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The readers of the blog are aware of the European Commission proposal for a Regulation on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters and, and the associated proposal for a Directive amending several existing directives with a view to improving digitalisation and ensuring secure, reliable and time-efficient communication between courts and competent authorities.

Presented in December 2021, the two proposals aim to ensure access to justice in the EU including in the events of force majeure, such as pandemics, and adapt judicial cooperation between Member States for such situations.

On 28 June 2023, Parliament and Council negotiators reached an agreement on the use of digital technology in the judicial cooperation among Member States. Negotiators of the Legal Affairs Committee (JURI) and the Committee on Civil Liberties, Justice and Home Affairs (LIBE) agreed with Council negotiators on its future shape. The agreement, once formally approved by the Council, will be confirmed by a vote in the European Parliament.

The Parliament press note, which provides few details, highlights two aspects: one relating to electronic documents and videoconferencing, the other regarding inclusive digitalisation.

In relation to electronic documents and videoconferencing, the proposed legislation enables the use of digital technology for exchange of information, documents, payments of fees and videoconferencing. Communication between citizens, companies and national authorities would be ensured by an IT system, created and maintained by the European Commission and financed through the Digital Europe Programme with an access point in each Member State. The European e-Justice portal will provide information to individuals and companies on their rights and the European electronic access point will enable their direct communication with authorities.

Inclusive digitalisation refers to efforts to ensure that digitalisation does not lead to exclusion and is implemented in a way to ensure right to a fair trial for everyone. Equivalent access for people with disabilities is also stressed.

The Council press note specifies that the new rules, once adopted, will improve cross-border judicial procedures by:
-allowing parties and other relevant persons in civil, commercial and criminal hearings to participate by means of videoconferencing or other distance communication technology;
-establishing a European electronic access point through which natural and legal persons can file claims, send and receive relevant information, and communicate with the competent authorities;
-accepting electronic communication and documents from natural and legal persons;
-recognising documents with electronic signatures or seals;
-promoting the payment of fees through electronic means.

Negotiators further agreed on the need for additional training for justice professionals when it comes to the use of digital tools such as videoconferencing and the IT system and encouraged Member States to share their best practices on the use of digital tools.

On behalf of our former editor Brooke Marshall, we are happy to share the invitation to the UNSW Law & Justice Book Forum, which will host the launch of her book on Asymmetric Jurisdiction Clauses.

The event will feature the following speakers:

• Professor Mary Keyes, Director of the Law Futures Centre; Professor, Griffith Law School, Griffith University
• Professor Caroline Kleiner, Professor, Centre for Business Law and Management (CEDAG), Faculty of Law, Université Paris Cité, Paris, France
• Chaired by Professor Justine Nolan, Director, Australian Human Rights Institute; Professor, UNSW Faculty of Law & Justice

It will take place in a hybrid setting on Wednesday, 5 July, at 4:30pm AEST = 8:30am CEST = 7:30am BST. You may register using this link.

Should a foreign judgment entail in the requested State the res judicata effect that it has in the country of origin? Or should one rather substitute the foreign procedural effects of the judgment to fit with the law of the country where recognition is sought?

This issue was put to the test for the Court of Justice of the European Union (CJEU) in its judgment of 8 June 2023 in the French-English employment law matter BNP Paribas v. TR, C-567/21.

Claiming unfair dismissal, an employee first filed a lawsuit in England. After having been successful there, the employee claimed further compensation for the same dismissal in French courts. According to the CJEU’s judgment, the extent of res judicata under the Brussels I Regulation shall follow the country of origin of the judgment. However, not all national procedural rules can be characterised as res judicata rules with international effect. Only rules concerning the ‘authority and effectiveness’ can have international res judicata effect according to the CJEU’s judgment.

In previous posts for this blog, Fabienne Jault-Seseke has reported on the questions referred to by the CJEU and criticised the opinion of Advocate General Priit Pikamäe. François Mailhé has also written in this blog about a parallel French Cour de Cassation case where questions regarding res judicata were referred to the CJEU. That case (Recamier v. BR, C-707/21) is still pending before the CJEU. As the discussion of res judicata in EU private international law can easily be deepened, the following post will focus on the judgment of the CJEU in the BNP Paribas case only.

Facts

In 1998, the French bank BNP Paribas hired an employee to work for the bank in London. That employment contract was governed by English law. In 2009, the parties entered a new employment contract to regulate the secondment of the employee to Singapore. The new employment contract was governed by French law. After a little more than a year in Singapore, the employee was relocated back to London. The relocation was regulated with an amendment to the French employment contract.

A few years after the return to London, the employee was dismissed for serious misconduct that had taken place during his secondment to Singapore. The dismissal was challenged by the employee, who brought an action in an English court claiming compensation for unfair dismissal. In its judgment, the English court held that the claim was well founded. In the English judgment, it was clear that the employer had taken disciplinary measures based on French law. Under English law, which was agreed to be applied by the parties in the case, those measures were unlawful. Consequently, the bank was ordered to pay a compensatory award of GBP 81,175.

Two months after the English judgment was delivered, the employee initiated new legal proceedings against the bank demanding additional compensation for the same dismissal that the English court had based its judgment on. The new lawsuit was filed in a French labour court. With reference to res judicata due to the English judgment, the French labour court held that the claims were inadmissible. This decision was appealed and the French court of appeal came to a different conclusion. Holding that the claim settled by the English court was limited in scope, the French court of appeal stated that the claims made in France were not precluded on the grounds of res judicata. Even if res judicata generally means that a legally settled matter is precluded and cannot be litigated again, there are different understandings of the concept in different jurisdictions. As the case was brought to the French Supreme Court (Cour de Cassation), the private international law issue of the law applicable to res judicata was referred to the CJEU for a preliminary ruling.

Judgment

First, the CJEU held that the old 2001 Brussels I Regulation (44/2001) was applicable in the case, as the English judgment was given in a legal proceeding instituted before 10 January 2015. According to the transitional provisions in article 66(2) of the Brussels I bis Regulation (1215/2012), it is that date that is decisive in the application of the two regulations.

As regards judgments delivered in other member states, the main principle of the Brussels I Regulation is that such judgments shall be recognised and enforced in all other member states. However, as the CJEU noted in its judgment, the notion of ‘recognition’ is not defined in the regulation. Recognition of judgments in the EU rests on the principle of mutual trust. Therefore, a judgment from another member state may not be reviewed in substance. With reference to this line of purposive and systematic argumentation, as well as to the fact that the explanatory report from 1979 (the Jenard report) explicitly stated that judgments shall have the ‘authority and effectiveness accorded to them in the State in which they were given’, the CJEU held that it is the law in the country of origin of the judgment that determines the extent of res judicata.

Even if it is the law in the country of origin of the judgment that determines the extent of res judicata, the CJEU noted in its judgment that national procedural rules must be classified (characterised) as res judicata rules for this choice of law rule to be applicable. In the case at hand, the issue was whether an English procedural rule that required the parties to centralise all their claims relating to the same legal relationship to a single procedure was a res judicata rule with an inadmissibility effect for the subsequent French procedure. In its judgment, the CJEU stated that one must – as a legal test of whether a national procedural rule is a res judicata rule – assess whether the national procedural rule ‘concerns the authority and effectiveness’ of the judgment (para. 49). Using this legal test, the CJEU held that the English rule on centralisation of claims served the interest of sound administration of justice rather than being intended to govern the authority and effectiveness of a judgment. Therefore, the English rule was not considered to be a res judicata rule that should have any inadmissibility effect for the subsequent French procedure.

Analysis

By its judgment, the CJEU has confirmed that res judicata follows the law of the country where the judgment was delivered. This is the same principle as delivered already in Hoffman, 145/86. It is not the choice of law rule that is new in the BNP Paribas case, but the characterisation methodology that the CJEU seems to embrace. What is special to characterisation in private international law is that the issue itself contains a choice of law problem.

Traditionally, a legal notion should either follow the law where the issue arose (lex causae) or the law of the forum (lex fori). In setting an autonomous legal test for what national procedural rules can be characterised as res judicata rules, the CJEU has chosen a lex fori approach to the issue of characterisation for determining what aspects of res judicata that follow from the country of origin. Ultimately, this approach will improve foreseeability and harmonisation.

However, until the framework of the notion is known, it may be hard to assess what really is a national procedural rule that has international res judicata effect. Perhaps further guidance will be given already in the forthcoming Recamier case mentioned above.

La récente publication, quasi simultanée, d’une étude et d’un rapport sur le droit des générations futures témoigne de l’actualité de ce concept qui continue d’interroger les juristes.

Sur la boutique Dalloz Code de l’environnement 2023, annoté & commenté Voir la boutique Dalloz

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A big thank you to those among the members of the European Association of Private International Law – actually, the vast majority of members – who have already paid their fees for 2023!

And a kind request to the others: please take a moment to pay your fees, too!

The amount is reasonable and has remained unchanged since the Association was set up. You may pay by bank transfer, or use PayPal. The details are available here.

Don’t forget that, according to the Statutes of the Association, membership begins upon admission and only ends by termination on the part of the member concerned. Put in another way, once you have become a member, you retain that status (and are expected to pay your fees) until you let us know you do not wish to stay with us any longer.

Thank you!

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

(These abstracts can also be found at the IPRax-website under the following link: https://www.iprax.de/en/contents/)

 

B. Heiderhoff: Care Proceedings under Brussels IIter – Mantras, Compromises and Hopes

Against the background of the considerable extension of the text of the regulation, the author asks whether this has also led to significant improvements. Concerning jurisdiction, the “best interests of the child” formula is used a lot, while the actual changes are rather limited and the necessary compromises have led to some questions of doubt. This also applies to the extended possibility of choice of court agreements, for which it is still unclear whether exclusive prorogation is possible beyond the cases named in Article 10 section 4 of the Brussels II ter Regulation. Concerning recognition and enforcement, the changes are more significant. The author shows that although it is good that more room has been created for the protection of the best interests of the child in the specific case, the changes bear the risk of prolonging the court proceedings. Only if the rules are interpreted with a sense of proportion the desired improvements can be achieved. All in all, there are many issues where one must hope for reasonable clarifications by the ECJ

 

G. Ricciardi: The practical operation of the 2007 Hague Protocol on the law applicable to maintenance obligations

Almost two years late due to the COVID-19 pandemic, in May 2022 over 200 delegates representing Members of the Hague Conference on Private International Law, Contracting Parties of the Hague Conventions as well as Observers met for the First Meeting of the Special Commission to review the practical operation of the 2007 Child Support Convention and the 2007 Hague Protocol on Applicable Law. The author focuses on this latter instrument and analyses the difficulties encountered by the Member States in the practical operation of the Hague Protocol, more than ten years after it entered into force at the European Union level. Particular attention is given to the Conclusions and Recommendations of the Applicable Law Working Group, unanimously adopted by the Special Commission which, in light of the challenges encountered in the implementation of the Hague Protocol, provide guidance on the practical operation of this instrument.

 

R. Freitag: More Freedom of Choice in Private International Law on the Name of a Person!

Remarks on the Draft Bill of the German Ministry of Justice on a Reform of German Legislation on the Name of a PersonThe German Ministry of Justice recently published a proposal for a profound reform of German substantive law on the name of a person, which is accompanied by an annex in the form of a separate draft bill aiming at modernizing the relevant conflict of law-rules. An adoption of this bill would bring about a fundamental and overdue liberalization of German law: Current legislation subjects the name to the law of its (most relevant) nationality and only allows for a choice of law by persons with multiple nationalities (they max designate the law of another of their nationalities). In contrast, the proposed rule will order the application of the law of the habitual residence and the law of the nationality will only be relevant if the person so chooses. The following remarks shall give an overview over the proposed rules and will provide an analysis of their positive aspects as well as of some shortcomings.

 

D. Coester-Waltjen: Non-Recognition of “Child Marriages“ Concluded Abroad and Constitutional Standards

The Federal Supreme Court raised the question on the constitutionality of one provision of the new law concerning “child marriages” enacted by the German legislator in 2017. The respective rule invalidated marriages contracted validly according to the national law of the intended spouses if one of them was younger than 16 years of age (Art. 13 ss 3 no 1 EGBGB). The Federal Supreme Court requested a ruling of the Federal Constitutional Court on this issue in November 2018. It took the Federal Constitutional Court nearly five years to answer this question.

The court defines the structural elements principally necessary to attain the constitutional protection of Art. 6 ss 1 Basic Law. The court focuses on the free and independent will of the intended spouses as an indispensable structural element. The court doubts whether, in general, young persons below the age of 16 can form such a free and independent will regarding the formation of marriage. However, as there might be exceptionally mature persons, the protective shield of Art. 6 ss 1 Basic Law is affected (paragraphs 122 ff.) and their “marriage” falls under the protective umbrella of the constitution. At the same time, the requirement of a free and meaning ful will to form a marriage complies with the structural elements of the constitutionally protected marriage. This opens the door for the court to examine whether the restriction on formation of marriage is legitimate and proportionate.

After elaborating on the legitimacy of the goal (especially prevention and proscription of child marriages worldwide) the court finds that the restriction on the right to marry is appropriate and necessary, because comparable effective other means are missing. However, as the German law does not provide for any consequence from the relationship formed lawfully under the respective law and being still a subsisting marital community, the rule is not proportionate. In addition, the court demurs that the law does not provide for transformation into a valid marriage after the time the minor attains majority and wants to stay in this relationship. In so far, Art. 13 ss 3 no 1 affects unconstitutionally Art. 6 ss 1 Basic Law. The rule therefore has to be reformed with regard to those appeals but will remain in force until the legislator remedies those defects, but not later than June 30, 2024.

Beside the constitutional issues, the reasoning of the court raises many questions on aspects of private international law. The following article focuses on the impact of this decision.

 

O.L. Knöfel: Discover Something New: Obtaining Evidence in Germany for Use in US Discovery Proceedings

The article reviews a decision of the Bavarian Higher Regional Court (101 VA 130/20), dealing with the question whether a letter rogatory for the purpose of obtaining evidence for pre-trial discovery proceedings in the United States District Court for the District of Delaware can be executed in Germany. The Court answered this question in the affirmative. The author analyses the background of the decision and discusses its consequences for the long-standing conflict of procedural laws ( Justizkonflikt) between the United States and Germany. The article sheds some light on the newly fashioned sec. 14 of the German Law on the Hague Evidence Convention of 2022 (HBÜ Ausführungsgesetz), which requires a person to produce particular documents specified in the letter of request, which are in his or her possession, provided that such a request is compatible with the fundamental principles of German law and that the General Data Protection Regulation of 2018 (GDPR) is observed.

 

W. Wurmnest/C. Waterkotte: Provisional injunctions under unfair competition law

The Higher Regional Court of Hamburg addressed the delimitation between Art. 7(1) and (2) of the Brussels Ibis Regulation after Wikingerhof v. Book ing.com and held that a dispute based on unfair competition law relating to the termination of an account for an online publishing platform is a contractual dispute under Art. 7(1) of the Brussels Ibis Regulation. More importantly, the court considered the requirement of a “real connecting link” in the context of Art. 35 of the Brussels Ibis Regulation. The court ruled that in unfair competition law disputes of contractual nature the establishment of such a link must be based on the content of the measure sought, not merely its effects. The judgment shows that for decisions on provisional injunctions the contours of the “real connecting link” have still not been conclusively clarified.

 

I. Bach/M. Nißle: The role of the last joint habitual residence on post-marital maintenance obligations

For child maintenance proceedings where one of the parties is domiciled abroad, Article 5 of the EuUnterhVO regulates the – international and local – jurisdiction based on the appearance of the defendant. According to its wording, the provision does not require the court to have previously informed the defendant of the possibility to contest the jurisdiction and the consequences of proceeding without contest – even if the defendant is the dependent minor child. Article 5 of the EuUnterhVO thus not only dispenses with the protection of the structurally weaker party that is usually granted under procedural law by means of a judicial duty to inform (such as Article 26(2) EuGVVO), but is in contradiction even with the other provisions of the EuUnterhVO, which are designed to achieve the greatest possible protection for the minor dependent child. This contradiction could already be resolved, at least to some extent, by a teleological interpretation of Article 5 of the EuUnterhVO, according to which international jurisdiction cannot in any case be established by the appearance of the defendant without prior judicial reference. However, in view of the unambiguous wording of the provision and the lesser negative consequences for the minor of submitting to a local jurisdiction, Article 5 of the EuUnterhVO should apply without restriction in the context of local jurisdiction. De lege ferenda, a positioning of the European legislator is still desirable at this point.

 

C. Krapfl: The end of US discovery pursuant to Section 1782 in support of international arbitration

The US Supreme Court held on 13 June 2022 that discovery in the United States pursuant to 28 U.S.C. § 1782 (a) – which authorizes a district court to order the production of evidence “for use in a proceeding in a foreign or international tribunal” – only applies in cases where the tribunal is a governmental or intergovernmental adjudicative body. Therefore, applications under Section 1782 are not possible in support of a private international commercial arbitration, taking place for example under the Rules of the German Arbitration Institute (DIS). Section 1782 also is not applicable in support of an ad hoc arbitration initiated by an investor on the basis of a standing arbitration invitation in a bilateral investment treaty. This restrictive reading of Section 1782 is a welcome end to a long-standing circuit split among courts in the United States.

 

L. Hübner/M. Lieberknecht: The Okpabi case — Has Human Rights Litigation in England reached its Zenith

In its Okpabi decision, the UK Supreme Court continues the approach it developed in the Vedanta case regarding the liability of parent companies for human rights infringements committed by their subsidiaries. While the decision is formally a procedural one, its most striking passages address substantive tort law. According to Okpabi, parent companies are subject to a duty of care towards third parties if they factually control the subsidiary’s activities or publicly convey the impression that they do. While this decision reinforces the comparatively robust protection English tort law affords to victims of human rights violations perpetrated by corporate actors, the changes to the English law of jurisdiction in the wake of Brexit could make it substantially more challenging to bring human rights suits before English courts in the future.

 

Notifications:

H. Kronke: Obituary on Jürgen Basedow (1949–2023)

C. Rüsing: Dialogue International Family Law on April 28 and 29, 2023, Münster

Landeshauptstadt Wiesbaden
Espace de liberté, sécurité et justice
Selon l’avocate générale Medina, le recueil et le stockage obligatoires d’empreintes digitales dans les cartes d’identité est valide

The latest issue of the RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht) has been published. As always, it contains a number of insightful articles, this time also many in English language. Here are the authors, titles and abstracts:

Eva-Maria Kieninger, Ralf Michaels, Jürgen Basedow * 29.9.1949 † 6.4.2023

Felix Berner, Implizite Qualifikationsvorgaben im europäischen Kollisionsrecht (Implicit Characterization in European Conflict of Laws)

Most German scholars assume that problems of characterization in European choice of law are to be resolved by means of functional characterization. This essay challenges that assumption. Quite often, European choice-of-law rules themselves require a certain treatment of a characterization problem. This can follow from the rules or recitals of European regulations. In such cases, the required approach is more or less explicitly given. However, the required analysis can also be implicitly established, especially when it is derived from the purpose of certain choice-of-law rules. The approach towards characterization is of both practical and theoretical significance. In practice it determines the outcome of a characterization inquiry. On a theoretical level, the approach towards characterization embodies a conceptual change: The more rules on characterization there are, the more the classic problem of characterization is marginalized. Questions of characterization turn into questions of “simple statutory interpretation”.

Frederick Rieländer, Die Anknüpfung der Produkthaftung für autonome Systeme (The Private International Law of Product Liability and AI-related Harm)

As the EU moves ahead with extensive reform in all matters connected to artificial intelligence (AI), including measures to address liability issues regarding AI-related harm, it needs to be considered how European private international law (PIL) could contribute to the EU’s objective of becoming a global leader in the development of trust-worthy and ethical AI. To this end, the article examines the role which might be played in this context by the conflict-of-law rule concerning product liability in Article 5 of the Rome II Regulation. It shows that the complex cascade of connecting factors in matters relating to product liability, although providing legal certainty for market players, fails to consistently support the EU’s twin aim of promoting the up-take of AI, while ensuring that injured persons enjoy the same level of protection irrespective of the technology employed. Assessing several options for amending the Rome II Regulation, the article calls for the introduction of a new special rule concerning product liability which allows the claimant to elect the applicable law from among a clearly defined number of substantive laws. Arguably, this proposal offers a more balanced solution, favouring the victim as well as serving the EU’s policies.

Tim W. Dornis, Künstliche Intelligenz und internationaler Vertragsschluss (Artificial Intelligence and International Contracting)

Recently, the debate on the law applicable to a contract concluded by means of an AI system has begun to evolve. Until now it has been primarily suggested that the applicable law as regards the “legal capacity”, the “capacity to contract” and the “representative capacity” of AI systems should be determined separately and, thus, that these are not issues falling under the lex causae governing the contract. This approach builds upon the conception that AI systems are personally autonomous actors – akin to humans. Yet, as unveiled by a closer look at the techno-philosophical foundations of AI theory and practice, algorithmic systems are only technically autonomous. This means they can act only within the framework and the limitations set by their human users. Therefore, when it comes to concluding a contract, AI systems can fulfill only an instrumental function. They have legal capacity neither to contract nor to act as agents of their users. In terms of private international law, this implies that the utilization of an algorithmic system must be an issue of contract conclusion under art. 10 Rome I Regulation. Since AI utilization is fully subject to the lex causae, there can be no separate determination of the applicable law as regards the legal capacity, the capacity to contract or representative capacity of such systems.

Peter Kutner, Truth in the Law of Defamation

This article identifies and examines important aspects of truth as a defence to defamation liability in common law and “mixed” legal systems. These include the fundamental issue of what must be true to establish the defence, whether the defendant continues to have the burden of proving that a defamatory communication is true, the condition that publication must be for the public benefit or in the public interest, “contextual truth” (“incremental harm”), and the possibility of constitutional law rules on truth that are different than common law rules. The discussion includes the emergence of differences among national legal systems in the operation of the truth defence and evaluation of the positions that have been adopted.

The table of contents in German is available here.

Publiée au JOUE le 17 mai dernier, la directive (UE) 2023/970 du 10 mai 2023 sur la transparence des rémunérations tend à renforcer l’application du principe de l’égalité de rémunérations entre les femmes et les hommes, par une série de mesures dont le leitmotiv est l’information et la communication de données, lors de l’embauche et pendant toute la relation de travail. La France a 3 ans pour transposer ces mesures.

Sur la boutique Dalloz Droit de la négociation collective 2022/2023 Voir la boutique Dalloz

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In Popescu v Essers the Antwerp Court of Appeal has confirmed jurisdiction in a claim by a Romanian driver against a Belgian-incorporated freight company, and applied Belgian labour law to the their contract.

The case echoes social dumping issues, relevant earlier posts on the blog include CJEU Gruber Logistics, and Altun. Outside of Brussels Ia and Rome I, CJEU AFMB and others is of note.

I do not have access  to the first instance judgment and the Court of Appeal’s judgment is a touch cryptic on a first issue of note which is the impact of the earlier decision by the Romanian courts and the extent of res judicata: I cannot say much about that for want of the first instance judgment and /or further info in the court of appeal’s judgment, however that issue seems to have engaged factual findings in the Romanian courts.

What is clear is that on the basis of Article 21 BIa, jurisdiction in the domicile of the employer was easily established [p.6].

With respect to applicable law and Rome I, the Court of Appeal refers to the CJEU in Koelzsch [42] holding “in so far as the objective of Article 6 of the Rome Convention is to guarantee adequate protection for the employee, that provision must be understood as guaranteeing the applicability of the law of the State in which he carries out his working activities rather than that of the State in which the employer is established. It is in the former State that the employee performs his economic and social duties and, as was noted by the Advocate General in point 50 of her Opinion, it is there that the business and political environment affects employment activities. Therefore, compliance with the employment protection rules provided for by the law of that country must, so far as is possible, be guaranteed.” (emphasis added by me, GAVC). The Court of Appeal also recalls the criteria of the CJEU in C-64/12 Schlecker, notes that the contract does not have a lex voluntatis (although the contract does refer to Romanian law in a number of instances) and holds p.12 ff that Belgium, not Romania was the place of habitual employment:

on-board diagnostics and trip reports reveal that most of Mr Popescu’s routes started from the corporation’s headquarters in Belgium, most of them to and fro Belgium’s neighbouring countries, and even if they were further afield, return was always to Belgium; no routes led him to and /or fro Romania;

dispatch for the routes was organised from Belgium, with largely the Belgian corporations of the group as the contracting party for the freight concerned;

the work tools, i.e. the trucks, even if they carried a Romanian number plate, were put at the the disposal of the drivers, and serviced, in Belgium, and (off)loading largely took place in Belgium.

Other factors pointing to Romania, were held not to displace the finding of Belgium as the place of employment: this includes Mr Popescu’s Romanian nationality and domicile; and his contract being subject to Romanian national insurance and income tax: these two latter elements, the Court held, simply reflect Mr Popescu’s domicile, not his place of employment.

The Court of Appeal also held [p.17-18] that it need not apply the posted workers Directive, with reference to CJEU FNV v Vanden Bosch, and that instead of a temporary posting there is a clear place of habitual employment with all the consequences of Rome I.

The remainder of the judgment then deals with the consequences of the application of Belgian law.

A case of note!

Geert.

Judgment (Court of Appeal in fact) is here https://t.co/JpvhwEBlzI h/t @jurinfo_eric) and analysis forthcoming on my blog. https://t.co/LWyYwbZ73B

— Geert Van Calster (@GAVClaw) June 27, 2023

This post is by Maggie Gardner, a professor of law at Cornell Law School. It is cross-posted at Transnational Litigation Blog.

The U.S. Supreme Court yesterday upheld the constitutionality of Pennsylvania’s corporate registration statute, even though it requires out-of-state corporations registering to do business within the state to consent to all-purpose (general) personal jurisdiction. The result in Mallory v. Norfolk Southern Railway Co. re-opens the door to suing foreign companies in U.S. courts over disputes that arise in other countries. It may also have significant repercussions for personal jurisdiction doctrine more broadly.

The Case

Robert Mallory worked for Norfolk Southern for nearly twenty years in Ohio and Virginia. He has since been diagnosed with cancer, which he alleges was caused by the hazardous materials to which he was exposed while in Norfolk Southern’s employ. Although he currently lives in Virginia, he sued Norfolk Southern (a company then incorporated and based in Virginia) in state court in Pennsylvania, asserting claims under the Federal Employers’ Liability Act (FELA).

Norfolk Southern contested personal jurisdiction. But Mallory argued that by registering to do business in Pennsylvania, it had agreed to appear in Pennsylvania courts on any cause of action. While the Pennsylvania Supreme Court agreed with that interpretation of Pennsylvania’s corporate registration statute, it held that the statute violated the Due Process Clause of the Fourteenth Amendment in light of the Supreme Court’s caselaw since International Shoe Co. v. Washington (1945).

The Holding

A majority of the Supreme Court disagreed. Justice Alito joined Justice Gorsuch’s plurality (with Justices Thomas, Sotomayor, and Jackson) to hold that the question was controlled by a pre-International Shoe decision, Pennsylvania Fire Ins. Co. v. Gold Issue Mining & Milling Co. (1917). Pennsylvania Fire approved a Missouri statute that required out-of-state insurance companies to appoint a state official as an agent for service of process for any suit. In Pennsylvania Fire, that Missouri statute was invoked to establish jurisdiction over a Pennsylvania insurance company regarding a contract formed in Colorado to insure a Colorado facility owned by an Arizona company. The five Justices agreed that the Supreme Court has never overruled Pennsylvania Fire and that it thus controls this case.

There is another, broader point on which the five Justices also seem to agree: Pennsylvania Fire does not conflict with International Shoe because International Shoe only addressed jurisdiction over non-consenting defendants. As Alito put it, “Consent is a separate basis for personal jurisdiction”—or as Gorsuch put it, “International Shoe simply provided a ‘novel’ way to secure personal jurisdiction that did nothing to displace other ‘traditional ones.’” An entirely separate avenue for establishing personal jurisdiction exists outside of International Shoe’s framework, which includes (according to the plurality) “[f]ailing to comply with certain pre-trial court orders, signing a contract with a forum selection clause, accepting an in-state benefit with jurisdictional strings attached,” or making a general appearance. And in this consent-based track, the five Justices also seem to agree that federalism concerns are no longer applicable.

Points of Disagreement

Alito wrote separately, however, to argue that Pennsylvania’s statute runs afoul of the dormant Commerce Clause. Even if the statute didn’t discriminate against out-of-state businesses, Alito explained, it significantly burdens interstate commerce, and it does so without any legitimate local interest. While a state “certainly has a legitimate interest in regulating activities conducted within its borders,” and while it “also may have an interest ‘in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors,’” a state “generally does not have a legitimate local interest in vindicating the rights of non-residents harmed by out-of-state actors through conduct outside the State.”

It is not particularly surprising that Alito was alone in elaborating this dormant Commerce Clause concern, given the split opinions earlier this Term in National Pork Producers Council v. Ross. As I discussed in a preview of the Mallory decision, Gorsuch and Thomas in that case found the balancing approach required by the dormant Commerce Clause jurisprudence to simply be infeasible. (Perhaps Alito hoped he might win them over if he could establish a complete lack of legitimate local interest, which would obviate the need for balancing). And if Sotomayor was unconvinced by the plaintiffs’ showing of a substantial burden on interstate commerce in National Pork Producers, she was unlikely to sign onto Alito’s rather vague paragraph about how statutes like Pennsylvania’s could burden small companies.

But why did Alito not join more of the plurality opinion? The plurality embraced a framing of the case that emphasized Norfolk Southern’s significant and permanent presence in Pennsylvania, including its 5,000 employees, 2,400 miles of track, and three locomotive shops (including the largest in North America). That framing is reminiscent of Sotomayor’s emphasis on fairness in her prior personal jurisdiction writings, as well as her questions at oral argument last fall. The plurality opinion also begins by contrasting this case with Mallory’s ability to “tag” an individual employee of Norfolk Southern in Pennsylvania, asking why Mallory shouldn’t be able to assert personal jurisdiction as easily over Norfolk Southern itself. That framing recapitulates a key point in Gorsuch’s concurrence in Ford Motor Co. v. Montana Eighth Judicial District Court (2021).

But neither of those framings resonates with Alito’s prior writings, to say the least. He tends to be more skeptical of litigation and court access policies, and he notably did not join Gorsuch’s concurrence in Ford. Further, both framings would have undermined Alito’s argument that Pennsylvania lacked any legitimate local interest in this case.

Jackson also wrote a brief concurrence that emphasized that personal jurisdiction is a waivable right, focusing on the Court’s opinion in Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee (1982). Her invocation of “waiver” rather than “consent” was clearly purposeful (and a distinction that Robin Effron and John Coyle have recently explored).

The Dissent

Justice Barrett’s dissent (joined by Chief Justice Roberts and Justices Kagan and Kavanaugh) staunchly defended the International Shoe paradigm. “For 75 years,” it begins, “we have held that the Due Process Clause does not allow state courts to assert general jurisdiction over [out-of-state] defendants merely because they do business in the State.” The Court’s decision in Mallory, Barrett explains, invites states to evade International Shoe’s limits on personal jurisdiction by simply rewording their long-arm statutes to include implied consent. Indeed (she notes), this case is remarkably like BNSF Railway Co. v. Tyrrell (2017), another FELA suit involving out-of-state parties and a cause of action that arose out of state as well. In Tyrell, the Court rejected the state’s assertion of personal jurisdiction in light of the Court’s recent decisions in Daimler AG v. Bauman (2014) and Goodyear Dunlop Tires Operations, S.A. v. Brown (2011). Approving Pennsylvania’s statute effectively robs all three of those precedents of meaning.

Foreign Defendants in U.S. Courts

The dissent is at least right about the practical implications of the Court’s holding: states that are inclined to do so now have a roadmap for evading the limits on general personal jurisdiction that the Court staked out in Goodyear, Daimler, and BNSF. While the mere fact of doing business is still not enough to subject a “non-consenting” business to jurisdiction in a forum, the mere fact of doing business plus a broadly worded statute might be. Indeed, it’s possible that Sotomayor joined the majority precisely because of her consistent concern that the Roberts Court has gone too far in paring back both general and specific jurisdiction under International Shoe. As the lone justice who refused to join the Court’s opinion in Daimler, she has now helped reclaim some of that state power.

Daimler, itself a case involving a foreign defendant, made it much harder for plaintiffs to hale non-U.S. companies into U.S. courts. After Daimler, plaintiffs have had to establish specific jurisdiction over foreign defendants, which can be hard to do even when the plaintiff resides in the U.S. forum and was injured there, as in J. McIntyre Machinery, Ltd. v. Nicastro (2011). Mallory gives states a different avenue for protecting their citizens’ ability to sue foreign defendants. As the plurality asserts, “all International Shoe did was stake out an additional road to jurisdiction over out-of-state corporations,” separate from the consent-based road upon which states can now rely.

It will be interesting to see how many states take up this invitation. My prediction is that we will see few open-ended statutes like Pennsylvania’s, but that we will see some more tailored statutes, for example asserting all-purpose jurisdiction over any claims brought by in-state residents against companies doing business in the state.

Broader Implications for Personal Jurisdiction Doctrine

It will also be interesting to see how much of a sea change Mallory makes in personal jurisdiction doctrine more broadly. While the holding may appear narrow, five Justices have agreed to limit the ambit of International Shoe’s paradigm to non-consenting defendants—a rather significant restriction. And given how broadly the Court construes “consent” in the age of forum selection clauses and compelled arbitration (and now corporate registration statutes), that could render International Shoe largely obsolete.

The approach of the plurality may also signal that there is more to come. Gorsuch’s opinion focuses on history and tradition and encourages reliance on pre-International Shoe cases. He has found a way to wind back the clock without having to directly overrule International Shoe—but would a future case encourage these Justices to wind back the clock even further?

I do worry that Gorsuch and his like-minded colleagues are too sanguine about the challenges that a return to broad general jurisdiction would entail. As I have written with others, there are real systemic costs to a paradigm of general jurisdiction—precisely the costs that International Shoe was written to address. A fundamental flaw in the plurality’s approach is its syllogism that because the Court approved tag jurisdiction over individuals in Burnham v. Superior Court (1990), it should also continue to recognize broad general jurisdiction over corporations. First, Burnham was a splintered decision, and a majority of the Justices did not agree that tag jurisdiction was completely unmoored from International Shoe’s framework. But second, why isn’t Burnham itself the mistake? Why not level up the protections for individual defendants, requiring some connection between the forum, the dispute, and the defendant greater than the defendant’s fleeting physical presence?

Conclusion

I have started wondering if the binary distinction between general and specific jurisdiction might have outlived its usefulness as a legal construct. Perhaps registration statutes and tag jurisdiction (and some modified forum of doing business jurisdiction?) belong in an intermediate category—but one that must still satisfy International Shoe’s overarching command that the defendant have minimum contacts with the forum such that notions of fair play and substantial justice will not be offended.

It has already been reported on this blog that EU Commission has launched infringement procedure against Poland for failure to fulfil its obligations under the Brussels II bis Regulation.

As stated by the Commission, this “infringement case concerns the non-conformity of the Polish law with the Brussels IIa Regulation, specifically the provisions relating to the enforcement of judgments or orders that require the return of abducted children to their place of habitual residence”.

Apart from the very general statement that “there is a systematic and persistent failure of Polish authorities to speedily and effectively enforce judgments ordering the return of abducted children to other EU Member States” no further information is unfortunately made publicly available.

The expression “enforcement of judgments or orders that require the return of abducted children” might relate to two kinds of situations: when a court of the country to which the child was abducted (Poland) decides that the child should be returned to the country of the child’s habitual residence (another EU Member State), or at a later stage of the procedure when a court of the country of the child’s habitual residence (another EU Member State) orders a return after the non-return decision was given in the country to which the child was abducted (Poland).

Enforcement of a Return Decision Handed Down in Poland

Article 11(3) Brussels II bis Regulation requires the court to which an application for return of a child is made to act expeditiously, using the most expeditious procedures available in national law. For this purpose, the general six weeks period was established.

The Practice Guide to Brussels IIa Regulation explains in more details how to understand the six-week period:

With regard to decisions ordering the return of the child, Article 11(3) does not specify that such decisions, which are to be given within six weeks, shall be enforceable within the same period. However, this is the only interpretation which would effectively guarantee the objective of ensuring the prompt return of the child within the strict time limit. (…) Member States should seek to ensure that a return order issued within the prescribed six-week time limit is “enforceable”.

Hence, it follows from the above that, in general, the procedure itself should be expeditious, and if the court hands down a return order, it should be enforceable within the six-week period… and successfully enforced.

Without going into details of the civil procedure in Poland concerning child abduction cases (which was meticulously described by J. Pawliczak, Reformed Polish court proceedings for the return of a child under the 1980 Hague Convention in the light of the Brussels IIb Regulation, JPIL 2021/3, available in open access), it might be indicated, as an example, that child abduction decisions might be subject to appeal and then, since 2018, to cassation appeal to the Supreme Court. The cassation appeal may be filed by designated authorities only, namely General Prosecutor, Commissioner for Children (Rzecznik Praw Dziecka) and Ombudsman (Rzecznik Praw Obywatelskich) within 4 months period since the order became final (Article 5191 § 21 and § 22 Code of Civil Procedure). This period seems quite long as for the requirement of “expeditiousness”, especially when compared to the general one, applicable to all other cassation appeals, which is two months.

Additionally, in 2022 the Civil Procedure Code was amended to provide for the suspension for two months of the enforceability of the return order on the application of one of the above mentioned designated authorities filed within two weeks since the order become final (Article 388(1) § 1 and § 2 Code of Civil Procedure), and its automatic prolongation if the designated authority indeed filed later a cassation appeal (Article 388(1) § 3 Code of Civil Procedure). This suspension of enforceability was found incompatible with Brussels II bis Regulation in a recent judgement given by the Court of Justice of the EU in February 2022 in Rzecznik Praw Dziecka case (C‑638/22 PPU).

Enforcement in Poland of a Decision Given in the Country of the Child’s Habitual Residence

Pursuant to Article 11(8) Brussels II bis Regulation, even if a judgement of non-return was handed down in the country to which the child was abducted, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under the regulation becomes enforceable in accordance with Section 4 of Chapter III. Article 42(1) Brussels II bis Regulation requires that such an enforceable judgment must be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with the regulation.

In Rinau case (C-195/08), the Court of Justice of the EU, underlined that:

an application for non‑recognition of a judicial decision is not permitted if a certificate has been issued pursuant to Article 42 of the Regulation. In such a situation, the decision which has been certified is enforceable and no opposition to its recognition is permitted.

In accordance with Article 598(14) § 1 Code of Civil Procedure, general rules on enforcement of foreign judgements are applicable to recognition and enforcement of a return order given in another EU Member State. These general rules provide, among others, that a decision on enforcement may be subject to appeal and then cassation appeal (this “particularity” of the procedure was already signaled on this blog in a previous post). It seems that the non-return order should be subject to special provisions allowing for the full effectiveness of Article 42(1) Brussels II bis Regulation.

The above shows that there are provisions in the Code of Civil Procedure which give rise to doubts as to their compatibility with Brussels II bis Regulation (and the new Brussels II ter Regulation equally). The question remains open whether and when Poland will be willing to address them.

Le vote par le Parlement européen, le 14 juin 2023, des amendements à la proposition de règlement sur l’intelligence artificielle (RIA), ainsi que l’ensemble des textes européens portant sur cette technologie, place l’Union européenne dans une position dominante de régulation sur la scène internationale. L’élaboration de ce que nous pourrions appeler le « paquet européen sur l’intelligence artificielle » ainsi que la découverte par le grand public des systèmes d’intelligence artificielle générative (SIAG) – tels que le service ChatGPT – fait réagir la scène internationale.

Sur la boutique Dalloz Code de la protection des données personnelles 2023, annoté et commenté Voir la boutique Dalloz

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The author of this post is Michele Grassi, who is a post-doc at the University of Milan.

In 2010, Bechetti Energy Group (‘BEG’) commenced proceedings against Italy before the European Court of Human Rights (ECtHR). The applicant complained that Italy had breached its obligations under Article 6(1) of the European Convention on Human Rights (ECHR) by failing to set aside an arbitral award rendered in a dispute between BEG and Enelpower, despite the apparent lack of impartiality of the arbitrator appointed by the opposing party. In particular, the concerned arbitrator had served as Vice-Chairman and member of the Board of Directors of Enel, Enelpower mother company, and had several professional links with the latter.

In May 2021, the ECtHR rendered its ruling and found that Italy had in fact violated Article 6(1) ECHR. Nonetheless, the Strasbourg Court dismissed the applicant’s request to order the reopening of the domestic proceedings in which Italian courts rejected the appeal for nullity of the arbitral award. They did so on the assumption that

it is in principle for the Contracting States to decide how best to implement the Court’s judgments without unduly upsetting the principles of res judicata or legal certainty in civil litigation.

However, the Court stressed the

importance, for the effectiveness of the Convention system, of ensuring that domestic procedures are in place to allow a case to be revisited in the light of a finding that the safeguards of a fair hearing afforded by Article 6 have been violated.

The Revocation of Final Civil Judgments under Italian Law

Under Italian procedural law, revocation of final civil judgments (and the reopening of the respective proceedings) is only available in a limited number of cases, listed at Article 395 of the Italian code of civil procedure (CPC). This same provision also applies (in part) to arbitral awards pursuant to Article 831 CPC.

Before 2022, revocation was not available in case of breach of the ECHR rights (see the judgments of the Italian Constitutional Court of 26 May 2017 no. 123, and of 27 April 2018 no. 93). The situation has now changed, following a recent reform of the Italian code of civil procedure that introduced, among other things, a new reason for revocation of civil judgments that have been found in breach of the Convention by the ECtHR (Article 391-quater CPC).

Still, the new provision requires that three cumulative – and quite restrictive – conditions be met: (1) The violation must concern a right of status of a natural person; (2) The just satisfaction awarded by the Court pursuant to Article 41 ECHR must not be sufficient to remedy the consequences of the violation; (3) The revocation of the judgment must not affect the rights of third parties (i.e. parties that did not participate in the proceedings before the ECtHR).

Those conditions resemble the requirements for the reopening of domestic proceedings provided by the laws of other States parties to the ECHR (e.g., Article L 452-1 of the French code de l’organisation judiciaire or Article 510 of the Spanish code of civil procedure. See also the recommendation issued by the Committee of Ministers to member States, R(2000)2 of 19 January 2000). Still, the combined application of the above conditions significantly narrows the scope and effectiveness of the Italian remedy. In particular, it is apparent that Article 391-quater CPC cannot be applied in the BEG case, since the violation of the ECHR addressed in the case does not concern a right of status of a natural person.

The Position of the Italian Government

In light of the above, on 3 August 2022, the Italian government submitted an Action Report to the Secretariat of the Committee of Ministers. According to the Report: the Italian State had promptly paid to BEG the “just satisfaction” awarded by the ECtHR judgment (€ 51,400); the domestic civil proceedings that led to the violation of the ECHR had not been reopened, in compliance with the decision of the Court that dismissed the applicant’s request to that end; the Italian State considered to have fully discharged its obligations under Article 46 ECHR; BEG had commenced proceedings in Italy against the Italian government, the opposing party in the arbitral proceedings and the arbitrator concerned, seeking compensation of further damages.

The Position of the Applicant

On 27 January 2023, BEG submitted a Communication pursuant to Rule 9(1) of the Rules of the Committee of Ministers for the supervision of the execution of judgments, whereby it: confirmed that it had commenced proceedings against, inter alia, the concerned arbitrator for compensation of the relevant damages; contested the Italian government’s contention that the judgment only entailed the payment of the amount of just satisfaction awarded by the Court pursuant to Article 41 ECHR; contested the Italian government’s argument that it had no obligation to ensure the reopening of the domestic proceedings, because the Court had dismissed the applicant’s request to that effect; contended that, from a theoretical standpoint, the re-examination or reopening of the domestic proceedings would constitute an appropriate measure of restitutio in integrum to re-establish the situation which would have existed if the violation had not been committed. At the same time, it acknowledged that, under Italian procedural law, it was not possible to reopen the domestic proceedings; requested, as a result, full financial compensation of the damages suffered.

The Effects of the BEG judgment in Italy

The Committee of Ministers of the Council of Europe has not yet issued a final resolution and the supervision process is still pending. Accordingly, for the time being, the decision of Italian courts on the validity of the contested arbitral award still stands as res judicata. The applicant has not sought a revocation of the domestic judgment, as this remedy is not available under Italian procedural law, but it has rather commenced new proceedings, claiming full compensation of the relevant damages. Conversely, the Italian government contends to have fully discharged its international obligation to abide by the final judgment of the ECtHR by paying the just satisfaction awarded by the ECtHR.

One might then question the effectiveness of the ECtHR decision in this case. Following several years of litigation, the applicant is still bound by a decision that has been found in violation of its Convention rights. This is not the place to elaborate on the possible existence of an international obligation of the Italian State to ensure that the domestic proceedings are reopened, despite the ECtHR’s dismissal of the applicant’s claim to that end. I personally think that this is the case, based on the State’s customary law obligation to ensure the cessation of international wrongful acts and to make full reparation for the injury caused. Moreover, in a recent decision against Greece, the same Strasbourg Court held that “the taking of measures by the respondent State to ensure that the proceedings before the Court of Cassation are reopened, if requested, would constitute appropriate redress for the violation of the applicant’s rights” (see Georgiou v Greece, 14 March 2023, app. no. 57378/18).

What is worth mentioning – especially in light of the recent decision of the French Cour de Cassation, reported in the post by Gilles Cuniberti on this blog – are the possible side effects of the BEG judgment, concerning the recognizability of the arbitral award at stake outside Italy. Indeed, according to well established case-law of the ECtHR, requested States shall refuse the recognition and enforcement of foreign judgments if the parties’ procedural rights were infringed in the State of origin (see Pellegrini v. Italy, 20 June 2000, app. no. 30882/96; Avotiņš v Latvia, 23 May 2016, app. no. 17502/07; Dolenc v Slovenia, 20 October 2022, app. no. 20256/20). This might explain why the Cour de Cassation did not focus on the possible irreconcilability between the Albanian judgment, whose recognition was sought in France, and the arbitral award between BEG and Enelpower. Nonetheless, it might still be quite contradictory to hold that a foreign decision cannot be enforced due to the party’s attempt to “evade” an award that has been found in violation of the Convention right to fair proceedings.

 The first issue of 2023 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:

Francesco Salerno, (formerly) Professor at the University of Ferrara, L’impatto della procedura di interpretazione pregiudiziale sul diritto internazionale privato nazionale (The Impact of the Preliminary Rulings of the Court of Justice on National Private International Law; in Italian)

The European Court of Justice’s uniform interpretation of private international law concerns mainly – albeit not only – the EU Regulations adopted pursuant to Article 81 TFEU: in the context of this activity, the Court also takes into account the distinctive features of EU Member States. The increasing number of autonomous notions developed by the Court greatly enhanced the consistency and the effectiveness of the European rules. Against this background, the Italian judicial authorities implemented such a case-law even when it ran counter well-established domestic legal principles. Moreover, the European institutions rarely questioned the case-law of the Court of Justice, but when they did so, they adopted new rules of private international law in order to “correct” a well-settled jurisprudential trend of the Court.

Cristina Campiglio, Professor at the University of Pavia, La condizione femminile tra presente e futuro: prospettive internazionalprivatistiche (The Status of Women between Present and Future: Private International Law Perspectives; in Italian)

One of the Goals of the U.N. 2030 Agenda for Sustainable Development is gender equality (Goal 5), which can also be achieved through the elimination of “all harmful practices, such as child, early and forced marriage” (Target No 3) and the protection of women reproductive rights (Target No 6). This article addresses these two issues in a conflict-of-laws perspective, identifying the legal mechanisms through which legal systems counter the phenomenon of early marriages celebrated abroad and tackle the latest challenges related to the so-called reproductive tourism. After analyzing the role played by public policy exceptions and by the principle of the best interest of the child, it summarizes the Court of Justice’s case-law on the recognition of family situations across borders. In fact, the recognition of the possession of an EU status – meeting the social need to have a personal status which accompanies individuals anywhere within the EU area – is gaining ground. Such status is a personal identity merely functional to the exercise of EU citizens’ freedom of movement (Article 3(2) TEU, Article 21 TFEU and Article 45 EU Charter of Fundamental Rights). The result is the possession, by EU citizens, of a split personal identity – one functional to circulation, while the other one to its full extent – whose compatibility with the EU Charter of Fundamental Rights principles and with the ECHR may be called into question.

The following comment is also featured:

Marco Farina, Adjunct Professor at the University ‘La Sapienza’ in Rome, I procedimenti per il riconoscimento e l’esecuzione delle decisioni straniere nella recente riforma del processo civile in Italia (Proceedings for the Recognition and Enforcement of Foreign Judgments in the Recent Italian Reform of Civil Procedure; in Italian)

In this article, the Author comments on the new Article 30-bis of Legislative Decree No 150/2011, introduced by Legislative Decree No 149/2022 reforming Italian civil procedure and aimed at regulating “proceedings for the recognition and enforcement of foreign judgments provided for by European Union law and international conventions”. The Author analyses the new provision, focusing on the different procedural rules applicable, depending on the relevant EU Regulation or international convention concerned, to the proceedings that the EU Regulations listed in Article 30-bis of Legislative Decree No 150/2011 provide for obtaining the recognition and enforcement of the judgments rendered in a Member State other than the one in which they were rendered. In commenting on this new provision, the Author offers a reasoned overview of the problems generated by it with the relative possible solutions.

Finally, this issue features the following book review by Francesca C. Villata, Professor at the University of Milan: Pascal DE VAREILLES-SOMMIÈRES, Sarah LAVAL, Droit international privé, Dalloz, Paris (11th ed., 2023) pp. XVI-1359.

Cet épisode traite des outils de lutte contre le blanchiment des capitaux au niveau de l’Union européenne.

Sur la boutique Dalloz Code monétaire et financier 2023, annoté et commenté Voir la boutique Dalloz

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The European Parliament passed on 15 June 2023 a resolution expressing support for the accession of Ukraine to the Hague Convention of 2 July 2019 on the recognition and enforcement of foreign judgments in civil or commercial matters.

As reported on this blog, the Council of the European Union had already decided on 24 April 2023 that the Union would establish treaty relations with Ukraine under the Convention following the accession of Ukraine.

According to Article 29 of the Convention, accession to the Convention by one State creates treaty relations between that State and the States that have already joined the Convention only if neither of them has notified the depositary that the accession should not have the effect of establishing treaty relations with the other. If a State intends to issue a declaration to that effect, it must do so within 12 months of the ratification or accession of the State concerned. Absent a declaration, the Convention comes into effect between the States in question on “the first day of the month following the expiration of the period during which notifications may be made”. 

The Council of the Union assessed, in its decision of 24 April 2023, that there were no reasons to prevent the accession by Ukraine from creating treaty relations between the Union and Ukraine under the Convention, and accordingly decided that an Article 29 declaration should not be issued.

By its recent resolution, the European Parliament basically expressed the same view.

The resolution does not entail, in itself, any effect on the international plane. Rather, it addresses a concern that relates to the role that the Parliament is entitled to play in the process leading to decisions regarding the establishment of the Union’s treaty relations with third countries.

Pursuant to Article 218(6) TFEU, the conclusion of an international agreement by the European Union requires a Council decision. When it comes to agreements covering fields to which the ordinary legislative procedure applies, including judicial cooperation in civil matters, the Council may only act “after obtaining the consent of the European Parliament”. The decision of 12 July 2022 whereby the Council decided that the Union would accede to the Hague Judgments followed precisely that pattern.

Now, under the current practice of the institutions, no formal procedure in accordance with Article 218(6) TFEU is initiated for the conventions that contain a non-objection mechanism, such as the Judgments Conventions. With respect to these conventions, the Commission only informs the Council and Parliament of any third country’s request to accede to a the convention in question. This means that if the Council decides to take no action regarding the third State’s accession (thus paving the way to the establishment of treaty relations with the latter), the Parliament risks being prevented from expressing its views on the desirability of the establishment of such relations.

In its recent resolution, the Parliament, having recalled that “an international agreement cannot affect the allocation of powers fixed by the Treaties”, stated that “the fact that at international level a silence procedure has been adopted to facilitate accession by third states should be of no consequence for the EU’s internal decision-making process”.

It is thus for the purposes of the internal decision-making process of the EU that the Parliament made use, by this resolution, of its prerogative under Article 218(6) TFEU to make a stance on the establishment of treaty relations between the Union and Ukraine under the Hague Judgments.

That said, the resolution also provided the Parliament with an opportunity to issue a political statement concerning the Union’s relations with Ukraine, in general. In the operative part, the Parliament reiterated its “unwavering solidarity with the people and leadership of Ukraine and its support for the independence, sovereignty and territorial integrity of Ukraine, within its internationally recognised borders”.

The Kingdom of Saudi Arabia (KSA) has recently enacted a new Civil Transactions Law (Royal Decree No. M/199, dated June 16, 2023). The law will enter into force on December 16, 2023, 180 days after its enactment (hereinafter referred to as “the new law”). This law has been rightly described as “groundbreaking” because, prior to the enactment of the new law, there has been no codification of civil law in the Kingdom, and civil law issues have traditionally been governed by the classical rules of Islamic Sharia according to the teachings of the prevailing school of fiqh (religio-legal jurisprudence) in the Kingdom (Hanbali School). Like most of the civil law codifications in the region, the new law focuses mainly on the so-called “patrimonial law,” i.e., property rights and obligations (contractual and non-contractual). Family relations and successions are dealt with in a separate law, which was previously enacted in 2022 and entered into force the same year (Personal Status Act, Royal Decree No. M/73 of 9 March 2022, entered into force on June 18, 2022).

From a private international law perspective, one particular aspect of the new law compared to other civil law codifications in the region is that, unlike most of the Arab civil law codifications, the new law does not contain rules on the choice of the applicable law. In other neighboring countries (namely Egypt, Jordan, Syria, Iraq, Qatar, Oman, and Yemen) as well as in other Arab jurisdictions (including Libya and Algeria), the civil law codifications include at the beginning of their respective Civil Code/Civil Transactions Act a chapter dealing with the “application of the law in space”. These choice-of-law codifications generally contain provisions on characterization, choice of law in family law and succession, property, contractual and non-contractual obligations, and some general rules such as renvoi (or its prohibition) and public policy, etc. Only a few Arab states have chosen to codify choice-of-law rules outside of their Civil Code (Kuwait and Bahrain) or Code of Obligations and Contracts (Morocco and Tunisia). Lebanon is the only country where choice-of-law principles have been developed mainly through case law. Thus, Saudi Arabia remains the only Arab jurisdiction where conflict of laws rules are almost non-existent and where the courts have not been able to develop a body of principles dealing with choice-of-law issues. This is because, in general, Saudi courts apply Saudi law when they assume jurisdiction, regardless of whether or not the dispute has a connection with another legal system or not. Whether there will be a codification of choice-of-law rules in the same way that rules on international jurisdiction and enforcement of foreign judgments have been codified remains to be seen.

 

Interestingly, however, the new law may affect the assessment of public policy in the context of the enforcement of foreign judgments. Indeed, based on the traditional Sharia rules and principles recognized in the Kingdom, Saudi courts have often relied on public policy and inconsistency with Sharia to refuse enforcement of foreign judgments. For example, in a case decided in 1996, the Saudi court refused to enforce a Dubai judgment on the ground that the said judgment allowed for compensation for lost profits and payment of moral damages (Board of Grievances, Case No. 1783/1/Q of 30/12/1417 Hegira [November 12, 1996]). The court cited Sharia rules and principles on compensation, according to which only real and quantifiable losses can be compensated. The new law departed from this traditional principle by clearly allowing compensation for both lost profits (article 137) and moral damages (article 138). Therefore, the traditional position of the Saudi court is no longer tenable under the new rules, as compensation for lost profits and moral damages are now available under the newly adopted rules.

 

Another important issue concerns interest. It is well known that the payment of interest is prohibited under Sharia rules and principles. Saudi courts have been particularly eager to refuse enforcement of those parts of the foreign judgments that order the payment of interest, including legal interest available under the laws of other Arab and Islamic states (see, for example, Board of Grievances, Case No. 2114/Q of 21/8/1436 Hegira [June 9, 2015] refusing enforcement of legal interests ordered by Bahraini courts but allowed partial enforcement of the main award). However, unlike lost of profits and moral damages, the new law’s position on interest is less clear. Several indicators in the new law suggest that the legislature did not wish to depart from the traditionally prevailing position. For example, the prohibition on agreeing to repay amounts that “exceed” the capital in loan agreements, either at the time of the conclusion of the agreement or at the time of the deferment of payment, is clearly stated in article 385 of the new law. Moreover, article 1 of the new law clearly refers to the “rules [al-ahkam] derived from the Islamic Sharia which are most consistent with the present law” as the source of law in the absence of an applicable provision of the new law or a rule of general principles contained in its last chapter. Accordingly, it can be expected that Saudi courts will continue to refuse to enforce the portion of the foreign judgments awarding interests on the ground of public policy and the inconsistency of interests with the principles of the Sharia as understood in the Kingdom.

 

The Institute of International Shipping and Trade Law is organising its 18th annual colloquium on 6 and 7 September 2023 in Swansea. The topic of the event this year is on Commercial Disputes- Resolution and Jurisdiction.

Delegates can attend both in person and online. Early bird registration is available by the end of June.

The list of speakers and chairpersons confirmed includes Masood Ahmed, Simon Baughen, Michael Biltoo, William Blair, Ruth Hosking, John A. Kimbell KC, Monica Kohli, George Leloudas, Aygun Mammadzada, Karen Maxwell, Francesco Munari, Brian Perrott, Marta Pertegas Sender, Richard Sarll, David Steward, Andrew Tettenborn and Patricia Živković.

For registration and further info, see here.

Readers of this blog will certainly enjoy trying

eu-adapt.com

It is the result of a project coordinated by Afonso Patrão (University of Coimbra, in Portugal), joining efforts with the Universities of Heidelberg (Germany), Turku (Finland), Genoa (Italy) and Valencia (Spain), which will be useful when a right in rem is invoked under the law applicable to succession, but the lex rei sitae does not know such right in rem. As Afonso Patrão explains “the app will then suggest an equivalent under the law of the latter Member State, taking into account the aims and the interests pursued by the specific right in rem and the effects attached to it”.