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The second issue of 2022 of the Journal of Private International Law is out. It contains the following articles:

Thalia Kruger, Laura Carpaneto, Francesca Maoli, Sara Lembrechts, Tine Van Hof, Giovanni Sciaccaluga, Current-day international child abduction: does Brussels IIb live up to the challenges?

Regulation 2019/1111 tries to tackle the new challenges arising from societal changes and legal developments in international child abduction. The result is a sophisticated set of rules centred on the child and aimed at enhancing their protection. The Regulation provides for the hearing of the child and for speedy and efficient proceedings. In it the EU acknowledges its role in the protection of human and children’s rights and sets goals towards de-escalating family conflicts. The new EU child abduction regime is at the same time more flexible than its predecessor allowing consideration of the circumstances characterising each single case in the different stages of the child abduction procedure.

Omar Vanin, Assisted suicide from the standpoint of EU private international law

The article discusses the conflict-of-laws issues raised by such compensatory claims as may be brought against health professionals and medical facilities involved in end-of-life procedures. The issues are addressed from the standpoint of EU private international law. The paper highlights the lack of international legal instruments on assisted-suicide procedures. It is argued that the European Convention on Human Rights requires that States provide a clear legal framework concerning those procedures. The author contends that the said obligation has an impact on the interpretation of the relevant conflict-of-laws provisions of the EU.

Shahar Avraham-Giller, The court’s discretionary power to enforce valid jurisdiction clauses: time for a change?

The paper challenges the well-rooted principle in the Anglo-American legal tradition that courts have discretion whether they should enforce a valid jurisdiction clause. The paper highlights the ambiguity and uncertainty that accompany this discretionary power, which raises a serious analytical problem. The paper then analyses two factors that shaped this discretionary power – jurisdictional theories and the general principle of party autonomy in contracts. Based on the analysis, the paper argues that the time has come to end the courts’ discretionary power with respect to the limited context of the enforcement of valid jurisdiction clauses. The proposal relies on a number of foundations: contractual considerations that relate to autonomy and efficiency; jurisdictional and procedural considerations, including the consent of a party to the jurisdiction of the court by general appearance; the increasing power of parties to re-order procedure; the more appropriate expression of the forum’s public interests and institutional considerations through overriding mandatory provisions; and finally the legal position regarding arbitration agreements and the willingness of a common law legal system such as the United Kingdom to accede to the Hague Convention on Choice of Court Agreements.

Thu Thuy Nguyen, Transnational corporations and environmental pollution in Vietnam – realising the potential of private international law in environmental protection

Many transnational corporations have been operating in Vietnam, contributing to economic and social development in this country. However, these actors have caused a number of high-profile environmental incidents in Vietnam through the activities of their local subsidiaries, injuring the local community and destroying the natural ecosystem. This paper discloses the causes of corporate environmental irresponsibility in Vietnam. Additionally, this paper argues that Vietnam’s private international law fails to combat pollution in this country. To promote environmental sustainability, Vietnam should improve ex-ante regulations to prevent and tackle ecological degradation effectively. Additionally, this paper suggests that Vietnam should remedy its national private international law rules to facilitate transnational liability litigation as an ex-post measure to address the harmful conducts against the natural ecosystem of international business.

Daria Levina, Jurisdiction at the place of performance of a contract revisited: a case for the theory of characteristic performance in EU civil procedure

The article revisits jurisdiction in the courts for the place of performance of a contract under Article 7(1) of the Brussels Ia Regulation. It proposes a new framework for understanding jurisdiction in contractual matters by offering a comparative and historical analysis of both the place of performance as a ground for jurisdiction and its conceptual counterpart, the place of performance as a connecting factor in conflict of laws. The analysis reveals that jurisdiction in the courts for the place of performance is largely a repetition of the same problematic patterns previously associated with the place of performance as a connecting factor. The article asserts that the persisting problems with Article 7(1) of the Brussels Ia Regulation are due to the inadequacy of the place of performance as a ground for jurisdiction and advocates for the transition to the theory of characteristic performance in EU civil procedure.

Tobias Bachmeier, Martin Freytag, Discretional elements in the Brussels Ia Regulation

Following continental European traditions, the Brussels Ia Regulation forms a rigid regime of mandatory heads of jurisdiction, generally not providing jurisdictional discretion. Nonetheless, to some limited extent, the Brussels regime includes discretional elements, in particular when it comes to lis pendens (see Articles 30, 33 and 34 of Brussels Ia). Reconsidering the strong scepticism towards forum non conveniens stipulated by the CJEU in its Owusu case, the fundamental question arises whether a substantial form of discretion concerning jurisdictional competence might be (in)compatible with the core principles of the Brussels regime.

Piotr Mostowik, Edyta Figura-Góralczyk, Ordre public and non-enforcement of judgments in intra-EU civil matters: remarks on some recent Polish-German cases

The article discusses the enforcement of foreign judgments within the European Union and the public policy (ordre public) exception. It is mainly focused on some recent judgments of Polish and German courts. On 22nd December 2016 and 23rd of March 2021 rulings in cases of infringement of personality rights were issued by the Court of Appeal in Cracow (ordering an apology and correction). The enforcement of the former ruling was dismissed by the German Supreme Court (Bundesgerichtshof, BGH) (IX ZB 10/18) on 19th July 2018. The non-enforcement was justified by invoking German ordre public and “freedom of opinion” as a constitutional right stipulated in Article 5 of the German Constitution (Grundgesetz). A reference to the CJEU ruling of 17 June 2021 is also presented.
After presenting the issue of ordre public in the context of enforcement of foreign judgments within the EU, the authors evaluate as questionable the argumentation of the BGH in its 2018 judgment. The Polish ruling ordering the defendant to correct and apologise for the false statement was included by the BGH in the category of “opinion” (Meinung) protected by the German Constitution. Enforcement of the judgment of the Polish court in Germany was held to be contrary to this German constitutional right and the enforceability of the Polish judgment was denied as being manifestly contrary to German public policy.
The authors support the functioning of the ordre public clause in intra-EU relations. It is justified inter alia by the large differences in EU legal systems and future possible changes. However, the common standards of the ECHR should be particularly taken into consideration when applying the public policy clause, because they co-shape the EU legal systems.

Par un arrêt important du 13 septembre 2022, la Cour de justice de l’Union européenne s’est prononcée sur les mesures d’assainissement pouvant être mises à la charge des banques centrales. Toute indemnisation selon un système s’apparentant à de la responsabilité objective est exclue. Pour qu’une somme d’argent soit mise à la charge d’une banque centrale, il faut que cette dernière ait commis une faute grave dans l’exercice de ses fonctions.

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On Friday, December 2, at 4 pm, the European Association of Private International Law (EAPIL) will hold an Online-Seminar on the Rome II Regulation. The Seminar will shed light on the Study that was prepared in 2021 by the British Institute of International and Comparative Law (BIICL) in consortium with Civic Consulting to support the preparation of the report on the application of the Rome II Regulation.

Speakers will be:

• Eva Lein, BIICL (UK)/University of Lausanne (Switzerland)
• Constanze Bonzé, BIICL (UK)
• Xandra Kramer, University of Rotterdam (Netherlands)
• Martin Ebers, University of Tartu (Estonia)
• Marie Louise Kinsler, 2 Temple Gardens, London (UK)

More information (including a detailed program and registration information) will be made available via this blog in November.

flightright (Transport aérien de Stuttgart à Kansas City)
Transport
Le droit à indemnisation des passagers aériens pour retard important s’applique aux vols avec correspondances composés de vols assurés par des transporteurs aériens effectifs distincts

Szef Krajowej Administracji Skarbowej
Fiscalité TVA
Les services financiers fournis au titre d’un contrat de sous-participation sont exonérés de la TVA

Between 24 and 27 October 2022, an international congress on the impacts of the war in Ukraine will take place at the University of Barcelona, organized by Cristina González Beilfuss and Xabier Fernández Pons.

On the face of the program, it looks as if most of the interventions are devoted to public law-related aspects of the war. There is nevertheless an open call for papers which may be taken up to present a couple of specific private law problems likely (unfortunately) to result from the war.

In a wider perspective, the event may be an occasion to reflect on cross-border cooperation in civil and commercial matters, family and successions included, in relation to Ukraine. I definitely think it worth to explore the landscape as far as the European Union is concerned, not only with a view to a possible accession in the future. This being said, I fear that many of us (scholars of EU Member States) are not in a position to conduct a deep research, lacking the necessary language skills.

Having this in mind, the purpose of this post is to draw the attention of Ukrainian scholars staying in Europe (let’s hope on-going funding programs will not stop) to address the topic, that is, to walk us into the PIL of a country to which the EU is already linked by projects and conventions.

This can perfectly be done through contributions to this blog. In this sense, by way of example I would like to propose two topics that could be briefly addressed.

The first one would delve into the civil cooperation aspects of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Ukraine, of the other part. The original document was signed on March 21 and 27 June 2014; it has been amended several times, the last consolidated version being of 22 November, 2021. It appears that only one provision of the Agreement focuses directly on judicial cooperation on civil matters, namely Article 24 paragraphs 1 and 2 in Title III, ‘Justice, Freedom and Security’:

‘Legal cooperation

1. The Parties agree to further develop judicial cooperation in civil and criminal matters, making full use of the relevant international and bilateral instruments and based on the principles of legal certainty and the right to a fair trial.
2. The Parties agree to facilitate further EU-Ukraine judicial cooperation in civil matters on the basis of the applicable multilateral legal instruments, especially the Conventions of the Hague Conference on Private International Law in the field of international Legal Cooperation and Litigation as well as the Protection of Children.’

Research could be done on the actual scope of the provision, its background, whether it has already crystallized on specific proposals or, simply, on how much judicial cooperation in civil and commercial matters is already covered by Hague conventions.

In addition to this topic, another one of narrower scope is suggested by the case of OKR, C-387/20, a preliminary reference submitted to the Court in 2020 on the Succession Regulation. The second question referred to the Court read

‘Must Article 75, in conjunction with Article 22, of [the Succession Regulation] be interpreted as meaning that, in the case where a bilateral agreement between a Member State and a third country does not govern the choice of law applicable to a case involving succession but indicates the law applicable to that case involving succession, a national of that third country residing in a Member State bound by that bilateral agreement may make a choice of law?

and in particular:

–        must a bilateral agreement with a third country expressly exclude the choice of a specific law and not merely govern the lex successionis using objective connecting factors in order for its provisions to take precedence over Article 22 of [the Succession Regulation]?

–        is the freedom to choose the law governing succession and to make the applicable law uniform by making a choice of law – at least to the extent determined by the EU legislature in Article 22 of [the Succession Regulation] – one of the principles underlying judicial cooperation in civil and commercial matters in the European Union, which may not be infringed even where bilateral agreements with third countries apply which take precedence over [the Succession Regulation]?’

The ’third country’ was the Ukraine; at stake was whether a Polish notary could draw up a notarial will with a clause stipulating that the law applicable to the succession would be Ukrainian law, i.e., the national law of the grantor. The request was declared inadmissible on 21 September 2021 under Article 53(2) of the Rules of Procedure of the Court, after the Court got from the notary an explanation in relation to his duties in the context of the procedure in order to determine whether or not he had, in the present case, the status of a ‘court or tribunal’ within the meaning of Article 267 TFEU. The substantive question remains thus to be answered – and it probably will, for the request is back before the Court, this time sent by the Sąd Okręgowy w Opolu. While Ukrania is, for obvious reasons, not a country presenting observations, nor can scholar Ukranian views of the problem be determinant , it is not without interest to learn how Article 75 of the Succession Regulation is seen from the non-EU signatory countries to the bilateral agreement.

José Angelo Estrella Faria (UNCITRAL) has published his Hague Lectures on the protection of religious cultural property in public international law and private international law (La protection des biens culturels d’intérêt religieux en droit international public et en droit international privé) in the Collected Courses of The Hague Academy of International Law (volume 421). 

The author has kindly provided the following English abstract:

The protection of religious cultural property has three dimensions: physical conservation and preservation of the property (material protection); measures aimed at guaranteeing access to cultural property and maintaining their religious or liturgical function (intangible protection); and finally, protection against dissipation and dispersion (localization and physical attachment). Public law protects these three dimensions through various preventive and repressive measures, which are supplemented by rules of private law governing the conditions of circulation of these goods. The course addresses certain aspects of the legal treatment of cultural property with implications for religious cultural property, both at the international and national level, and the way in which national law takes the specific rules and needs of religious communities into consideration. The course is divided in two chapters: the first focusing on the protection of “religious cultural property” under public international law; the second part dealing with their treatment under private international law. 

After an introduction that discusses the notion of “cultural property” and “religious cultural property”, the first section of chapter I summarizes the evolution of the relevant rules of public international law from the first codifications of the law of war until the development of a framework for the protection of “world heritage”.  The chapter explains the protection of “historical monuments”, “works of art” and other cultural property in the customary law of armed conflict and in the special regime of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.  It then focuses on the special treatment of “places of worship” in the customary law of armed conflict, in international humanitarian law and in international criminal law as reflected in the case law of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court. The second section of chapter I deals with the international framework for the protection of religious cultural property in times of peace.  It begins by discussing the place of religious cultural property in the 1972 UNESCO Convention on Concerning the Protection of the World Cultural and Natural Heritage and the possible tension between obligations to preserve cultural heritage and the worship or liturgical use of religious cultural heritage.  The role of the protection of religious cultural property in bilateral agreements is also considered, notably from the in the practice of concordats of the Holy See.  The section concludes with an analysis of the territorial attachment of religious cultural property within the framework of the 1970 UNESCO Convention on the Means of Prohibiting and of Ownership of Cultural Property, preventing the illicit import, export and transfer and the mechanisms for repatriation following wrongful removal.

The first section of chapter II examines the law applicable to the circulation of religious cultural property in private law and considers, in particular:  limits to the application abroad of mandatory rules concerning religious property and to the extraterritorial effect of export restrictions; the inalienability of cultural property religions; international application of the lex originis and the legal effect of internal rules of religious communities governing the management of their cultural heritage. The course concludes in the second section of chapter II discussing the conditions for a civil restitution or return action, including the right to sue and limitation periods, the law applicable to transfers of ownership and rules on good faith acquisition of religious cultural property. It presents several cases that illustrate the difficulty that religious communities and groups may face to obtain restitution of cultural property removed from places of worship and related premises in violation of rules governing their religious function and use. It also considers the conditions for the return of goods to the country of origin in the event of theft or illicit export and the effect of restitution on the right of ownership under the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects of 19995 and the European Union Directive 2014/60 on the return of cultural objects unlawfully removed from the territory of a Member State.

More details, including the table of contents, can be found here.

Although it has in fact been out for several months now, there are few books more deserving of recognition on this blog than Étienne Farnoux’ impressive work on the substantive considerations that inform the rules on international jurisdiction.

Across the book’s 700+ pages, Farnoux launches a sustained attack on the principe de proximité as the foundation of most rules on international jurisdiction, including, most importantly, the forum delicti. He does so in two steps (as any serious French scholar would do): He first discusses the insufficiencies of the proximity-based status quo before developing an alternative approach to international jurisdiction based on procedural and, more importantly, substantive (i.e. policy) considerations.

In the first part, Farnoux explains how localised connecting factors are regularly manipulated to achieve a certain result, most often to create a forum actoris, a practice particularly prevalent in the case law of the CJEU. His analysis is based on a wide range of judgments – Shevill, Kronhofer, Kolassa, Löber, eDate, Bolagsupplysningen, Wikingerhof, Gtflix Tv, … – but does not fail to acknowledge the occasional nuance, as reflected, i.a., by the recent decisions in Vereniging van Effectenbezitters and Mittelbayerischer Verlag. Farnoux deconstructs the alleged objectives of the the principe de proximité – ease of evidence, foreseeability, and effective administration of justice – and demonstrates their inability to justify the allocation of adjudicative jurisdiction in a growing number of inherently delocalised torts.

In the second part, Farnoux therefore proposes a complete change of perspective for international jurisdiction on torts. Rather than chasing an ever more elusive proximity, two sets of considerations should drive the search for the appropriate connecting factor: la justice procédurale, i.e. the just allocation of procedural advantages between claimant and defendant, and la justice substantielle, i.e. the substantive interests of both parties, and of the potential forum. Based on these considerations, Farnoux develops a set of two propositions: First, he suggests to replace the forum delicti by a forum victimae (or forum actoris contrôlé), which would vest jurisdiction in the domicile of the claimant provided that their claim passes a prima-facie exam of its substantive merit – a proposition that certainly holds a claim to intellectual honesty if compared to the practically similar status quo of the Brussels Ia regime, but comes with its own set of problems, including the challenge of examining the merits of a claim before jurisdiction has been established (admittedly a common exercise in English law, though). Alternatively, he proposes to create a new forum protectionis in tort for structurally weaker parties, a proposition that may have a wider appeal, not least for avoiding to abolish the principle of actor sequitur entirely. In the final part of the book, these proposals are supplemented by some thoughts on how the interests of the prospective fora also influence the rules on international jurisdiction.

All in all, Farnoux masterfully combines a thorough, yet very timely analysis of the existing rules on international jurisdiction for torts through the lens of the principe de proximité with some innovative, well-argued propositions on how the latter could be replaced. The book has deservedly won a series of prizes already and is all but certain to become a staple in the library of any scholar working on international jurisdiction.

The Journal of Private International Law will be holding its 9th Conference at the Singapore Management University from 3 to 5 August 2023.

All those interested in making a presentation at the conference and in producing a final paper to be submitted for publication in the Journal are invited to provide for an abstract that should be up to 500 words in length and should clearly state the name(s) and affiliation(s) of the author(s). Abstracts can fall within any subject matter the Journal deal with and can be offered by people at any stage of their career, including postgraduate students.

Since there will be a mixture of plenary (Friday) and parallel panel sessions (Thursday afternoon and Saturday morning), it is to be indicated on the abstract whether you are willing to present in either or are only willing to do so in one or the other.

Presentation at the conference will depend on whether your abstract is selected by the Editors of the Journal (Jonathan Harris KC, King’s College, and Paul Beaumont FRSE, University of Stirling) and the Conference Organiser (Adeline Chong, Singapore Management University). The subsequent article should be submitted to either of the editors of the Journal before the end of 2023. Publication in the Journal will be subject to the usual system of refereeing by two experts in the field.

Abstract shall be submitted by 16 December 2022 at jpil2023@smu.edu.sg.

More information on the conference and the related registration can be found here.

A new Report on EU Policy Guidelines was just posted on the website of EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU), an EU-funded Project conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, the University of Heidelberg, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.

The Report was authored by Marco Buzzoni, Cristina M. Mariottini, Michele Casi, and Carlos Santaló Goris.

Building upon the outcomes of the national and international exchange seminars and the Project’s analytical reports, this Report formulates policy guidelines addressed to EU policymakers and puts forth suggestions to improve the current legal framework provided under the EFFORTS Regulations (namely: the Brussels I-bis Regulation and the Regulations on the European Enforcement Order, the European Small Claims Procedure, the European Payment Order, and the European Account Preservation Order) with regard to the enforcement of claims.

This Report was among the outputs and findings discussed at the Project’s Final Conference, hosted by the University of Milan on 30 September 2022, which provided an international forum where academics, policymakers, and practitioners discussed the Project’s key findings and exchanged their views on the national implementation of – and the path forward for – the EFFORTS Regulations. The content of the Final Conference will enrich the Final Study, which is forthcoming on the Project’s website.

Regular updates on the EFFORTS Project are available via the Project’s website, as well as LinkedIn and Facebook pages.

Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union

A quick update related to the public consultation launched by the French Ministry of Justice last June on the draft code of private international law to gather feedback from all stakeholders (announced here).

The deadline has been extended to 30 November 2022.

More information is available here.

Various posts have been published on this blog regarding the draft: see here for some general remarks, and here as regards specifically renvoi, foreign law, the recognition of marriages and companies. A German perspective on the draft is offered here.

Lorsque le défunt avait la nationalité française et possédait des biens en France, les juridictions françaises sont compétentes pour statuer sur l’ensemble de sa succession en application de l’article 10 du règlement européen du 4 juillet 2012, même s’il n’y était pas domicilié.

Sur la boutique Dalloz Droit et pratique de la procédure civile 2021/2022 Voir la boutique Dalloz

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Several years ago, I published a paper that examined how U.S. courts interpret choice-of-law clauses. That paper contains a detailed discussion of the most common interpretive issues—whether the clause selects the tort laws of the chosen jurisdiction in addition to its contract laws, for example—that arise in litigation. There was, however, one important omission. The paper did not consider the question of whether the word “laws” in a choice-of-law clause should be interpreted to select the laws of the chosen jurisdiction (1) at the time the contract was signed, or (2) at the time of litigation.

In declining to address this issue, the paper was in good company. Neither the Restatement (Second) of Conflict of Laws (§ 2) nor the draft Restatement (Third) of Conflict of Laws (§ 1.02) discuss the relationship between choice-of-law and time. Nevertheless, the omission bothered me.

In the spring of 2021, I saw that Jeff Rensberger at the South Texas College of Law had posted a paper to SSRN entitled Choice of Law and Time. After downloading and reading the paper, I discovered that it contained no discussion of choice-of-law clauses. It was devoted solely to the question of how courts should address the issue of temporality in cases where the parties had declined to select a law in advance. After reading the paper, I wrote to Jeff to propose that we collaborate on a second paper that specifically addressed the temporal question in the context of choice-of-law clauses. When we spoke on the phone to discuss the project, however, we did not agree on the answer. Jeff argued for the laws at the time of signing. I argued for the laws at the time of litigation.

In early 2022, Jeff sent me a draft of his new paper, Choice of Law and Time Part II: Choice of Law Clauses and Changing Law, which makes the case for interpreting choice-of-law clauses to select the law at the time of signing. In response, I drafted an essay arguing that they should be interpreted to select the law at the time of litigation. A draft of my essay, The Canon of Evolving Law, is now available for download on SSRN.

If you happen to be one of the small number of people in the world interested in this fascinating (though obscure) interpretive issue, I would encourage you to download both papers and decide for yourself who has the better of the argument.

[This post is cross-posted at Transnational Litigation Blog.]

All private international law events at the Court of Justice this month will take place on the same day, namely on 20 October.

To begin with, we will get to know AG Szpunar’s opinion on C-423/21, Grand Production.

The Oberster Gerichtshof (Austria) has lodged a request for a preliminary ruling with two questions on Directive 2001/29/CE (on the harmonisation of certain aspects of copyright and related rights in the information society) alone, and another one on the combined interpretation of provisions of said Directive and of Article 7(2) of the Brussels I bis Regulation, in a claim for injunctive relief of worldwide scope:

I. Is the concept of ‘communication to the public’ in Article 3(1) of Directive 2001/29/EC (…) to be interpreted as meaning that such communication is made by the direct operator (not established in the EU in this case) of a streaming platform, whereby that operator

– alone decides on the content and blacking out of TV programmes broadcast by it and implements them from a technical point of view,

– has sole administrator rights for the streaming platform,

– an influence which TV programmes can be received by the end user via the service, but cannot influence the content of the programmes,

– and is the sole point of control as regards which programmes and content can be watched in which territories and when,

where, in each case,

– the user is provided with access not only to broadcasting content whose online use has been authorised by the respective rightholders, but also to protected content for which rights clearance has not been obtained, and

– the direct operator of the streaming platform is aware that its service also enables the reception of protected broadcasting content without the consent of the rightholders by virtue of the fact that the end customers use VPN services which give the impression that the IP address and device of the end customers are located in areas for which the consent of the rightholder has been obtained, but

– the reception of protected broadcasting content via the streaming platform without the consent of the rightholders was in fact possible for several weeks even without VPN tunnelling?

II. If Question I is answered in the affirmative:

Is the concept of ‘communication to the public’ in Article 3(1) of Directive 2001/29/EC to be interpreted as meaning that such communication is also carried out by third parties (having, in this case, their registered offices in the EU) which are related, contractually and/or under company law, to the platform operator described in Question I., and which, without themselves having any influence on the blackouts and on the programmes and content of the broadcasts brought to the streaming platform,

– advertise the operator’s streaming platform and its services, and/or

– offer trial subscriptions to customers that automatically end after 15 days, and/or

– support the customers of the streaming platform as a customer service provider, and/or

– offer on their website paid subscriptions to the streaming platform of the direct operator and then act as the contracting partner of the customers and as the recipient of payment, whereby the paid subscriptions are created in such a way that an express reference to the fact that certain programmes are not available is made only if a customer explicitly indicates at the time of conclusion of the contract that he or she wishes to see those programmes, but, if customers do not express that wish or specifically enquire about such programmes, they are not informed of that fact in advance?

III. Are Article 2(a) and (e) and Article 3(1) of Directive 2001/29/EC, read in conjunction with Article 7(2) of Regulation (EU) No 1215/2012 (…) to be interpreted as meaning that, in the event of an allegation of infringement of copyright and related rights guaranteed by the Member State of the court seised, that court has jurisdiction only to rule on the damage caused in the territory of the Member State to which it belongs – because the territoriality principle precludes domestic courts from having competence to determine and examine the facts in relation to foreign acts of infringement – or can or must that court also rule on offences committed outside that territory (worldwide), as alleged by the infringed author?

In a nutshell, the third question seeks clarification regarding the principle of territoriality, in accordance with which the protection claimed by an applicant under Austrian copyright law relates only to Austria, and the applicant can therefore only claim injunctive relief which is limited to Austria.

Two further opinions are scheduled on the same day, one from AG Szpunar and the other from P. Pikamäe.

In C-291/21, Starkinvest, the Tribunal de première instance of Liège is asking the Court of Justice to interpret Articles 4, 7 and 8 of Regulation No 655/2014 establishing a European Account Preservation Order procedure.

In the case at hand, in 2015 the Court of Appeal of Liège had ordered a company incorporated under Irish law, subject to a penalty payment, to stop committing trademark infringements. Some years after the judgement was handed down and (allegedly) served, the claimant issued an order for payment in the sum of EUR 86 694.22, which included EUR 85 000 in penalty payments. Now, he has asked a first instance court to make a European Account Preservation Order in the principal amount of EUR 85 000, over such sums as may be held in the French bank account of the defendant. The claim is based on penalty payments alleged to be due from the defendant pursuant to the 2015 judgment delivered by the Court of Appeal of Liège.

The national court refers the following questions to the Court of Justice of the European Union for a preliminary ruling:

1. Does a judgment which has been served, ordering a party to make a penalty payment in the event of breach of a prohibitory order, constitute a decision requiring the debtor to pay the creditor’s claim within the meaning of Article 7(2) of Regulation No 655/2014 (…)?

2. Does a judgment ordering a party to make a penalty payment, although enforceable in the country of origin, fall within the meaning of ‘judgment’ in Article 4 of Regulation No 655/2014 (…) where there has been no final determination of the amount in accordance with Article 55 of Regulation 1215/12 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters?’

In case C-393/21, Lufthansa Technik AERO Alzey, AG Pikamäe has been asked to give an opinion on a request for a preliminary ruling by the Lietuvos Aukščiausiasis Teismas (Lithuania). Four out of five questions concern the notion of ‘exceptional circumstances’ under Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims. The fifth question focuses on the relationship between Regulation Brussels Ibis and Regulation No 805/2004 as regards the suspension of enforcement proceedings when the enforceability of a court decision is suspended in the Member State of origin:

‘1.  How, taking into account the objectives of Regulation No 805/2004 (…), inter alia the objective of accelerating and simplifying the enforcement of judgments of Member States and effective safeguarding of the right to a fair trial, must the term ‘exceptional circumstances’ in Article 23(c) of Regulation No 805/2004 be interpreted? What is the discretion that the competent authorities of the Member State of enforcement have to interpret the term ‘exceptional circumstances’?

2. Are circumstances, such as those in the present case, related to judicial proceedings in the State of origin which decide a question regarding the setting aside of the judgment on the basis of which a European Enforcement Order was issued to be regarded as relevant when deciding on the application of Article 23(c) of Regulation No 805/2004? According to what criteria must the appeal proceedings in the Member State of origin be assessed and how comprehensive must the assessment of the proceedings taking place in the Member State of origin that is carried out by the competent authorities of the Member State of enforcement be?

3. What is the subject matter of the assessment when deciding on the application of the term ‘exceptional circumstances’ in Article 23 of Regulation No 805/2004: must the impact of the respective circumstances of the dispute when the judgment of the State of origin is challenged in the State of origin be assessed, must the possible potential benefit or harm of the respective measure specified in Article 23 of the regulation be analysed, or must the debtor’s economic abilities to implement the judgment, or other circumstances, be analysed?

4. Under Article 23 of Regulation No 805/2004, is the simultaneous application of several measures specified in that article possible? If the answer to this question is in the affirmative, what criteria must the competent authorities of the State of enforcement rely on when deciding on the merits and proportionality of the application of several of those measures?

5. Is the legal regime laid down in Article 36(1) of Regulation (EU) No 1215/2012 (…) to be applied to a judgment of the State of origin regarding the suspension (or cancellation) of enforceability, or is a legal regime similar to that specified in Article 44(2) of that regulation applicable?

The facts of the case can be summarized as follows.

In enforcement proceedings, a bailiff operating in Lithuania is executing an order of the Amtsgericht Hünfeld (Local Court, Hünfeld, Germany), on the basis of which an enforcement order and a European Enforcement Order certificate had been issued regarding the recovery of a debt of the debtor for the benefit of the party seeking enforcement.

The debtor applied to the Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main, Germany) for withdrawal of the European Enforcement Order certificate and termination of enforcement. It claimed that the certificate had been issued unlawfully because the procedural documents of the Local Court, Hünfeld, had not been duly served on it. He also requested the bailiff to stay the enforcement proceedings in the Republic of Lithuania until its claims for withdrawal of the European Enforcement Order certificate and termination of enforcement had been examined in a final procedural decision of the court in Germany.

The bailiff refused to stay the enforcement proceedings, on the basis that the Lithuanian Code of Civil Procedure do not provide for a stay of the enforcement of a final judgment on the ground that claims for withdrawal have been made before a court of the State of origin. The District Court of Kaunas, Lithuania, before which an action regarding this refusal was brought, did not upheld the action. The Regional Court of Kaunas, exercising appellate jurisdiction, set aside the order of the court of first instance, upheld the action brought by the debtor and ordered the stay of the enforcement proceedings pending a full examination of the debtor’s claims by a final judgment of the German competent court.

The other party brought an appeal on a point of law before the Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania).

Finally, the Court of Justice will hand down its judgment in case C-604/20, ROI Land Investments, also on 20 October. The Bundesarbeitsgericht (Germany) has requested the interpretation of rules on jurisdiction under the Brussels I bis Regulation, as well as of conflict of law provisions in Regulation (EC) No 593/2008 on the law applicable to contractual obligations (Rome I):

1. Is Article 6(1) read in conjunction with Article 21(2) and Article 21(1)(b) of Regulation (EU) No 1215/2012 (…) to be interpreted as meaning that an employee can sue a legal person – which is not his employer and which is not domiciled in a Member State within the meaning of Article 63(1) of the Brussels I Regulation but which, by virtue of a letter of comfort, is directly liable to the employee for claims arising from an individual contract of employment with a third party – in the courts for the place where or from where the employee habitually carries out his work in the employment relationship with the third party or in the courts for the last place where he did so, if the contract of employment with the third party would not have come into being in the absence of the letter of comfort?

2. Is Article 6(1) of the Brussels I Regulation to be interpreted as meaning that the reservation in respect of Article 21(2) of the Brussels I Regulation precludes the application of a rule of jurisdiction existing under the national law of the Member State which allows an employee to sue a legal person, which, in circumstances such as those described in the first question, is directly liable to him for claims arising from an individual contract of employment with a third party, as the ‘successor in title’ of the employer in the courts for the place where the employee habitually carries out his work, if no such jurisdiction exists under Article 21(2) read in conjunction with Article 21(1)(b)(i) of the Brussels I Regulation?

3. If the first question is answered in the negative and the second question in the affirmative:

(a)  Is Article 17(1) of the Brussels I Regulation to be interpreted as meaning that the concept of ‘professional activities’ includes paid employment in an employment relationship?

(b)  If so, is Article 17(1) of the Brussels I Regulation to be interpreted as meaning that a letter of comfort on the basis of which a legal person is directly liable for claims of an employee arising from an individual contract of employment with a third party constitutes a contract concluded by the employee for a purpose which can be regarded as being within the scope of his professional activities?

4. If, in answer to the above questions, the referring court is deemed to have international jurisdiction to rule on the dispute:

(a)   Is Article 6(1) of Regulation (EC) No 593/2008 (…) to be interpreted as meaning that the concept of ‘professional activities’ includes paid employment in an employment relationship?

(b)   If so, is Article 6(1) of the Rome I Regulation to be interpreted as meaning that a letter of comfort on the basis of which a legal person is directly liable to an employee for claims arising from an individual contract of employment with a third party constitutes a contract concluded by the employee for a purpose which can be regarded as being within the scope of his professional activities?

I reported here on the facts of the case. Interestingly, AG Richard de la Tour’s opinion of April 28, 2022, not yet available in English, offers the Court two possibilities. My translation for the first one would be:

1) Article 21, sections 1 and 2, of Regulation (EU) No. 1215/2012 (…) must  be interpreted in the sense that a natural or legal person, whether or not domiciled in the territory of a Member State, with whom an employee has concluded, not his employment contract, but an agreement that forms an integral part of said contract, by virtue of which said person is responsible for fulfilling the obligations of the employer towards the employee, can be classified as “employer” when it has a direct interest in the correct execution of the contract. The referring court must assess the existence of this direct interest globally, taking into account all the considerations of the case at hand.

2) Article 6(1) of Regulation No 1215/2012 must be interpreted as meaning that the application of the jurisdictional rules of national law must be excluded when the conditions of application of Article 21(2) of said Regulation are met.

In the event that the Court of Justice considers the dispute does not fall within the scope of application of Article 21(2) of Regulation No. 1215/2012, Mr. Richard de la Tour suggests answering that:

3) Article 17, paragraph 1, of Regulation No. 1215/2012 and article 6, paragraph 1, of Regulation (EC) No. 593/2008, must be interpreted in the sense that the concept of “professional activity” includes work for another’s account in an employment relationship.

4) Article 17(1) of Regulation No. 1215/2012 and Article 6(1) of Regulation No. 593/2008 must be interpreted as meaning that a letter of comfort that forms an integral part of a employment contract, by virtue of which a person is responsible for fulfilling the obligations of the employer towards the worker, is included in the concept of “professional activity”.

The decision will be delivered by the 3rd Chamber with M. Safjan reporting, sitting together with Ms. Jürimäe, M. Jääskinen, M. Piçarra and M. Gavalec.

Written by Mayela Celis

On 30 September 2022, a US District Court in Boston (Massachusetts, USA) dismissed the case filed by Mexico against the US weapons manufacturers regarding non-contractual obligations (among them, negligence and unjust enrichment). According to Reuters, the reason given by the judge to dismiss the case is that “federal law [Protection of Lawful Commerce in Arms Act] ‘unequivocally’ bars lawsuits seeking to hold gun manufacturers responsible when people use guns for their intended purpose” and that none of the exceptions contained therein applied.

One statement worthy of note as stated in multiple news media is: “While the court has considerable sympathy for the people of Mexico, and none whatsoever for those who traffic guns to Mexican criminal organizations, it is duty-bound to follow the law.”

The full case citation is Estados Unidos Mexicanos (plaintiff) vs. SMITH & WESSON BRANDS, INC.; BARRETT FIREARMS MANUFACTURING, INC.; BERETTA U.S.A. CORP.; BERETTA HOLDING S.P.A.; CENTURY INTERNATIONAL ARMS, INC.; COLT’S MANUFACTURING COMPANY LLC; GLOCK, INC.; GLOCK GES.M.B.H.; STURM, RUGER & CO., INC.; WITMER PUBLIC SAFETY GROUP, INC. D/B/A INTERSTATE ARMS (defendants), Case 1:21-cv-11269, filed in 2021.

In a nutshell, the allegations made by Mexico are the following (as stated in the complaint):

1. Defendants have legal duties to distribute their guns safely and avoid arming criminals in Mexico;
2. Defendants are fully on notice that their conduct causes unlawful trafficking to Mexico;
3. Defendants actively assist and facilitate trafficking of their guns to drug cartels in Mexico:
4. Defendants actively assist and facilitate the unlawful tracking because it maximizes their sales and profits;
5. The Government has taken reasonable measures to try to protect itself from defendants’ unlawful conduct;
6. Defendants cause massive injury to the government.

Claims for relief are (as stated in the complaint):

Negligence, public nuisance, defective condition – unreasonably dangerous, negligence per se, gross negligence, unjust enrichment and restitution, violation of CUTPA [Connecticut Unfair Trade Practices Act], Violation of Mass. G.L. c. 93A [Massachusetts Consumer Protection Act], punitive damages.

In addition to the argument given by the judge, I believe that it would be very hard to establish personal jurisdiction over the defendants. Think for example of the minimum contacts and the reasonableness test, in particular what are the contacts of the defendants with the state of Massachusetts (but see for example: Smith & Wesson is indeed based in Massachusetts until 2023), the existence of justified expectations that may be protected or hurt, and the forum State’s [the United States of America} interest in adjudicating the dispute.

Moreover, and aside from jurisdictional issues, given that the actual damage occurred overseas, an important issue would be to prove the causation link between the conduct of the defendants and the damage. This will prove particularly difficult considering all the intermediaries that exist in the weapons’ trade (legal and illegal, second-hand sales, pawn shops, etc.).

Nevertheless, this is a very interesting initiative and perhaps it is a battle worth fighting for (if only to raise public awareness). One thing is for sure: the Mexican Government has shown its increasing concern about the illicit traffic of firearms in its territory and its commitment to end it.

The Mexican Federal Government will appeal the judgment.  The official statement is available here.

We will post any new updates on this blog. Stay tuned!

Meetings & Events

On 1-2 September 2022, the HCCH Regional Office for Latin America and the Caribbean organised a judicial training on the 1980 Child Abduction Convention and 1996 Child Protection Convention in Barbados, attended by judges and senior practitioners in the field of child abduction from Barbados, the Bahamas, Belize and Trinidad and Tobago.

On 8 September 2022, the HCCH Regional Office for Latin America and the Caribbean organised a judicial training on the 1980 Child Abduction Convention in Trinidad and Tobago, attended by judges in the field of child abduction from Trinidad and Tobago and the Bahamas.

From 12 to 16 September 2022, the online HCCH CODIFI Conference brought together panelists and participants from a range of backgrounds to examine issues of private international law in the commercial, digital and financial sectors, highlighting developments in the digital economy and fintech industries as well as clarifying the roles of core HCCH instruments: the 1985 Trusts Convention, the 2006 Securities Convention, and the Principles on Choice of Law in International Commercial Contracts. More information is available here, and recordings of all the sessions are available here.

From 19 to 23 September 2022, the third meeting of the Working Group on Matters Related to Jurisdiction in Transnational Civil or Commercial Litigation was held in hybrid format. The Group made further progress on the development of draft provisions on parallel litigation in civil or commercial matters, which may occur when separate proceedings are instituted before the courts of different States. More information is available here.

 

Upcoming Events

Registrations are now open for HCCH Asia Pacific Week 2022, to be held from 18 to 20 October in Manila, the Philippines. The conference will act as a forum for the exchange of ideas and viewpoints from across Asia and the Pacific on some of the most prominent HCCH Conventions and instruments, as well as on the HCCH’s ongoing normative projects and possible future work, in the areas of transnational litigation and legal cooperation, international family and child protection law, and commercial, digital and financial law. More information is available here.

 

Vacancies

Applications are now open for the position of Legal Officer within the Transnational Litigation & Apostille Division of the Permanent Bureau of the HCCH. The deadline for the submission of applications is 14 October 2022. More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

Priskila Pratita Penasthika (Assistant Professor in Private International Law at the Faculty of Law, Universitas Indonesia) has just published her PhD dissertation with Eleven under the title Unravelling Choice of Law in International Commercial Contracts. Indonesia as an Illustrative Case Study.

The abstract reads as follows:

Despite the paramount role of choice of law in international contractual relationships, its implementation in various countries remains disparate. Many countries have acknowledged and given effect to choice of law, but some other countries persist in opposing it. The lingering reluctance in enforcing choice of law remains a challenging impediment to cross-border commercial relationships.

Strict adherence to the territoriality principle, absence of special provisions or clear guidelines of choice of law, and difficulties in confirming the content of the chosen foreign law are among the reasons for the reluctance to give effect to choice of law. These circumstances are encountered by some countries, including Indonesia.

This book not only unravels the reasons for Indonesia’s reluctance and its subsequent lack of advancement on choice of law, but also examines possible solutions to the problem. Building on in-depth doctrinal research, supported by qualitative interviews, this research will serve as an essential point of reference for academics, practitioners, and policymakers interested in private international law and cross-border commercial litigation.

The book offers a thorough analysis into why and to what extent Indonesia deviates from applying choice of law in international commercial contracts and identifies related factors to this situation. The study makes use of various research methods to analyse in-depth the situation of choice of law in international commercial contracts. The doctrinal method allows the scholar to explore and describe the theoretical and regulatory frameworks of choice of law that are available at the global, regional, and national levels. This is complemented by an empirical part based on qualitative interviews carried out with practitioners and experts in Indonesia, and a detailed analysis of national case law after 2002 concerning contracts where parties made use of a choice of law clause. The interviews allowed the researcher to gain a better understanding of the problems and difficulties facing the Indonesian judicial practice with regard to choice of law.

This publication could not have been more timely given that it has taken Indonesia around 55 years since its independence to finally have a statutory provision that acknowledges the freedom of the parties to choose the law applicable to a contract.

Nevertheless, the prevailing provisions appear insufficient to deal with the complexity of international commercial transactions. The academic discussion on the topic has been rather sluggish for a long period in Indonesia.

With the ongoing reforms and the national policy vision (Visi Indonesia 2045) aiming to encourage international trade, this book has the potential to bring back into the arena advanced discussions on the topic. It is certainly a valuable study for international readers interested in choice of law who would otherwise not be able to easily access decisions of Indonesian courts in this area of private international law as well as gaining a detailed understanding of the complexity of the national system.

Additionally, it is a useful tool for Indonesian policymakers, practitioners, and scholars as it highlights a number of improvements that could be embarked upon in the future. This will also assist courts to secure parties’ access to justice, and promote certainty and predictability in the settling of international commercial contract disputes.

The second issue of 2022 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out. In addition to recent case law and other materials, it features two essays and one shorter paper

Costanza Honorati, Giovanna Ricciardi, Violenza domestica e protezione cross-border (Domestic Violence and Cross-Border Protection)

Domestic violence has drawn increasing attention both from the lawmaker and legal scholars. Legal means to prevent domestic violence and protect women have been promoted and implemented at the national and supranational levels. This article concentrates on seeking and enforcing civil protection measures in cross-border family conflicts. Protective measures are often sought and taken in the State where the prospective victim (and often also the tortfeasor) is habitually resident. PIL issues are however rarely addressed. Regulation (EU) No 606/2013 on mutual recognition of protection measures in civil matters provides a useful instrument when the need for recognition and enforcement in a different Member State arises at a later stage. Less dealt with is the issue of selecting an appropriate ground for jurisdiction, which is not governed by the mentioned Regulation. The latter issue becomes especially relevant in the very peculiar case of protection measures to be issued in the so-called State of refuge when a mother challenges a situation of domestic violence as a ground for leaving the State of a child’s habitual residence and searches for protection elsewhere. The interplay between domestic violence and abduction cases, a situation quite frequent in practice but rarely addressed in legal literature, is further explored and dealt with.

Ilaria Viarengo, The Coordination of Jurisdiction and Applicable Law in Proceedings Related to Economic Aspects of Family Law

This article addresses the complex features and problems arising from the combined application of all European and international instruments dealing with divorce and the economic aspects of family law. The need to avoid litigation proceedings in different jurisdictions, entailing the duplication of proceedings and costs and the need to have divorce and all the financial aspects governed by the same law are of central importance from a practical point of view. This article provides an analysis of whether and to what extent these two needs can be satisfied with the combined application of the EU family law regulations at issue. Firstly, it deals with some general issues whose solution could have an impact on the coordination among all these instruments. Consequently, it examines the interplay among rules on jurisdiction and applicable law, including the role of party autonomy in pursuing coordination.

Curzio Fossati, La residenza abituale nei regolamenti europei di diritto internazionale privato della famiglia alla luce della giurisprudenza della Corte di giustizia (Habitual Residence in EU Private International Law Regulations in Family Matters in View of the Case-Law of the Court of Justice)

This article deals with the concept of habitual residence, which is in widespread use in the EU Regulations in the field of family law. Firstly, the article gives an overview of these Regulations, and then it analyses the case-law of the CJEU on the criterion of habitual residence referred to children, deceased persons, and spouses. The contribution examines two fundamental elements of the concept of habitual residence identified both by CJEU and scholars: the objective element, i.e. a sufficiently stable presence of a person in a Member State, and the subjective element, i.e. the intention of the person concerned to establish the permanent or habitual centre of his or her interests in that place. The article also tries to identify the most suitable method of interpretation of the concept of habitual residence and, in particular, it investigates which approach is more desirable between a uniform approach (which fosters a uniform definition of habitual residence in EU law) and a functional one (which implies an interpretation that takes into account the aim of the disposition in which the concept is used). Ultimately, the Author endorses the solution adopted by the CJEU in the IB case, which combines the aforementioned approaches.

La Cour européenne des droits de l’homme retient une violation de l’article 3 de la Convention à l’encontre de la Croatie, face à l’incapacité des services de police d’assurer la protection d’une victime d’un crime vis-à-vis de son agresseur bénéficiant de permissions de sortie d’un établissement carcéral.

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Espagne / Commission
Aide d'État
L’avocat général Pikamäe propose d’annuler partiellement l’arrêt du Tribunal ainsi que la décision de la Commission sur le « régime espagnol de leasing fiscal »