Droit international général

Out now: RabelsZ 83 (2019), Issue 1

Conflictoflaws - il y a 3 heures 26 min

The latest issue of RabelsZ has just been released. It contains the following articles:

Kutner, Peter, Recognition and Enforcement of Foreign Judgements – The Common Law’s Jurisdiction Requirement, pp. 1 et seq

The “Dicey Rule” has been treated as canonical in England and elsewhere. However, it has changed over time, it has been based in part on UK legislation, and it does not reflect other possible bases of jurisdiction that have been accepted in some cases. This article will set forth what the common law (the law without specific alteration by statute) has been and now is on the subject of “ jurisdiction in the international sense”. Drawing on case law and authoritative writing from across the common law world, the article will identify and examine established and debatable grounds for jurisdiction and how they have been applied. As will be seen from references to cases in courts outside England and writings on conflict of laws in countries other than England, for some countries the law on jurisdictional “competence” is or may be different from what is stated in the current version of the Dicey Rule.

Lehmann, Matthias and Eichel, Florian, Globaler Klimawandel und Internationales Privatrecht – Zuständigkeit und anzuwendendes Recht für transnationale Klagen wegen klimawandelbedingter Individualschäden (Climate Change and Private International Law – Jurisdiction and Applicable Law in Transnational LitigationConcerning Individual Losses Caused by Global Warming), pp. 77 et seq

Increasingly, victims of global warming venture outside their own jurisdiction to sue polluters. Following the example of the United States, the phenomenon has now reached Europe. This article addresses the many questions raised by climate change litigation in a cross-border context. Starting from the treaty framework for greenhouse gas emissions, it analyses issues in respect of court jurisdiction and the applicable law from a European perspective. The authors argue for a balancing of the legitimate interests of, on one hand, private individuals who suffer the consequences of climate change and, on the other, industrial firms that have acquired and relied on emission rights. With regard to the competent court, they suggest limiting court jurisdiction under Art. 7(2) Brussels Ia Regulation to those places where it was foreseeable, from the perspective of the polluter, that damage would occur. With regard to the applicable law, they propose tempering Art. 7 Rome II Regulation by an analogous application of Art. 5(1) para. 2 of the same Regulation. While the victim can generally choose between the law of the country where the damage originated and where the damage occurred, the latter option should be restricted in the case of climate change litigation because the place of damage is typically unforeseeable for the tortfeasor. Furthermore, a valid authorization by the state of emission should be taken into account under Art. 17 Rome II Regulation insofar as appropriate. The law of the country where the damage occurred could apply to liability where an authorization does not exist, was obviously invalid, obtained by fraud or where such authorization has been consciously transgressed.

Wendelstein, Christoph, „Menschenrechtliche“ Verhaltenspflichten im System des Internationalen Privatrechts (The Role of Human Rights in Private International Law), pp. 111 et seq

The article examines the significance of human rights in the field of private law and conflict of laws. The author points out that human rights per se have no relevance in the field of private law. However, human rights are suitable for modifying the content and scope of subjective private rights, particularly through the (judicial) elaboration of behavioural duties. With regard to Art. 4(1) Rome II Regulation and the question of determining the place where the damage occurs, the author proposes to distinguish between “subjective private rights with a physical reference object defined also via the duty side” (e.g. property) and “subjective private rights without a physical reference object defined only via the duty side” (e.g. personality rights). As to the former, rights are located at the place where one finds the reference object (e.g. “things” in the case of property law). As to rights associated with the latter, a further distinction is offered: (i) If the duty limits another subjective right having a physical reference object, the non-objective subjective private right is located at the place where the reference object of the restricted subjective right is found. (ii) If the duty limits a subjective right without a physical reference object, the habitual residence of the bearer of the right should be decisive. A deviation from the designated law through escape clauses (Arts. 4(3), 17 Rome II Regulation), the public policy exception (Art. 26 Rome II Regulation) or mandatory rules (Art. 16 Rome II Regulation) is excluded for methodological reasons. Moreover, a correction is not required as the connecting factor of Art. 4(1) Rome II Regulation leads to just and reasonable results even in constellations with a link to human rights.

Rupp, Caroline S.,Verliebt, verlobt, rückabgewickelt? – Ansprüche bei der Auflösung von Verlöbnissen aus grenzüberschreitender Perspektive (Enamoured, Engaged, Annulled – Broken Engagement Claims from a Cross-Border Perspective), pp. 154 et seq

Even in the twenty-first century, financial claims after a broken engagement to marry play an important role and can cause difficulties, especially in cross-border relationships. Firstly, damages may be claimed for financial losses due to wedding and marriage preparations; secondly, the fate of engagement gifts, especially the ring, needs to be determined. This article examines engagement-related claims under German, French and English law, deriving a suggestion for useful contemporary rules from their comparison. A comparative inquiry into the conflict of laws rules then shows that the current rules pose various problems due to lacunae and disputes. The article develops a proposal to resolve these problems through clear, specifically engagement-related conflict of laws rules.

Danilina v Chernukin: how a very Russian case triggers the proper law of the contract under the Rome Convention.

GAVC - mar, 02/19/2019 - 10:10

A little bit of factual background is required to understand [2019] EWHC 173 (Comm) Danilina v Chernukin. It concerns a valuable site in Central Moscow (readers of the blog and students of mine will now no longer wonder why this is being litigated in England) which is, indirectly, the subject of a Shareholder Agreement dated 31 May 2005 (the “SHA”). The issue is whether Vladimir Chernukhin, who is not named as a party to the SHA is in fact party to the SHA as a disclosed principal of Lolita Danilina, who is named as a party to the SHA. Mr. Chernukhin and Mrs. Danilina had been in a relationship; it is Mr. Chernukhin’s case that she was a named party because she was acting as his nominee or agent.

That is the purely business side of the litigation – there is also a family assets angle: Ms Danilina has a claim arising out of what she argues to have been an agreement between her and Mr. Chernukhin in 2007 for the division of their assets after their relationship had come to an end.

The latter issue is the ‘2007 Agreement’ and it is this which is of interest to the blog: Teare J at 324: Mrs. Danilina seeks to prove alleges the following, quite detailed, agreement: a) TGM would remain (as it always was) as an asset belonging to Mrs. Danilina and her alone; b) the assets accumulated between them jointly and which they regarded as family assets would be distributed between them on an effectively equal basis with: i) Mrs. Danilina retaining and/or taking those residential real property assets located within Russia, ii) Mr. Chernukhin having those residential real property assets located outside of Russia and iii) save for certain chattels such as cars and the weapon collection (which were to be owned by Mr. Chernukhin) and jewellery and artwork in Russia (which were to be owned by Mrs. Danilina), the balance of their assets would be split equally and Mrs. Danilina’s 50% share held in a trust for her benefit; c) a new structure would be required to reflect these agreements; and d) Mr. Chernukhin would be responsible for taking the necessary steps to give effect to the agreement.

Teare J starts with the bootstrap /von Munchausen: at 325: it is necessary to begin by considering what would be the governing law of the 2007 agreement, if it was made on the terms alleged by Mrs. Danilina. The reason for this is that it is submitted on behalf of Mr. Chernukhin that the agreement, if made, would be governed by Russian law, and that there are provisions of Russian law that affect the admissibility of witness testimony in proving the existence of an oral agreement. Being a contract entered into prior to 16 December 2009, the proper law of the 2007 Agreement would be determined under the Rome Convention on the law applicable to contractual obligations – not the later Rome Regulation.

Was there choice of law “expressed or demonstrated with reasonable certainty by … the circumstances of the case’ (per Article 3(1) Rome Convention? [I have included Articles 3 and 4 in relevant part below]

At 327 are cited (i) the fact that “Mr. Chernukhin had fled Russia in 2004 in an effort to make a clean break from Russian law and jurisdiction”; (ii) that Mrs. Danilina assisted him in moving to England, including by sending legal documents there; (iii) in 2007 Mr. Chernukhin was seeking English matrimonial law advice in relation to his assets, prior to his marriage to Mrs. Chernukhin. With Teare J I do not think this is sufficient to amount to a choice for the purposes of article 3. They do not amount to a positive choice of law “expressed or demonstrated with reasonable certainty.”

Consequently Article 4 is engaged.

Presumption of characteristic performance. It was submitted on behalf of Mrs. Danilina (at 328) that England is the “most closely connected” country, under the presumption in article 4(2). It is said that the characteristic performance under the agreement was to create the relevant trust structure for dividing, managing and investing the assets. The performer of these obligations was Mr. Chernukhin, who was and is resident in England. Teare J agrees: at 330: the characteristic performance of the agreement was primarily to be performed by Mr. Chernukhin. On Mrs. Danilina’s case, Mr. Chernukhin was entrusted to divide, invest and structure significant liquid and illiquid assets, of which Mrs. Danilina was in large part unaware.

Displacement of the presumption? Mrs. Danilina then submits that this presumption should not lightly be displaced.

This section discusses a core challenge to Article 4, which is the continental European but mostly EU-driven quest for predictability, with the more common law oriented search for the ‘proper’ law of the contract. In Article 4 terms (similarly under the current Article  Rome I): per Samcrete Egypt Engineers v Land Rover Exports Ltd [2001] EWCA Civ 2019, at [41], “unless art.4(2) is regarded as a rule of thumb which requires a preponderance of contrary connecting factors to be established before that presumption can be disregarded, the intention of the Convention is likely to be subverted.” Nonetheless, “the presumption may most easily be rebutted in those cases where the place of performance differs from the place of business of the party whose performance is characteristic of the contract” (See Bank of Baroda v Vysya Bank Ltd. [1994] 2 Lloyd’s Rep 87, 93, in the context of a bank’s place of central administration).

Teare J leans on Samcrete Egypt Engineers and rejects the suggestions made (at 329) to displace the presumption. There were that “the principal subject-matter was assets based in Russia / assets acquired using money generated in Russia and while the parties were resident in Russia.” Further, the Agreement is said to be “akin” to a divorce arrangement pursuant to the Russian Family Code, and of a relationship which occurred primarily or exclusively in Russia. Finally, the Agreement as alleged would have involved performance by both Mrs. Danilina and Mr. Chernukhin, distributing (including, where relevant, by re-registration of shares and real property) their various assets. However (at 330) ‘there are indeed some factors that might otherwise point to Russia being “most closely connected” (and other factors pointing to other jurisdictions, such as the use of Channel Islands trusts and the fact that the agreement was allegedly concluded in Zurich), these factors are not, in my judgment, sufficient to displace the presumption in article.4(2).’

Proper law of the contract is English law (discussion of the Russian oral evidence issue is made obiter at 332 ff). Tear J does signal at 331 that per Article 4(3) at the merits stage, provision may have to be made for Russian law as the lex rei sitae, for some parts of the agreement. Eventually the High Court finds on the basis of English law that there was no 2007 Agreement – although there is an issue of breach of a trust agreement and that may be litigated.

Fun with Rome.


(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 3, Heading 3.2.4, Heading 3.2.6.



Article 3 Freedom of choice

1. A contract shall be governed by the law chosen by the parties. The choice must be expressed or demonstrated with reasonable certainty by the terms of the contract or the circumstances of the case. By their choice the parties can select the law applicable to the whole or a part only of the contract.

2. …

3. The fact that the parties have chosen a foreign law, whether or not accompanied by the choice of a foreign tribunal, shall not, where all the other elements relevant to the situation at the time of the choice are connected with one country only, prejudice the application of rules of the law at the country which cannot be derogated from by contract, hereinafter called ‘mandatory rules`.

4. …

Article 4 Applicable law in the absence of choice

1. To the extent that the law applicable to the contract has not been chosen in accordance with Article 3, the contract shall be governed by the law of the country with which it is most closely connected. Nevertheless, a separable part of the contract which has a closer connection with another country may by way of exception be governed by the law of that other country.

2. Subject to the provisions of paragraph 5 of this Article, it shall be presumed that the contract is most closely connected with the country where the party who is to effect the performance which is characteristic of the contract has, at the time of conclusion of the contract, his habitual residence, or, in the case of a body corporate or unincorporate, its central administration. However, if the contract is entered into in the course of that party’s trade or profession, that country shall be the country in which the principal place of business is situated or, where under the terms of the contract the performance is to be effected through a place of business other than the principal place of business, the country in which that other place of business is situated.

3. Notwithstanding the provisions of paragraph 2 of this Article, to the extent that the subject matter of the contract is a right in immovable property or a right to use immovable property it shall be presumed that the contract is most closely connected with the country where the immovable property is situated.

4. …

5. Paragraph 2 shall not apply if the characteristic performance cannot be determined, and the presumptions in paragraphs 2, 3 and 4 shall be disregarded if it appears from the circumstances as a whole that the contract is more closely connected with another country.

The Netherlands Commercial Court holds its first hearing!

Conflictoflaws - mar, 02/19/2019 - 00:52

Written by Georgia Antonopoulou and Xandra Kramer, Erasmus University Rotterdam (PhD candidate and PI ERC consolidator project Building EU Civil Justice)

Only six weeks after its official opening and a week after its inauguration, the Netherlands Commercial Court (NCC) held its first hearing today, 18 February 2019 (see our previous post on the creation of the NCC). The NCC?s maiden case Elavon Financial Services DAC v. IPS Holding B.V. and others was heard in summary proceedings and concerned an application for court permission to sell pledged shares (see here). The application was filed on 11 February and the NCC set the hearing date one week later, thereby demonstrating its commitment to offer a fast and efficient forum for international commercial disputes.

The parties’ contract entailed a choice of forum clause in favour of the court in Amsterdam. However, according to the new Article 30r (1) of the Dutch Code of Civil Procedure and Article 1.3.1. of the NCC Rules an action may be initiated in the NCC if the Amsterdam District Court has jurisdiction to hear the action and the parties have expressly agreed in writing to litigate in English before the NCC. Lacking an agreement in the initial contract, the parties in Elavon Financial Services DAC v. IPS Holding B.V. subsequently agreed by separate agreement to bring their case before the newly established chamber and thus to litigate in English, bearing the NCC?s much higher, when compared to the regular Dutch courts, fees. Unlike other international commercial courts which during their first years of functioning were ‘fed’ with cases transferred from other domestic courts or chambers, the fact that the parties in the present case directly chose the NCC is a positive sign for the court?s future case flow.

As we have reported on this blog before, the NCC is a specialized chamber of the Amsterdam District Court, established on 1 January 2019. It has jurisdiction in international civil and commercial disputes, on the basis of a choice of court agreement. The entire proceedings are in English, including the pronouncement of the judgment. Judges have been selected from the Netherlands on the basis of their extensive experience with international commercial cases and English language skills. The Netherlands Commercial Court of Appeal (NCCA) complements the NCC on appeal. Information on the NCC, a presentation of the court and the Rules of Procedure are available on the website of the Dutch judiciary. It advertises the court well, referring to “the reputation of the Dutch judiciary, which is ranked among the most efficient, reliable and transparent worldwide. And the Netherlands – and Amsterdam in particular – are a prime location for business, and a gateway to Europe.” Since a number of years, the Dutch civil justice system has been ranked no. 1 in the WJP Rule of Law Index.

In part triggered by the uncertainties of Brexit and the impact this may have on the enforcement of English judgments in Europe in particular, more and more EU Member States have established or are about to establish international commercial courts with a view to accommodating and attracting high-value commercial disputes (see also our previous posts here and here). Notable similar initiatives in Europe are the ‘Frankfurt Justice Initiative’ (for previous posts see here and here) and the Brussels International Business Court (see here). While international commercial courts are mushrooming in Europe, a proposal for a European Commercial Court has also come to the fore so as to effectively compete with similar courts outside Europe (see here and here).

The complexity of the post Brexit era for English LLPs and foreign legal professionals in EU Member States: a French perspective

Conflictoflaws - lun, 02/18/2019 - 15:23

Written by Sophie Hunter, University of London (SOAS)

In light of the turmoil in the UK Parliament since the start of 2019, the only certain thing about Brexit is that everything is uncertain. The Law Society of England and Wales has warned that “if the UK’s relationship with the rest of the EU were to change as the result of significant renegotiations, or the UK choosing to give up its membership, the effects would be felt throughout the legal profession.”  As a result of Brexit, British firms and professionals will no longer be subject to European directives anymore. This foreshadows a great deal of complexity. Since British legal entities occupy a central place within the European legal market, stakes are high for both British and European lawyers. A quick overview of the challenges faced by English LLPs in France and the Paris Bar demonstrates a high level of complexity that, is not and, should be considered more carefully by politicians.

Currently, 1872 foreign lawyers from 92 different citizenships are registered at the Paris Bar, according to a report by Dominic Jensen, 181 are British citizens, out of which 72 are registered under their original professional titles pursuant to the European Directive 98/5/CE (70 solicitors and 2 barristers). From 61 foreign legal entities established in France, the majority are English limited liability partnerships (LLP) which employ 1,600 lawyers. Some American law firms rely on the LLP structure as a strategy to establish themselves within the European legal market. According to the European Directive 98/5/CE, foreign legal entities of one Member State can be registered at the Bar of another Member State. The consequences of Brexit will be radical. Because the UK will no longer be part of the EU, foreign legal entities subject to English Law and established in EU Member States will no longer be recognized by the Bar of the host state, and thus will no longer be entitled to do business within its jurisdictions. For the Paris Bar, stakes are high since no other European capital has experienced such an important implementation of British and American law firms.

With the deadline of Brexit looming closer, no one has raised the topic of foreign lawyers and the exercise of their right to practice in European jurisdictions, in spite of numerous calls from The Law Society of England and Wales. While the UK is advocating for mutual recognition of professional qualifications, the French Bar led by Florent Loyseu de Grandmaison has drafted a report outlining various ways to solve this problem. According to a new ordinance published in April 2018, a foreign legal consultant can register with the Paris Bar to practice international law and any other type of law he or she is registered for, with the exception of European law and the law of Member States. The main concern of LLPs will focus primarily on how to continue to practice in France with little disruptions. LLPs owned by English solicitors will need to establish French legal entities owned and managed according to French and European Law. Most likely, English LLPs established in France will benefit from a new legal structure called AARPI, which stands for French limited partnership and mirrors the structure of LLPs. However it is not fully implemented within French legislation yet.

In a tensed climate between the UK and the EU, the fate of foreign legal consultants and entities seem more than ever uncertain. The example of France demonstrates, first, a high degree of complexity in the legislation that prevents LLPs to easily transpose their structure into the jurisdiction post Brexit, and a lack of preparation from both LLPs and the host state to face the practical consequences of Brexit. The UK and EU Member States will need to show a great deal of flexibility to quickly adapt legislation to incorporate English LLPs within their jurisdictions. Therefore, the fear of The Law Society of England and Wales which has repeatedly warned the UK government of the consequences of a “no deal” seem justified. Regardless of whether Brexit is implemented or postponed on March 29, finding an appropriate answer to the dilemma faced by foreign legal professionals and LLPs across the continent should be a priority on the agenda.

Budapest: Conference on Cross-Border Litigation in Central-Europe

Conflictoflaws - sam, 02/16/2019 - 16:47
On February 26, Budapest will see the kick off conference for an EU-sponsored cooperation of seven universities on the operation of EU private international law in Central Europe. The conference program and the registration link are available here.

Enhancing the protection of vulnerable adults in cross-border cases in Europe: a seminar in Milan

Conflictoflaws - sam, 02/16/2019 - 14:05

On 22 March 2019 the Catholic University of Milan will host a seminar (in English) on The International Protection of Adults in the European Union – Improving the Operation of the Hague Convention of 13 January 2000 between Member States.

The event is part of the European Law Institute’s project on The protection of adults in international situations.

The aim of the project is to outline the text of the measures that the European Union could adopt in order to enhance, in cross-border situations, the protection of persons aged 18 or more who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests. The project builds on the idea that the Hague Convention of 13 January 2000 on the international protection of adults, which is currently in force for twelve States (eleven of which are Member States of the Union), provides an excellent framework of cooperation in this area, but that its operation could be further improved regionally through Union’s legislation.

The main proposals prepared by the expert group in charge of the project will be illustrated and discussed in the seminar, in light of the latest developments in this area, including the Conclusions and recommendations adopted at the EC-HCCH Joint Conference on the Cross-border Protection of Vulnerable Adults of 5-7 December 2018 in Brussels.

Speakers include academics, representatives of the Union’s institutions and the Permanent Bureau of the Hague Conference, notaries and government officials.

The agenda of the seminar is available here.

Attendance is free, but those wishing to take part in the seminar are invited to send an e-mail to pietro.franzina@unicatt.it by 10 March 2019 (early registration is recommended).

Non multa, sed multum. Sovereign debt litigation in Kuhn leads to surprising final (?) curtain in Vienna.

GAVC - ven, 02/15/2019 - 08:08

In C-308/17 Leo Kuhn the CJEU held that Brussels Ia was not engaged for the matter is acta iure imperii. I suggested in my review of the judgment that in solely emphasising context, the Court casts the net too wide. I also emphasised that Greece’s sovereign immunity defense, lonely an argument as it may be, is a strong argument (I referred to the German approach to same): non multa sed multum.

Thank you Stephan Walter for alerting us to, and analysing the final judgment in Vienna: Greece enjoys immunity; and even if it had not (this is how I understand Stephan’s analysis – I trust he will correct me should I be wrong), the court would have declined jurisdiction given that the ‘assets held in Austria’ head of jurisdiction, was not mentioned in the particulars of claim.

Stephan clearly is not happy with the judgment: the Supreme Court not only reverses its earlier stance on immunity; it also could be argued it should be estopped as it were (my words, not Stephan’s) from disciplining a claimant’s absence of reference to residual private international law rules, given that hitherto the Supreme Court had never strayed from steering the course of Brussels Ia applying.


(Handbook of) EU Private International Law, 2nd ed. 2016, Heading 2, Heading 2.2, Heading 2.2.9.


New Zealand Yearbook of International Law: Call for Papers

Conflictoflaws - jeu, 02/14/2019 - 20:56

Posted on behalf of Jan Jakob Bornheim

The New Zealand Yearbook of International Law (Brill) is an annual, internationally refereed publication. The Editors call for both short notes and commentaries, and longer in-depth articles, for publication in Volume 16 of the Yearbook (2018), which will be published in 2019.

Notes and commentaries should be between 3,000 to 7,000 words. Articles may be from 8,000 to 15,000 words.The Editors seek contributions on any current topic in public or private international law. The Editors particularly encourage submissions that are relevant to the Pacific, the Southern Ocean and Antarctica, and New Zealand.

Submissions will be considered on a rolling basis. However, the closing date for submissions for Volume 16 is 31 May 2019.

Contributions must be original unpublished works and submission of contributions will be held to imply this. Manuscripts must be word-processed and in compliance with fourth edition of the Australian Guide to Legal Citation. The Guide is available online at: http://law.unimelb.edu.au/mulr/aglc/about.

Submissions should be provided in English, using MS Word-compatible word processing software, and delivered by email to the General Editor at janjakob.bornheim@canterbury.ac.nz.

Job Vacancy: PhD/Research Assistant at the University of Cologne

Conflictoflaws - jeu, 02/14/2019 - 14:45

The Institute for Private International and Comparative Law of the University of Cologne (Professor Mansel) is looking to appoint a Research Assistant (Wissenschaftliche/r Mitarbeiter/in) with knowledge of French, Italian, Dutch, or Spanish. It is a part-time position with 19.92 hours per week (50%), which allows for the completion of a PhD thesis. Provided that the legal conditions are met, the remuneration will be based on pay group 13 TV-L. The University of Cologne promotes equal opportunities and diversity in its employment relationships. Women are expressly invited to apply and are given preferential treatment in accordance with the LGG NRW. Applications from severely disabled persons are welcome. They will be given preferential consideration if they are suitable for the position.

Interested candidates are invited to send their detailed application including the usual documents by 20 March 2019 to ipr-institut@uni-koeln.de, for the attention of Professor Mansel.

Issues 2018.3 and 4 Dutch Journal on Private International Law (NIPR)

Conflictoflaws - jeu, 02/14/2019 - 13:50

The Dutch Journal on Private International Law (Nederlands Internationaal Privaatrecht) publishes papers in Dutch and in English.

Here are the abstracts of the last two issues of 2018.

Issue 2018.3

Ian Sumner, ‘Editorial: Groundbreaking decision or a tiny tremor? The Court of Justice decision in Coman, p. 1-3.

The third issue of 2018 of the Dutch Journal on Private International Law, Nederlands Internationaal Privaatrecht, contains contributions on the recognition of legal parentage established abroad, the recent decision rendered by the Supreme Court of the Netherlands on recognition and enforcement of annulled arbitral awards (NLMK), the main private international law aspects of the new Geo-blocking Regulation (especially with regard to cross-border consumer contracts), the most glaring contradictions and ambiguities in jurisprudence on the free movement of companies in the EU and the decision of the Court of Justice of the European Union in Bolagsupplysningen about the internet, freedom of speech and the protection of privacy.

Susan Rutten, ‘Erkenning van in het buitenland gevestigde afstamming’, p. 4-24.

This contribution discusses current case law on the recognition of legal parentage established abroad. The issues that are involved concern the descent from polygamous marriages, descent from invalid, void or non-existing marriages, and the recognition of children abroad by married men. With the judgment of the Dutch Supreme Court of 19 May 2017 (ECLI:NL:HR:2017:942; NJ 2017/435) on the descent of children born from polygamous marriages in mind, it will be examined which interests judges consider to be essential when assessing and deciding the foreign parentage, and whether or not the foreign parentage can be recognized as legal parentage in the Netherlands. Th e conclusion of the article is that the principles involved in the judicial decisions, in particular the principles of family life and public policy, do not seem to be always consistently relied upon by the Supreme Court.

D.G.J. Althoff, ‘Internationale arbitrage en IPR: toepassing van erkenningsvoorwaarden uit het Nederlandse commune IPR bij erkenning en tenuitvoerlegging van vernietigde buitenlandse arbitrale vonnissen onder het Verdrag van New York 1958’, p. 25-43.

This article discusses the recent decision rendered by the Supreme Court of the Netherlands on recognition and enforcement of annulled arbitral awards (NLMK). The court ruled that the wording ‘may be refused’ in Article V(1) preamble of the New York Convention (NYC) grants the court a certain margin of discretion to recognise a foreign arbitral award and grant enforcement even if in the specific case one or more of the grounds for refusal set out in Article V(1) NYC apply. Only under special circumstances does Article V(1)(e) NYC not prevent the court from using the margin of discretion to recognise or grant enforcement of annulled foreign arbitral awards. The special circumstance focused on in this article is the one that arises if the foreign judgment that annuls the award is not eligible for recognition in the Netherlands on the basis that one or more conditions for the recognition of foreign judgments under Dutch private international law are not fulfilled. The article commences with a short description of the New York Convention and Article V(1)(e) NYC. After analysing the Yukos Capital/Rosneft-decision and the NLMK-decision within the broader discussion on recognition and enforcement of annulled arbitral awards under the New York Convention, a comparison of both decisions is made. Further, the article discusses the application of the conditions for the recognition of foreign judgments under Dutch private international law in recognition and enforcement procedures of annulled foreign arbitral awards.

María Campo Comba, ‘The new Geo-blocking Regulation: general overview and private international law aspects’, p. 44-57.

This contribution will focus on the main private international law aspects of the new Geo-blocking Regulation, especially with regard to cross-border consumer contracts. The Geo-blocking Regulation has recently entered into force in the EU with the objective of preventing unjustified discrimination regarding online sales. The new Regulation is of special interest from a private international law point of view because of the possible impact on the interpretation of the EU rules on jurisdiction and applicable law concerning cross-border consumer contracts. The present contribution will analyse whether the obligations imposed by the Geo-blocking Regulation might affect the concept of ‘directed activities’ laid down in the Brussels I bis Regulation and Rome I Regulation and interpreted by the ECJ.

Aleksandrs Fillers, ‘Contradictions and ambiguities in ECJ case-law on free movement of companies’, p. 58-72.

The present article looks at some of the most glaring contradictions and ambiguities in jurisprudence on the free movement of companies in the EU. The first major case on free movement of companies was rendered by the ECJ in 1988. After this, the Court rendered a few landmark cases that step by step reshaped the freedom granted to companies in the internal market. In 2017, the ECJ rendered the Polbud case, thereby granting companies more freedom than ever before to choose the legal system they consider best for reincorporation. The road towards greater corporate mobility has been rocky and not always transparent. The ECJ does not expressly overrule its previous cases, but rather creates new distinctions and constantly re-interprets its older jurisprudence. As a result, the judgments are often not only ambiguous and mutually contradictory but even self-contradictory. The author makes an attempt at identifying these contradictions and ambiguities and analyses their causes and their relevance within the current jurisprudence.

Jan-Jaap Kuipers, ‘Nieuwe ronde, nieuwe kansen? Een nieuw arrest van het HvJEU over het internet, vrijheid van meningsuiting en bescherming van de persoonlijke levenssfeer: HvJEU 17 oktober 2017, zaak C-194/16 (Bolagsupplysningen)’, p. 73-80.

The decision of the Court of Justice of the European Union in e-Date Advertising has provoked widespread criticism in academic literature. In Bolagsupplysningen, the CJEU has taken the opportunity to confirm its earlier decision. The CJEU also clarified the right of a victim to bring proceedings before the court of its centre of interest. The CJEU however found that a person alleging that his personality rights have been infringed by the publication of incorrect information about him on the internet and the failure to remove comments relating to him cannot bring an action for rectification of that information and removal of those comments before the courts of the individual Member States in which the information published on the internet is or was accessible. Although the CJEU does not go back on its earlier case-law, the concerns raised in legal writings appear to have been taken seriously.

Issue 2018.4

Paulien van der Grinten, ‘2018: A year of anniversaries in private international law, p. 1-4.

C.A. de Visser, ‘The EU conflict of laws rules on the law governing the effects of an assignment against third parties: some fundamental problems of the Proposal’, p. 5-18.

The EU’s Proposal for conflict of laws rules on the law governing the effects of an assignment against third parties aims to provide predictability for parties involved in an assignment. This contribution concludes that, unfortunately, the Proposal’s suggested conflict of laws rule, based on which the law of the assignor’s habitual residence governs the third-party effects, does not provide that predictability. It also concludes that there are some other fundamental problems with the Proposal and the assumptions underlying it. Most importantly, it questions whether the Proposal’s suggestion that priority between competing assignments is determined by the assignment that is valid and effective first in time has a proper legal basis. It also analyses what law governs the effects of an assignment against third parties (other than the debtor of the assigned claim) and concludes that this is the law governing the assigned claim.

Aleksandrs Fillers, ‘The curious evolution of ECJ’s case-law on personal names: beyond the recognition of decisions, p. 19-33.

Free movement of EU citizens has significant influence on the law of personal names in Europe. Since the ruling in the Grunkin-Paul case, the non-recognition of personal names obtained in another Member State, under certain circumstances, may be qualified as an impediment to free movement of EU citizens. The Grunkin-Paul case seemed to operate within the paradigm of recognition of decisions. The author of the article argues that the said paradigm is not a precise conceptualization of the ECJ’s method. This is shown by two later rulings in the Sayn-Wittgenstein and Runevi?-Vardyn cases. The Court’s reasoning in the Sayn-Wittgenstein case shows that the recognition method used by the ECJ may expand to recognition of situations that do not validly exist in any legal order at the moment when recognition is requested. Pursuant to the Runevi?-Vardyn case, non-recognition of the spelling of the personal name may not be an impediment to free movement of EU citizens. The said cases show that the pillar of the Court’s methodology is the so-called ‘serious inconvenience’ test. The test determines the extent to which free movement of EU citizens requires recognition of personal names. Since the ruling in the Grunkin-Paul case, the test has evolved. In the Grunkin-Paul case it functioned within the paradigm of recognition of foreign decisions. Currently, it may be used to restrict that form of recognition or to expand recognition beyond that of foreign decisions.

Georgia Antonopoulou, ‘Defining international disputes – Reflections on the Netherlands Commercial Court proposal’, p. 34-49.

The last decade has seen the rise of international commercial courts also known as international business courts in Europe. Apart from the use of English as court language and the adoption of distinct procedural rules, the emerging courts share the aim to solely handle international disputes. Hence, the internationality of the dispute sets the jurisdictional scope of the international commercial courts and draws the line between these and the rest of the domestic courts. This article focuses on the upcoming Netherlands Commercial Court (NCC) and discusses the provisions defining the international character of a dispute under the respective proposal. First, the NCC internationality criteria are compared to the respective criteria under the Brussels Ibis Regulation and the Hague Convention on Choice of Court Agreements. Subsequently, this article zooms in on two internationality criteria, namely the application of foreign law and the use of a foreign language in the contract. In a comparative way, the suitability of these criteria to effectively encompass disputes with an international aspect is explored. This article concludes highlighting the need for narrow internationality criteria that are aligned with the criteria used under the Brussels Ibis Regulation and the Hague Convention on Choice of Court Agreements so as to safeguard the foreseeability of the NCC’s jurisdiction and square its professed aim to solely handle international disputes.

M.H. ten Wolde, ‘Oberle. De juiste balans tussen de belangen van nalatenschapsgerechtigden en het belang van rechtszekerheid? Hof van Justitie EU 21 juni 2018, C-20/17, NIPR 2018, 295 (Oberle)’, p. 50-58.

In ECJ Case C-20/17 (Oberle) of 21 June 2018 the central question is whether international jurisdiction in respect of the issuing of national certificates of succession regarding cross-border succession cases is governed by the jurisdiction rules of Succession Regulation No. 650/2012. The ECJ answered this question in the affirmative. Its argumentation for this decision is however very weak. At the same time the decision has a huge impact on the cross-border practice of winding up estates. A swift settlement of a cross-border estate by using both a national and a European certificate of succession from different participating Member States is no longer possible. The ECJ wrongly gives priority to legal certainty over the interests of those entitled to the estate of the deceased.

J.A. Pontier, ‘Boekbespreking: Kirsten Henckel, Cross-Border Transfers of Undertakings – A European Perspective; Iris A. Haanappel-van der Burg, Grensoverschrijdende overgang van onderneming vanuit rechtsvergelijkend en conflictenrechtelijk perspectief’, p. 59-68.


Ashley v Jimenez: Jurisdiction upheld despite choice of court ex-EU. No locus damni, locus delicti commissi or trust jurisdiction viz EU defendant.

GAVC - jeu, 02/14/2019 - 11:11

In [2019] EWHC 17 (Ch) Ashley et anon v Jimenez et anon service out of jurisdiction was granted against a Dubai-based defendant, despite choice of court pro the UEA. That clause was found by Marsh CM not to apply to the agreement at issue. Jurisdiction was found on residual English PIL, which are of less relevance to this post. Forum non conveniens was rejected.

Service out of jurisdiction was however denied against the Cyprus-based (corporate) defendant in the case. Claimants had argued jurisdiction on the basis of Brussels I Recast Articles 7(2) (tort) or (6) (trust). Note Marsh CM  using the acronym BRR: Brussels Recast Regulation. As I noted earlier in the week  Brussels Ia is now more likely to win the day.

Claimants (“Mr Ashley” and “St James”) allege that £3 million has been misappropriated by the defendants (“Mr Jimenez” and “South Horizon”). In summary the claimants say that: (1) Mr Ashley and Mr Jimenez orally agreed in early 2008 that upon payment of the euro equivalent of £3 million, Mr Ashley would acquire, via a shareholding in Les Bordes (Cyprus) Limited, a holding of approximately 5% in the ownership of a golf course in France called Les Bordes and that the shares would be registered in the name of St James. (2) On 13 May 2008, Mr Ashley instructed his bank to transfer the requisite sum to the bank account specified by Mr Jimenez and the transfer was made. In breach of the agreement, the shares were never registered in the name of St James. (3) The agreement and/or the payment were induced by fraudulent misrepresentations made by Mr Jimenez. The claimants say that Mr Jimenez knew South Horizon did not hold the shares and was not in a position to transfer, or procure transfer, upon payment of the agreed sum and that, in representing that South Horizon held the shares, or could procure transfer, Mr Jimenez acted dishonestly. (4) In the alternative, the payment of £3 million gave rise to a Quistclose trust (on that notion, see below) because the payment was made for an agreed purpose that only permitted use of the money for securing transfer of the shares.

(At 82) qualifying strands relevant to the jurisdictional issues, are (1) representations were made by Mr Jimenez to Mr Ashley to induce him to invest in Les Bordes which he relied on; (2) an oral contract was made between Mr Jimenez and Mr Ashley in early 2008 under which Mr Ashley invested £3 million in Les Bordes; and (3) the creation of a Quistclose trust relating to the investment. Note a Quistclose trust goes back to Barclays Bank Ltd v Quistclose Investments Ltd [1968] UKHL 4, and is a trust created where a creditor has lent money to a debtor for a particular purpose. Should the debtor use the money for any other purpose, it is held on trust for the creditor.

On Article 7(2), the High Court held that a breach of trust is properly seen as a tortious claim for the purposes of Brussels Ia. As for locus delicti commissi, the Court notes the question of where the harmful event occurred is less straightforward. Claimants rely on the Cypriot defendant, South Horizon, having paid away the investment money it received in breach of the relevant trust. That event took place in Cyprus where the bank account is based. There might be an obligation to restore the money in England, yet that does not make England the locus delicti commissi: at 128: ‘It seems to me, however, that the claimants in this case are seeking to conflate the remedy they seek with the tortious act which was paying away the investment. The obligation to make good the loss is the result of the wrong, not a separate wrong.

The High Court does not properly consider the locus damni strand of the claim against South Horizon. Given the test following from Universal Music, England’s qualification as locus damni given the location of the bank accounts is not straightforward yet not entirely mad, either. The Court did consider England to be the locus damni in its application of English residual rules for the claim between Ashley and Jimenez (who is domiciled in Dubai): at 101: ‘the dealings between Mr Ashley and Mr Jimenez concerning an investment of £3 million in Les Bordes took place in England in the early part of 2008. Loss was sustained in England because the payment was made by Mr Ashley from an account held in England’ (reference made to VTB capital).

On (a rare application of) Article 7(6): are any of the claims relating to the Quistclose trust claims brought against “… the trustee … of a trust … created orally and evidenced in writing” and which is domiciled in England and Wales?: Marsh CM at 129-130:

‘Article 7(6) does not assist the claimants. They need to show that there is (a) a dispute brought against a trustee of a trust (b) the trust was created orally and was evidenced in writing and (c) the claim is made in the place where the trust is domiciled. The difficulty for the claimants concerns the manner in which the trust came into being. As I have indicated previously, although the oral agreement between Mr Ashley and Mr Jimenez gives rise to the circumstances in which the Quistclose trust could come into being, there was (i) no express agreement that the investment would be held on trust and (ii) South Horizon was not a party to the agreement. The trust came into being only upon the payment being made by Mr Ashley to South Horizon at which point, and assuming South Horizon was fixed with knowledge of the agreement, the investment was held upon a restricted basis.

I also have real difficulty with the notion of the Quistclose trust having a domicile in England. It seems to me more likely that the domicile is the place of receipt of the money, because that is where the trust came into being, rather than the place from which the funds were despatched.’


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



Out now: ZEuP 2019, Issue 1

Conflictoflaws - jeu, 02/14/2019 - 10:04

The latest issue of the Zeitschrift für Europäisches Privatrecht has just been released. It  contains the following articles (plus an interesting editorial by Heike Schweizer on the platforms as “private regulators”):

Francisco Garcimartín: The EU Regime on Securitisation: coordination between the regulatory framework and the conflict of law rules

This article analyses the relationship between the EU Securitisation Regulation and the Commisions’s Proposal on the law applicable to the third-party effects of assignment of claims. The former is an instrument of regulatory law, the application of which requires certain private-law conditions; in particular with regard to proprietary and insolvency law. In a cross-border context, the future Regulation on assignment of claims will fill a relevant gap in EU law and therefore together the Securitisation Regulation may contribute to restarting a sound securitisation market in the EU.

Leonhard Hübner: Die Drittwirkungen der Abtretung im IPR

With regard to the third-party effects of the assignment, there is a high degree of legal uncertainty in European conflict of laws. After a long struggle, the EU Commission therefore published a corresponding draft regulation in March 2018. The article examines whether the draft regulation establishes the necessary legal certainty and thus contributes to the further development of European conflict of laws.

Jan Böhle: Die Abwahl zwingenden Rechts vor staatlichen Gerichten in Inlandsfällen

According to Art. EWG_VO_593_2008 Artikel 3(3) of the Rome I Regulation parties cannot circumvent the application of mandatory rules by means of a choice of law in so-called domestic situations. However, it remains largely unclear whether the connection between a domestic contract and an international contract as well as the use of international standard documentation by the parties are sufficient to establish an international element to the situation. This article will answer these questions in the affirmative.

Christian Kohler, Sibylle Seyr and Jean-Christophe Puffer-Mariette: Unionsrecht und Privatrecht: Zur Rechtsprechung des EuGH im Jahr 2017

A number of decisions of the Court of Justice and the General Court of the European Union given in 2017 are again of particular interest for private law. Two judgments of the Grand Chamber of the ECJ address the issue whether the prohibition to wear an Islamic headscarf at the workplace amounts to a discrimination based on religion or belief. Further rulings concern discriminations based on grounds of age or sex. In a seminal judgment on the freedom of establishment the ECJ completed its case law on the cross-border transfer of the registered office of a company. Also included are judgments of the ECJ in the field of consumer contracts, product liability, harmonised labour law, the rights of passengers in the event of cancellation or delay of flights, and the protection of personal data. As in previous years, cases on the law of trademarks and on intellectual property provide another focus.

Christian Twigg-Flesner: Consolidation rather than Codification – or just Complication? – The UK’s Consumer Rights Act 2015

The Consumer Rights Act 2015 was adopted to simplify and consolidate legislation on consumer contracts. The Act only consolidates rules on conformity and associated remedies for goods, as well new rules on services and digital content, and the regulation of unfair terms. Beyond this, the Act contains provisions on consumer matters such as enforcement powers, collective actions under Competition Law, and letting agents and secondary ticketing platforms. Overall, the Act lacks a clear focus.

The Aftermath of the CJEU’s Kuhn Judgment – Hellas triumphans in Vienna. Really.

Conflictoflaws - mar, 02/12/2019 - 19:36

Written by Stephan Walter, Research Fellow at the Institute for German and International Civil Procedure Law, University of Bonn, Germany

Claims brought by creditors of Greek state bonds against Greece in connection with the 2012 haircut do not fall under the substantive scope of the Brussels Ibis Regulation because they stem from the exercise of public authority. Hence, they cannot be regarded as civil and commercial matters in the sense of Article 1(1) Brussels Ibis Regulation. This is the essence of the CJEU’s Kuhn judgment (of 15 November 2018, Case C-308/17, ECLI:EU:C:2018:911), which was already discussed on this blog.

In said blog post, it was rightly pointed out that the judgment could be nothing but a Pyrrhic victory for Greece. Not least the – now possible – application of national (sometimes exorbitant) jurisdictional rules was considered to have the potential to backfire. This was, however, only the case, if Greece was not granted immunity in the first place. In short: the fallout of the CJEU’s judgment was hardly predictable.

A recent decision rendered by the Austrian Supreme Court of Justice (Oberster Gerichtshof, OGH) introduces some clarity – at least with regard to litigation in Austria. The decision (of 22 January 2019, docket no. 10 Ob 103/18x) concerned the case that gave rise to the preliminary reference.

In a first step, the OGH held that Greece does indeed enjoy immunity from the Austrian jurisdiction. This is a major change of case law. Unlike the German Federal Court of Justice (Bundesgerichtshof, BGH), the OGH repeatedly held the opposite (most recently six days after (!) the CJEU’s Kuhn judgment in a decision of 21 November 2018, docket no. 6 Ob 164/18p). While, in principle, there is nothing wrong with changing the case law, it is somewhat astonishing that the OGH did this in a very superficial fashion (one sentence). In fact, the court merely backed up its claim with a reference to the CJEU’s Kuhn judgment, although this judgment was not concerned with the question of immunity but solely the substantive scope of the Brussels Ibis Regulation. Because of the severe consequences of the OGH’s new approach, it is incomprehensible that the OGH did not discuss why the CJEU’s holding applies to the issue of state immunity as well.

Ironically, the OGH declared itself – by virtue of section 42(3) of the Austrian Law on Jurisdiction (Jurisdiktionsnorm, JN) in conjunction with section 528(2) no. 2 of the Austrian Code of Civil Procedure (Zivilprozessordnung, ZPO) – bound by the finding of the court of previous instance that Greece did not enjoy immunity because the court of second instance upheld said finding.

Consequently, the OGH examined if Austrian courts had international jurisdiction based on the Austrian autonomous rules on jurisdiction. According to section 99 JN, jurisdiction can be established by the presence of assets in Austria (comparable to section 23 German Code of Civil Procedure). However, the OGH declined jurisdiction based on section 99 JN because the claimant had not relied upon this head of jurisdiction during the court proceedings. Therefore, the OGH found that Austrian courts had no international jurisdiction and dismissed the claim. This reasoning is hardly convincing. It is true that Austrian courts are – in principle – bound by the statement of the claimant when they examine their jurisdiction (see section 41(2) JN) and that the claimant did not rely upon section 99 JN. However, up until now, the OGH always applied the Brussels Ibis Regulation to claims in connection with the haircut. The court never – not even in the preliminary reference – questioned the applicability of the Regulation. Hence, one is inclined to ask: why should a claimant rely on the autonomous rules on jurisdiction if it is standing case law that they do not apply? Why did the OGH not remit the matter to the lower instance court, giving the claimant at least the chance to rely on section 99 JN (or Austrian autonomous rules on jurisdiction in general)? Is this not a prime example of a denial of justice? Be that as it may, the court’s one-sentence (!) reasoning leaves at least a bitter taste.

What’s the bottom line? Thanks to the Kuhn judgment, Greece now enjoys immunity from Austrian jurisdiction regarding claims in connection with the 2012 haircut. Consequently, Austria’s (exorbitant) section 99 JN is out of the equation. Therefore, the OGH has turned Greece’s Pyrrhic victory in the CJEU’s Kuhn judgment into a clear victory. While the OGH’s reasoning is far from bulletproof, the door to the Austrian courts has closed.

The decision (in German) can be accessed here.

Kokott AG in Kerr v Postnov(a): How house association meetings turn into a jurisdictional and applicable law potpourri.

GAVC - mar, 02/12/2019 - 12:12

Advocate General Kokott opined end of January in C-25/18 Brian Andrew Kerr v Pavlo Postnov and Natalia Postnova (let’s call the case Kerr v Postnov(a)). The case concerns the application of Brussels I Recast’s Articles 24(1) and (2) exclusive jurisdictional rules, cq the application of Article 7(1) jurisdictional rules on contracts, and applicable law consequences of same.

Incidentally, Ms Kokott’s use of ‘Brussels Ia’ instead of the Brussels I Recast Regulation adds to the growing chorus to employ Brussels Ia (lower case, no space between I and a) instead of Brussels I Recast, Brussels bis, or as recently seen at the High Court, BIR (BrusselsIRecast).

The Advocate General’s Opinion is a useful and succinct reminder of CJEU authority, suggesting the issue is acte clair really, except there are one or two specific issues (e.g. the enforcement issue, discussed below) which justify clarification.

The case concerns proceedings concerning claims for payment arising from resolutions made by an association of property owners without legal personality in connection with the management of the property in question. Mr Kerr, appellant in the proceedings before the referring court, is a manager of an association of owners of a property situated in the town of Bansko (Bulgaria). He brought proceedings before the Razlog District Court, Bulgaria against two property owners, Mr Postnov and Ms Postnova, concerning payment of contributions that were owed by them wholly or in part for the maintenance of communal parts of the building on the basis of resolutions made by the general meeting of the property owners in the period from 2013 to 2017. According to the appellant in the main proceedings, an action to secure enforcement of the claim pursued was brought with the application.

Address of the defendants used by the court at first instance is in the Republic of Ireland. (As the AG notes, whether service was properly given is relevant for the recognition of the eventual judgment; this however is not the subject of the current proceedings neither is it detailed in the file.)

Coming to the first issue: Article 24(1) requires strict and autonomous interpretation. The main proceedings have as their object the payment of outstanding contributions purportedly owed by two co-owners for the management and maintenance of the property concerned. At 34: It is thus a matter of obligations — to use the words of the referring court — arising from ownership of shares in the commonhold as rights in rem in immovable property. At 38: to be covered by 24(1) the right in question must have effect erga omnes and that the content or extent of that right is the object of the proceedings (reference ex multi to Schmidt and Komu).

Prima facie this would mean that Article 24(1) must be ruled out: at 39: in the main proceedings, the action brought by the manager is based on claims in personam of the association of owners for payment of contributions for the maintenance of communal areas of the property. The rights in rem of the defendant co-owners of the commonhold — in the form of intangible ownership shares — initially remain unaffected. However, at 40 Ms Kokott signals the enforcement issue: that action could affect the defendants’ rights in rem arising from their ownership shares, for example by restricting their powers of disposal – an assessment subject to the applicable law, which is for the referring court to make. In footnote the Advocate General suggests the potential involvement in that case of Article 8(4)’s combined actio in rem and in personam.

The case therefore illustrates the potential for engineering even in Article 24 cases: firstly, by varying the claim (the content or extent of the rights contained in Article 24 has to be the ‘object’ of the proceedings; claimant can manipulate the claim to that effect); second, the prospect of adding an enforcement claim to an otherwise contractual action. This engineering evidently clashes with the objective and forum-shopping averse interpretation of Article 24, however as I have repeatedly discussed on this blog, abusive forum shopping is a difficult call for the CJEU and indeed national courts to make.

The discussion of Article 24(2) does lead to a clear conclusion: the forum societatis is not engaged. Article 24(2) covers only proceedings which have as their object the legal validity of a decision, not proceedings which have as their object the enforcement of such decisions, like the action at issue seeking payment of contributions based on such a decision (at 44).

As for Article 7(1) forum contractus the usual Handte et al suspects feature in the Opinion as does Case 34/82 Peters Bauunternehmung.  The association is joined through voluntary acquisition of an apartment together with ownership shares of the communal areas of the property (at 54): there is a ‘contract’. [Advocate General Kokott already pre-empts similar discussion in Case C‑421/18, where the Court will have to clarify whether these considerations can also be applied to a case in which a bar association is taking legal acion to assert claims for payment of fees against one of its members].

The AG makes a brief outing into Rome I to point out that Rome I has a lex societatis exception. Under the conflict-of-law rules, claims for payment made by a legal association against its members are not to be assessed on the basis of the Rome I Regulation, even though such claims are to be regarded as ‘matters relating to a contract’ within the meaning of Article 7(1) of the Brussels Ia Regulation (at 60).

However for the purposes of Article 7(1), where the CJEU to find that it is engaged, place of performance needs to be decided. If none of the default categories of Article 7(1) apply, the conflicts method kicks in and Rome I’s lex societatis exception is triggered (residual conflict of laws will determine the applicable law which in turn will determine place of obligation; see also at 74 and the reference to the Tessili rule).

Is the management activity itself is carried out for remuneration (as required per Falco Privatstiftung and also Granarolo) or at least an economic value per Cormans-Collins? The facts of the case do not clearly lay out that they are but even if that were the case (appointment of a specialist commercial party to carry out maintenance etc.), the contributions to be paid to the association by the co-owners are intended in no small part to cover taxes and duties, and not therefore to fulfil contractual obligations towards third parties which were entered into on behalf of and for the account of the association of owners (at 71). All in all, the AG opines, the non-uniform nature of these contributions leads to non-application of the service rule of Article 7(1)b and therefore a resurrection of the classic Tessili formula.

Not so acte clair perhaps after all.


(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.6,


Eva Glawischnig-Piesczek v Facebook. Hate speech a the CJEU.

GAVC - lun, 02/11/2019 - 12:12

In Case C-18/18, Eva Glawischnig-Piesczek v Facebook, the Austrian Supreme Court has referred a ‘hate speech’ case to Luxembourg – hearing will be tomorrow, 12 February. The Case revolves around Article 15 of the E-Commerce Directive: one sentence Twitter summary comes courtesy of Tito Rendas: does Article 15 prohibit the imposition on a hosting provider (Facebook, in this case) of an obligation to remove not only notified illegal content, but also identical and similar content, at a national or worldwide level?

Mirko Brüß has more extensive analysis here. I used the case in my class with American University (my students will be at the hearing tomorrow), to illustrate the relationship between secondary and primary law, but also the art in reading EU secondary law (here: A15 which limits what can be imposed upon a provider; and the recitals of the Directive which seem to leave more leeway to the Member States; particularly in the light of the scant harmonisation of tort law in the EU). To readers of the blog the case is probably more relevant in light of the questions on territorial scope: if a duty to remove may be imposed, how wide may the order reach? It is in this respect that the case is reminiscent of the Google etc. cases.

Yet another one to look out for.


(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading, Heading

TransLex, a free online resource on transnational commercial law, the New Lex Mercatoria

Conflictoflaws - lun, 02/11/2019 - 10:41

by Klaus Peter Berger, Cologne University

The Center for Transnational Law (CENTRAL) at Cologne University Faculty of Law has recently revised and updated TransLex, its free knowledge- and codification-platform on transnational commercial law, the New Lex Mercatoria.

The introductory text now contains a thorough and critical analysis of the historic Lex Mercatoria, including its doubtful existence during the Middle Ages with links to numerous historic documents of those times, https://www.trans-lex.org/the-lex-mercatoria-and-the-translex-principles_ID8.

New comparative law materials have been added to the TransLex-Principles, a collection of over 130 principles and rules of the New Lex Mercatoria, https://www.trans-lex.org/principles/of-transnational-law-(lex-mercatoria).

New documents have been added to the online archive of rare historic documents on alternative dispute resolution from the Bible and Koran to modern times, https://www.trans-lex.org/materials/of-transnational-law-(lex-mercatoria)#list_69.

The bibliograhy now contains over 1.000 entries, making it the largest online bibliography on transnational commercial law, https://www.trans-lex.org/biblio/of-transnational-law-(lex-mercatoria).

Court confirms: tortious suit brought by liquidator (‘Peeters /Gatzen’) is covered by Brussels I Recast.

GAVC - lun, 02/11/2019 - 08:08

I am hoping to catch-up with my blog backlog this week, watch this space. I’ll kick off with the Court of Justice last week confirming that the Peeters /Gatzen suit is covered by Brussels I Recast. Citing similar reasons as Bobek AG (whose Opinion I reviewed here), the Court at 34 concludes that the ‘action is based on the ordinary rules of civil and commercial law and not on the derogating rules specific to insolvency proceedings.’

This reply cancelled out the need for consideration of many of the issues which the AG did discuss – those will have to wait for later cases.


(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 5.4.1, Heading 5.7.



Book Launch: Global Private International Law

Conflictoflaws - dim, 02/10/2019 - 19:33

Global Private International Law is a new casebook, published by Edward Elgar and edited by Horatia Muir Watt, Lucia Bíziková, Agatha Brandão de Oliveira, and Diego P. Fernandez Arroyo.

The publisher provided the following summary:

“Providing a unique and clearly structured tool, this book presents an authoritative collection of carefully selected global case studies. Some of these are considered global due to their internationally relevant subject matter, whilst others demonstrate the blurring of traditional legal categories in an age of accelerated cross-border movement. The study of the selected cases in their political, cultural, social and economic contexts sheds light on the contemporary transformation of law through its encounter with conflicting forms of normativity and the multiplication of potential fora”.

Contributors include: F. Antunes Madeira da Silva, S. Archer, C. Avasilencei, G.A. Bermann, R. Bismuth, L. Bíziková, S. Bollée, J. Bomhoff, S. Brachotte, A. Brandão de Oliveira, H. Buxbaum, L. Carballo Piñeiro, C. Chalas, D. Coester-Waltjen, G. Cordero-Moss, S. Corneloup, F. Costa Morosini, G. Cuniberti, J. d’Aspremont, J. Daskal, S. Dezalay, R. Fentiman, D.P. Fernández Arroyo, T. Ferrando, S. Fulli-Lemaire, U. Grusic, H. Harata, L. Hennebel, J. Heymann, P. Kinsch, H. Kupelyants, K. Langenbucher, F. Latty, O. Le Meur, G. Lewkowicz, F. Licari, F. Marchadier, T. Marzal, R. Michaels, A. Mills, H. Muir Watt, N. Najjar, V.H. Pinto Ido, E. Pataut, D. Restrepo-Amariles, D. Rosenblum, C. Salomão Filho, M. Sanchez-Badin, P. Schiff Berman, J. Sgard, D. Sindres, E. Supiot, C. Thomale, K. Trilha, H. van Loon, J. Verhellen, M. Weidemaier, M. Wells-Greco

The table of content is available here.

More information is available here.

Is there a need for international conventions on legal parentage (incl. international surrogacy arrangements)?

Conflictoflaws - dim, 02/10/2019 - 12:53

The Experts’ Group on Parentage / Surrogacy of the Hague Conference on Private International Law (HCCH) has answered in the affirmative.

At its fifth meeting earlier this year, the Experts’ Group agreed that it would be feasible to develop both:

  • a general private international law instrument on the recognition of foreign judicial decisions on legal parentage; and
  • a separate protocol on the recognition of foreign judicial decisions on legal parentage arising from international surrogacy arrangements (abbreviated as “ISA”).

As announced on the HCCH website, the Experts’ Group will recommend to the governance body of the HCCH (i.e. Council on General Affairs and Policy) during its meeting in March 2019 that “work continue with a view to preparing proposals for inclusion in future instruments relating to the recognition of judicial decisions.” The Council will have the last word.

In my opinion, there are many reasons for drafting two separate instruments, which may range from legal to political as these are very sensitive topics. One that particularly struck me relates to the indirect grounds of jurisdiction when considering the recognition of such decisions:

“Most Experts concluded that the indirect grounds previously identified in the context of general legal parentage would not work in ISA cases, and instead supported the State of birth of the child as the primary connecting factor in an ISA case as this would provide certainty and predictability. A qualifier to that connecting factor (such as the habitual residence of the person giving birth to the child) might be necessary to guarantee sufficient proximity, as well as to prevent and combat trafficking of persons and law evasion.” See also para 25 of the Report.

Please note that these instruments would deal with the recognition and not with the enforcement of foreign judicial decisions given the nature of decisions on legal parentage. See in contrast my previous post on the HCCH draft Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters.

The HCCH news item is available here.

The full report is available here.

Oral Rounds of the Pax Moot 2019

Conflictoflaws - jeu, 02/07/2019 - 20:11

Thanks to Daniel Chan for this post.

The Oral Rounds of the Pax Moot 2019 has been definitively set at May 24th and May 25th, the detailed schedule can be found on the website (www.paxmoot.com). As a further clarification, the deadline for registration has been extended to March 31st due to organizational requirements for some participating universities. However, we encourage teams to register as early as possible for the benefit of the competition.

We are also happy to announce that our partner JUDGTRUST have been very generous to provide financial assistance to 8 participating teams this year. This program will cover the travel and lodging costs, but teams will still have to pay 200 Euros per team of registration fees. All teams are eligible to apply for this program however the final decision is reserved for JUDGTRUST. For teams who wish to apply, please send an email indicating briefly your situation to info@paxmoot.com.

Updated Rule and Procedures have also been uploaded on the website, if there are any further clarifications required, please don’t hesitate to contact us. We look forward to welcoming you in the Hague!


PAX Moot Team


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