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It has not yet been mentioned on this blog that Volumes 10 and 11 of the Munich Commentary on the German Civil Code (Münchener Kommentar zum Bürgerlichen Gesetzbuch), are now available in their sixth edition (2015). A standard German language treatise on both German and European private international law the new edition contains a detailed article-by article analysis of the Rome I, II and III Regulations (by Abbo Junker, Munich; Dieter Martiny, Hamburg/Frankfurt an der Oder); Ulrich Spellenberg, Bayreuth; Peter Winkler von Mohrenfels, Rostock), the Hague Protocol on Maintenance (Kurt Siehr, Hamburg/Zurich), the European Succession Regulation (Anatol Dutta, Regensburg), and the Hague Conventions on the Protection of Children and Adults (by Kurt Siehr, Hamburg/Zurich; Volker Lipp, Göttingen).

The sixth edition is the first edition that has been edited by our co-editor Jan von Hein (Freiburg/Germany). Jan is the successor to Hans-Jürgen Sonnenberger (Munich) and has contributed to the commentary himself with a completely new section on the general principles of European and German private international law.

Further information is available on the publisher’s website.

Non renvoyée au Conseil constitutionnel

In Goldman Sachs v Novao Banco SA, the High Court first of all had to consider the scope of the Brussels I Regulation on the issue of ‘civil and commercial’.  This issue came up following the restructuring of a Portuguese Bank and the role of the Portuguese Central Bank, under its statutory powers, in the transfer of liabilities to a Bridge Bank, ‘Novo Banco’. [For the facts of the case see the judgment itself and see also Christopher Bates’ review, which first alerted me to the case. Mr Bates also reviews the issue of mutual recognition under the Bank Recovery Directive].

Hamblen J (soon to move to the Court of Appeal) in my view justifiably rejected Novo Banco’s arguments that the claim was not civil and commercial, given the statutory intervention of the Central Bank. With reference to the traditional line-up of CJEU precedent (see most recently Fahnenbrock, absent from the High court’s judgment; and Sapir, which does feature heavily) he held that the nature of the claim, in spite of the factual intervention of the Central Bank, is one in debt, which is a claim based on private law rights conferred by the relevant Facility Agreement and a civil and commercial matter. A novation of the Facility Agreement would not change the nature of that claim; nor does a statutory transfer.

Having decided that the claim falls under the Regulation, the High Court subsequently had to decide whether Novo Banco was subject to the choice of court, in favour of the English court, part of the Facilities Agreement. As this is a transfer of claims and not a contractual chain, Refcomp does not apply (Hamblen J did not refer to it). The matter needs to be decided by the lex causae, here the lex contractus: English law. Upon consideration of the various arguments, the High Court held that the choice of court clause had so been transferred together with the original claims.

Finally, the Court rejected a stay on ‘case management’ grounds (see Jong and Plaza for earlier applications).

The case shows how some of the core considerations of Brussels I can create a lot of argument, indeed.

Geert.

Mark Edwin Burge, Associate Professor of Law, Texas A&M University School of Law, has published a highly interesting article on the relationship between party autonomy and legal culture, providing new insights on the success (or failure) of legal transplants in choice of law: “Too Clever by Half: Reflections on Perception, Legitimacy, and Choice of Law Under Revised Article 1 of the Uniform Commercial Code”, 6 William & Mary Business Law Review 357 (2015).

The abstract reads as follows:

“The overwhelmingly successful 2001 rewrite of Article 1 of the Uniform Commercial Code was accompanied by an overwhelming failure: proposed section 1-301 on contractual choice of law. As originally sent to the states, section 1-301 would have allowed non-consumer parties to a contract to select a governing law that bore no relation to their transaction. Proponents justifiably contended that such autonomy was consistent with emerging international norms and with the nature of contracts creating voluntary private obligations. Despite such arguments, the original version of section 1-301 was resoundingly rejected, gaining zero adoptions by the states before its withdrawal in 2008. This Article contends that this political failure within the simultaneous overall success of Revised Article 1 was due in significant part to proposed section 1-301 invoking a negative visceral reaction from its American audience. This reaction occurred not because of state or national parochialism, but because the concept of unbounded choice of law violated cultural symbols and myths about the nature of law. The American social and legal culture aspires to the ideal that ‘no one is above the law’ and the related ideal of maintaining ‘a government of laws, and not of men.’ Proposed section 1-301 transgressed those ideals by taking something labeled as ‘law’ and turning on its head the expected norm of general applicability. Future proponents of law reform arising from internationalization would do well to consider the role of symbolic ideals in their targeted jurisdictions. While proposed section 1-301 made much practical sense, it failed in part because it did not—to an American audience—make sense in theory.”

The full article is available here.

The Court of Pécs, in Hungary, has recently submitted several questions to the ECJ concerning the interpretation of Regulation No 593/2008 on the law applicable to contractual obligations and Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, respectively the Rome I and Brussels I Regulations (case C-222/15, Hőszig Kft. v Alstom Power Thermal Services).

The requests concerning the Rome I Regulation relate to the fact that the contract that forms the basis of the main proceedings features a choice of law clause to which one of the parties did not consent.

The relevant provision, here, as indicated in Article 3(5) of the Rome I Regulation, is Article 10.

Article 10(1) provides that “the existence and validity of a contract, or of any term of a contract, shall be determined by the law which would govern it under this regulation if the contract or term were valid”. However, under Article 10(2), “a party, in order to establish that he did not consent, may rely upon the law of the country in which he has his habitual residence if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1”.

The first question raised by the referring court concerns the meaning of the expression “if it appears from the circumstances”. In particular, the court seeks to determine whether the assessment contemplated by Article 10(2) “must cover the circumstances of the conclusion of the contract, the subject-matter of the contract and the performance of the contract”. Furthermore, referring to the case where the relevant circumstances actually demonstrate that consent to the law applicable pursuant to paragraph 1 would not be a reasonable effect of the behavior of the party, the request seeks to determine whether the validity of the contractual clause at hand must then be determined “pursuant to the law of the country of habitual residence of the party who made the reference”.

Secondly, the Hungarian court wonders whether the court has discretion in evaluating if, under the circumstances that must be taken into account, consent to the law applicable pursuant to Article 10(1) was not a reasonable effect of the party’s behaviour.

The third question posed by the court is whether, once a party makes reference to the law of the country in which he has his habitual residence in order to establish that he did not consent, the court must consider this law in the sense that, by virtue of it, and because of the circumstances mentioned, “the consent of that party to the law chosen in the contract was not reasonable conduct”. If this is the case, the court also asks whether the examination of the circumstances carried out in order to determine if there are reasonable grounds to believe that consent was not given “covers the circumstances of the conclusion of the contract, the subject-matter of the contract and the performance of the contract”.

Finally, the court raises a question concerning Article 23(1) of the Brussels I Regulation, now corresponding to Article 25(1) of Regulation No 1215/2012 (Brussels Ia). Under this provision, the parties may agree to confer jurisdiction on a court of a Member State to settle any disputes between them, as long as these concern a particular legal relationship. Jurisdiction shall lie with the chosen court unless the agreement is null and void as to its substantive validity under the law of the Member State of the designated court. The choice of court agreement must meet the formal requirements set forth in the same provision.

In this connection, the request is meant to clarify whether the designation of the court must be specific or, if it is sufficient that the wish or intention of the parties can be deduced unequivocally from the wording, since Recital 14 of the Brussels I Regulation (now Recital 19 of the Brussels Ia Regulation) provides that party autonomy should be respected, subject to the exclusive grounds of jurisdiction, and to the limits stated in the field of protected contracts, where only limited autonomy is allowed.

In particular, having regard to this recital, the court asks whether “a clause conferring jurisdiction, included in the standard contract terms of one of the parties”, under which they stipulate that their disputes concerning validity, performance or termination of the order “are to be subject to the exclusive and final jurisdiction of the courts of a specific Member State”, namely, the court of Paris, could be considered “sufficiently precise, given that the wish or intention of the parties in relation to the designated Member State can be deduced unequivocally from its wording”.

Prof. Dr. Dr. h.c. mult. Jürgen Basedow, LL.M. (Harvard), Director of the Max Planck Institute for Comparative and International Private Law, Hamburg, has published a revised and updated version of the widely read and well-received lectures given by the author during the 2012 summer courses of the Hague Academy of International Law (on the first edition, see the post by Gilles Cuniberti here). This superbly written and well-researched book is a must-read for anyone interested in the paradigm shifts that private international law has undergone in recent decades. The abstract provided by the publisher reads as follows:

“This book endeavours to interpret the development of private international law in light of social change. Since the end of World War II the socio-economic reality of international relations has been characterised by a progressive move from closed to open societies. The dominant feature of our time is the opening of borders for individuals, goods, services, capital and data. It is reflected in the growing importance of ex ante planning – as compared with ex post adjudication – of cross-border relations between individuals and companies. What has ensued is a shift in the forces that shape international relations from states to private actors. The book focuses on various forms of private ordering for economic and societal relations, and its increasing significance, while also analysing the role of the remaining regulatory powers of the states involved. These changes stand out more distinctly by virtue of the comparative treatment of the law and the long-term perspective employed by the author.”

Further information is available on the publisher’s website here.

The Society of Trust and Estate Practitioners (STEP), in cooperation with the Swiss Association of Trust Companies (commonly abbreviated as SATC, not to be confused with an American TV sitcom), is organising an international conference in Lausanne (Switzerland) on recent experience and current trends under the Hague Convention on the Law Applicable to Trusts and on their Recognition of 1985. The event will take place on 3 November 2015; the conference language will be English.

According to the flyer, the conference “will consider how in thirty years since the conclusion of the Hague Trust Convention the trust has become more widely accepted and trust service providers have greater opportunities, in many countries, including Switzerland. The speakers will demonstrate how the trust is playing a full and positive role in the world of wealth management and fiduciary services in Switzerland, as well as cover recent international trust law developments and jurisprudence. The ambitious program features distinguished speakers from the judiciary, academia, the Swiss government, regulatory and the financial services world and promises to be an extraordinary conference.”

The full programme and details on registration are available here.

Pourvoi c/ Cour d'appel de Lyon, 17 février 2015

On 18 August 2015, the German Federal Supreme Court referred the following questions relating to the interpretation of Article 5 No. 1 of the Brussels I Regulation to the CJEU (my translation):

1. Must Art. 5 No. 1 lit. a) of the Brussels I Regulation be interpreted as covering a claim for compensation under Art. 7 of the EU Air Passenger Regulation against an airline that is not the contracting partner of the passenger but operates the flight by way of a codeshare agreement with the passenger’s contracting partner?

2. If Art. 5 No. 1 Brussels I Regulation applies: In case of a flight connection consisting of several flights without any meaningful stay at the connecting airports, is the place of departure of the first flight the place of performance within the meaning of Art. 5 No. 1 lit. b) Brussels I Regulation, if the flights are operated by different airlines by way of a codeshare agreement and if the claim for compensation is directed against the airline that operates the – severely delayed – second flight?

The facts of the underlying case are straightforward: The claimant booked a flight with Air France from Stuttgart to Helsinki via Paris. The flight from Paris to Helsinki was operated by Finnair by way of a codeshare agreement with Air France. The flight from Paris to Helsinki was delayed by three hours and twenty minutes. Therefore, the claimant sought compensation from Finnair under the EU Air Passenger Rights Regulation – and brought an action against Finnair in Stuttgart. The Court of First Instance (Amtsgericht) and the Regional Court (Landgericht) both rejected the claim for lack of jurisdiction. The Federal Supreme Court (Bundesgerichtshof), in contrast, wasn’t so sure, and, therefore, referred the above questions to the CJEU.

The press release of the Federal Supreme Court is available here (in German).

On 17 August 2015 the European Succession Regulation has entered into force. It provides for uniform rules on the applicable law as well as recognition and enforcement of decisions in matters of succession. It also creates a European Certificate of Succession that enables person to prove his or her status and rights as heir or his or her powers as administrator of the estate or executor of the will without further formalities.

More information is available on the European Commission’s website.

Aujourd’hui, 17 août 2015, le règlement « successions » n° 650/2012 du 4 juillet 2012 entre en application dans l’ensemble des États de l’Union européenne à l’exception du Danemark, du Royaume-Uni et de l’Irlande.

Ce faisant, il transforme complètement le droit international privé des successions dans les États membres de l’Union.

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