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Bezirkshauptmannschaft Lilienfeld
Transport
Une entreprise de transport routier ne peut pas se décharger de sa responsabilité de respecter les temps de conduite et de repos des conducteurs en la transférant à une tierce personne

Inspecţia Judiciară
Relations extérieures
État de droit : l’organe en charge des procédures disciplinaires contre les juges doit être indépendant et impartial

This post was written by Nadia Rusinova (Hague University of Applied Sciences).

The judgment of the Court of Justice of the EU in the Pancharevo case (C-490/20) drew the attention of the legal community across Europe (see post on this blog here), as it analyzed the compatibility with the EU law of the refusal to issue a Bulgarian birth certificate indicating two persons of the same sex as parents. Following this judgment, the legal proceedings in Bulgaria continued and final Supreme Court judgment was issued on 1 March 2023. This final court act is important for the further developments in regard to the free movement and cross-border recognition of parenthood.

The Facts

To recall the facts, the Bulgarian V.M.A. and the British K.D.K. – both women – are married and have been living together in Spain since 2015. In December 2019, the couple had a daughter, S.D.K.A., who was born and lives in Spain. The Spanish authorities issued a birth certificate for S.D.K.A. which names V.M.A. and K.D.K. as her mothers. V.M.A. also applied to the Bulgarian authorities for a birth certificate for the child, which is needed to secure a Bulgarian identity document. Sofia municipality instructed V.М.А. to disclose the identity of the child’s biological mother. V.М.А. did not do so. Sofia municipality then refused to issue the birth certificate.

V.M.A. appealed before the Administrativen sad Sofia-grad (Administrative Court of the City of Sofia), which in turn referred to the Court of Justice of the EU. In its judgment, delivered by the Grand Chamber, the CJEU held that a child, who is an EU citizen and whose birth certificate, issued by the competent authorities of the host Member State, designates two persons of the same sex as the child’s parents, the Member State of which that child is a national is obliged (i) to issue to that child an identity card or a passport without requiring a birth certificate to be drawn up beforehand by its national authorities, and (ii) to recognise, as is any other Member State, the document from the host Member State that permits that child to exercise, with each of those two persons, the right to move and reside freely within the territory of the Member States.

Following the CJEU judgment in Pancharevo, the referring court obliged Sofia municipality to issue a birth certificate for the child noting V.M.A. and K.D.K as her parents. After an appeal the Bulgarian Supreme Administrative Court (Supreme Court) overruled this decision, upholding the refusal to issue a birth certificate for the child, stating that the child is not a Bulgarian citizen (author’s unofficial translation of the judgment into English here)

What are the Facts and was is the Law?

To answer this question, it is important to review the initial application: the request is to draw up a birth certificate for the child, a prerequisite for Bulgarian identity documents to be issued. As noted, CJEU explicitly points that the obligation of the Member State under Article 4, § 3 Directive 2004/38/EC is to issue an identity card or passport to its citizens. In this sense, the question of the nationality of the child becomes crucial: if the child does not have Bulgarian nationality, then the Republic of Bulgaria is under no obligation to draw up a birth certificate, and in this case the refusal would be fully in accordance with the law.

The CJEU confirms what is obvious, finding that it is for each Member State, having due regard to international law, to lay down the conditions for acquisition and loss of nationality. Then it stated that “according to the findings of the referring court, which alone has jurisdiction in that regard, S.D.K.A. has Bulgarian nationality by birth”. Therefore, the entire CJEU judgment is rendered under the initial assumption that the child has acquired Bulgarian nationality at birth, stating in § 44 that “since S.D.K.A. is a Bulgarian national, the Bulgarian authorities are required to issue to her an identity card”. Following the CJEU judgment, the referring court imposed an obligation on the Bulgarian authority to issue a birth certificate for the child, again assuming that the child is a Bulgarian citizen.

The Supreme Court as a last instance court has the power to reassess the facts. The Supreme Court then starts the assessment of the requirements de novo and notes that for a child to acquire Bulgarian nationality by birth, at least one of the parents must be a Bulgarian national, and points that “of importance in this case (…) is the presence of filiation with the Bulgarian citizen”. Indeed, Article 25 of the Bulgarian Constitution and Article 8 of the Law on Bulgarian Citizenship state that a Bulgarian citizen is anyone whose at least one parent is a Bulgarian citizen. How then can it be established who has the capacity of “parent” in this situation, and is it decisive that in the Spanish birth certificate the child has two (same-sex) parents?

In their plea to the first instance court, the applicants referred to the provisions of the Bulgarian Private International Law (PIL) Code. They essentially argued that the Spanish law is applicable to the establishment of parenthood and since both mothers have validly acquired the status of parent of the child in Spain, thus filiation with the Bulgarian mother is established and leads to acquisition of Bulgarian nationality. It is however questionable if these PIL provisions can be applied for the purpose of nationality determination, which is traditionally purely domestic issue. According to the Article 83 § 1 of the PIL Code, establishment of a parent-child relationship is governed by the law of the State whose nationality the child acquired at the time of birth. It is true that if the child has Spanish nationality by birth, then parenthood should be established according to the Spanish law. If it is stateless Article 83, para. 2 and 3 of the PIL Code would again point to the Spanish law as applicable law as more favorable to the child. However, for these provisions to be applicable, the child first needs to be found to be a Spanish citizen by birth or stateless, both logically following a determination of its nationality.

To initially determine whether the child has Bulgarian nationality under Article 25 of the Constitution, the parenthood would therefore inevitably be established under the Bulgarian law. Pursuant to Article 60, paras. 1 and 2 of the Family Code the origin from the mother is determined by birth. The child’s mother is the woman who gave birth, including in instances of assisted reproduction. It was therefore necessary in the present case to identify the woman who gave birth, information the couple concerned refused to disclose. This refusal led to the result that filiation with the Bulgarian mother cannot be established. The Supreme Court then held that “After it was established in the case that the child (…) is not a Bulgarian citizen, in the sense of the applicable law, there is no obligation for the Republic of Bulgaria (…) to draw up a birth certificate”.

The conclusion concerning the nationality of the child, and the judgment in this part, are technically correct. They are also very convenient in that they provide the ideal setting for the Bulgarian authorities to achieve the result they need to achieve, that is, to not recognise same-sex parenthood under the Bulgarian legal order. This approach allowed a formally accurate judgment and released the Supreme Court from an obligation to rule on several decidedly inconvenient issues, the first and most important one being the thorny question on the same-sex parenthood.

In addition, no danger of statelessness is present because the child is entitled to Spanish nationality. When Bulgarian nationality by birth is not possible, no other ground for acquisition can be applied to the present case. The Supreme Court notes also that the child did not acquire British nationality by birth because the British mother, who was born in Gibraltar to a parent who was a British national, cannot pass on her nationality to a child when that child is born outside the territory of the United Kingdom (footnote 14 of the AG Opinion). Since concerns regarding potential statelessness were raised, the Supreme Court needed to examine whether a danger existed for the child to be stateless – an undesired outcome for the Bulgarian authorities as it would bring supranational response and potential accountability.

To exclude potential statelessness, after establishing that the child is not Bulgarian national, the Supreme Court referred to the Spanish law that Spanish citizens by origin are persons born in Spain when the national law of neither of their parents confers nationality on the child.

Given the facts established in the case, that the national legislation of either of the parents named in the child’s birth certificate drawn up in Spain, where it was born, does not grant citizenship, it [the child] should, by virtue of the said provision, be a citizen of Spain, member of the European Union. […] its applicability, in the present case, was expressly confirmed by the Spanish Government […] as the Advocate General points out, there is no danger of the child being stateless.

Essentially, by stating that the child is not a Bulgarian national, the Supreme Court provides the mothers with the only condition needed to claim the child’s right to Spanish nationality and shifts the responsibility for the current statelessness to them.

As a consequence, the child is also an EU citizen and therefore has the right to free movement. The Supreme Court mentions that because the child is not a Bulgarian citizen, she cannot invoke either the rights arising from 4, § 3 of Directive 2004/38/EC, or those arising from Articles 20 and 21 TFEU. But this would be true only if the child was not an EU citizen. Because the child’s right to Spanish nationality “upon request” is established, it is for the mothers to exercise the right and receive the protection of the rights of the child through the acquisition of Spanish citizenship.

Is Bulgaria in Violation of its Obligations under EU law?

In § 67 and 68 of the Pancharevo ruling, CJEU also considered the possibility that S.D.K.A. does not have Bulgarian nationality. In this case, it pointed out that regardless of their nationality and whether they themselves are EU citizens, K.D.K. and S.D.K.A. must be regarded by all Member States as being, respectively, the spouse and the direct descendant of an EU citizen – V.M.A., within the meaning of Article 2(2)(a) and (c) of Directive 2004/38, and therefore must be regarded as being V.M.A.’s family members “for the purposes of the exercise of the rights conferred in Article 21(1) TFEU and the secondary legislation relating thereto”. Can we then say that Bulgaria refuses to recognize the parent-child relationship legally established between a child and both her (same-sex) parents in another Member State for the purpose of exercising EU free movement rights with both parents?

Such conclusion appears to be rushed. With the Supreme Court judgment Bulgaria does not create obstacles to the child’s freedom of movement because “to exercise without impediment, with each of her two parents, her right to move and reside freely within the territory of the Member States as guaranteed in Article 21(1) TFEU” is not at all what was requested from the Bulgarian authorities. The two mothers requested a Bulgarian birth certificate intended to be used to apply for a Bulgarian identity document (this is also established and noted in §15 of the Request for preliminary ruling) and the legal nature of this request inevitably triggered the application of Bulgarian law on nationality.

The Pancharevo ruling does not require the Member States to mutually recognize the contents of birth certificates in regard to matters that do not relate to free movement rights. If the request had concerned indeed the right to free movement on the basis of the child’s being a direct descendant and V.M.A.’s family member, the authorities would not have had grounds to refuse. However, this should have been anticipated at an earlier stage of the proceedings. It is not in the Court’s power to rule on an issue not raised in any of these administrative proceedings.

What Would be the Right Way to Proceed?

It perhaps remains true that if the applicants had asked the right question, they would have received the right answer. Adequate proceeding is currently available under the Law on the entry, residence and departure of the citizens of the European Union and their family members (it is worth to note that indeed before 2019 this avenue was not available for Bulgarian citizens as this instrument used to encompass the citizens of the European Union who are not Bulgarian citizens and their family members.) As an example, this same Supreme Court rendered not so long ago a judgment recognising same-sex marriage for the purposes of free movement, in line with the Coman ruling, by issuing a permit for a long-term residence of a family member of a citizen of the EU in Bulgaria. Indeed, Bulgarian law does not permit same-sex marriage, and the Bulgarian Constitution stipulates that marriage is a voluntary union between a man and a woman. The Court then rightly noted that the disputed issue in the case is not related to the conclusion or recognition of a same-sex civil marriage in Bulgaria, but to the presence or lack of the prerequisites for a family member of an EU citizen to reside lawfully in Bulgaria. In addition, the Court’s decision holds that

It follows that a Member State cannot invoke its national law to refuse to recognize on its territory, solely for the purpose of granting a derived right of residence to a third-country national, a marriage concluded by him/her with a Union citizen of the same sex in another Member State in accordance with its law.

The second issue of Lloyd’s Maritime and Commercial Law Quarterly for 2023 was published today. It contains the following private international law articles, case notes, and book reviews:

PS Davies & D Foxton, “A View from Westbridge – Arbitrability in the Singapore Court of Appeal”

H Sanderson, “The Divine Comity”

P MacMahon, “Conditional Agreements and Arbitration Law’s Seperability Principle”

A CY Chan & K KC Tse, “The Tort Gateway: The Missing Jigsaw Piece?”

L Zhao & Z Jing, “Conflict of Jurisdiction between the UK and China and Enforcement of Arbitral awards and Judgments”

A Briggs, Book Review of “The UNCITRAL Model Law on International Commercial Arbitration: A Commentary” by Gilles Cuniberti

A Briggs, Book Review of “Freezing Injunctions in Private International Law” by F Šaranovi?

 

 

The latest issue of the Dutch Journal on Private International Law (NIPR) has been published.

NIPR 2023 issue 1

Editorial

M.H. ten Wolde / p. 1-2

A.V.M. Struycken, Arbitrages in Nederland waarop de Nederlandse rechter geen toezicht kan houden / p. 3-8

Abstract
The Code of Civil Procedure contains a chapter on arbitration. Procedures and awards rendered in the Netherlands are subject to a certain degree of scrutiny by the civil courts. This authority, however, does not extend to arbitration on litigation between private enterprises and a foreign State.
This exception applies to such awards rendered at the Peace Palace under the flag of the Permanent Court of Arbitration. This also applies to awards, if rendered in the Netherlands, based on investment treaties like the Washington Convention of 18 March 1965 which created the International Center for the Settlement of Investment Disputes (ICSID). It was correctly recognized by the Act of 1 November 1980 providing for a special rule.
A 1983 proposal to declare that awards rendered by the Iran-US Tribunal situated in The Hague are Dutch awards was not successful. The proposal was only retracted in 2000.
The Comprehensive Economic and Trade Agreement (CETA) 2016, between the EU and its Member States, on the one side, and Canada, on the other, which was approved for ratification by the Netherlands in July 2022, provides for arbitration in its Articles 27 and 28, within the framework of its investment court system. The recognition and execution of its awards in the Netherlands must still be implemented.
In arbitration based on investment treaties an issue of public international law is involved. This is ignored in Dutch caselaw, however.

N. Touw & I. Tzankova, Parallel actions in cross-border mass claims in the EU: a (comparative) lawyer’s paradise? / p. 9-30

Abstract
In the context of cross-border mass harms, collective redress mechanisms aim to offer (better) access to justice for affected parties and to facilitate procedural economy. Even when national collective redress mechanisms seek to group cases together, it is likely that cross-border parallel actions will still be filed. Parallel actions risk producing irreconcilable judgments with conflicting or inconsistent outcomes and the rules of European private international law aim to reduce this risk. This contribution argues that the rules on parallel actions currently run the risk of not achieving their objective in the context of mass claims and collective redress. Given their lack of harmonization, when collective redress mechanisms with different levels of representation are used, the application of the rules on parallel actions can cause procedural chaos. In addition, judges have a great deal of discretion in applying the rules on parallel actions, whilst there is a lack of guidance on how they should use this discretion and what criteria to apply. They may be unaware of the effects on the access to justice of their decisions to stay or proceed with a parallel collective action. This contribution argues that there should be more awareness about the interaction (and sometimes perhaps even a clash) between the goals of private international law and of collective redress and of how access to justice can come under pressure in the cross-border context when the traditional rules on parallel actions are applied. A stronger focus on the training and education of judges and lawyers in comparative collective redress could be a way forward.

N. Mouttotos, Consent in dispute resolution agreements: The Pechstein case law and the effort to protect weaker parties / p. 31-50

Abstract
The unending Pechstein saga involving the German speed skater and Olympic champion Claudia Pechstein and the International Skating Union has acquired a new interesting turn with the decision of the German Federal Constitutional Court. Among the various interesting questions raised, the issue of party autonomy, especially in instances of inequality in bargaining power, and the resulting compelled consent in dispute resolution agreements is of great relevance for private international law purposes. This article deals with the part of the judgment that focuses on the consensual foundation that underpins arbitration in the sporting context, providing a systematic examination with other areas of the law where other forms of regulation have emerged to remedy the potential lack of consent. This is particularly the case when it involves parties who are regarded as having weaker bargaining power compared to their counterparty. In such cases, procedural requirements have been incorporated in order to ensure the protection of weaker parties. The legal analysis focuses on European private international law, also merging the discussion with substantive contract law and efforts to protect weaker parties by way of providing information. This last aspect is discussed as a remedy to the non-consensual foundation of arbitration in the sporting context.

CASE NOTES

A. Attaibi & M.A.G. Bosman, Forumkeuzebeding in algemene voorwaarden: de ‘hyperlink-jurisdictieclausule’ nader bezien. HvJ EU 24 november 2022, ECLI:EU:C:2022:923, NIPR 2022-549 (Tilman/Unilever) / p. 51-58

Abstract
Tilman v. Unilever concerns the validity of a jurisdiction clause included in the general terms and conditions contained on a website, in case the general terms and conditions are referenced via a hyperlink in a written B2B contract. The CJEU held that such a jurisdiction clause is valid, provided that the formal requirements of Article 23 Lugano Convention 2007, that ensure the counterparty’s consent to the clause, are met. In this annotation the authors discuss and comment on the CJEU judgment, also in the broader context of earlier CJEU judgments on jurisdiction clauses contained in general terms and conditions.

K.J. Saarloos, Arbitrage en de effectiviteit van de EEX-Verordening naar aanleiding van de schipbreuk van de Prestige in 2002. Hof van Justitie EU 20 juni 2022, zaak C-700/20, ECLI:EU:C:2022:488, NIPR 2022-544 (London Steam-Ship Owners’ Mutual Insurance Association Ltd/Spanje) / p. 59-74

Abstract
The CJEU’s ruling in the Prestige case confirms the rule from the J/H Limited case (2022) that a judgment by a court of a Member State is a judgment within the meaning of Article 2 of the EEX Regulation if the judgment is or could have been the result of adversarial proceedings. The content of the judgment is not relevant for the definition. Judgments recognising judgments by arbitrators or the courts of third countries are therefore judgments within the meaning of the EEX Regulation. The question of the definition of the term judgment must be distinguished from the material scope of the EEX Regulation. A judgment recognising an arbitral award is not covered by the EEX Regulation’s rules on recognition and enforcement; however, such a judgment may be relevant for the application of the rule that the recognition of the judgment of a court of a Member State may be refused if the judgment is irreconcilable with a judgment given in the Member State addressed.
The ruling in the Prestige case also makes it clear that a judgment by a Member State court on arbitration cannot impair the effectiveness of the EEX Regulation. If it does, that judgment cannot be opposed to the recognition of an incompatible judgment from the other Member State. The CJEU thus formulates an exception to the rule that a judgment from a Member State may not be recognised if the judgment is irreconcilable with a judgment in the Member State addressed: that ground for refusal is not applied if the irreconcilable judgment in the requested Member State violates certain rules in the EEX Regulation. The ruling raises questions both in terms of substantiation and implications for the future. It is not convincing to limit a statutory limitation on the effectiveness of the EEX Regulation by invoking the same effectiveness. Moreover, the ruling creates tension with the rule that the New York Convention takes precedence over the EEX Regulation.

Nicholls & Anor v Mapfre Espana Compania de Seguros y Reaseguros SA [2023] EWHC 1031 (KB) yet again discusses the evidence and procedure carve-out in Rome II and its relationship with A12 Rome II ‘scope of the law applicable’. In the absence of a possibility to refer to the CJEU, a Court of Appeal intervention might be useful.

Pandya v Intersalonika [2020] EWHC 273 (QB) held that proceedings were time-barred per Greek law (lex causae), where the claim form was issued in the E&W courts before expiry of Greek limitation period, but was not served until after that expiry. A narrow reading of the A1.3 carve-out was confirmed in Johnson v Berentzen [2021] EWHC 1042 (QB)) and in Bravo & Ors v Amerisur Resources Ltd (Re The Amerisur plc Putumayo Group Litigation) [2023] EWHC 122 (KB).

In Duffy v Achmea [2020] EWHC 3341 (QB) it was held that interim payments are within the evidence & procedure exception; in Troke v Amgen [2020] EWHC 2976 (QB) interest payments, ‘because they are discretionary under Spanish law (the lex causae)’, were held to fall under the A1.3 exclusion. Sedgwick v Mapfre concluded the same (albeit on better reasoning IMHO) That seems to also have been the approach in Woodward -v- Mapfre, unreported but referenced in current judgment by Spencer J.

Eventually however the judge does not follow Troke or Sedgwick, holding [30] that  the recovery of interest provided for by Spanish law under Article 20 of the Spanish Insurance Act is, pursuant to Rome II and as a matter of European law, substantive, not procedural. In essence, the relevant foreign law rate of interest is said to be a matter of clear relevance to the remedy (financial compensation) to which the claimant is entitled, being intrinsically connected or linked to the award of financial compensation.

His reference [30](1) to the suggestion that A12′ applicable law provisions needs to be construed widely and A1’s carve outs narrowly, is wrong in my opinion. [31] He clearly suggests he might have referred to the CJEU had that been possible (although I do not necessarily agree that the CJEU would then have looked for a ius commune approach across the EU).

Even though he finds fault with the application of the rules by the lower courts, his calculation of awards are the same and the appeal fails.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 4.8.

Evidence & procedure carve-out under the Rome II Regulation
Recovery of interest held NOT to be substantive right, lex causae, rather procedural remedy, subject to lex fori

Nicholls ea v Mapfre Espana Compania de Seguros y Reaseguros [2023] EWHC 1031 (KB)https://t.co/ZF8dGQvEjf

— Geert Van Calster (@GAVClaw) May 5, 2023

Discussion on the Commission Proposal for a Regulation on Parenthood  is intensifying – recall the virtual workshop by Tobias Helms in February and the current regular webinars on the proposal. Now, a group of German professors (including Helms) that calls itself “the Marburg group” has published critical comments. Their verdict: “The Marburg Group welcomes the initiative of the Commission. The Group embraces the overall structure of the Parenthood Proposal. Nevertheless, it suggests some fundamental changes, apart from technical amendments.”

For details, see here.

 

Several EAPIL members have received over the last few days the same e-mail, allegedly sent by the President, asking them to help the association. Unsurprisingly, those who answered the e-mail have received in return a request to tranfer money to a vendor…

Nobody in the EAPIL Board has ever sent such an email. This is a fraud, please ignore it.

As I hope many will have noted, the e-mail address of the sender starts with ‘ppresidentt’. Board members might not be native English speakers, but we can spell ‘President’ properly.

Many thanks to those of you who have alerted me. This is not the first time this has happened. It will likely happen again. Please be careful.

Ryanair / Commission (Lufthansa ; COVID-19)
Aide d'État
Le Tribunal annule la décision de la Commission qui approuve la recapitalisation de Lufthansa par l’Allemagne, d’un montant de 6 milliards d’euros, dans le contexte de la pandémie de Covid-19

The latest issue of the open-access journal Cuadernos de Derecho Transnacional has just been released. It comes with several studies (Estudios) and some shorter notes (Varia).

The studies include the following.

María Chiara Malaguti, Principios UNIDROIT a través de los laudos de arbitraje internacional de inversiones (UNIDROIT principles through international investment arbitration awards)

The International Institute for the Unification of Private Law – UNIDROIT will start in 2023, in collaboration with the ICC Institute of World Business Law, a project that will evaluate the most appropriate rules in investment contracts in the light of the evolution of the contents of these contracts and international investment law in general. A fundamental part of the analysis will be the verification of the application of the UNIDROIT Principles to these contracts. In preparation for this project, this contribution describes the use that has been made so far of the Principles by arbitral tribunals whose awards are public, revealing how many of the Principles’ rules apply to investment contracts, for example in relation to the principle of good faith, situations of hardship, renegotiation of terms and the calculation of damages. In addition, the arbitral awards commented upon, also reveal how they can be used as applicable law not only in case of specific choice of the parties, but also in case of lack of indication of applicable law, as well as a tool for interpreting national law. For these purposes, the awards described are divided in this contribution by category according to the role attributed to the Principles in each award. However, the same analysis can be read to verify, in relation to the investment contracts analyzed, which rules have been referred to and to what extent (and yet in some cases, for example when using the Principles to determine damages, in reality the latter have also been invoked in relation to investment treaties).The analysis provided in this contribution, which hopefully shall be expanded on the basis of the investment contracts subject of arbitration to which we shall be able to have access under the Project, can be considered as one of the starting points for the exercise that will be carried out in the coming months.

Isabel Antón Juárez, Los contratos de distribución en Europa a través de las normas de Derecho de la competencia europeo. Las novedades aportadas por el Reglamento (UE) 2022/720 de exención de acuerdos verticales (Distribution contracts in Europe through the rules of European competition law. The novelties provided by Regulation (EU) 2022/720 on the exemption of vertical agreements)

On June 1, 2022, Commission Regulation (EU) 2022/720 of 10 May 2022 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices entered into force in the Spanish legal system. This Regulation replaces Regulation 330/2010, which allowed distribution agreements that may contain competition restrictions contrary to article 101.1 TFUE to be exempt from prohibition by meeting the criteria established by the Regulation itself and the Guidelines that accompanied it. At present and until May 31, 2034, the key Regulation to verify whether a distribution contract complies with the rules of European competition law will be the aforementioned Regulation (EU) 2022/720. The objective of this paper is the study of the novelties presented by Regulation 2022/720 compared to its predecessor Regulation 330/2010.

Isabel Antón Juárez, El proceso europeo de escasa cuantía. Luces y sombras de un proceso clave para la reclamación transfronteriza de pequeñas deudas en la Unión Europea (European small claims procedure. Lights and shadows of a key process for claiming small debts in the European Union)

Small debts are one of the most common in practice, however, they are the least claimed in court. The European Small Claims Procedure seeks to encourage cross-border debts, even if they are small (from an economic perspective), can be claimed. The possibility of collecting unpaid debts implies a very positive aspect from a social, economic and legal perspective. However, despite the fact that Regulation (EC) 861/2007 establishing the European small claims procedure is not new, since it has been applied since January 1, 2009, the results offered by European studies who have analyzed its impact on cross-border debt claims show that it has been rather scant. One of the reasons is because it has been an unknown tool for its potential users (small businesses and consumers) until relatively recently, but another has to do with its own configuration. About how this process has been conceived by the European legislator (in the initial version and also in the successive modifications) and the problems it raises in practice is what this paper will deal with.

Laura Aragonés Molina, La corrupción en las inversiones internacionales. Análisis de los efectos jurídicos de la corrupción en el arbitraje de inversiones ante el CIADI (Corruption in international investments. Analysis of the legal effects of corruption in ICSID arbitration)

Corruption is no longer a local problem but has taken on a transnational dimension. The intensification of international economic relations and the removal of barriers to trade and investment contribute to the economic and social development of states, but this development is undermined when corrupt practices are involved in the processes of formalising international investments. It is not surprising, therefore, that conflicts arise between the foreign investor and the host state at some point in the life of the investment and that they turn to the International Centre for Settlement of Investment Disputes (ICSID) as the most appropriate forum for resolving their disputes. In this paper, we analyse ICSID’s practice in cases in which one of the parties has alleged acts of corruption, with two essential objectives; a particular objective that consists of analysing the legal effects that these allegations can produce in the proceedings depending on who makes the allegation as well as the procedural difficulties that arise in these cases; and a general objective that transcends the particular case, which is to find out whether international arbitration can constitute an effective legal tool to dissuade investors and states from engaging in corrupt practices.

Cristina Argelich Comelles, Deberes de transparencia del Reglamento 2019/1150(P2B Regulation) para prevenir la discriminación algorítmica del consumidor en los sistemas de prelación de ofertas (Ranking transparency guidelines in Platform-to-Business Regulation to prevent algorithmic discrimination of consumers)

This paper examines the ranking transparency guidelines of online platforms in the P2B Regulation, as a legal treatment of algorithmic discrimination in consumer contracts. Therefore, this work considers duties related to standard contract terms, as well as others related to the right to information, the processing of personal data, contractual good faith, and remedies for breach of contract.

Ying-Feng Shao, Laura Carballo Piñeiro and Maximo Q. Mejia Jr., Allanando el camino para el reconocimiento de las ventas judiciales de buques celebradas en el extranjero. Análisis comparado de los procedimientos de venta judicial en jurisdicciones seleccionadas (Paving the way to recognising foreign judicial sales of ships. A comparative analysis of judicial sale proceedings in selected jurisdictions)

The extent to which a state will recognise the effects of a foreign judicial sale of a ship is subject to its private international law rules, which consist of various conditions for recognition. The application of these conditions may be mediated by the principles informing domestic sales. Thus, to understand better how national recognition mechanisms work, this article undertakes a comparative legal analysis of sale proceedings in selected jurisdictions to examine whether these principles fundamentally diverge and may impair the recognition. Varying principles exist as regards six aspects of the sale proceeding. In light of the prevailing conditions for recognition of foreign judicial sales, it is inferred that the principles concerning four sale aspects may resurface at the recognition stage, putting in danger the free circulation of the ship purchaser’s title. These four sale aspects include the ship’s location, the notification of sale, the variance in the standard sale, and the extra protection given to high-ranking creditors in the distribution of proceeds. In contrast, the principles in respect of the remaining two sale aspects, viz., the time to initiate a sale and the approach to obtaining the best possible price, though substantially divergent, may not impede the recognition.

Ying-Feng Shao, Laura Carballo Piñeiro and Maximo Q. Mejia Jr., Allanando el camino para el reconocimiento de las ventas judiciales de buques celebradas en el extranjero. Análisis comparado de los procedimientos de venta judicial en jurisdicciones seleccionadas (Paving the way to recognising foreign judicial sales of ships. A comparative analysis of judicial sale proceedings in selected jurisdictions)

The extent to which a state will recognise the effects of a foreign judicial sale of a ship is subject to its private international law rules, which consist of various conditions for recognition. The application of these conditions may be mediated by the principles informing domestic sales. Thus, to understand better how national recognition mechanisms work, this article undertakes a comparative legal analysis of sale proceedings in selected jurisdictions to examine whether these principles fundamentally diverge and may impair the recognition. Varying principles exist as regards six aspects of the sale proceeding. In light of the prevailing conditions for recognition of foreign judicial sales, it is inferred that the principles concerning four sale aspects may resurface at the recognition stage, putting in danger the free circulation of the ship purchaser’s title. These four sale aspects include the ship’s location, the notification of sale, the variance in the standard sale, and the extra protection given to high-ranking creditors in the distribution of proceeds. In contrast, the principles in respect of the remaining two sale aspects, viz., the time to initiate a sale and the approach to obtaining the best possible price, though substantially divergent, may not impede the recognition.

Javier Carrascosa González, La Ley aplicable a los contratos internacionales en la historia de los conflictos de leyes (Law applicable to international contracts in the history of the conflict of laws)

This study aims to unveil the keys of the law applicable to international contracts in history. From Antiquity and the Dark Ages to the 21st century. Connecting factors such as the place of celebration of the contract, the place of performance of the obligations arising from the contract, the choice of law agreement, the habitual residence of the contracting party who must perform the characteristic performance and the closest links clause have been considerated for different reasons. In this paper, the contributions of great legal scholars experts in private international law, such as Bartholo da Sassoferrato, Rochus Curtius, Charles Dumoulin, F.K. von Savigny and especially Jacobo de las Leyes, are present. This work argues, contrary to the Marxist view of the history and the law, that the progress of private international law is due to individuals, with names and surnames, genuine geniuses of private international law.

María José Cervilla Garzón, Algunos problemas relacionados con la integración de los miembros de la comunidad islámica en el sistema español de Seguridad Social (Some problems related to the integration of members of the Islamic community in the Spanish Social Security System)

Two types of problems that may affect members of the Islamic community, regarding their posible integration into the Spanish Social Security System are addressed in this study. On the one hand, those derived from the posible provision of services, in the Islamic country of origin and in Spanish territory, being necessary to coordinate the legislation of both states for there cognition of benefits. On the other, those caused by certain practices and institutions of Islamic law, not recognized by our legal system, with particular reference to the Kafala and the continuity that the Supreme Court doctrine may have had on there cognition of a widow’spension to all beneficiaries, in case of polygamous marriage.

Clara Isabel Cordero Álvarez, Delimitación de la residencia habitual como principal criterio de competencia en el derecho europeo de familia y normas de aplicación en defecto de Estado miembro competente ante la reciente doctrina del TJUE: desde un posible foro de la nacionalidad del demandado encubierto a supuestos claudicantes (Delimitation of habitual residence as the main attributive criteria of jurisdiction in european family law and applicable rules in the absence of a competent member state in accordance with the recent doctrine of the CJEU:from a possible undercover forum on the nationality of the defendant to faltering cases)

The Court of Justice has recently issued a resolution with significant practical consequences in the field of European Family Law, although the assessments on it are very different depending on the issues resolved by the meaning of the ruling. The ruling of August 1, 2022 (C-501/20, MPA vs. LCDNMT), addresses two major issues, both linked to the sector of international judicial competition, which deserve an in-depth analysis for different reasons. On the one hand, the Court specifies the relevant elements to determine the habitual residence of the parties in matters of Divorce (marital crisis), parental responsibility and maintenance obligations, as a fundamental criterion of jurisdiction under the Brussels II and Brussels III Regulations, completing the doctrine already in force and adapting it to the referenced case. Starting from the premise that none of these European instruments contains any definition in this regard, this judgment is decisive in locating the competent national jurisdiction in a case such as the one at hand, in which the spouses are EU agents, so the diplomatic immunity is raised, and consequently its potential incidence in this issue. On the other hand, this ruling specifies the conditions under which a court of a Member State of the EU, before which the claim has been filed, can establish its jurisdiction to rule on matters of divorce, parental responsibility and maintenance obligation when, in principle, no Member State is competent, when those involved hold the nationality of different Member States but have residence outside the Union, based on the rules of residual jurisdiction or forum necessitatis provided for in the applicable European instrument. The -restricted- interpretation that is made of the rule of residual jurisdiction in matrimonial matters in the Brussels II Regulation, is especially controversial, to the extent that it opens the door to a potential forum of the defendant’s nationality as well as to possible faltering cases, due to a denial of justice, when the internal jurisdiction law does not provide for this type of connection criteria.

Jonatán Cruz Ángeles, Los guardianes de acceso al metaverso. (Re)pensando el Derecho de la competencia de la Unión Europea (The guardians of access to the Metaverse. (Re)thinking the European Union Competition Law)

Metaverse, a completely virtual space, is called to pose new challenges to the European Union Competition Law. The so-called technology giants are investing billions of dollars in developing new platforms, self-named metaverse. Among these, we can highlight the started projects of Epic Games, Roblox Corporation, Meta, or Microsoft. However, the average user is still confused about what this new market consists of or how it will be classified in antitrust terms. Thus, in this paper, we will focus on the definition of this new virtual world. Besides, we will study how the European Union new category: access guards, to designate those companies or higher volume platforms. Thus, they will have a set of obligations to guarantee a balanced and disputable interacting space in the market.

David Cuenca Pinkert, A comparative study of the reimbursement of extrajudicial attorneys’ fees

»Reimbursement of Extrajudicial Attorneys’ Fees in Spanish Law. A Systematization of Procedural and Substantive Claims« (PhD-thesis published in German language, Duncker & Humblot, 2021, Schriften zum Internationalen Recht (SIR), Volume 229.) David Cuenca Pinkert examines the recoverability of extrajudicial attorneys’ fees in cross-border civil law cases under Spanish law and thereby demonstrates structural parallels to other European legal systems and universal principles of cost recovery. This approach systematizes procedural and substantive claims, which the author sees as a key to a better understanding of reimbursability.

Carlos Manuel Díez Soto, La incidencia del derecho de consumo en el crowdfunding financiero (The incidence of Consumer Law on financial crowdfunding)

The development of financial crowdfunding raises, among other questions, the problem of determining how the rules on consumer protection should affect this area, not only with respect to investors (whose protection has been legally articulated on the basis of the instruments and categories of the financial market), but also with respect to those consumers who resort to this channel to finance projects of a non-business nature (with respect to which, in particular, the question of the applicability of the rules on consumer credit arises). All this, taking into account the peculiarities of crowdfunding as a financing system in which, together with project-owners and investors, the intermediary platform assumes a leading role. In this paper we analyze the response that Spanish and European legislators have been giving to the questions raised, giving rise, at the present time, to a situation of notable uncertainty.

Laura García Álvarez, La determinación de la residencia habitual en las crisis matrimoniales transfronterizas y la importancia de su fundamentación en las resoluciones judiciales (The determination of habitual residence in international marital crises and the importance of its legal substantiation in judicial decisions)

The reason for writing this contribution came as a result of reading a decision from the AP de Santander, on the 4th of May 2022, and the corresponding first instance decision with regards the divorce between two Romanian nationals, temporary workers in Spain. In addition to the incorrect application of EU Regulations (2201/2003 and 2019/1111), the decisions scarcely substantiate the place where the parties were “habitually resident”, an essential point when this determines the access to justice in our domestic courts. In a wider study of other domestic decisions, it has been observed that this type of errors is not infrequent, both in relation to the scope of application of the EU Regulations and of the domestic rules on international jurisdiction, both critically analised, and also to the autonomous concept of “habitual residence” which is present in most of the alternative forums of international jurisdiction concerned.

Ana Gascón Marcén, The push for the international regulation of cross-border access to electronic evidence and human rights

This paper describes the different solutions used by China, the United States and the European Union to access electronic evidence for criminal investigations and the problems raised by their different approaches. The unstoppable trend to create mechanisms that allow authorities from one State to request data directly from a service provider located in another State is assessed together with the human rights challenges it poses and the need for the inclusion of certain safeguards in this kind of initiatives. The Second Protocol to the Budapest Convention is also analyzed as a recently negotiated multilateral solution to tackle this issue.

Aurora Hernández Rodríguez, Las cláusulas de elección de foro en los contratos de transporte marítimo de mercancías en régimen de conocimiento de embarque. Los arts. 251 y 468 de la Ley de Navegación Marítima (Jurisdiction agreements in contracts for the carriage of goods by sea under bill of lading. Arts. 251 and 468 of Spanish Maritime Navigation Act)

Jurisdiction clauses play a particularly important role in the field of contracts for the carriage of goods by sea, which are essentially international in nature, providing legal certainty and at the same time promoting commercial traffic. The forum selection clauses inserted in bills of lading, however, raise certain problems of formal validity of the consent and opposability against third parties. Article 25 RBI-bis is silent on the translational effectiveness of jurisdiction agreements, this gap being filled by the jurisprudence of the TJUE. The application and interpretation of this jurisprudence in relation to arts. 251 and 468 LNM has given rise to conflicting positions both in the doctrine and in the Spanish courts, and has finally led to the presentation of a preliminary ruling before the CJUE.

María del Ángel Iglesias, Algunas notas sobre el fuero indígena y la jurisdicción especial indígena (Some notes on indigenous law and special indigenous jurisdiction)

The recognition of the rights of indigenous peoples leads, in its necessary evolution, to the recognition of a particular indigenous jurisdiction, understood as the power to administer justice in the different branches of law, following ancestral uses and customs, their own rules and procedures and, in short, a certain legislation. It implies that, together with state law, there is a kind of exceptionality when specific requirements are met, which these lines address. Its application reveals problems relating to jurisdiction and the applicable law, and the recognition of the decisions issued in a particular venue; an exception that has its objective limits in the affectation of the Constitution, human rights and public order. All this is based on the recognition of legal pluralism, ethnic plurality, multiculturalism, and cultural identification and self-determination of peoples understood within the respect for the sovereignty and integrity of the State.

Carmen Jerez Delgado, Francisco Verdún Pérez, A la vuelta de treinta años. La implementación de la Directiva 93/13 sobre cláusulas abusivas, tarea conjunta y progresiva del legislador y los jueces (Thirty years on. The implementation of Directive 93/13 on unfair terms, a joint and
progressive task of legislators and judges)

Thirty years after the publication of Directive 93/13 on unfair terms, the process of progressive implementation continues in Spain, both legally and jurisprudentially, in which the judges play an important role through the preliminary ruling question. This Directive is – like no other – a paradigm of the institutional game between the Member States and the European Union. The Spanish case is a case in point. A Directive that in principle has a material or substantive content has turned out to be a real Trojan horse in Spanish formal (procedural) law, altering its classic principles, to the astonishment of procedural doctrine.

Oleksandra O. Karmaza, Oksana O. Hrabovska, Olena S. Zakharova, Settlement of inheritance relations in bilateral international agreements of Ukraine with foreign states on legal assistance in civil cases

The main features of inheritance relations with a foreign element are given. The main issues to be resolved in inheritance relations with the help of international agreements concluded by Ukraine with foreign states on legal assistance in civil cases were identified. It has been established that the norms of two dozen bilateral international agreements on legal assistance and about three dozen consular conventions that Ukraine has concluded with many states are devoted to the issue of international inheritance. Some of the conventions operate in the order of succession of Ukraine after the collapse of the USSR. Comparative analysis of the content of the texts of bilateral international agreements of Ukraine with foreign states on legal assistance in civil matters allowed classifying them by methods of regulation of inheritance relations into three groups: ones that do not contain separate articles (articles) on the regulation of inheritance relations; agreements on legal relations and legal assistance in civil matters between Ukraine and foreign countries, which contain provisions on inheritance relations, which in turn are divided into two groups depending on the structure and content of the articles: inheritance cases and the right to inheritance. The analysis gives grounds to claim the lack of a unified approach to the conclusion of contracts in the third group. This cannot be explained by the will of the parties, because the content of this group of agreements has a high level of identity. The agreement between Ukraine and the Republic of Cyprus on legal assistance in civil matters, which has a separate section IV on inheritance, has an exceptional content in the regulation of inheritance relations, but in comparison with other two groups of agreements with foreign countries contains very brief information. From the analyzed bilateral international agreements it was concluded that most aspects of inheritance relations are regulated by the personal law of a testator or the right of location of a property. There is a gradual overcoming of the problem of splitting the inheritance status, regardless of the location of the inheritance, the spread of the possibility of choosing the applicable law to the estate.

Julián Lozano Hernández, Lecciones del Covid-19. El incumplimiento previsible como una alternativa viable frente a la fuerza mayor y hardship del Art. 79 CISG (Lessons from Covid-19. Anticipatory breach as a feasible alternative to force majeure and hardship under Art. 79 CISG)

Article 79 of the United Nations Convention on Contracts for the International Sale of Goods imposes very strict requirements for its application as a ground for exemption from liability. As an alternative to it and in line with modern relational contracts theories, this article proposes, in situations where there are circumstances that prevent a normal development of the contract, the use of the anticipatory breach mechanism contained in Articles 71 to 73 of the Convention, especially for contracts of a certain complexity and of medium and long term, such as supply contracts.

María del Mar Maroño Gargallo, Marcas no tradicionales. Especial referencia a la marca patrón, la marca de posición y la marca de color (Non-traditional marks. Special reference to the pattern mark, the position mark, and the colour mark)

One of the elements that shows the expansion of the trademark law is the great variety of signs whose registration is admitted as a trademark. This study focuses on three types of signs that are integrated or confused with the appearance of the products: the pattern mark, the position mark and the color mark. These types of marks are an excellent example of the tension between the desire of the economic operators to have attractive elements of differentiation and the need to ensure the free availability in the market of certain elements. Having this into account, we analyze the concept of these non-traditional trademarks and their representation requirements, the main absolute grounds for refusal and the scope of legal protection that they receive once registered.

Enrique J. Martínez Pérez, Los órganos de tratados de las Naciones Unidas como alternativa limitada para la salvaguarda de los derechos humanos en España (United Nations treaty bodies as a limited alternative for the protection of human rights in Spain)

The aim of this research is to analyze the legal status of pronouncements of expert bodies established under various human rights treaties at the universal level from an international and domestic standpoint, with particular emphasis on remedies and procedures to give legal effect to their decisions in Spain.

Pablo M. Melgarejo Cordón, Consideraciones sobre el control de oficio de la competencia en el ámbito de los Reglamentos europeos de familia y sucesiones (Considerations on the ex officio examination of jurisdiction in European family and succession Regulations)

The purpose of this paper is to study the special features of ex officio monitoring of international competition in the material field of European family and succession Regulations. It also carried out an analysis of the STJUE of 7 April 2022, referring to the application of the provisions of Regulation 650/2012 in matters of succession, collecting some personal reflections and opinions in this regard.

Miguel-Ángel Michinel Álvarez, El TJUE y el Derecho internacional privado. Ante la digitalización de bienes y servicios (The CJEU and the International Private Law. Facing the digitalization of goods and services)

Faced with the problems that may arise when it comes to articulating community freedoms within the framework of the internal market for goods and services affected by the growing and unstoppable process of digitization, private law, for its part, responds with new rules that, each time with greater intensity, they unify aspects where there are discrepancies between the systems of the different Member States. But, given the clearly cross-border dimension of the type of existing relationships, the existing EU private international law acquis retains an important function, fine-tuned by the CJEU, on the path towards the establishment of a European digital sovereignty. This paper examines, from the perspective of this jurisprudence, the most relevant advances, from the perspective of liability, both contractual and non-contractual, related to that market.

Luis María Miranda Serrano, Adopción de acuerdos por escrito y sin sesión. Encaje del ordenamiento español en una tendencia de Derecho comparado flexibilizadora de los procesos de formación de la voluntad social (Adoption of written resolutions and without a meeting. The fit of the the Spanish legal order into a trend of comparative law that makes the processes of company will formation more flexible)

There is a clear trend in comparative law in favor of admitting that in closed companies the resolutions may be adopted in writing and without a meeting (as is the case, for example, in German, British, Italian, Portuguese, Swiss or Argentine legislation). In 1953 the Spanish legislator moved in the same direction. However, since 1995 our corporate legislation has omitted express reference to this flexible mechanism for the formation of the company will. In spite of this, there are arguments to sustain that our law fits in with the aforementioned trend. This paper presents and analyzes these arguments, offering a study of the issue both from the perspective of current law (lege lata) and from a prospective point of view (lege ferenda).

Lidia Moreno Blesa, Los negocios internacionales de electricidad. El mixti fori de lo público y lo privado (International businesses of electricity. The mixti fori of the public and private)

The world energy system is unstable because of Russia’s military aggression against Ukraine. For the European Union, it has meant a considerable increase in gas prices, due to its great dependence on imports of this raw material from the invading territory. Therefore, electricity has also suffered an alarming increase in prices, due to its status as derived energy that can be obtained from primary sources such as gas. This situation has caused that price of goods and services also increased, since energy is necessary for any human activity. Ensuring supply and reducing inflation is important now. The application of international trade regulations is considered, as well as the pactum de lege utenda in electricity contracts. The objective is to offer an overview of the rules of private international law in this sector of economic activity and learn about the peculiarities that govern the use of electricity.

Gisela Moreno Cordero, La justicia adversarial frente a las nuevas tendencias en la resolución alternativa de daños masivos a los consumidores. El ajuste al modelo español (Adversarial justice in the face of new trends in alternative resolution of mass consumer damages. Adjustment to the Spanish model)

Relatively recently, Directive (EU) 2020/828 of the European Parliament and of the Council of 25 November on representative actions for the protection of consumers’ collective interests was adopted. Its main objective has been to ensure that consumers have at least one procedural mechanism capable of effectively protecting their collective interests. However, the Directive is based on an adversarial model of proven ineffectiveness that did not take into account the new dispute resolution models adopted by some Member States, whose effectiveness is indisputable in terms of time and results. By means of these new models (new technologies) it is possible to quickly and easily obtain redress for the massive damage caused to consumers through voluntary agreements, without the need to resort to a procedure. Taking as a starting point the extensive comparative experience and scientific doctrine, our proposal is aimed at evaluating the possible introduction of new technologies -regulatory redress and the Ombudsman- in the Spanish legal system in those consumer sectors where this is feasible.

Mª Carmen Núñez Zorrilla, Hacia un marco legal europeo uniforme en la prevención de los riesgos y de la responsabilidad civil en el ámbito de la conducción automatizada inteligente (Towards a uniform European legal framework in the prevention of risks and civil liability in the field of intelligent automated driving)

Worldwide, we are moving towards fully automated or autonomous intelligent transport systems, by means of which we want to combat greenhouse gas emissions, air, noise and water pollution, traffic accidents, congestion and the loss of biodiversity. Hence, the concern for the development, from the European Union, of a legal framework for the prevention of risks and the regulation of civil liability derived from the damage that these systems may cause, since the specific characteristics that define this technology create new risks that are not adequately covered by traditional regulations, which must be reviewed to adapt to new technologies with artificial intelligence.

Xabier Orbegozo Miguel, Embargo preventivo y declaración de avería gruesa. A propósito del incidente del buque Ever Given (Arrest of ships and general average. Legal lessons from the Ever Given case)

In March 2021, the Ever Given ran aground in the Suez Canal generating an unprecedented collapse in the main shipping route linking the Asian continent with European ports. After the initial impact, the legal interest focused in the following days on the arrest for the debt generated to the Canal authorities and on the declaration of general average by the shipowner, which was probably the largest amount for which this instrument has been used to date. This paper aims to show the main characteristics of these singular institutions of Maritime Law.

AlFonso Ortega Giménez, La nacionalidad española de los habitantes del Sáhara occidental. Práctica jurisprudencial española (The Spanish nationality of the inhabitants of Western Sahara. Spanish jurisprudence practice)

Western Sahara ceased to be under Spanish sovereignty on February 26, 1976. Therefore, all citizens born in this territory before that date claim Spanish nationality. The Saharawis understand that they were born in an area which, at that time, was part of Spain. But justice does not think so, since, in June 2020, a ruling of the Supreme Court denied this theoretical right to the Saharawis and established that being born in Western Sahara before that date did not give the right to obtain the Spanish nationality of origin, as it was not considered to be national territory.

Fabio Ratto Trabucco, Neurorights between ethical and legal implications

Advances in neuroimaging and brain-machine interfacing (BMI) increasingly enable the large-scale collection and further processing of neural data as well as the modulation of neural processes. In parallel, progresses in artificial intelligence (AI), especially in machine learning, create new possibilities for decoding and analysing neural data for various purposes including health monitoring, screening for disease, cognitive enhancement, and device control. This contribution discusses some major ethical, technical, and regulatory issues associated with neural data analytics and delineates a roadmap for responsible innovation in this sector. Moreover, this paper review a variety of themes including mind reading, mental privacy, cybersecurity in commercial BMI, and issues of neurotechnology governance. Finally, a framework for responsible innovation and governance is presented.

Teresa Rodríguez de las Heras Ballell, La ratificación de España del Protocolo de Luxemburgo al convenio de Ciudad del Cabo: la entrada en vigor del régimen jurídico internacional para la financiación de material rodante ferroviario (Spanish ratification of the Luxembourg Protocol to the Cape Town convention: the entering into force of the international legal rules for railway rolling stock finance)

The deposit of the instrument of ratification by Spain to the Luxembourg Protocol on international interests related to railway rolling stock, the second protocol to the Cape Town Convention, put into motion the entering into force of the Protocol once the International Registry will be fully operative. The Spanish ratification is of great importance for the expansion of the Cape Town system, for the position of Spain as a Contracting State, and for the access to credit in the railway sector. This Paper studies the ratification of Spain to the Luxembourg Protocol, enabling it to enter into force, analyzes the declarations made by Spain to the Protocol within the framework of the Cape Town system and considering the equipment-specific provisions.

Mercedes Sabido Rodríguez, Las vías penal y civil para proteger al menor frente a supuestos de sustracción internacional. Su coexistencia en el espacio judicial europeo (The criminal and civil ways to protect the minor against international abduction. Its coexistence in the European judicial area)

Protection against international child abduction is articulated through different channels. The international conventions and, more recently, the European texts are intended to regulate the instruments through which civil protection is articulated. Through it, the restitution of the minor is sought or, where appropriate, the recognition and/or execution of a decision adopted in another State regarding parental responsibility. Along with this route, national legislation contemplates the crime of international child abduction, through which the criminal protection route is articulated against this type of crime. The coexistence of both channels, which use optional and cumulative, is not exempt from difficulties, particularly for the sake of the functioning of the European judicial area. A space governed by the principles of equality and prohibition of discrimination, in which freedom of movement and residence is configured as a basic freedom and where the principle of mutual recognition is configured as a cornerstone of the cooperation system in both the civil and social spheres. in the prison. An approach to the issues raised by the coexistence of this double path of protection in the European judicial space is the object of this study.

Sara Sánchez Fernández, Información engañosa al inversor. De nuevo sobre la localización del daño puramente financiero (Misleading information and investors. Back to the localisation of the financial damage)

The pivotal element of capital markets regulation is disclosure. Where misleading information is disseminated, investors may suffer a pure economic loss, which is immaterial and, thus, difficult to locate. This paper covers the dynamics between information, price and damage in capital markets as the fundamental element to correctly locate financial loss in cross-border scenarios. On this basis, I analyse the CJEU case law on the interpretation of art. 7.2 Brussels I bis Regulation, in particular the latest judgment VEB, which apparently turns to a market-oriented location of the damage. Lastly, I discuss whether the conclusions may be extrapolated to the determination of the law applicable under art. 4.1 of Rome II Regulation.

Tahimí Suárez Rodríguez, Expropiación indirecta en los Tratados Bilaterales de Inversión latinoamericanos: la caja de Pandora de las controversias neerlandesas en la región (Indirect expropriation in Latin-American Bilateral Investment Treaties: the Pandora’s box of Dutch controversies in the region)

This paper analyzes the pronouncement on indirect expropriation in the bilateral investment treaties signed by the Latin American countries with Netherlands, which has constituted a preponderant basis in the Dutch Investor-State claims against Latin America, due to the shortcomings of the existing wordings under the Dutch Models BIT previous. The requirement of a new formulation on indirect expropriation in Latin American APPRI ́s with the European country which incorporates the realities and experiences of the nations of region as well as the provisions of the Dutch BIT Model of 2019 in this regard, shows posibilities to mitigate the claims of this kind.

Esther Torrelles Torrea, Las expectativas del consumidor en los criterios de conformidad del TRLGDCU y CCCAT (The expectations of the consumer in the conformity criteria of the TRLGDCU and CCCAT)

The objective requirements for conformity are based on the characteristics and purposes that goods and digital content and services of the same type normally have and on the reasonable expectations of the consumer. The objective of this work is to study, on the one hand, the objective criteria of conformity in the TRLGDCU and in the Civil Code of Catalonia, and on the other hand, the consumer expectations, specifically in the light of the standard of reasonableness and the assessment elements that grant its delimitation.

Deng Jiayuan, Los efectos de la inscripción y la entrega en las transacciones de bienes inmuebles en el Derecho civil chino (The effects of registration and delivery in the transactions of immovables in Chinese Civil Law)

According to Civil Code of China, the ownership of immovable is transferred through registration after the sales contract was signed. The delivery of immovable does not have the effect of transferring the ownership of immovable. The buyer has no real right to the immovable before registration after delivery of the immovable, and his right is limited to the creditor’s rights on the seller based on the sales contract. After the delivery, the possession, use and enjoy of such an immovable by the buyer are based on the creditor ́s rights to the seller derived from the sales contract. In judicial practices, however, there are circumstances in which this general doctrine cannot be fully adhered to. This has often been a source of controversy among scholars.

Below are the titles of the shorter articles.

Salomé Adroher Biosca, ¿Exequatur de la sentencia de divorcio de reagrupado o reagrupante como condición para el ejercicio del derecho a la reagrupación familiar? La relevante doctrina legal del Tribunal Supremo de 2022 (Exequatur of the divorce judicial decision of the marriage of husband or wife as a condition to exercise the right to family reunification? The relevant legal doctrine of the Spanish Supreme Court of 2022)

Isabel Antón Juárez, Proceso monitorio europeo e interrupción de plazos procesales por la pandemia causada por el Covid-19. A propósito de la STJUE de 15 de septiembre de 2022, C-18/21, Uniqa Versicherungen AG c. VU (Order for payment procedure and interruption of procedural periods for the pandemic created for the Covid-19. On purpose of the CJEU Judgment of 15 septemberof 2022 C-18/21, Uniqa Versicherungen AG c. VU)

Flora Calvo Babío, Agentes contractuales de la Unión Europea destinados en un tercer país, ¿se pueden divorciar en un Estado miembro? Y, ¿qué pasa con los diplomáticos? (Can European Union contract staff posted to a third country be divorced in a member State? And what about diplomats (ECJR of 1 august of 2022 )?)

Luis F. Carrillo Pozo, Cambio de residencia de un menor durante el proceso y perpetuatio iurisdictionis. Comentario a la sentencia del Tribunal de Justicia (Sala Cuarta) de 14 de julio de 2022, asunto C-572/21 (Change of residence of a child during the lawsuit and perpetuatio iurisdictionis. Purpose to the cjeu judgement of 14th july 2022, case C-572/21)

David Cuenca Pinkert, Concreción de la conexión “residencia habitual” en el Protocolo de La Haya sobre alimentos ante un traslado o retención ilícitos según el Reglamento (CE) 2201/2003. Aclaración propuesta por la STJUE de 12 de mayo de 2022, asunto C-644/20, W. J (Concretion of the connection “habitual residence” in the maintenance obligations Hague Protocol in the event of a wrongful removal or retention according to Regulation (EC) 2201/2003. Clarification proposed by the CJEU of May 12, 2022, case C-644/20, W. J.)

Diana Gluhaia, El efecto directo del principio de proporcionalidad en el contexto de las sanciones previsto en el artículo 20 de la Directiva 2014/67/UE (The direct effect of the principle of proporcionality in the context of the sanctions provided for in article 20 of Directive 2014/67/EU)

Natividad Goñi Urriza, Cláusulas de elección de foro en el Derecho Internacional Privado y condiciones generales incluidas en documentos comerciales emitidos unilateralmente: un análisis desde el Auto del Juzgado de Primera Instancia e Instrucción núm. 2 de Miranda de Ebro, núm. 17/2022, de 21 de enero de 2022 (Choice of court agreements under Private International Law and general terms and conditions within unilateral commercial documents: an analysis in light of the Resolution of the Civil and Criminal Court Nº 2 of Miranda de Ebro, Nº 17/2022, dated 21 January 2022)

Nerea Magallón Elósegui, Ley aplicable a la validez formal y material de la declaración de renuncia a la herencia en el Reglamento europeo 650/2012 sobre sucesiones (Law applicable to the formal and substantive validity of the declaration concerning the waiver of succession in the Regulation 650/2012)

Ada Lucía Mariscal González, El (des)interés del TJUE del traslado del centro de intereses principales en un procedimiento de insolvencia en tiempos de Brexit, a propósito de la STJUE de 24 de marzo de 2022, Galapagos BidCo, asunto C-723/20 (The (dis)interest of the CJEU in the transfer of the centre of main interests in insolvency proceedings in times of Brexit. Commentary to CJEU Ruling of 24th March 2022, Galapagos BidCo, C-723/20.)

Carmen María Noriega Linares, Laudo arbitral extranjero y orden público internacional. El desafío (Foreign arbitral award and international public policy. The challenge)

Juliana Rodríguez Rodrigo, La aplicación del artículo 1320 CC como orden público en el ordenamiento español. A propósito de la resolución de 31 de enero de 2022, de la Dirección General de Seguridad Jurídica y Fe Pública (The application of article 1320 CC as public policy in spanish law. Regarding the resolution of 31 january 2022, of the Directorate General For Legal Certainty and Public Faith.)

Mª Jesús Sánchez Cano, La incidencia de la doctrina de los actos propios en la aplicación del CH 1980 a supuestos de sustracción internacional de menores. Comentario a la SAP Oviedo de 7 de abril de 2022 (The incidence of the doctrine of own acts in the application of the CH 1980 to cases of
international child abduction. Commentary to the SAP Oviedo of April 7, 2022)

Mª Jesús Sánchez Cano, La determinación de la ley aplicable al contrato de cesión de créditos con elemento internacional. A propósito de la sentencia de la Audiencia Provincial de Soria de 21 de junio de 2022 (The determination of the law applicable to the contract for the assignment of receivables with an international element. Regarding the judgment of the Provincial Court of Soria of June 21, 2022)

Anabela Susana de Sousa Gonçalves, Direito de asilo versus rapto internacional de crianças (Right to asylum versus international child abduction)

Julia Suderow, Carsten Krüger, La presunción del daño causado por un ilícito antitrust según el Tribunal Federal Alemán (Bundesgerichtshof) (The presumption of the harm caused by anticompetitive conducts, jurisprudence of the German Federal Court (Bundesgerichtshof))

La commission des affaires juridiques du Parlement européen vient d’adopter le texte de compromis négocié par les eurodéputés sur la directive sur le devoir de vigilance.

Sur la boutique Dalloz Code de la compliance 2023, annoté et commenté Voir la boutique Dalloz

en lire plus

The appeal of alternative dispute resolution (ADR) mechanisms is on the rise and so is also the pull to prevent international disputes from arising altogether. In the area of cross-border commercial and investment disputes, the renewed interest in the interface between dispute prevention and alternative dispute resolution springs from a growing awareness of the need to overcome the shortcomings of arbitration. This is shown by the recent setting up of a series of new ‘global labs’ in international commercial resolution provided with new diversified and integrated commercial dispute resolution mechanisms linking ‘mediation, arbitration and litigation’ in recent years. Equally indicative of this trend is the entering into force of the UN Convention on International Settlement Agreements Resulting from Mediation (The Singapore Convention) in September 2020 and that ‘dispute prevention and mitigation’ has become one of the most dynamic focal points for UNCITRAL Working Group III mandated with examining the reform of investor-state dispute settlement.

However, the contemporary move towards devising more effective preventive ‘cooling off’ mechanisms, increasing the transnational appeal of mediation and, when feasible, sidestepping altogether the need to resort to third-party judicialized processes is not unique to international commercial and investor-state dispute resolution. At a time of backlash against international courts and tribunals, prevention and alternative dispute settlement mechanisms are gaining momentum across both established and emerging areas of public, private and economic international law.

Against this background, the inaugural issue of the Chinese Journal of Transnational Law to be published in 2024 invites submissions that engage critically with the on-going transformation of the transnational dispute settlement system in an increasingly multipolar international legal order in which a paradigm shift away from the Western-model of international adversarial legalism and towards de facto de-judicialization is arguably gaining hold.

Topics on which the contributions could focus on include, but are not limited to:
*Transnational Dispute Prevention and Settlement in international trade law
*Transnational Dispute Prevention and Settlement in emerging areas: cyberspace, outerspace etc.
* Transnational Dispute Prevention and Settlement in international environmental law
* Transnational Dispute Prevention and Settlement in international commercial disputes
*Transnational Dispute Prevention and Settlement in Investor-State dispute settlement
*Transnational Inter-State Dispute Prevention and Settlement in inter-state disputes under general public international law

Contributors may choose between: Research articles (up to 11,000 words inclusive of footnotes) or short articles (up to 6,000s inclusive of footnotes). Those interested, please submit your contribution before 31 Aug 2023 through the journal homepage.

Written by Zuzanna Nowicka, lawyer at the Helsinki Foundation for Human Rights and lecturer at Department of Logic and Legal Argumentation at University of Warsaw

In the aftermath of the judgment of the ICJ of 2012 in the case of the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) that needs no presentation here (for details see, in particular, the post by Burkhard Hess), by its judgment of 2014, the Italian Constitutional Court recognized the duty of Italy to comply with the ICJ judgment of 2012 but subjected that duty to the “fundamental principle of judicial protection of fundamental rights” under Italian constitutional law (for a more detailed account of those developments see this post on EAPIL by Pietro Franzina and further references detailed there). In a nutshell, according to the Italian Constitutional Court, the fundamental human rights cannot be automatically and unconditionally sacrificed in each and every case in order to uphold the jurisdiction immunity of a foreign State allegedly responsible for serious international crimes.

Since then, the Italian courts have reasserted their jurisdiction in such cases, in some even going so far as to decide on the substance and award compensation from Germany. The saga continues, as Germany took Italy to the ICJ again in 2022 (for the status of the case pending before the ICJ see here). It even seems not to end there as it can be provocatively argued that this saga has its spin-off currently taking place before the Polish courts.

A.   Setting the scene…

In 2020, a group of members of the Sejm, lower chamber of the Polish Parliament, brought a request for a constitutional review that, in essence, concerns the application of the jurisdictional immunity of the State in the cases pertaining to liability for war crimes, genocide and crimes against humanity. The request has been registered under the case number K 25/20 (for details of the, in Polish, see here; the request is available here). This application is identical to an application previously brought by a group of members of the lower chamber of the Parliament in the case K 12/17. This request led to no outcome due to the principle according to which the proceedings not finalized during a given term of the Sejm shall be closed upon the expiration of that term.

This time, however, the Polish Constitutional Court has even set the date of the hearing in the case K 25/20. It is supposed to take place on May 23, 2023.

The present post is not drafted with the ambition of comprehensively evaluating the request for a constitutional review brought before the Polish Constitutional Court. Nor it is intended to speculate on the future decision of that Court and its ramifications. By contrast, while the case is still pending, it seems interesting to provide a brief overview of the request for a constitutional review and present the arguments put forward by the applicants.

Under Polish law, a request for a constitutional review, such as the one in the case K 25/20, can be brought before the Polish Constitutional Court by selected privileged applicants, with no connection to a case pending before Polish courts.

Such a request has to identify the legislation that raise concerns as to its conformity with the Polish constitutional law (“subject of the review”, see point B below) and the relevant provisions of the Polish Constitution of 1997 against which that legislation is to be benchmarked against (“standard of constitutional review”, see point C). Furthermore, the applicant shall identify the issues of constitutional concern that are raised by the said legislation and substantiate its objections by arguments and/or evidence (see point D).

 

B.   Subject of constitutional review in question

By the request for a constitutional review of 2020, the Polish Constitutional Court is asked to benchmark two provisions of Polish Code of Civil Procedure (hereinafter: “PL CCP”) against the Polish constitutional law, namely Article 1103[7](2) PL CCP and Article 1113 PL CCP.

i) Article 1103[7](2) PL CCP

The first provision, Article 1103[7] PL CCP lays down rules of direct jurisdiction that, in practice, can be of application solely in the cases not falling within the ambit of the rules of direct jurisdiction of the Brussels I bis Regulation. In particular, pursuant to Article 1103[7](2) PL CCP, the Polish courts have jurisdiction with regard to the cases pertaining to the extra-contractual obligations that arose in Poland.

In the request for a constitutional review of 2020, the applicants argue that, according to the settled case law of the Polish Supreme Court, Article 1103[7](2) PL CCP does not cover the torts committed by a foreign State to the detriment of Poland and its nationals. For the purposes of their request, the applicants do focus on the non-contractual liability of a foreign State resulting from war crimes, genocide and crimes against humanity. The applicants claim that, according to the case law of the Polish Supreme Court, such a liability is excluded from the scope of Article 1103[7](2) PL CCP.

Against this background, it has to be noted that the account of the case law of the Polish Supreme Court is not too faithful to its original spirit. Contrary to its reading proposed by the applicants, the Polish Supreme Court does not claim that the scope of application of the rule of direct jurisdiction provided for in Article 1103[7](2) PL CPP is, de lege lata, circumscribed and does not cover the liability of a foreign State for international crimes. In actuality, this can be only seen as the practical effect of the case law of the Polish Supreme Court quoted in the request for a constitutional review. Pursuant to this case law, also with regard to liability for international crimes, the foreign States enjoy jurisdiction immunity resulting from international customary law, which prevents claimants from suing those States before the Polish courts.

ii) Article 1113 PL CPP

The second provision subject to constitutional review is Article 1113 PL CPP, according to which jurisdictional immunity shall be considered by the court ex officio in every phase of the proceedings. If the defendant can rely on the jurisdictional immunity, the court shall reject the claim. According to the applicants, the Polish courts infer from this provision of the PL CPP the right of the foreign States to rely on the jurisdictional immunity with regard to the cases on liability resulting from war crimes, genocide and crimes against humanity.

 

C.   Standard of constitutional review (relevant provisions of Polish constitutional law)

In the request for a constitutional review of 2020, four provisions of Polish constitutional law are referred to as the standard of constitutional review, namely:

i) Article 9 of the Polish Constitution of 1997 (“Poland shall respect international law binding upon it”);

according to the applicants, due to the general nature of Article 9, it cannot be deduced thereof that the rules of international customary law are directly binding in Polish domestic legal order. The applicants contend that the Polish Constitution of 1997 lists the sources of law that are binding in Poland. In particular, Article 87 of the Constitution indicates that the sources of law in Poland are the Constitution, statutes, ratified international agreements, and regulations. No mention is made there to the international customary law. Thus, international customary law does not constitute a binding part of the domestic legal order and is not directly applicable in Poland. Rather, Article 9 of the Polish Constitution of 1997 must be understood as providing for the obligation to respect international customary law exclusively “in the sphere of international law”;

ii) Article 21(1) of the Polish Constitution of 1997: “Poland shall protect ownership and the right of succession”,

here, the applicants contend that Article 21(1) covers not only the property currently owned by the individuals, but also property that was lost as a result of the international crimes committed by a foreign State, which, had it not been lost, would have been the subject of inheritance by Polish nationals;

iii) Article 30 of the Polish Constitution of 1997: “The inherent and inalienable dignity of the person shall constitute a source of freedoms and rights of persons and citizens. It shall be inviolable. The respect and protection thereof shall be the obligation of public authorities”,

the applicants infer from Article 30 that the respect and protection of dignity is the duty of public authorities. Such a protection can be guaranteed by creating an institutional and procedural framework, which enables the pursuit of justice against the wrongdoers who have taken actions against human dignity. For the applicants, this is particularly relevant in the case of liability for war crimes, genocide and crimes against humanity;

iv) Article 45(1) of the Polish Constitution of 1997: “Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court”,

in short, Article 45(1) enshrines to the right to access to a court; this provision conceptualizes this right as a mean by which the protection of other freedoms and rights guaranteed by the Constitution can be realized; the applicants argue that the jurisdictional immunity of a foreign State is a procedural rule that, in its essence, limits the right to a court. They acknowledge that the right to a court is not an absolute right and it can be subject to some limitations. However, the Constitutional Court should examine whether the limitation resulting from the operation of jurisdiction immunity is proportionate.

 

D.   Issues and arguments raised by the request for a constitutional review

After having presented the subject of the request and the relevant provisions of Polish constitutional law, the applicants identify the issues of constitutional concern that, in their view, are raised by the jurisdictional immunity of a foreign State upheld via the operation of Article 1103[7](2) PL CCP and Article 1113 PL CCP in the cases on the liability resulting from international crimes. The applicants then set out their arguments to substantiate the objection of non-constitutionality directed at Article 1103[7](2) PL CCP and Article 1113 PL CCP.

The main issue and arguments put forward boil down to the objection that the upholding of the jurisdictional immunity results in the lack of access to a court and infringes the right guaranteed in the Polish Constitution of 1997, as well as enshrined in the international agreements on human rights, ratified by Poland,

• in this context, first, the applicants reiterate the contention that while ratified international agreements constitute a part of the domestic legal order, this is not the case of the rules of international customary law; furthermore, in order to “reinforce” this contention, a recurring statement appears in the request for a constitutional review, according to which the international customary law is not consistently applied with regard to the jurisdictional immunity of a foreign State;

• second, a foreign State cannot claim immunity from the jurisdiction of a court of another State in proceedings which relate to the liability for war crimes, genocide or crimes against humanity, if the facts which occasioned damage occurred in the territory of that another State; there is a link between those international crimes and the territory of the State of the forum and the latter must be authorised to adjudicate on the liability for those acts;

• third, the applicant claim that a foreign State does not enjoy jurisdictional immunity in the cases involving clear violations of universally accepted rules of international law – a State committing such a violation implicitly waives its immunity;

• fourth, the applicants acknowledge the ICJ judgment of 2012 but claim that it (i) failed to take into account all the relevant precedent on the scope of jurisdictional immunity; (ii) held that the illegal acts constituted acta iure imperii, disregarding the conflict between the jurisdictional immunity and the acts violating fundamental human rights; (iii) preferred not to explicitly address the question as to whether the jurisdictional immunity should be enjoyed by a State that violated human dignity or not – doing so, the ICJ left space for the national courts to step in; (iv)  the ICJ judgments are biding only to the parties to the proceedings; with regard to the non-parties they have the same binding force as national decisions; (v) due to the evolving nature of the doctrine of jurisdictional immunity and its scope, a national court can settle the matter differently than the ICJ did in 2012.

Subsequent issues of constitutional concern seem to rely on the same or similar arguments and concern:

• violation of international law binding Poland due to the recognition of jurisdictional immunity of a State with regard to the cases on liability for war crimes, genocide or crimes against humanity;

• violation of the human dignity as there is no procedural pathway for claiming the reparation of damages resulting from those international crimes;

• violation of the protection of ownership and other proprietary rights by barring the actions for damages resulting from those international crimes.

E.   The controversies regarding the Constitutional Court

The overview of the request for a constitutional review in the case K 25/20 would not be complete without a brief mention of the current state of affairs in the Polish Constitutional Court itself.

In the 2021 judgement in Xero Flor v. Poland, the European Court of Human Rights held, in essence, that the Constitutional Court panel composed in violation of the national constitution (i.e. election of one of the adjudicating judges “vitiated by grave irregularities that impaired the very essence of the right at issue”) does not meet the requirements allowing it to be considered a “tribunal established by law” within the meaning of the Article 6(1) of the European Convention.

One of the judges sitting on the panel adjudicating the case K 25/20 was elected under the same conditions as those considered by the ECHR in its 2021 judgment. The other four were elected during the various stages of the constitutional crisis ongoing since 2015. In practice, and most regretfully, the case K 25/20 that revolves around the alleged violation of the right to a court provided for in Polish constitutional law risks to be deliberated in the circumstances that, on their own, raise concerns as to the respect of an equivalent right enshrined in the European Convention.

As noted earlier on this blog, on 10 May 2023, from 6 pm to 8 pm CEST, the second webinar of the series that has been organised under the title The Future of Cross-Border Parenthood in the EU – Analyzing the EU Parenthood Proposal will take place. The webinar, chaired by Fabienne Jault-Seseke, will deal with the following relations: The EU Proposal and primary EU law: a match made in heaven? (Susanne Gössl), and The law governing parenthood: are you my father? (Tobías Helms).

Those wishing to attend have time until 9 May 2023 at noon to register. The registration form is available here.

Registered participants will receive the details to join the webinar by e-mail (please note the e-mails with these details occasionally end up in the spam folder).

The form, then, will remain open for registration for the subsequent webinars of the series.

The updated and final version of the program is available here.

The UNCITRAL National Coordination Committee for Australia (UNCCA) is an organisation comprised of members of the Australian legal community, dedicated to promoting the work of The United Nations Commission on International Trade Law (UNCITRAL) in Australia.

UNCCA invites you to our 8th annual May Seminar in Canberra celebrating the 75th anniversary of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Join us for a full day conference to celebrate this anniversary whilst learning about the work of UNCITRAL and its Working Groups. We welcome Justice Kevin Lyons KC (Supreme Court of Victoria) as our keynote speaker. Our panels will include presentations by Bronwyn Lincoln (Partner, , Thomson Geer), Romesh Weeramantry (Special Counsel, Clifford Chance), Drossos Stamboulakis (Barrister, Senior Lecturer, Monash University), Dr. Benjamin Hayward (Senior Lecturer, Monash Business School). The Attorney General’s Department will also provide a presentation on their work on international trade law.

This seminar promises to be an exciting full-day event hosted at the Ann Harding Centre, located at 24 University Drive South, Bruce ACT 2617 on the 26th of May 2023. The event will likely run from 8:30am until 4pm, with lunch included. Online attendance will also be available for our May Seminar, however, in-person participation is strongly encouraged.

You can register for tickets using this link.

Pablo Quinzá Redondo, Lecturer of Private International Law at the University of Valencia, is the author of this monograph published in 2022 by Tirant Lo Blanch. The author has kindly provided the following abstract.

The European regulations concerning the property consequences of marriages and registered partnerships (Regulations (EU) 2016/1103 and 2016/1104, respectively) entered into application four years ago. Since then, many valuable research studies have been published. Most of them have departed from the provisions of the Regulation (EU) 2016/1103 to explain the Regulation (EU) 2016/1104, given their similarities -both regulations were adopted as a package-. However, not many of them have followed the opposite approach or have analyzed the later instrument independently. Alongside this, in the Spanish legal doctrine, only a few research studies have been focused on the application in Spain and/or to Spanish formalized partnerships under the Regulation (EU) 2016/1104. Pablo Quinzá saw in those circumstances an opportunity for writing the book Uniones registradas en la Unión Europea. El Reglamento (UE) nº 2016/1104 en perspectiva española.

The monograph is divided in three parts, preceded by an introduction, following a classical PIL structure.

In the introductory chapter, the author draws a general overview of the phenomenon of non-matrimonial unions in the European Union, focusing in particular on formalized partnerships and their patrimonial consequences. This substantive-law perspective will facilitate the proper understanding of the content of the Regulation (EU) 2016/1104 at a later stage.

In many jurisdictions, formalized partnerships were conceived and regulated as a functional equivalent to marriage for same-sex couples; in others, as an alternative to marriage open to all couples. In Spain, the regulation of formalized relationships emerged at a time when same-sex marriage was not yet allowed. Besides, it did with notable differences with respect to the legal framework institution for couples, marriage. This general statement, however, should be spelled out in the Spanish reality. There is no Spanish state law dealing with formalized partnerships; legislation have been enacted by the Autonomous Communities Parliaments, with a heterogeneous content -e.g., different requirements to access to the legal institution or different provisions in respect to their patrimonial consequences-. These divergences are per se a source of complexity. The situation is even trickier due to the fact that the Spanish Constitutional Court has declared some regional provisions unconstitutional, while, as of today, very similar ones remain ‘untouched’. For example, the judgment of the Spanish Constitutional Court 93/2013, of 23 April, declared Article 2.3 of the Navarre Act on formalized relationships (Foral Law 6/2000) unconstitutional. In the Court’s view, requiring Navarre civil neighborhood (vecindad civil) of one of the partners is, in fact, a conflict-of-laws rule; per Article 149.1.8 of the Spanish Constitution, only the Spanish lawmaker (as opposed to the regional one) has regulatory competence in conflict of law matters. Meanwhile, other regional laws also make registration as a couple conditional upon the vecindad civil of one of the partners. This is the case, to a greater or lesser degree, of some provisions of the laws dealing with formalized partnerships in the Basque Country, Galicia or the Balearic Islands. Until they are not declared unconstitutional, they continue being applicable in their respective territories.

In light of the foregoing, the introduction to the monograph is essential to understand that the problems of application of the Regulation (EU) 2016/1104 in Spain are strictly connected with the fragmentary regulation of formalized relationships and the internal constitutional problems.

The first chapter of the book addresses the Regulation’s scope of application from four perspectives: substantive, geographical, personal and temporal. The first two approaches are the most controversial ones. From the Spanish point of view, it is unclear which of the formalized partnerships foreseen under regional law correspond to the autonomous definition provided for in Article 3.1.a). In the author’s view, all registered formalized partnerships should fall under the scope of application of the Regulation, regardless of the constitutive or declarative effect of the registration according to regional law. A different opinion would lead to unbearable consequences: only some Spanish formalized partnerships would be covered by the Regulation; other would remain outside. It would not be surprising if, sooner rather than later, a preliminary ruling is requested from the CJEU in this subject matter.

Chapter two is devoted to international jurisdiction rules. This is one of the most complicated parts of the Regulation, since some provisions refer to jurisdictional rules enacted elsewhere (e.g., to Regulation (EU) 650/2012), while in other cases the provisions of the law applicable of the Regulation itself are invoked. For the sake of clarity, a division is made following the main subject areas provided in the Regulation: jurisdiction in the event of the death of one of the partners; jurisdiction in cases of dissolution or annulment of the registered partnership; jurisdiction in other cases (including choice of forum agreements and implicit submission) and alternative jurisdiction. From the Spanish perspective, it is important to bear in mind that the mere dissolution or annulment of Spanish formalized partnerships does not require a judicial procedure. This probably explains -but not justifies- the absence of jurisdictional rules in the Spanish legal system regarding the dissolution or annulment of formalized partnerships. By way of consequence, difficulties in the application of Article 5 of the Regulation in Spain are to be expected.

Chapter three focuses on the determination of the law applicable to the property consequences of registered partnerships under the rules of the regulation. At a first stage, both choice of law agreements and objective connecting point are studied. Later, the application of Spanish law under the conflict-of-law rules of the Regulation is stress-tested, tackling the most relevant situations in which clarification of the applicable regional law will be needed. It is important to bear in mind that in Spain there are not ‘internal conflict-of-laws’ for the dissolution or annulment of formalized partnerships -in terms of Article 33.1 of the Regulation-, so the application of one regional law or another would depend on the subsidiary connections of Article 33.2. Nevertheless, as mentioned before, as of today the validity itself of some regional laws is a very controversial topic, where the constitutional perspective and the solutions of the jurisprudence should be taking into account.

In short, this book raises, and proposes solutions to, the legal problems arising from the application of the Regulation (EU) 2016/1104, from the Spanish legal system point of view. An issue which is not only relevant for Spanish legal operators, but also for foreign ones, as long as a member of the couple is connected with the Spanish legal system or Spanish law is applicable.

Online event

When making decisions, adults should think about how their decisions will affect children. Recent years have witnessed, in private international law cases and legislation, the protection of children is increasingly mingled with gender, indigenous issues, refugees, violence, war, surrogacy technology, etc. This is evidenced by the US Supreme Court 2022 judgment Golan v. Saada, the Australian case Secretary, Department of Communities & Justice v Bamfield, the 2023 German Constitutional Court decision, the Chinese Civil Code, the Australia Family Law (Child Abduction Convention) Amendment (Family Violence) Regulations 2022, and developments at the Hague Conference on Private International Law (HCCH Children Conventions) and the United Nations (Convention on the Rights of the Child and its additional Protocols).

On this International Children’s Day, let us join this CAPLUS webinar in cooperation with conflictoflaws.net and American Society of International Law Private International Law Interest Group to hear voices of children in private international law.

Speakers

• Ms. Anna Mary Coburn

After 22-years of public service as a U.S. Department of State Attorney-Advisor for Children’s Issues as well as a USAID Regional Legal Advisor/Senior Advisor for Children/Youth in Conflict, Anna has transitioned to practicing international family law with a focus on child rights cases and issues.

• Mr. Philippe Lortie

Philippe is co-head of the International Family and Child Protection Law Division at the Hague Conference on Private International Law Permanent Bureau and has more than 30 years’ experience in the field of child protection.

• Dr. Miranda Kaye

Dr Miranda Kaye is an academic at the Faculty of Law in the University of Technology Sydney in Australia and a member of Hague Mothers, a project aiming to end the injustices created by the Hague Child Abduction Convention. She also has experience in the public service (Law Commission of England and Wales) and as a practicing solicitor (family law in the UK).

• Professor Lukas Rademacher

Lukas is a Professor of Private Law, Private International Law, and Comparative Law in Kiel, Germany. He studied law at the Universities of Düsseldorf and Oxford, and received his PhD at the University of Münster. He wrote his postdoctoral thesis at the University of Cologne.

• Ms. Haitao Ye

Haitao is a lawyer at the Shanghai Office of the Beijing Dacheng Law LLP specializing in marriage and family dispute resolution, family wealth inheritance and management. She is a former experienced judge in civil and commercial trials at the Shanghai Pudong New District People’s Court in China.

Moderators/commentators

• Dr. Jie (Jeanne) Huang (Associate Professor at Sydney Law School, University of Sydney)

 

Thursday 1 June, 6-7.30pm AEST

(4-5.30am Washington D.C./9-10:30am London/10-11.30am the Hague/4-5.30pm Beijing)

This event is proudly co-presented by the Centre for Asian and Pacific Law at the University of Sydney, conflictoflaws.net and the American Society of International Law Private International Law Interest Group.

The Peter Nygh Round (2023) of the Pax Moot court was held in Antwerp from 3 to 5 May – the preliminary days at the University of Antwerp and the semi-finals and finals at the Antwerp court.

This year saw the highest number of registered teams yet for the PAX Competition (37 teams). 28 teams made it to the oral rounds. 48 judges, lawyers and academics invited took up the role as judge in the competition.

The winner of the oral rounds was the University of Ljubljana, with the University of Vienna as runner-up. The teams of the University of Maastricht and Singapore Management University made it up to the semi-finals.

The University of Vienna won the prize for the best written memorials, with the University of Ghent in second place and the University of Sofia third.

Best pleader was Matej Iglicar (University of Ljubljana), followed by Maximilian Murtinger and in third place Gustav Kirchauer (both of the University of Vienna).

The European Commission co-funds the competition.

Next year’s Pax Moot court competition will take place from 24 to 26 April in Ljubljana.

On May 17th, 2023, the Department of Law  of the University of Urbino (Italy), will host an event titled “The Digital Services Act (DSA): International Aspects – Aspects Internationaux” co-organized with the Centre de recherche de droit international privé et du commerce international de l’Université Paris-Panthéon-Assas and the University of Malaga.

The DSA (Regulation (EU) 2022/2065), submitted along with the Digital Markets Act (DMA), has been approved on October 19th, 2022, and shall apply from February 17th, 2024. It will amend the Directive 2000/31/EC (Directive on Electronic Commerce) and introduce a wide-ranging set of new obligations on digital platforms regarding illegal content, transparent advertising and disinformation.

Confirmed speakers include Marie-Elodie ANCEL (Université Paris-Panthéon-Assas, CRDI), Maria Isabel TORRES CAZORLA (University of Malaga), Basile DARMOIS (Université de Brest), Federico FERRI (Université de Bologne); Valère NDIOR (Université de Brest, IUF), Edoardo Alberto ROSSI (University of Urbino), Massimo RUBECHI (University of Urbino).

The main topics that will be discussed include the European legal framework within the DSA has been adopted, the conflict of laws methods, online content moderation, the cooperation between relevant national and European authorities and the available remedies in case of violation of the rights of users.

The event can be followed both face-to-face and remotely, on the Zoom platform.

See here for information about the program and how to register

The author of this post is Lydia Lundstedt, who is a Senior Lecturer at the Stockholm University.

On 27 April 2023, the Court of Justice delivered its judgment in Lännen MCE (C-104/22) (no written opinion by the Advocate General) (also mentioned here on this blog) on factors relevant for establishing international jurisdiction over an infringement action pursuant to Article 125(5) of Regulation 2017/1001 (EU Trade Mark Regulation) when advertising, displayed on a website accessible from a territory covered by the trade mark, does not unambiguously specify the geographical area of supply.

Article 125(5) is a lex specialis rule on jurisdiction in relation to the rules in Regulation 1215/2012 (Brussels I bis) that allows the proprietor of a EU trade mark to bring a targeted action in the courts of the Member State in which the ‘act of infringement’ has been committed or threatened in respect of acts committed or threatened within the territory of that Member State. As the concept of ‘act of infringement’ in Article 125(5) relates to active conduct on the part of the alleged infringer, the CJEU held in AMS Neve and Others (C-172/18) that acts of infringement are committed in the territory where the consumers or traders to whom advertising and offers for sale are directed are located. In that case, the CJEU specifically stated that a relevant factor for the national courts to consider is whether the advertising contained details of the geographical areas of supply. The CJEU did not however provide guidance on other possible relevant factors.

This lacuna was addressed in Lännen MCE (C-104/22), where the CJEU held that a proprietor of a EU trade mark may bring an infringement action if an alleged infringer has paid for referencing on a search engine website which uses a national top-level domain name of the Member State in which the court seised is situated, but not if an alleged infringer has merely used meta tags to organically reference images of its goods on an online photo-sharing service under a generic top-level domain.

Facts

Lännen, a company established in Finland that sells amphibious dredgers under the EU trade mark WATERMASTER, brought an action before the Finnish Market Court against two companies established in Germany (Senwatec and Berky) both of which belonged to the same group. Lännen alleged that Senwatec committed an act of infringement in Finland by purchasing its trademark as an Adword on Google’s search engine website operating under the Finnish top-level domain to sell competing products. While neither the link nor Senwatec’s website specifically mentioned Finland or specified the geographical area of supply, the website indicated that Senwatec’s products are used worldwide and included a world map highlighting the countries in which Senwatec claimed to be active. The map did not highlight Finland. Lännen alleged that Berky infringed its trade mark by using it as a meta tag to enable internet search engines to identify images of Berky’s machines accessible on the internet.

Lännen argued that because Senwatec and Berky’s products are sold throughout the world, the advertising, which is in English, is addressed to an international public which extends beyond the areas covered by the map, and is directed at every country in which it is visible. In contrast, Berky and Senwatec, who objected to jurisdiction of the Finnish court, argued that there must be a relevant connecting factor with Finland and that the accessibility of the allegedly illegal content in Finland is not decisive. They maintained that they do not offer their products for sale in Finland and their marketing activities did not target Finland as evidenced by the map.

The Finnish Market Court asked the CJEU what factors were relevant, and specifically whether the nature of the products concerned, the scope of the market in question and the fact that that display occurred on the website of a search engine operating under the national top-level domain of that Member State were relevant factors for determining jurisdiction pursuant to Article 125(5).

The Court’s ruling

The CJEU recalled its previous case law holding that the determination of jurisdiction does not amount to an examination of the substance of that action (see e.g. Universal Music International Holding (C‑12/15)). It thereafter held that evidence which gives rise to ‘a reasonable presumption’ that acts of infringement may have been committed or threatened on the territory of a Member State is sufficient to establish jurisdiction under Article 125(5) (para 39). The CJEU stated that ‘where the display of online content is, even if only potentially, directed at consumers or traders located in the territory of a Member State’, the proprietor of an EU trade mark is entitled to bring an action pursuant to Article 125(5) as these courts are particularly suited to assessing whether the alleged infringement exists (para 42).

The CJEU stated that the map on Senwatec’s website cannot, in itself, establish a connecting factor with Finland, since the context of which that map forms part does not support the conclusion that Senwatec directs its activity towards the Finnish market (para 43).

With regard to other relevant factors, the CJEU stated that its judgment in Pammer and Hotel Alpenhof (C 585/08 and C 144/09) interpreting what is now Article 17(1)(c) Brussels Ia Regulation on jurisdiction over consumer contracts may be relevant. In that case the CJEU held that the international nature of the activity, use of a language or a currency other than the language or currency generally used in the Member State in which the trader is established, mention of telephone numbers with an international code, outlay of expenditure on an internet referencing service in order to facilitate access to the trader’s site or that of its intermediary by consumers domiciled in other Member States, use of a top-level domain name other than that of the Member State in which the trader is established, and mention of an international clientele composed of customers domiciled in various Member States were relevant factors (paras 46-47). The CJEU emphasized however that the mere fact that a website is accessible from the territory covered by the trade mark is not a sufficient basis for establishing jurisdiction (para 48).

Accordingly, the CJEU held that an undertaking that pays the operator of a search engine website with a national top-level domain of a Member State other than that in which it is established, in order to display, for the public of that Member State, a link to that undertaking’s website, directs its activity to the public of that Member State in the meaning of Article 125(5). In contrast, the CJEU stated that the use of the trade mark as a meta tag on an online photo-sharing service under a generic top-level domain was not sufficient to establish jurisdiction. The CJEU noted that this situation was different because a website with a generic top-level domain is not intended for the public of any specific Member State and, also, that the meta tag is intended only to enable search engines better to identify the images contained on that website so as to increase their accessibility.

As regards the nature of the products in question and the extent of the geographical market, the CJEU stated that it is for the court hearing the infringement action to assess on a case-by-case basis the extent to which those matters are relevant in order to conclude that referencing accessible on the territory covered by the trade mark is targeted at consumers in that territory.

Analysis

As an initial matter, one might ask whether the CJEU lowered the threshold for establishing jurisdiction from ‘if it is apparent … ’ as stated in AMS Neve and others to ‘a reasonable presumption’ as stated in Lännen MCE. What, if anything, this means in a specific case is difficult to say.

Under either threshold, it seems clear that buying a Adword on a search engine website with a national top-level domain of a Member State is sufficient evidence to establish a connecting factor with that Member State. Likewise, it seems clear that using a meta tag on an online photo-sharing service under a generic top-level domain is of itself not sufficient evidence to establish a connecting factor with any specific Member State under either threshold.

However between these two extremes exist a number of fact constellations that are not as clear.  For instance, would it be sufficient if the alleged infringer buys an Adword on a search engine website which uses the top-level domain for the European Union (.eu)? What about if a trademark is used as a meta tag on an online photo-sharing service under a national top-level domain?

In addition, while the CJEU made clear that ‘mere accessibility’ of a website in a territory covered by the EU trademark was not sufficient, it did not specifically answer the referring court’s question whether the fact that that display occurred on the website of a search engine operating under the national top-level domain of that Member State was a relevant factor. If a search in Finland on http://www.google.fi using the term ‘Watermaster’ produced an organic search result whereby links to Senwatec’s website and images of Berky’s products were displayed first in the list, might this not create a reasonable presumption that acts of infringement may have been committed or threatened on the territory of that Member State?

As I have stated elsewhere, it seems reasonable that in cases of ambiguity the burden is placed on a trader to take steps to ‘exterritorialise’ its websites by making clear that it is not directing its advertising and offers for sale to certain Member States. Failing this, the trader should be deemed to have targeted those Member States. A generous approach will minimise the risk that jurisdiction is foreclosed even though the right holder – if given a chance – would have been able to prove that an infringement occurred in the forum Member State. At the same time a clear threshold will exclude the cases where the right holder is making a frivolous claim.