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April 2020 opened at the Court of Justice with the publication of two AG’s opinions, as announced: AG Saugmandsgaard Øe‘s on case C-186/19 (so far, not available in English), and AG Campos Sánchez-Bordonas’ on case C- 343/19 (press release here). The latter have already been widely reported in the news (see for instance here, here or here).

The next reading of an Opinion – this one by AG Szpunar –
will take place on 26 April 2020, and will concern case C-73/19, Movic. The question, referred by the Hof van beroep te Antwerpen, is once more about the meaning of the expression “civil and commercial matters” for the purposes of the Brussels I bis Regulation.

Is an action concerning a claim aimed at determining and stopping infringing market practices and/or commercial practices towards consumers, instituted by the Belgian Government in respect of Dutch companies which from the Netherlands, via websites, focus on a mainly Belgian clientele for the resale of tickets for events taking place in Belgium, pursuant to Article 14 of the … Law of 30 July 2013 regarding the sale of admission tickets to events … and pursuant to Article XVII.7 WER, a civil or commercial matter within the meaning of Article 1(1) of the [Brussels I bis Regulation], and can a judicial decision in such a case, for that reason, fall within the scope of that Regulation?

No need to say that, whatever the answer, it will have far-reaching consequences for collective actions.

AG Szpunar’s Opinion on case C-253/19, Novo Banco, is expected one week later. Here, the Tribunal da Relação de Guimarães is asking about the new Insolvency Regulation.

Under Regulation (EU) 2015/848 of the European Parliament and of the Council, do the courts of a Member State have jurisdiction to open main insolvency proceedings in respect of a citizen whose sole immovable asset is located in that State, while he, along with his family unit, is habitually resident in another Member State where he is in paid employment?

No judgments dealing with issues of private international law are scheduled. Hearings listed until 30 April 2020 are adjourned until a later date.

Dear CoL Readers,

You will have experienced a few irregularities during the last week: Some posts had disappeared for a few days and were then re-posted and, as such, sent out again. This was due to the transfer of CoL to our new server which is now completed. In this process, we also worked over the mailing list and removed some old email addresses that appeared to us as defunct. Now everything should be fine. Nevertheless, please take a few seconds to check whether you still get our daily email with the latest blog entries. If not, just register anew for our newsletter, if you like, or contact us.

We will keep you posted on the most intriguing matters of the Conflict of Laws from all over the world …

Happy reading! Thalia and Matthias

Le 4 mars 2020, la cour d’appel de Paris a confirmé le jugement déclarant les époux Balkany coupables de fraude fiscale, au titre des années 2009 à 2015. Elle a toutefois infirmé ce jugement s’agissant de la peine d’emprisonnement de quatre ans d’emprisonnement prononcée à l’égard du prévenu en l’assortissant d’un sursis d’une année et s’est singularisée en ne décernant pas contre lui de mandat de dépôt. Par cet arrêt, devenu définitif en l’absence de pourvoi formé par les condamnés, la cour d’appel met ainsi fin à cette première affaire.

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On 1 April 2020, the UK Supreme Court ruled in Whittington Hospital NHS Trust v XX on the fascinating issue of whether damages for funding foreign surrogacy could be considered as an appropriate remedy in a tort action.

The plaintiff in this case was a woman who lost the ability to bear a child as a consequence of a medical negligence by an hospital which admitted liability.

The dispute was thus concerned with the assessment of the damages that the plaintiff could receive. The calculation obviously depended on how the woman intended to put herself in a position as she would have been if she had not sustained the wrong.

The remarkable claims of the victim

In this respect, the woman made a number of remarkable claims which, it seems, were accepted without debate by the court: (i) as both her and her partner came from large families, she would want to have four children; and (ii) she would want to have those children through surrogacy. It is unclear whether adoption was considered at any point of the proceedings.

I will not comment here on the fact that it seems that the claimant could seek compensation for as many children as she wanted to (the judgment underscores that her sister had 10, so maybe that was the limit). But one wonders whether the choice of the plaintiff for surrogacy was disputed. One alternative remedy would obviously be adoption. In many countries, one would be legal, while the other would not be, but this is not the case in England. Yet, there is a duty to mitigate loss in the English law of torts, and the duty means that while the plaintiff may choose the most expensive remedy to make good her loss, she may not charge it to the defendant (Darbishire v. Warran, 1963). But maybe adoption is actually more expensive than surrogacy.

The debate focused on a third claim: the claimant would prefer to use commercial surrogacy arrangements in California; but if this would not be funded (i.e. through the damages awarded by the court), she would use non-commercial arrangements in the United Kingdom.

The reason why the claimant feared that her preference for commercial surrogacy might well be denied funding was that the Court of Appeal had ruled in Briody v St Helen’s and Knowsley Area Health Authority that commercial surrogacy in California was contrary to public policy. The Court of Appeal had also ruled in Briody that only surrogacy with the claimant’s own eggs would be restorative.

The first instance judge thus ruled that commercial surrogacy would not be funded, and that, given that the claimant could probably have only two children using her eggs, only two non commercial surrogacies in the UK could be funded, for £ 37,000 each.

Judgment of the Supreme Court

The Supreme Court overruled Briody on both accounts. Lady Hale ruled for the majority that awards of damages for foreign commercial surrogacy are no longer contrary to public policy, and that no distinction should be made based on the origin of the eggs.

From the Press Summary of the Court:

UK courts will not enforce a foreign contract if it would be contrary to public policy. But most items in the bill for a surrogacy in California could also be claimed if it occurred here. In addition, damages would be awarded to the claimant, the commissioning parent, and it is not against UK law for such a person to do the acts prohibited by section 2(1) of the 1985 Act. Added to that are developments since Briody: the courts have striven to recognise the relationships created by surrogacy; government policy now supports it; assisted reproduction has become widespread and socially acceptable; and the Law Commissions have proposed a surrogacy pathway which, if accepted, would enable the child to be recognised as the commissioning parents’ child from birth. Awards of damages for foreign commercial surrogacy are therefore no longer contrary to public policy. However, there are important factors limiting the availability and extent of such awards: both the treatment programme and the costs involved must be reasonable; and it must be reasonable for the claimant to seek the foreign commercial arrangements proposed rather than to make arrangements within the UK; this is unlikely to be reasonable unless the foreign country has a well-established system in which the interests of all involved, including the child, are properly safeguarded [49-54].

Lord Carnwath’s dissenting judgment differs from the majority on [this] issue only. In his view, while this case is not concerned with illegality, there is a broader principle of legal coherence, which aims to preserve consistency between civil and criminal law. It would go against that principle for civil courts to award damages based on conduct which, if undertaken in the UK, would offend its criminal law. Society’s approach to surrogacy has developed, but there has been no change in the critical laws on commercial surrogacy which led to the refusal in Briody of damages on that basis. It would not be consistent with legal coherence to allow damages to be awarded on a different basis [55-68].

So, it seems that the claimant was entitled to choose commercial foreign surrogacy over UK non commercial surrogacy.

But then this begs an obvious question: how can you possibly justify that she charges the defendant with her costly preferences? Unfortunately, it will take another case to know, it seems. Lady Hale concluded her judgment by stating:

Third, the costs involved must be reasonable. This too has not been put in issue in this case, which has been argued as a matter of principle, but it should certainly not be taken for granted that a court would always sanction the sorts of sums of money which have been claimed here.

A free webinar to hear experts of MK Family Law (Washington) and Grotius Chambers (The Hague) discuss pertinent issues relating to international child abduction in times of COVID-19. 

Date: 8 April 2020
Time: 3 pm (CET Amsterdam)

COVID-19 has a significant impact on all aspects of our lives. Since the WHO declared the outbreak a pandemic, numerous States have implemented travel bans in an attempt to contain its spread. Moreover, States have closed courts and adjourned or even cancelled hearings.

Such restrictions cause direct impacts on transnational families. They may hinder, in particular, the prompt return of children in cases of international child abduction. Parents may encounter difficulties in commencing proceedings before the competent authorities, as well as complying with an agreement or return order.

Melissa Kucinski of MK Family Law and Janaina Albuquerque Azevedo Gomes, Expert in international Child Abduction law, will consider what the current situation may mean for parents. A particular focus will be the prompt return of children under the 1980 HCCH Child Abduction Convention.

Registrations are now open and the Eventbrite Registration Form can be found here.

Registration is required to receive the webinar login credentials. For further information, please contact info@grotiuschambers.com. 

Many thanks again María Barral for continuing her updates on C-186/19 Supreme v Shape; see her summary of Thursday’s opinion of the AG below. I just wanted to add two things.

Firstly, the AG’s suggestion that in spite of the intervening Court of Appeal judgment which would seem to make the CJEU case nugatory, the case should continue for against the appeal’s court decision, a further appeal is underway with the Supreme Court.

Second, at 93 etc. the AG advises that the immunity or not of the defendant, bears no relevance to the scope of application of BIa for it does not feature in the concept of ‘civil and commercial’ as developed by the Court.

That in my view is at odds with the CJEU’s very statement in Eurocontrol, at 4: the Court’s seminal judgment on civil and commercial itself in so many words links the scope of application to the practicality of recognition: in Eurocontrol the CJEU interprets ‘civil and commercial’ ‘in particular for the purpose of applying the provisions of Title III of the Convention‘: there is little use bringing issues within the scope of the Convention and now BIa, if ab initio there is no prospect of recognition and enforcement.

In other words I am not at all sure the Court will follow the AG on that part of the analysis. I should emphasise this is my view: María’s review independent of that follows below.

Geert.

 

Immunity does not impact jurisdiction based on Regulation Brussels I bis, AG Saugmandsgaard Øe dixit

María Barral Martínez

Following up on the previous posts (see here and here) discussing the contractual dispute between Supreme site Services v. SHAPE, today’s post addresses  the Opinion of Advocate General Saugmandsgaard Øe in C-186/19 Supreme v Shape.

While the questions posed by the referring court concerned the interpretation of articles 1(1) and 24(5) Brussels Ia, ‘at the CJEU’s request’ (5) limits his analysis to Article 1(1).

In a nutshell, the analysis in his Opinion is twofold: on the one hand, he examines whether the action brought by SHAPE – an international organisation- seeking the lift of an interim garnishee order falls within the meaning of “civil and commercial matters” laid down in article 1(1) of the Brussels I bis Regulation. On the other hand, he analyses whether the fact that SHAPE had invoked its immunity from execution in the interim relief proceedings has any significance on the above evaluation.

In tackling the first prong of his analysis, AG Saugmandsgaard Øe recalls the public hearing held at the CJEU back in December 2019. There, the focus was put on how the  “civil and commercial” nature of the interim relief measures sought by SHAPE is to be assessed – in the light of the features of the proceedings on the merits, based exclusively on the interim relief proceedings or only in relation to the nature of the rights the interim measures intend to safeguard matters. AG Saugmandsgaard Øe rejects the first two alternatives and follows the thesis supported by the Governments of The Netherlands and Belgium and by the European Commission: in line with the judgments de Cavel I and de Cavel II, the nature of the rights whose recognition is sought in the proceedings on the merits and whose protection is the purpose of the interim or protective measures sought is decisive. (Point 46 and 51)

Furthermore, AG conducts a thorough analysis on the immunities recognised under Public International Law vis-à-vis the application of Brussels Ia. He argues that to determine whether a dispute should be excluded from the scope of BIa on the grounds that it concerns “acts or … omissions in the exercise of State authority” – A1(1) in fine-, it is necessary to assess whether the action is based on a right which has its source in acta iure imperii or in a legal relationship defined by an exercise of State authority. (at 90)

On that basis, he concludes that an action for interim measures such as the one in the present case, seeking the lift of a garnishee order, must be regarded as “civil and commercial” in so far as the garnishee order was aimed to safeguard a right arising from a contractual legal relationship which is not determined by an exercise of State authority. (at 104)

Finally, AG Saugmandsgaard Øe posits that the fact that an international organization as SHAPE has invoked immunity from execution, has no bearing in the assessment of the material application of Brussels Ia. What’s more, it cannot serve as an obstacle for a national court to establish its international jurisdiction based on the aforementioned Regulation.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.2.2.

On 21 March 2020 the Fellows of the European Law Institute (ELI) have approved a Report on the Protection of Adults in International Situations.

The Report, prepared by Pietro Franzina and Richard Frimston based on the work of a team of academics and professionals, is the outcome of a project launched in 2017. The purpose of the Report is to illustrate the current legal framework applicable in Europe, in cross-border cases, to the protection of persons aged 18 or more who are not in a position to protect their interests due to an impairment or insufficiency of their personal faculties, and to outline the measures that EU institutions might take to enhance such protection.

The Report encourages further ratifications of the Hague Convention of 13 January 2000 on the International Protection of Adults, and suggests a number of legislative and non-legislative measures that the EU could take to complement the Convention and improve its operation in the relationship between Member States.

Le 5 mars dernier, la Cour pénale internationale a autorisé en appel la procureure Fatou Bensouda à ouvrir une enquête en Afghanistan. Un retournement de situation qui déplaît fortement au gouvernement américain, qui est allé jusqu’à menacer les familles de certains membres du personnel de la Cour.

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Art. 17 of the Rome II Regulation, which transposes an element of US conflicts theory (the concept of local data) into a European choice-of-law instrument, is certainly one of the more controversial provisions of the Regulation. It stipulates that

[i]n assessing the conduct of the person claimed to be liable, account shall be taken, as a matter of fact and in so far as is appropriate, of the rules of safety and conduct which were in force at the place and time of the event giving rise to the liability.

In a highly illustrative decision of 27 March 2020 (1 U 95/19), the Higher Regional Court of Cologne (upholding a decision from the Regional Court of Bonn) has provided a textbook example of its application in practice.

The case involved two German citizens who had collided while paragliding/hang gliding in Italy. While one had remained unharmed, the other one had sustained several injuries and, upon returning home, decided to sue for damages.

As both parties were habitually resident in the same Member State – in fact, they lived less than 50 km away from each other, in Cologne and Bonn, respectively – the Court naturally applied German law pursuant to Art. 4(2) Rome II. Under the applicable tort statute, the fact that both parties had engaged in aerial activities meant that the degree to which the defendant would be liable depended on the respective dangerousness of each party’s activity as well as on whether or not one party had behaved negligently.

While the first factor already put the claimant on the back foot with the Court deeming his hang glider significantly more dangerous than the defendant’s paraglider, the Court went on to apply two Italian presidential decrees as well as the general regulations approved by the Italian Civil Aviation Authority (Ente Nazionale per l’Aviazione Civile, ENAC) on the basis of Art. 17 Rome II in order to establish that the claimant had negligently violated the applicable aviation rules. Accordingly, his claim failed in its entirety.

 

 

In this case, a Czech passenger entered into a package travel contract with a Czech travel agency on a flight from Prague to Keflavik in Iceland and on accommodation there. The flight was operated by the Danish air carrier Primera Air Scandinavia. The flight was delayed by four hours. This is why the passenger brought an action for compensation of EUR 400 against the airline under the Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights. The proceedings were instituted before a District Court in Prague.

In the case of the provision of services, Art. 5 no. 1 lit. b second indent Brussels I Regulation provides for jurisdiction at the place in a Member State where, under the contract, the services were provided or should have been provided. In respect of air carriage, these include, at the passenger’s choice, the courts of the place of departure (as well as the place of arrival) of the flight, see ECJ, judgment of 9 July 2009, Case C-204/08 – Peter Rehder v Air Baltic Corporation.

Nevertheless, the Court held that, first, that the concept of an operating air carrier subject to the Passenger Rights Regulation includes not only the air carrier which operates or has the intention of operating a flight under a contract with a passenger but also the carrier which operates or intends to operate a flight on behalf of a third party which has concluded a contract with that passenger. Therefore, the passenger may rely on the regulation on the rights of air passengers against the carrier, even in the absence of a contract between the passenger and the carrier.

The Court further observed that even though the conclusion of a contract is not a requirement for the application of the special provisions on matters relating to a contract of the Article 5 no. 1 Brussels I Regulation, reliance on those provisions presupposes the existence of a voluntary commitment by one party to another, not necessarily vis-à-vis the claimant, as opposed to Articles 15 et seq. (see para. 58).

Thus, the Court concludes, an operating air carrier that did not enter into a contract with the passenger but is liable to that passenger on behalf of a travel agency in respect of the obligations arising from the Passenger Rights Regulation must be regarded as fulfilling the freely assumed obligations vis-à-vis that agency. Therefore, the passenger may bring an action for compensation against the carrier before the courts of the place of departure of the flight.

The Court had already decided similarly before: Those previous (joined) cases involved compensation for long delays in flights provided by an operating air carrier which had not entered into contracts with the passengers concerned, since they had bought their airline tickets from other airlines before bringing an action against the carrier that operated the segment of the connecting flight that included that delay at issue, see ECJ, judgment of 7 March 2018, joined cases C?274/16, C?447/16 and C?448/16 – flightright and Others.

The judgment is available, currently only in French, German and other languages, but not [yet] in English here.

A book edited by Catherine Kessedjian & Humberto Cantú Rivera and titled “Private International Law Aspects of Corporate Social Responsibility” has just been released electronically and in hard copy. As said in the abstract of the book, “This book addresses one of the core challenges in the corporate social responsibility (or business and human rights) debate: how to ensure adequate access to remedy for victims of corporate abuses that infringe upon their human rights. However, ensuring access to remedy depends on a series of normative and judicial elements that become highly complex when disputes are transnational. In such cases, courts need to consider and apply different laws that relate to company governance, to determine the competent forum, to define which bodies of law to apply, and to ensure the adequate execution of judgments. The book also discusses how alternative methods of dispute settlement can relate to this topic, and the important role that private international law plays in access to remedy for corporate-related human rights abuses…”

Readers of this blog might be interested in having one to be stored for your own use. If this is the case, please visit the homepage of this book to know more:https://www.springer.com/gp/book/9783030351861?wt_mc=Internal.Event.1.SEM.ChapterAuthorCongrat

Many thanks for your attention and take care in this globally difficult time!

It is undeniable that there is an increasing interaction between human rights and private international law (and other areas of law). This of course adds an additional layer of complexity in private international law cases, whether we like it or not. Indeed, States can be sanctioned if they do not fulfill specific criteria specified by the European Court of Human Rights (ECtHR). Importantly, the European Convention on Human Rights has been considered to be an instrument of European public order (ordre public), to which 47 States are currently parties.

I have recently published an article entitled “The controversial role of the ECtHR in the interpretation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, with special reference to Neulinger and Shuruk v. Switzerland and X v. Latvia” (in Spanish only but with abstracts in English and Portuguese in the Anuario Colombiano de Derecho Internacional). To view it, click on “Ver artículo” and then click on “Descargar el archivo PDF”, currently pre-print version, published online in March 2020.

Below I include briefly a few highlights and comments.

As its name suggests, this article explores the controversial role of the ECtHR in the interpretation of the HCCH Child Abduction Convention. It analyses two judgments rendered by the Grand Chamber: Neulinger and Shuruk v. Switzerland (Application no. 41615/07) and X v. Latvia (Application no. 27853/09). And then it goes on to analyse three more recent judgments and in particular, whether or not they are in line with X v Latvia.

The article seeks to clarify the applicable standard that should be applied in child abduction cases as there has been some confusion as to the extent to which Neulinger applies and the impact of X v. Latvia. Indeed Neulinger seemed to suggest that courts should conduct a full examination of the best interests of the child during child abduction proceedings, which is blatantly wrong. X v. Latvia clarifies Neulinger and provides a detailed and thoughtful standard to avoid conducting “an in-depth examination of the entire family situation and of a whole series of factors…” but at the same time upholds the human rights of the persons involved and strikes, in my view and as noted by the Court, a fair balance between the competing interests at stake – those of the child, of the two parents, and of public order.

The article then examines three recent judgments rendered by several chambers of the ECtHR (not the Grand Chamber): K.J. v. Poland (Application no. 30813/14), Vladimir Ushakov v. Russia (Application no. 15122/17), and M.K. v. Grèce (Requête n° 51312/16). M.K. v. Grèce, which was rendered in 2018, has put the ECtHR in the spotlight again. Surprisingly, this precedent has ignored the standard established in X v. Latvia and has followed only Neulinger. The precedents of the Grand Chamber of the ECtHR are binding on the chambers so it is stupefying that this could happen. Nevertheless, I have concluded that the outcome of the case is correct.

By way of conclusion, the legal community seems to be divided as to whether or not X v Latvia sets a good precedent. Human rights lawyers seem to regard this precedent favourably, whereas private international law lawyers seem to be more cautious. This article concludes that X v. Latvia was correctly decided for several reasons based on Article 13(1)(b), Article 3 of the HCCH Child Abduction Convention and the need to provide for measures of protection. Both human rights and private international law can interact harmoniously and complement each other. The efforts of the human rights community to understand the Child Abduction Convention are evident in the change of direction in X v. Latvia. Both human rights lawyers and private international law lawyers should make an effort to understand each other as we have a common goal and objective: the protection of the rights of the child.

Luk De Baere and Frits Blees are the authors of Insurance Aspects of Cross-Border Road Traffic Accidents, published by Eleven International Publishing.

The abstract reads as follows.

Claims handling of cross-border traffic accidents is a complex process. The rules governing the handling and settling of such accidents often requires in-depth knowledge of a wide range of fields of expertise: the applicable law on liability and compensation, insurance law, the law of the European Union, private international law and – last but not least – the functioning of the various Agreements between national organisations of motor insurers such as the Green Card Bureaux, the national Guarantee Funds etc. Insurance Aspects of Cross-Border Road Traffic Accidents provides practitioners in the field with the necessary background information. The book offers a comprehensive analysis of the insurance aspects of cross-border road traffic accidents. This new publication will prove extremely useful for professionals of insurance companies, specialists in claims handling organisations, members of staff within national Green Card Bureaux, Guarantee Funds and Compensation Bodies, but also for solicitors, magistrates and legislators.

Further information available here.

La Cour de justice de l’Union européenne s’adapte afin de garantir la continuité du service public européen de la justice

In Wallis Trading Inc v Air Tanzania Company Ltd & Anor [2020] EWHC 339 (Comm), at stake is a claim by Wallis Trading, a Liberian company which carried on the business of acquiring and leasing aircraft, against Air Tanzania and the Government of Tanzania in respect of sums which Wallis says are due to it from the Defendants arising out of a lease of an aircraft by Wallis to ATCL.

Of interest to the blog is the discussion of the Rome Convention at 74 ff. Defendants contend that the Lease is invalid, and ‘null and void’ because it was entered into in breach of the Procurement Legislation. Butcher J holds that the Lease expressly provided that English law was to be its governing law. The putative law of the lease therefore is English law (the bootstrap of Article 8 Rome Convention, now Article 10 Rome I. The Procurement Legislation is not part of English law, and non-compliance with it does not, as a matter of English law, render the Lease invalid, null or void.

What however about the application of A7 Rome Convention’s rule on lois de police /mandatory law?

1. When applying under this Convention the law of a country, effect may be given to the mandatory rules of the law of another country with which the situation has a close connection, if and in so far as, under the law of the latter country, those rules must be applied whatever the law applicable to the contract. In considering whether to give effect to these mandatory rules, regard shall be had to their nature and purpose and to the consequences of their application or non-application.

2. Nothing in this Convention shall restrict the application of the rules of the law of the forum in a situation where they are mandatory irrespective of the law otherwise applicable to the contract]

Here, Butcher J points out that Article 7(1) of the Rome Convention does not have the force of law in the United Kingdom: the UK had entered an Article 22 reservation viz the lois de police rule. The impossibility of same viz Rome I led to the stricter language in Article 9. In the event of Rome I not being part of the future relations between the UK and the EU, the Convention and its reservation will once again be applicable.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 3, Heading 3.2.8, Heading 3.2.8.3.

 

Interesting re applicable law.
Choice of court and law pro England.
Includes consideration of mandatory law (alleged invalidity under Tanzanian procurement law) under the Rome Convention. Rome I does not apply ratione temporis.
UK reservation viz Article 7 Rome Convention. https://t.co/ONQ1oO9YGX

— Geert Van Calster (@GAVClaw) February 24, 2020