such effects would not […] be compatible with Regulation No 44/2001”.

Source: https://curia.europa.eu/juris/document/document.jsf?docid=277063&mode=req&pageIndex=3&dir=&occ=first&part=1&text=&doclang=EN&cid=434606

How does the anchor defendant mechanism operate in the realm of EU trade marks and actions on trade mark infringement? Is the existence of an exclusive distribution agreement between the defendants sufficient to rely on this mechanism? Those are the questions that the Court of justice addresses in its judgment handed down this morning in the case Beverage City Polska, C-832/21.

 

Factual context  and preliminary question

A Polish company manufactures, advertises and distributes an energy drink. Its managing director is domiciled in the city where this company is based.

A German company is connected to the Polish one through an exclusive distribution agreement for Germany – on this basis, it sourced the energy drink from the Polish Company. Its managing director is also domiciled in Germany, in a different state of that country.

Another German company being a proprietor of an EU trade mark brings an action for injunctive relief throughout the entire EU and supplementary claims against the Polish and German companies as well as against their managing directors before a court in Germany, with jurisdiction over the place where the managing director of the German company is domiciled.

The German court bases its jurisdiction over the Polish defendants (the company and its managing director) on Article 8(1) of the Brussels I bis Regulation, referring to the principles established in the judgment of the Court of Justice in Nintendo.

As a reminder, Article 8(1) of the Brussels I bis Regulation – applicable in the case via Article 122 of the EU trade mark Regulation – states: ‘A person domiciled in a Member State may also be sued […] where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.’

This decision is contested by the Polish company and its managing director.

The second instance court refers the following question to the Court of Justice for a preliminary ruling:

‘Are claims “so closely connected” that it is expedient to hear and determine them together to prevent irreconcilable judgments, within the meaning of Article 8(1) of [Regulation No 1215/2012], where, in infringement proceedings for infringement of an EU trade mark, the connection consists in the fact that the defendant domiciled in a Member State (here, Poland) supplied the goods which infringe an EU trade mark to a defendant domiciled in another Member State (here, Germany) whose legal representative, against whom infringement proceedings have also been brought, is the anchor defendant, if the parties are connected to each other only through the mere supply relationship beyond which there is no legal or factual connection?’

 

Opinion of Advocate General

In his Opinion delivered this March, AG Richard de la Tour proposed the Court to answer the preliminary question in a following manner:

‘Article 8(1) of the Brussels I bis Regulation […] must be interpreted as meaning that more than one defendant, domiciled in different Member States, may be sued in the courts for the place where one of them is domiciled that are seised, in the context of infringement proceedings, of claims brought against them by the proprietor of an EU trade mark where the defendants are alleged to have infringed that trade mark in a materially identical manner through each of their acts in a supply chain. It is for the court seised to assess whether there is a risk of irreconcilable judgments resulting from separate proceedings, taking into account all the relevant material in the case file.’

 

Answer of the Court

In its judgment handed down this Thursday, the Court reminds that according to its case law in order for Article 8(1) to apply, it must be ascertained whether, between various claims brought by the same applicant against various defendants, there is a connection of such a kind that it is expedient to determine those actions together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings. For decisions to be regarded as irreconcilable, it is not sufficient that there be a divergence in the outcome of the disputes, but that divergence must also arise in the context of the same situation of fact and law (para. 28).

Concerning the first requirement (ie. the same situation of law) the Court bases its reasoning on the universal effect of an EU trade mark within the territory of EU Member States. As such, for the Court, this requirement does not seem to be problematic in the situation at hand (para. 29 to 31).

This is the second requirement (ie. the same situation of fact) that is put under more scrutiny. The Court notes that – according to the information provided by the referring judge – the Polish and German companies do not belong to the same group. Furthermore, there is no link between the Polish company and its director, on the one hand, and the director of the German company described by the referring courts as an ‘anchor defendant’, on the other hand (para. 32).

Hence, the sole element potentially connecting the defendant companies seems to be the exclusive distribution agreement. The question is therefore whether such an agreement is sufficient to meet the requirement of ‘the same situation of fact’.

The Court starts it reasoning with a reminder: the purpose of the jurisdiction rule referred to in Article 8(1) of Brussels I bis Regulation is to facilitate the proper administration of justice, to reduce as far as possible the possibility of concurrent proceedings and thus to avoid solutions that might be irreconcilable if the cases were tried separately (para. 34). In order to assess whether there is a connection between the various claims brought before it, it is for the national court to take into account, in particular, the fact that several companies established in different Member States are accused, each separately, of the same acts of infringement in respect of the same products (para. 36).

Echoing the Opinion of its Advocate General, the Court states that the existence of a connection between the claims in question is based primarily on the relationship between all the acts of infringement committed, rather than on the organizational or capital links between the companies concerned. Similarly, in order to establish the existence of a single factual situation, particular attention must also be paid to the nature of the contractual relations existing between the companies involved (para. 37).

For the Court, the existence of the exclusive distribution agreement renders it more foreseeable that multiple actions on trade mark infringement will be considered as meeting the requirement of ‘the same situation of fact’ (para. 38).

The Court also noted that – as it transpires from the case file and the hearing – the close cooperation between the companies manifested itself in the operation of their websites, the domains of which belonged to only one of the co-defendants, through which the products at issue in the main proceedings were marketed by means of cross-references between these sites (para. 39). This also reveals the foreseeable nature of the obligation to respond to allegations of infringement from the same source before the same court (para. 40).

Probably to nuance those considerations, the Court adds that the circumstances justifying the reliance on the anchor defendant mechanism cannot be created in an artificial manner just in order to establish jurisdiction over co-defendants; that is, however, not the case if a ‘close link’ exists between the defendants – such a ‘close link’ exists in presence of an interest in hearing and judging them together to avoid solutions that might be irreconcilable if the cases were judged separately (para. 43-45).

Ultimately, the Court answered the preliminary question by stating that:

‘[…] a number of defendants, domiciled in different Member States, may be sued in the courts for the place where one of them is domiciled before which, in the context of an infringement action, claims have been brought against all of those defendants by the proprietor of an EU trade mark where they are each accused of having committed a materially identical infringement of that trade mark and they are connected by an exclusive distribution agreement.’

 

Some highlights and remarks…

At least three aspects of the case merit particular attention:

• first, the requirement of ‘the same situation of fact’ appears to hinge on the defendant’s foreseeability that he may be summoned to a court with jurisdiction over other individuals or entities he collaborate with. In other terms, the closer the contractual link and the more intensive the cooperation are, the more one exposes himself to the risk of being sued outside of the court of his domicile through the anchor defendant mechanism;
• second, while the judgment stresses the relevance of contractual relations between the defendants and the fact of them being bound by an exclusive distribution agreement, it remains to be seen how this can translate into the situation of the managing director of a company against which the action is also brought through the anchor defendant mechanism; there is also even more fundamental the question of the possibility to consider that an action brought against the director of a company can ‘anchor’ via Article 8(1) the actions against another company and its director; those inquiries received consideration in the Opinion (points 68 et seq.);
• third, echoing the possibility to rely on the interdiction of the abuse of EU law from Vinyls Italia (para. 54 and 55) in the realm of private international law, the Court underscores that the facts underpinning a case should not be artificially fabricated just in order to justify the reliance on the anchor defendant mechanism.

 

The judgment can be found here.

 

On 27 October 2023, the Department of Private Law of Maastricht University (the Netherlands) is hosting a lecture by Prof. Dr. Horatia Muir Watt, Professor at the Sciences Po Law School (Paris), entitled: “Ecological Jurisprudence: The Shape of Legality at its Own Last Frontier (a Private International Law Approach)” at 17:00 (CEST time). This event will take place onsite and in English. For more information, click here.

Registration is free of charge. The deadline to register is 19 October 2023.

A Research Seminar with PhD researchers and Prof. Dr. Horatia Muir Watt will take place that same day from 10.00 – 12.00.

Prof. Horatia Muir Watt has recently published a book entitled: The Law’s Ultimate Frontier: Towards an Ecological Jurisprudence: A Global Horizon in Private International Law (Oxford: Hart, 2023). More information is available here.

Asociaţia "Forumul Judecătorilor din România"
Principes du droit communautaire
État de droit en Roumanie : la promotion de juges vers une juridiction supérieure, fondée sur une évaluation de leur travail et de leur conduite par des membres de cette juridiction, est compatible avec le droit de l’Union

Nexive Commerce e.a.
Liberté d'établissement
Coûts de fonctionnement de l’autorité réglementaire du secteur postal : une obligation de contribution peut être imposée aux acteurs du marché, en excluant tout financement par l’État

Lietuvos Respublikos generalinė prokuratūra
Rapprochement des législations
La directive « vie privée et communications électroniques » s’oppose à ce que des données recueillies pour lutter contre la criminalité grave soient utilisées dans le cadre d'enquêtes administratives relatives à la corruption dans le secteur public

London holds the distinction of being a preferred seat for arbitration, making significant developments in English arbitration law of general interest to arbitration specialists and, at times, private international lawyers. Few developments in arbitration law can match the significance of a reform affecting the statute providing a framework for arbitration. This is precisely what the Law Commission of England and Wales is recommending in its final report on the review of the Arbitration Act 1996.

One of the proposals aims to introduce a statutory rule for determining the governing law of an arbitration agreement, which significantly departs from the current common law position. Given the importance of this proposal, the EAPIL blog will host an online symposium on the law governing arbitration agreements from 11 to 13 September 2023.

In this post, I will introduce the Law Commission’s proposals and the symposium.

Law Commission’s Proposals

On 6 September 2023, following an extensive consultation process that included the publication of two consultation papers in September 2022 and March 2023, the Law Commission unveiled its proposals for reforming the 1996 Act (the text of the final report and draft Bill is available here; a summary is available here). These proposals aim to uphold the Act’s core principles, while introducing improvements aimed at enhancing London’s position as a global arbitration centre.

The Law Commission’s major proposals are: codifying an arbitrator’s duty of disclosure; strengthening arbitrator immunity around resignation and applications for removal; introducing the power to make arbitral awards on a summary basis; improving the framework for challenges to awards under section 67 on the basis that the tribunal lacked jurisdiction; adding a new rule on the law governing arbitration agreements; and clarifying court powers in support of arbitral proceedings and emergency arbitrators.

Additionally, the Law Commission proposes several minor corrections, including: allowing appeals from applications to stay legal proceedings; simplifying preliminary applications to court on jurisdiction and points of law; clarifying time limits for challenging awards; and repealing unused provisions on domestic arbitration agreements.

Since private international lawyers are likely more interested in the proposed choice-of-law rule for arbitration agreements and the proposed new relationship between courts and arbitrators regarding jurisdictional challenges, I will focus on these two proposals.

New Choice-of-Law Rule for Arbitration Agreements

The Rome I Regulation does not cover arbitration agreements, leaving the determination of the law governing arbitration agreements in England to the common law choice-of-law rules for contracts. These rules are well-known: a contract is governed by the law expressly or impliedly chosen by the parties or, in the absence of choice, by the system of law with which the contract is most closely connected. Applying this rule to arbitration clauses can be difficult. Does a broad choice-of-law clause in a matrix contract amount to an express choice of law for the arbitration clause contained therein? If the parties have not expressly chosen the law to govern their arbitration clause, is the choice of law for the matrix contract an indication of implied choice for the arbitration clause? Is the designation of the arbitral seat an indication of such implied choice?

The United Kingdom Supreme Court addressed these questions twice in the past three years in Enka and Kabab-Ji. The court’s majority in Enka (Lord Hamblen, Lord Leggatt, and Lord Kerr) set out the following rules for determining the existence of parties’ choice of law in [170]:

iii) Whether the parties have agreed on a choice of law to govern the arbitration agreement is ascertained by construing the arbitration agreement and the contract containing it, as a whole, applying the rules of contractual interpretation of English law as the law of the forum.

iv) Where the law applicable to the arbitration agreement is not specified, a choice of governing law for the contract will generally apply to an arbitration agreement which forms part of the contract.

v) The choice of a different country as the seat of the arbitration is not, without more, sufficient to negate an inference that a choice of law to govern the contract was intended to apply to the arbitration agreement.

vi) Additional factors which may, however, negate such an inference and may in some cases imply that the arbitration agreement was intended to be governed by the law of the seat are: (a) any provision of the law of the seat which indicates that, where an arbitration is subject to that law, the arbitration agreement will also be treated as governed by that country’s law; or (b) the existence of a serious risk that, if governed by the same law as the main contract, the arbitration agreement would be ineffective. Either factor may be reinforced by circumstances indicating that the seat was deliberately chosen as a neutral forum for the arbitration.

vii) Where there is no express choice of law to govern the contract, a clause providing for arbitration in a particular place will not by itself justify an inference that the contract (or the arbitration agreement) is intended to be governed by the law of that place.

The court also clarified that the law of the seat is ‘generally’ the system of law most closely connected to the arbitration agreement.

Unsurprisingly, consultees said that these rules were complex and unpredictable. This has led the Law Commission to propose a reform of these rules in its second consultation paper.

The proposal has three key elements: 1) retaining express choice; 2) eliminating implied choice; and 3) specifying that the law of the seat applies in the absence of an express choice.

The proposed choice-of-law rule for arbitration agreements reads as follows:

6A Law applicable to arbitration agreement

(1) The law applicable to an arbitration agreement is—

(a) the law that the parties expressly agree applies to the arbitration agreement, or

(b) where no such agreement is made, the law of the seat of the arbitration in question.

(2) For the purposes of subsection (1), agreement between the parties that a particular law applies to an agreement of which the arbitration agreement forms a part does not, of itself, constitute express agreement that that law also applies to the arbitration agreement.

(3) This section does not apply in relation to an arbitration agreement that was entered into before the day on which section 1 of the Arbitration Act 2023 comes into force.

New Relationship between Courts and Arbitrators Regarding Jurisdictional Challenges

If a party participates in arbitral proceedings, raises a jurisdictional challenge before the tribunal, and is accorded a fair hearing, should they be allowed to challenge the tribunal’s jurisdiction before a court using the same arguments and evidence? The answer to this question is principally guided by two somewhat conflicting considerations: efficiency and freedom of contract (which, of course, includes a freedom not to be bound by a non-existent or invalid contract).

The UKSC addressed this issue in Dallah. Lord Mance wrote obiter in [26] that:

An arbitral tribunal’s decision as to the existence of its own jurisdiction cannot…bind a party who has not submitted the question of arbitrability to the tribunal. This leaves for consideration the nature of the exercise which a court should undertake where there has been no such submission and the court is asked to enforce an award. Domestically, there is no doubt that, whether or not a party’s challenge to the jurisdiction has been raised, argued and decided before the arbitrator, a party who has not submitted to the arbitrator’s jurisdiction is entitled to a full judicial determination on evidence of an issue of jurisdiction before the English court, on an application made in time for that purpose under s.67 of the Arbitration Act 1996.

Lord Collins and Lord Saville expressed similar views in, respectively, [96] and [159]-[160].

The Law Commission believes that such a de novo rehearing is inefficient and unfair to the party wishing to enforce the arbitration agreement. It proposes to limit when a participating party can raise a jurisdictional challenge before English courts.

Following a very controversial proposal in its first consultation paper, the Law Commission has settled on a proposal that has the following four key elements: 1) it covers situations where a party participates in arbitral proceedings, objects to the tribunal’s jurisdiction, and the tribunal rules on its jurisdiction; 2) the court will not entertain any new grounds of objection, or any new evidence, unless it was not reasonably possible to put them before the tribunal; 3) the court will re-hear evidence only if necessary in the interests of justice; and 4) these limitations are to be introduced through rules of court rather than the 1996 Act itself.

The proposed rules outlining this new relationship between courts and arbitrators regarding jurisdictional challenges, to be inserted in section 67, read as follows:

(3A) Rules of court about the procedure to be followed on an application under this section may, in particular, include provision within subsection (3B) in relation to a case where the application—

(a) relates to an objection as to the arbitral tribunal’s substantive jurisdiction on which the tribunal has already ruled, and

(b) is made by a party that took part in the arbitral proceedings.

(3B) Provision is within this subsection if it provides that—

(a) a ground for the objection that was not raised before the arbitral tribunal must not be raised before the court unless the applicant shows that, at the time the applicant took part in the proceedings, the applicant did not know and could not with reasonable diligence have discovered the ground;

(b) evidence that was not heard by the tribunal must not be heard by the court unless the applicant shows that, at the time the applicant took part in the proceedings, the applicant could not with reasonable diligence have put the evidence before the tribunal;

(c) evidence that was heard by the tribunal must not be re-heard by the court, unless the court considers it necessary in the interests of justice.

EAPIL Blog Symposium on the Law Governing Arbitration Agreements

From 11 to 13 September 2023, the EAPIL blog will host an online symposium on the law governing arbitration agreements. The focus will be on assessing the Law Commission’s proposal and providing a comparative perspective. Professor Alex Mills (UCL) and Dr Manuel Penades Fons (KCL) will kick off the discussion by assessing the proposed choice-of-law rule for arbitration agreements from a UK perspective on Monday 11 September 2023. More contributions from comparative perspectives will follow on Tuesday and Wednesday.

Readers are encouraged to participate in the discussion by commenting on the posts. Those wishing to submit longer analyses on the law governing arbitration agreements, the relationship between courts and arbitrators, or any other issue relating to the Law Commission’s final report are invited to do so by e-mailing Ugljesa Grusic (u.grusic@ucl.ac.uk).

The editorial team of the EAPIL blog has just become a bit larger! Ugljesa Grusic, an Associate Professor at the Faculty of Laws of UCL, has kindly accepted to join our invitation: thanks a lot, Ugljesa, and welcome!

Please check out Ugljesa’s first post here.

It’s a rather special first post, as it announces an on-line symposium, edited by Ugljesa himself, that will run from Monday to Wednesday next week, on the law applicable to arbitration agreements in light of the recent proposals of the English Law Commission.

The Court of Justice delivered on 13 July 2023 its judgement in case C‑87/22 (TT v AK), which is about the interpretation of Article 15 Brussels II bis:

“1. Article 15 of Council Regulation (EC) No 2201/2003 […] must be interpreted as meaning that the court of a Member State, which has jurisdiction to rule on the substance of a case on the matter of parental responsibility under Article 10 of that regulation, may exceptionally request the transfer of that case, provided for by Article 15(1)(b) of the regulation, to a court of the Member State to which the child has been wrongfully removed by one of his or her parents.

2. Article 15(1) of Regulation No 2201/2003 must be interpreted as meaning that the only conditions to which the possibility for the court of a Member State with jurisdiction as to the substance of a case in matters of parental responsibility to request that that case be transferred to a court of another Member State is subject are those expressly set out in that provision. When examining those conditions in respect of, first, the existence in the latter Member State of a court better placed to hear the case and, second, the best interests of the child, the court of the first Member State must take into consideration the existence of proceedings for the return of that child which have been instituted pursuant to the first paragraph and point (f) of the third paragraph of Article 8 of the [1980 Hague] Convention on the Civil Aspects of International Child Abduction […] and in which a final decision has not yet been delivered in the Member State to which that child was wrongfully removed by one of his or her parents”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=275389&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=4466841

CEPD / Parlement et Conseil
Droit institutionnel
Le recours du Contrôleur européen de la protection des données (CEPD) contre le règlement Europol modifié est irrecevable

Tim Wöffen (University of Osnabrück) kindly made us aware of the Proposal for a Directive on European cross-border associations, adopted on 5 September by the Commission. The proposal aims to facilitate cross-border activities of non-profit associations in the EU and to improve the functioning of the Internal Market by removing legal and administrative barriers for non-profit associations that operate or wish to operate in more than one Member State. With regard to private international law, Articles 4 and 22 et seq seem particularly relevant. The public is invited to give their comments until November 1st.

Tim offers some initial thoughts (in German) here.

 

ZVglRWiss 122 (2023) no. 3 A Symposium in Liechtenstein on Comparative and Private International Law Aspects of Crypto Currencies and Assets

The most recent issue of the German Journal of Comparative Law (Zeitschrift für Vergleichende Rechtswissenschaft, ZVglRWiss) features various contributions to a comparative law symposium that was held at the Private University in the Principality of Liechtenstein (UFL) in autumn 2022. The topic consisted of legal aspects of crypto currencies and assets, with a particular focus on comparative law and private international law. Here are the articles’ German titles and their English abstracts:

 

Kryptowerte als Herausforderung für Rechtsbefolgung und Rechtsdurchsetzung

Erstes rechtsvergleichendes Symposion an der Privaten Universität im Fürstentum Liechtenstein

Heribert Anzinger und Gerhard Dannecker

ZVglRWiss 122 (2023) 243–251

A short introduction into the symposium’s subject.

 

Phänomenologie und zivilrechtliche Einordnung von Kryptowährungen und anderen Kryptowerten

Dörte Poelzig und Moritz Kläsener

ZVglRWiss 122 (2023) 252–268

Crypto assets have been the subject of lively discussion in German civil law literature for several years now. However, no comprehensive regulation has been enacted to date. Thus, the question remains as to how the various manifestations of crypto assets are to be classified under civil law, and what consequences this has, in particular, for legal protection and the manner of disposal. This question naturally concerns not only the German, but also the other European legislators. This article is concerned with the legal discussion in Liechtenstein, Switzerland, and Austria, meaning that its focus lies on legal systems that show a certain proximity to German law. Nevertheless, the article also takes a look at the less closely related English legal system. The solutions that were found in these legal systems will be presented here and compared with the German approaches in literature and legislation.

 

Kryptowerte als Herausforderung für Rechtsbefolgung und Rechtsdurchsetzung

Matthias Lehmann

ZVglRWiss 122 (2023) 269–288

This paper compares emerging conflict-of-laws rules designed to determine the law applicable to digital assets, such as Bitcoin, Ether or stablecoins. Such rules have been developed in the U.S., England, Germany, Switzerland and Liechtenstein; in addition, UNIDROIT has recently drafted a Principle on the question. The article gives an overview of the different rules and tries to distill an “ideal” rule from them. The result could, for example, serve as inspiration for the German legislator or for the joint project of UNIDROITand the Hague Conference on Private International Law.

 

Kryptowerte als Tatertrag, Tatmittel, Tatobjekt und Tatprodukt

Jonas Stürmer

ZVglRWiss 122 (2023) 289–303

Crypto assets continue to be particularly popular with criminals and play a major role in various crimes. Although this also regularly poses practical difficulties for law enforcement authorities, it sometimes also offers opportunities for investigations. The particularly practice-relevant confiscation according to sections 73 onwards of the German Criminal Code as well as provisional preservation, on the other hand, are legally possible; here, too, practical challenges occur.

 

Rechtsbefolgung und Rechtsdurchsetzung bei Kryptowerten im Steuerrecht

Daniela Hohenwarter-Mayr und Christina Mittermayer

ZVglRWiss 122 (2023) 304–337

The increase in popularity of alternative means of payment is bringing crypto assets closer to the focus of tax law. Due to their characteristics and various functionalities the proper taxation of income from cryptocurrencies is however a challenge. In addition to substantive law hurdles also the efficiency of tax enforcement is not ensured. Austria addresses these difficulties by incorporating cryptocurrencies into the taxation scheme for capital assets and the deduction of a withholding tax. This paper deals with the Austrian approach from a comparative law perspective, its constitutional implications and the need for an accompanying international exchange of information.

 

Kryptowerte und der Datenschutz

Jörn Erbguth

ZVglRWiss 122 (2023) 338–355

Blockchains have a complex relation to data protection. On the one hand, they are subject to criticism due to distributed responsibility and immutability – on the other hand, they can empower individuals and protect privacy better than centralized approaches through privacy enhancing technology. However, in the field of crypto asset trading, upcoming financial market regulations, e.g. the MiCA regulation, prohibit the use of anonymization features and facilitate the identification of transactions written on public blockchains with transaction parties. The paper discusses the compliance of crypto asset trading with the GDPR.

 

Kryptowerte als Herausforderung für staatliche Regulierung

Ergebnise und Forschungsperspektiven des Ersten rechtsvergleichenden Symposions an der Privaten Universität im Fürstentum Liechtenstein

Tina Ehrke-Rabel

ZVglRWiss 122 (2023) 356–360

A short summary of the symposium’s main results and further perspectives for research.

WS e.a. / Frontex
Droit institutionnel
Operations de retour : le recours en indemnité de plusieurs réfugiés syriens contre Frontex après leur refoulement de la Grèce vers la Turquie est rejeté

Pumpyanskiy / Conseil
Relations extérieures
Guerre en Ukraine : le Tribunal rejette les recours de M. Dmitry Alexandrovich Pumpyanskiy et de Mme Galina Evgenyevna Pumpyanskaya contre les mesures restrictives adoptées par le Conseil

The Hague Academy of International Law has made known the programme of the winter course on International Law of 2024.

The course will be opened by Yves Daudet (Hague Academy of International Law) with a lecture on Solidarity in International Law.

The general course, titled On the Interface between Public and Private International Law, will be given by Campbell Mclachlan KC (Victoria University of Wellington).

The special courses will be as follows: Ximena Fuentes (University of Chile), Defying Existing International Law as the Starting Point of the Formation of New Customary Law; Patrícia Galvão Teles (Autonomous University of Lisbon) The Advisory Function of International Courts and Tribunals; Maria Gavouneli (National and Kapodistrian University of Athens) Energy in International Law; August Reinisch (University of Vienna) The Settlement of Disputes Involving International Organizations; Ben Saul (University of Sydney) The Special Regime of International Counter-Terrorism Law; Santiago Villalpando (Office of United Nations Educational, Scientific and Cultural Organization – UNESCO) The Practice of the Law of Treaties since the Vienna Convention.

The directors of studies will be Fuad Zarbiyev (Geneva Graduate Institute) for the English-speaking section, and Paula Wojcikiewicz Almeida (Getulio Varga Foundation Law School in Rio de Janeiro) for the French-speaking session.

All applicants are required to register online. A limited amount of scholarships is available. Registration period for full fee applicants is between 1 May 2023 and 1 October 2023. Selected attendees of the Winter Courses will also be able to participate in the doctoral networking sessions coordinated by Daniëlla Dam-de Jong (Leiden University), additional afternoon lectures, embassy visits, social activities,  and to register for an exceptional event: the “Hours of Crisis“ Simulation Exercise. The competition will be conducted in English only.

More information on the Academy’s programmes may be found here.

Udlændinge- og Integrationsministeriet (Perte de la nationalité danoise)
Citoyenneté européenne
Le Danemark peut faire dépendre le maintien de la nationalité danoise de l’existence d’un lien de rattachement effectif avec ce pays

Parlement / Commission (Exemption de visa pour les ressortissants des États-Unis)
Espace de liberté, sécurité et justice
La Commission n’était pas tenue de suspendre l’exemption de l’obligation de visa pour les ressortissants des États-Unis en raison d’un manque de réciprocité en la matière

The eleventh edition of the treatise on Droit international privé in the Précis Dalloz series, one of the leading texts on private international law in France, has recently been published (January 2023, 1100 pages).

The previous edition was published ten years ago. The new, fully revised edition has been prepared by Pascal de Vareilles-Sommières (Sorbonne Law school, Paris I University), who was the co-author of the previous editions (alongside the late Yvon Loussouarn and Pierre Bourel), and Sarah Laval (Littoral Côte d’Opale University).

The first part, titled “Common rules governing private international law” (Règles générales de droit international privé), focuses on the general theory of private international law, and adopts an original distinction between “identification of the legal source” (i.e. in the three fields of choice of law, jurisdiction and judgments) and “regime of the foreign norm” (i.e. the regime of the international regularity (or lawfulness) of the foreign norm – law and judgment – and then the regime of the implementation of the foreign norm).

The second part, titled “Special rules governing private international law” (Droit international privé special), is concerned with the special rules applicable in the different fields of private law (i.e. persons, family, property, obligations, businesses). Another sign of originality here is that each of the areas presented contains a preliminary development on the “policy of building connecting factors”.

While the treatise’s foreword is insightful and conceived as a “user’s guide”, I thought it would be interesting to directly ask the two authors about some specific features of this revised edition. They kindly agreed to answer some questions for the readers of the EAPIL blog and I thank them very warmly.

– This treatise takes, in your own words, a “neo-Savignian” approach to private international law. What does this mean?

On the one hand, a neo-Savignian approach to PIL focuses, like under the traditional Savignian approach, on the links between a given legal relationship and a particular country, in order to sort out, in favour of this country, the choice-of-law/choice-of-court issues (including issues related with jurisdiction of foreign courts, in case of a dispute over a foreign judgment dealing with the case) arising out of said relationship. Like Savigny, a neo-Savignian advocate believes that one of these links (or one set of links among them) justifies better than others the precedence of the concerned country as to ruling the relationship at stake through its law or its courts. This creed relies on the idea that the authority of a ruler varies depending on the strength of its links with the governed subject.

When enacting a choice-of-law (or choice-of-court) rule, a lawmaker who follows a neo-Savignian approach picks up the link (or set of links) which, in his opinion, is the most relevant for the kind of relationship covered by the created rule – and which appears to him as showing the “seat” (like Savigny used to say) of the legal relationship in a particular country. This link will therefore become the connecting factor in the choice-of-law rule (or the jurisdictional basis in the choice-of-court rule – including, here again, the jurisdictional standards applied to foreign courts, as provided by the foreign judgment regime) covering the legal relationship at stake. And this “seat country” will consequently have (at least in principle) its law and/or the judgments rendered by its courts enforced, for said legal relationship, by the forum (viz, the country whose choice-of-law/choice-of-court rules apply, assuming that the dispute is brought before that country’s courts).

But on the other hand (and conversely to the Savignian approach), our neo-Savignian approach promotes the idea that legal relationships between private persons in an international setting do not necessarily have only one seat in one country – whose law and courts would thus govern this relationship –, but may well have (and actually often have) several “anchors” or relevant connections to different countries, each of whom being a possible seat or “anchorage”. Two important consequences stem from this: (i) in a given case, the seat relevant for adjudicating the dispute may well prove different from the seat relevant for legislating over it; (ii) moreover, since one must think contemporary choice-of-law and choice-of-court rules (including, as aforementioned, those governing foreign judgments) in terms of domestic rather than international sources (at least in principle), the seat of a given relationship may well vary from country to country.

All this shows that, in our early XXI century, reasoning (as used to do Savigny) in terms of “one seat in one country for one kind of relationship” – at least each time this relationship appears in an international setting – is a bit misleading since it does not correspond to the truth of law as it is experienced by the parties. Our neo-Savignian doctrine admits the possibility of plural seats for a given legal relationship and addresses this occurrence through a set of choice-of-law and choice-of-courts rules which are inspired by Savigny’s thought (search of the most relevant links), as adapted to fit the contemporary legal landscape for private law applying in an international context (plurality of relevant fora enacting varied choice of law and choice of court rules). Accordingly, in a given country, the conflict between the countries (taken as lawmakers or as judgment-makers for the case at stake) with which a legal situation is linked, will be won by the one that has the most relevant relationship with the situation, this relevance being determined by a series of private and public considerations.

Far from being merely neutral, the choice-of-law rules appear as the result of a certain policy implemented by the authors of these rules (the “choice-of-law policy”, distinct from the “substantive policy” enacted by the substantive law chosen as applicable and relevant when it comes to sorting out the substantive issue). The same is true, mutatis mutandis, for the choice-of-court rules.

The neo-Savignian approach also repudiates two popular postulates: (i) the postulate according to which countries are not affected by the solution of conflict of laws (since at a minimum, the authority of the sovereign country, taken as a ruler, vis-à-vis the parties to the legal relationship is at stake when sorting out a choice-of-law/choice-of-court issue); and (ii) also the postulate according to which, in a given case, the applicable law and the jurisdiction of courts are basically disconnected from one another; on the contrary, they are both seen as one side of the exercise of one countries’ power to make “law” (broadly speaking: either by enacting a bill, or by rendering a judgment). The originality of the neo-Savignian approach therefore also lies in a sort of presumption that the country whose courts have jurisdiction over a case often ought to be (and actually, quite naturally) the country whose law governs the relationship (jurisdiction of the forum legis).

– Could you concretely illustrate this neo-Savignian approach?

Let us take one example of a multiple-seat private law relationship; it will be provided by the family chapter of PIL, and more especially, the filiation issue (relation of child to father).

Under French law, the choice-of-law rule points to a country as being the correct lawmaker for filiation where it turns out that the child’s mother has the nationality of that country (C. civ., Article 311-14); whereas the jurisdiction rule points to France as being the correct judgment-maker for filiation where the defendant (often the suspected father) is domiciled in France (CPC, Article 42), or, in case he is not, where he is a French citizen (C. civ., Article 15), or even, as a minimum, where the claimant (the child in a filiation proceeding) is a French citizen (C. civ., Article 14). These rules show that French substantive law on filiation will apply before French courts in a dispute brought before French courts each time that (i) the suspected father is domiciled in France, or at least that he, or the child, has French nationality (so that French courts have jurisdiction); and (ii) the mother is French (so that French substantive law governs the case). In such a case, France gets a plenary power to provide for a substantive regime (both through legislature and through court) for the filiation. The seat of the relation of child to father (at least from the French viewpoint) is located in France, both with respect to the substantive law governing the case and to the court having the final word in the dispute.

Let us assume now that the man is Italian, and the child is a US citizen (since he was born within the US territory, where one assumes also here that his French mother lives with him). In that case, Italian courts claim jurisdiction over the case (Italian Act No 218, 1995, Article 37). Assuming that the claimant brings the dispute against the suspected father before Italian courts, these courts should assert jurisdiction on the filiation issue, since for Italy, the judicial seat of the case is in Italy. As to the legislative seat, it will be provided by the Italian choice-of-law rule, under which the law governing filiation is the law of the country of origin (nationality) of the child (Italian Act No 218, 1995, Article 33), here the law of the relevant US state. Hence the Italian court will not apply the French law, even though the child’s mother is French (and notwithstanding the French choice-of-law rule claiming applicability of French law for that reason).

Typically, under our neo-Savignian approach, the filiation proceeding covers a relation that has not one seat in onecountry, but at least three seats in three countries (France, Italy and the United States), and parties to this relationship should be aware of this data when wondering what is the content of the legal regime governing the substantive issues arising out of their case. One should add here that the country where the filiation proceeding is brought would be well advised not to forget this plural-seat data when it comes to addressing the legal issues arising out of this dispute. It is probably so for France, if recognition of enforcement of the Italian judgment is sought there: even though the French choice-of-law rule claims French substantive law being applicable to the filiation issue (since the mother is French), the foreign judgment regime as set up by French case-law does not rule out the Italian judgment for the mere reason that the Italian court did not enforce French law (but rather the law of the relevant state in the USA).

– The formal presentation of private international law solutions in the treatise is inspired by a “trans-systemic/transnational” pedagogy. The aim is to go beyond the particularistic (i.e., French-oriented) approach to the discipline. Could you elaborate on that?

This presentation divides each PIL development into two parts. The first part is more about rhetoric; it sets the problematics, the principles and the interests at stake for each topic, it lists the different considerations that shall be taken into consideration to solve the choice-of-law/choice-of-court issues, and it suggests a solution according to the neo-Savignian approach. These rhetoric parts are not too deeply invaded by legal data from one particular country or another. Accordingly, at that stage, the book rather sticks to a universalist view of PIL.

The second part of the developments on each issue is a presentation of the rules as they exist in some jurisdictions, would these rules stick to the solutions exposed in the first part or would they differ from them. In this second part, the rules are not only French rules, but European and International (Hague Conventions in particular) rules as well. The purpose of this transnational presentation is to depart from a purely French point of view as well as to understand the extent to which French Law solutions are similar to European and International Law solutions. The outcome of this presentation is that, contrarily to other handbooks on the libraries’ shelves, this recast edition is not merely a book on French PIL, but rather a book on PIL as it is conceived and applied by France, by the European Union and by the international community through international conventions (mainly Hague conventions from the Hague Conference for PIL).

The (private international) law of choice-of-court agreements provides us with a good example of this methodology. In the rhetoric part of the presentation on this issue, the book draws on (i) the relation between the lawfulness of choice-of-court agreements and the question whether the jurisdiction rule is binding or non-binding in law, for the parties; and (ii) the considerations influencing the decision whether such a rule ought to be binding in law or not for the parties. Then, in a series of developments on law as it is in force in some jurisdictions, a quick presentation is made regarding French law, EU law (Brussels I bis Regulation) and the Hague convention on choice of court agreements.

– How do you “present” and “represent” in the treatise the Europeanisation of private international law and, ultimately, EU private international law?

To make a long story short, one can say that there are two possible paths that one can follow in order to present the EU as a lawmaker in the field of PIL.

On the one hand, the traditional way tends to look at the EU from the classical public international law viewpoint. EU member-states are sovereign States bound by an international treaty (Treaty of Rome, 1957 – which was ultimately renamed the Treaty on the Functioning of the European Union by the Treaty of Lisbon, 2007). From that standpoint, EU PIL is fostered by EU institutions and comes into force in the EU member-states through an international treaty. It is on that basis that it becomes part of the law of each member-state and it ought to work as such.

On the other hand, a more unusual analysis of the EU is to see this entity as a political entity having some features of a sovereign State (nevertheless not all of them, so that it cannot claim being a State from the international law standpoint, but, at a maximum, it may qualify as what is sometimes called a “proto-state”). As such, EU PIL in a member-state differentiates from domestic PIL of this member-state, with some consequences like one in the field of characterization, where, for a member-state court, resorting to domestic definitions for interpreting EU legal categories as used in EU PIL regulations is not appropriate (at least in principle). Similarly, the proto-state notion proves useful for the correct understanding of the function of EU PIL, compared to member-state PIL of domestic origin. This last one may be seen as a tool for fixing the ambit of legislative or judiciary action of a member-state. The first one is seen in the book as delineating the outskirts of each member-state’s private law (as made by a legislature or by a court), whether with regards to each other, or even with regards to non-member-states. It may well be used also as a tool for delineating the outskirts of EU private law where it exists, as the case may be. And finally, the proto-state notion is useful to understand another influence of EU law on EU member-state PIL having a domestic origin: to the extent that EU may be seen as a “proto-federal State”, the interference of EU freedom of persons (Article 21 TFEU) on the law of EU member-states, including PIL of domestic origin, appears as one regarding the lawfulness of the legal provisions composing this domestic law.

One must add that the European influence on the PIL of European countries is not limited to EU law, but may come from other organizations or instruments as well, like the Council of Europe. This international organization is much less integrated than the European Union, and for this reason the book does not see it as a proto-state. But of course, this does not prevent us from scrutinizing the possible incidence of the Council of Europe law (and especially the ECHR case-law) on EU (and EU member-state) PIL, particularly through the reshaping of the public policy defence.

– Could you concretely illustrate your “proto-state” approach of EU PIL?

Article 4.1 of Rome II Regulation and Articles 4, 7, and 45 of the Brussels I bis Regulation read as follows, through the proto-State notion as applied to the European Union:

In principle, under Article 4.1 of Rome II regulation, the EU grants (or recognizes) jurisdiction to legislate in matter of non-contractual obligation to any member-state having sovereignty on the territory where the damage occurs. The same jurisdiction to legislate is recognized in principle by EU PIL to any non-EU country exercising sovereignty on this territory. EU member-states are granted jurisdiction to adjudicate a case in non-contractual obligations under the Brussels I.a regulation (article 4 and 7); but countries having rendered a judgment in this subject matter may be seen as providing a regular ground to their judgment, even though they are not a country selected by these articles, and this is so whether they are (i) an EU member-state (since the origin of the EU member-state judgment is not controlled under article 45.3 of Brussels I.a regulation); or (ii) a non-EU country (since EU PIL does not cover recognition and enforcement of non-EU country judgments).

– For the benefit of the private international law community, what are the two or three major issues which, in your book, seem to you to be at the heart of the reflections to be conducted for the private international law of the future? 

The first issue could be a potential harmonization between the answer to the two questions of (i) which law prevails? and (ii) which court has jurisdiction? In France, scholars usually have strong opinions on the separation between these two fields and stick to the postulate that their regulation relies on distinct considerations: whereas the court that has jurisdiction appears to be chosen after purely procedural considerations, the choice of law is usually determined by non-procedural considerations, since the choice-of-law issue may arise outside any proceedings. This presentation neglects the idea that choosing a country’s court instead of another one is not neutral with respect to the outcome of the proceeding and eventually has a strong influence on the solution of the dispute. Therefore, a country exercising a legislative power also has an interest in exercising its judicial power. Taking these elements into consideration might be a good opportunity to review the choice-of-court rules and see to what extent they stick – or could stick – to this approach.

A second issue is about the leeway available to a court when it comes to exercising its jurisdiction over a case presenting relevant links with court’s country. Since the claimant holds a strong sway on the outcome of the proceeding – through the choice of the forum where the dispute is brought –, any country ought to provide its courts with the power to give up the exercise of its jurisdiction over the dispute, each time it turns out that the claimant would have an excessive advantage in suing the defendant before the court of one of the countries whose links with the case are sufficient to trigger its jurisdiction to adjudicate.

A third issue could be the digitalization of international private relations. This digitalization emphasizes the opportunity to depart from a reasoning in terms of mere localization of facts and urges the need to adopt a reasoning in terms of policy advocated for by the choice-of-law/choice-of-court legislature. For these relations, the determination of the applicable law or of the court that has jurisdiction cannot be the result of a search for a country where the facts take place (it is submitted that this country really does not exist), but the result of the comparison between the different public and private interests at stake. Eventually, the relationship arising in a digitalized context has its seat in the country with the most relevant links to it – relevance being here the outcome of an analysis and weighing of the competing interests that one can find, for a country, to be recognized as a ruler (through its laws or courts) for said relationship, and, for the parties to said relationship, that this country be recognized as governing it.

Marion Ho-Dac and Cécile Pellegrini (both Lyon Catholic University) are hosting a conference at Lyon Catholic University on Friday 29 September 2023 on the occasion of the launch of their book “Governance of Artificial Intelligence in the European Union What Place for Consumer Protection?”.

The book tackles the interplay between Artificial Intelligence (AI) governance and consumer protection on the European Union (EU) market. An in-depth analysis of the existing and future EU legal framework is conducted in order to assess its capacity to meet the challenges posed by AI. The effectiveness of consumer rights, and more widely of fundamental rights, in the digital single market calls for a regulatory ecosystem that fosters trust and therefore, upstream, transparency and explainability of AI systems. Hence, the book explores different normative paths – from hard law to standardization – as well as monitoring and supervision tools – from ethics to media literacy – that could progressively lead to an inclusive and comprehensive EU governance structure for AI. Several book’s chapters highlight the complexity of balancing conflicting interests such as the protection of consumers against the adverse impacts of AI, supporting AI development and technological innovation and putting AI at the service of empowered consumers. Ultimately, the book offers important insights into thinking about tomorrow’s digital consumer in EU law, inviting a rethinking of European policy boundaries and related legal regimes.

The full programme for the event can be found here.