Droit international général

The latest issue of the Journal of Private International Law contains the following articles:

Lachlan Forrester, Resulting trusts in the conflict of laws: an Australian perspective

The common law world continues to grapple with how to properly characterise equitable doctrines in private international law. There has been extensive criticism of the existing approach to characterisation and choice of law for equity which favours separately characterising equitable obligations and applying the lex fori. Within this broader discourse, a debate is beginning to emerge around issues involving both equitable obligations and immovable property. In this early debate, two schools of thought have developed with respect to the proper characterisation and choice of law for implied or resulting trusts over immovable property. The first approach, advanced primarily by the courts, characterises the trust as an equitable obligation governed by the lex fori. The second approach, primarily endorsed by commentators, characterises the trust as an issue of immovable property governed by the lex situs. This paper, upon evaluating the lex fori and the lex situs against the underlying objectives of choice of law, rejects both approaches as unfit for purpose. Instead, it advocates a new approach to the characterisation and choice of law for resulting trusts. This paper proposes that resulting trusts be governed by the proper law of the relationship. This conception would align with the approach taken to express trusts under the Hague Trusts Convention and most effectively provides for consistency and clarity while upholding the reasonable expectations of the parties.

María Mercedes Albornoz and Sebastián Paredes, No turning back: information and communication technologies in international cooperation between authorities

The usefulness of ICTs is on full display when it comes to international cooperation between authorities in civil and commercial litigation. The core international conventions on cross-border cooperation (currently in force) were drafted many decades ago, when the overwhelming growth of ICTs was unimaginable. Setting the focus on Latin America, where legal regional integration has not yet reached the level attained by the European Union, this article assesses whether the selected legal sources reject, tacitly accept, or encourage the use of ICTs in international cooperation. The analysis of international conventions, some soft law instruments and domestic PIL rules supports the argument that an adequate legal framework that accepts the use of ICTs in international cooperation is necessary. Indeed, there is no turning back from the use of technologies in this field, where modern and suitable regulation would strengthen legal certainty, of utmost importance for the parties involved in cross-border litigation.

Sirko Harder, The territorial scope of Australia’s consumer guarantee provisions

Australian Consumer Law provides for consumer guarantees, according to which the taking of a particular action (for example, the application of due care and skill) or the presence of a particular fact (for example, a particular quality) is deemed as guaranteed where goods or services are supplied to a consumer in certain circumstances. Remedies lie against the supplier or (where goods are supplied) against the manufacturer or both. Pursuant to its application provisions, Australian Consumer Law applies to conduct outside Australia if one of several alternative criteria is satisfied. One criterion is that the defendant carried on business within Australia. There is no express requirement that the defendant’s business activities in Australia include the transaction with the plaintiff. This article argues that comity requires an implied restriction on the territorial scope of the consumer guarantee provisions, and searches for the most appropriate criterion for that purpose.

Lance Ang, Party autonomy, venue risk and jurisdiction agreements – the Singapore position reappraised

Party autonomy is the defining principle of private international law today. Notwithstanding its broad acceptance, what does party autonomy mean in the context of jurisdiction agreements? The lack of commercial certainty in how the agreement to “submit” to the jurisdiction of the courts in the chosen forum will be interpreted and enforced by the courts defeats the very purpose of party autonomy itself, which is the management of venue risk by commercial parties in entering into cross-border transactions. In light of recent developments, the Singapore court has blurred the distinction between exclusive and non-exclusive jurisdiction agreements by holding that the same requirement of “strong cause” applies if a party reneges on its agreement to “submit”. This is premised on the same strict contractual analysis and enforcement of both types of agreements. It is against this background that the approach of the Singapore courts in determining the exercise of their own jurisdiction under the common law will be reappraised, along with a comparison with the practice of the English courts.

Marco Giacalone, Irene Abignente and Seyedeh Sajedeh Salehi, Small in value, important in essence: lessons learnt from a decade of implementing the European Small Claims Procedure in Italy and Belgium

This article examines the extent to which the European Small Claims Procedure (ESCP) has served the main purpose of the EU legislature to establish a legal framework to improve access to justice for creditors of cross-border small claims through a simplified, expedited and inexpensive redress mechanism. This article first analyses the implementation of the ESCP in Italy and Belgium. These two countries were chosen because of the authors’ research on the Small Claims Analysis Net (SCAN) Project (The SCAN Project was initiated in 2018 as a two-year project with the fundamental aim of evaluating the efficiency of the European Small Claims Procedure within several EU Member States (France, Belgium, Italy, Slovenia, and Lithuania), besides raising awareness of this procedure among consumers and other judicial stakeholders. For the conducted activities as part of the SCAN project, see http://www.scanproject.eu accessed on 24 February 2021). The second part of this article deals with the impact of this regulatory instrument on access to justice for citizens, in view of the principle of judicial efficiency. Finally, this article focuses on the possibility of using this instrument for collective redress, on the one hand, and linking this procedure to online dispute resolution, on the other.

Agne Limante, Prorogation of jurisdiction and choice of law in EU family law: navigating through the labyrinth of rules

This article focuses on the scope of party autonomy in EU family regulations, especially in cases of marriage dissolution with an international element. Through the lens of a case study, the author analyses whether provisions allowing party autonomy in EU family regulations are consistent and wide enough to enable parties to find a solution that best fits their interests. The paper concludes that the advantages of party autonomy in private international family law outweigh the associated risks which should be mitigated by safeguarding measures.

Jan L. Neels, Characterisation and liberative prescription (the limitation of actions) in private international law – Canadian doctrine in the Eswatini courts (the phenomenon of dual cumulation)

The via media technique of characterisation in private international law, as proposed by the Canadian author Falconbridge, was – over a period of three decades – gradually adopted by the courts in Lesotho, South Africa, Zimbabwe, and, more recently, Eswatini. In a particular dispute, which is used as angle of incidence for the discussion below, the High Court of Swaziland (now Eswatini) applied the rules of the lex fori pertaining to liberative prescription (the limitation of actions) against the background of the via media technique. The decision was overruled by the Supreme Court of Eswatini, which – using the same technique – applied the proper law of the contract in this regard. In this contribution, the Canadian doctrine and its application by the Eswatini and other Southern African courts is critically discussed. The scenario in the Eswatini cases provides an example of what the author calls the phenomenon of dual cumulation. He attempts to provide guidance for the development of Southern African private international law in this regard beyond the via media technique.

 

The Organization of American States (OAS) is hosting a webinar entitled updated principles on privacy and the protection of personal data of the Inter-American Juridical Committee today at 10 am (DC time), 4 pm CEST time – in Spanish. More information is available here.

The Revista Electrónica de Estudios Internacionales (REEI), whose current editor-in-chief is Prof. de Miguel Asensio, a founding member of the EAPIL, is an open-access journal published by the Spanish Association of International Law and International Relations Professors (AEPDIRI). The journal exists since 2000; it is open to specialized research works on public international law, private international law and international relations. Those willing to submit a paper are invited to comply with the instructions available here.

The latest issue is number 41, of June 2021. The following contents are of direct interest for PIL:

José Ignacio Paredes Pérez, Contratos de suministro de contenidos y servicios digitales B2C: problemas de calificación y tribunales competentes (B2C contracts for the supply of digital content and digital services: problems of characterization and competent courts)

The purpose of this study is to analyse the characterization problems posed, for the purposes of the application of the European rules on international jurisdiction, by the legal actions available to the consumer in the new European regulation on improving consumer access to digital goods and services, and the possible fragmentation of litigation relating to the same infringing conduct under Directive (EU) 2019/770 and Regulation (EU) 2016/679. In the context of the Brussels I bis Regulation, the autonomous characterization of the legal actions available under the new regulation, and the way in which this is done, is decisive, depending on whether or not the contract falls within the scope of articles 17 to 19.

María del Carmen Chéliz Inglés, La Convención de Singapur y los acuerdos de mediación comercial internacional (The Singapore Convention and the international commercial mediation agreements)

The Singapore Convention on International Settlement Agreements resulting from mediation represents a milestone in the determined promotion of this dispute resolution mechanism and puts an end to the absence of a harmonized legal framework to regulate this issue. The most significant advance is that it gives a new legal status to the agreements resulting from international commercial mediation, which become directly enforceable in all the States that ratify the Convention. In this context, the objective of this work is to analyze the key issues of the Singapore Convention, highlighting its lights and shadows, and assess what repercussions the adherence to said normative instrument would have on the Spanish legal system.

Georgina Garriga Suau, Blockchain-based smart contracts and conflict rules for business-to-business operations (Blockchain-based smart contracts y normas de conflicto para operaciones entre profesionales)

In recent years, the irruption of blockchain technology has enhanced the impact of smart contracts in the international trade scenario, although not without raising some problems, particularly, in terms of Private International Law. This paper, thus, addresses such problems when it comes to determining the applicable law from a business-to-business perspective leaving aside the particular problems raised by the conflict-of-law rules oriented to protect the weaker party to a contract. The analysis, however, starts with a general approach to the two concepts which are the object of this paper: smart contracts and blockchain technology.

As usual, the journal contains as well a section commenting on selected relevant decisions on PIL delivered in the six months prior to its publication. Reviews on recent monographs or collective books follow.

The remaining contributions in this issue relate to public international law or international relations. Those (like me) with a specific interest in procedural law will surely find worth reading these two:

Laura Aragonés Molina, Unidad o fragmentación en el Derecho internacional procesal: la revisión de sentencias ante la Corte Internacional de Justicia y el Tribunal Europeo de Derechos Humanos (Unity or fragmentation in international procedural law: revision of judgments at the International Court of Justice and the European Court of Human Rights)

The increasing specialization of Public International Law and the diversity of international courts and tribunals with specific competences ratione materiae and personae in the multiple international normative sectors are still generating challenges for coherence, consistency and predictability of international jurisprudence. Procedural rules and principles may have a cohesive effect on judicial practice and foster a judicial dialogue and cross-fertilization at a procedural level. It may contribute to the unity of the international legal order through the formation of common rules of procedure. In this paper we explore this cohesive effect exhaustively, studying the interaction between the International Court of Justice and the European Court of Human Rights when they interpret and apply the revision provision.

Montserrat Abad Castelos, Rendición de cuentas por los crímenes cometidos durante el califato del Daesh: las pruebas como clave (Accountability for crimes committed during the ISIS caliphate: evidence as key)

This article seeks to determine if evidence can be a way to overcome the existing difficulties in the field of justice to hold Daesh members accountable for the atrocity crimes committed in Syria and Iraq during the armed conflicts that took place there. To get this, recent innovations are examined both the actors that collect and preserve evidence and the nature, characteristics and challenges that evidences pose. It will be concluded that the developments that are taking place are crucial and, consequently, have the capacity to trigger a paradigm shift that might be reflected in the outcome of pending prosecutions, in order to ensure the responsibility of the perpetrators of the crimes. Nevertheless, at the same time, it also shows how evidence is not the only key to take into account, since the problems related to the exercise of jurisdiction in domestic orders, which go far beyond the legal plane, will also be transcendental.

On 9 September 2021, the Court of Justice handed down its judgment in UM (C‑277/20), in which, for the first time, it sheds light on doubts concerning the applicability of the EU Succession Regulation to donations mortis causa. The preliminary questions originate from the Austrian Supreme Court (Oberster Gerichtshof). In the judgment, the Court of Justice shared the view presented earlier this year in the opinion delivered by Advocate General de la Tour. This post is a slightly modified version of an Op-Ed published on EU Law Life.

Facts of the Case

ZL, a German national, had entered into a contract with his son UM and UM’s wife XU in 1975. Under the contract, where Austrian law was chosen as applicable, it was provided inter alia that ZL undertakes to erect a house on his immovable property located in Austria which would transfer mortis causa to XU and UM in equal shares. The transfer would occur on the death of ZL, but not before the house has been completed. If UM and XU were to divorce, the transfer mortis causa would be construed as having been made to UM alone. ZL expressly declared that the immovable property was to be transferred as a donation mortis causa. ZL authorised the transfer of ownership to be recorded in the Austrian Land Register upon production of a death certificate and proof that the conditions listed in the contract were fulfilled. Prior to the death of ZL in 2018, UM and his wife had divorced, and she had subsequently died.

Succession proceedings were commenced in Germany, the place of ZL’s habitual residence. For the purposes of those proceedings, UM applied to the court in Austria to be registered as the owner of the immovable property in question. Before the case reached the Austrian Supreme Court, the courts of two instances took the view that Austrian law is applicable and, therefore, in the absence of proof of satisfaction of the conditions laid down in the contract, rejected UM’s application. The Austrian Supreme Court decided to submit a preliminary request to the Court of Justice to clarify whether the donation mortis causa might be classified as an agreement as to succession covered by the material scope of the Succession Regulation and, in the affirmative, whether the choice of Austrian law as applicable remains valid.

Donation Mortis Causa as an Agreement as to Succession

To understand the first question posed to the Court of Justice, it is important to recall that pursuant to Article 3(1)(a) of the Succession Regulation, “succession” is defined as “succession to the estate of a deceased person”. It covers “all forms of transfer of assets, rights and obligations by reason of death”. This transfer may be “through intestate succession” or “under a disposition of property upon death”. At the same time, a disposition of property upon death means, inter alia, an “agreement as to succession” (Article 3(1)(d)), which is “an agreement … which, with or without consideration, creates, modifies or terminates rights to the future estate or estates of one or more persons party to the agreement” (Article 3(1)(b)).

Having the above in mind, the Court of Justice noted that the notion of an agreement as to succession must be given an autonomous interpretation (para. 29) and that it “refers generally to any agreement which, inter alia, creates rights to the future” estate (para. 30). The Court of Justice further cited the definition of succession provided for in Article 3(1)(a) of the Succession Regulation to conclude that “a contract under which a person provides for the future transfer, on death, of ownership of immovable property belonging to him or her and which confers rights in his or her future estate on other parties to that contract, constitutes an “agreement as to succession” within the meaning of Article 3(1)(b)” of the Regulation (para. 32). Referring to its previous judgment in Oberle (C-20/17), the Court of Justice stated that its conclusion is supported by the principle of unity of the succession (para. 33).

The Court also recalled that Article 1(2)(g) of the Succession Regulation excludes from its scope assets transferred otherwise than by succession, for example gifts, but it noted that this exclusion should be interpreted strictly (para. 34). As a result, where “a disposition of property contained in an agreement relating to a succession consists (…) in a donation, but does not take effect until the death of the deceased”, it is covered by the scope of the Regulation (para. 35).

When it comes to the differentiation between donations inter vivos and mortis causa, the opinion is more elaborate than the judgement. It even refers to Article 1(2)(d) of the 1989 HCCH Succession Convention and its explanatory reportunderlying that even though the Convention never entered into force it inspired many provisions of the Regulations (para. 38 of the opinion). As a result, it plays an important role while interpreting the Regulation itself. The report states that the notion of “disposition of property upon death” excludes inter vivos dispositions having immediate proprietary effect. When it comes to disposition of property upon death “it is upon the death of the person so disposing, and not in any respect at any earlier time, that the disposition (or transfer) takes place” (para. 41 of the explanatory report).

The opinion indicates also that Article 1(2)(g) of the Succession Regulation should be read together with recital 14 thereof, which explains that the law applicable to the succession “determines whether gifts or other forms of dispositions inter vivos giving rise to a right in rem prior to death should be restored or accounted for the purposes of determining the shares of the beneficiaries” (para. 36 of the opinion). This suggests that donations excluded from the scope of the Regulation are only those that might be classified within a broader term of “dispositions inter vivos giving rise to a right in rem prior to death”. A contrario, dispositions giving rise to a right in rem after the death are not covered by the exclusion provided for in Article 1(2)(g) of the Succession Regulation. The Court of Justice seems to share this view but does not justify it in such detailed manner as the opinion.

Given the above, the Court of Justice concluded that “a contract under which a person provides for the future transfer, on death, of ownership of immovable property belonging to him or her to other parties to the contract is an agreement as to succession” within the meaning of the Succession Regulation. As a result, the agreement at hand should be covered by the material scope of the Succession Regulation.

Choice of the Applicable Law to the Donation Mortis Causa

Knowing that, the second question that the Court of Justice had to answer was whether it is possible to choose the law applicable to the succession of an asset indicated in the donation mortis causa, as in the contract at hand the Austrian law was chosen as applicable.

It must be noted that, in accordance with the Succession Regulation, the law applicable to succession is the law of the last habitual residence of the deceased (Article 21(1)), subject to the operation of the escape clause (Article 21(2)) unless the deceased has chosen the law applicable in the disposition of property upon death in accordance with Article 22. The Regulation contains also transitional provisions, as according to Article 84 thereof its rules apply from 17 August 2015 (Article 84) but only to the succession of persons who died from that date onwards.

Pursuant to Article 83(2) of the Regulation, where the deceased had chosen the law applicable to his succession prior to 17 August 2015, that choice remains valid if it meets the conditions laid down in the Regulation itself or in the rules of private international law which were in force, at the time the choice was made, in the state of either the “habitual residence” or (one of) “nationality” of the deceased.  That is the expression of favor validitatis principle, which aims to prevent the choice of applicable law to succession made in the past from becoming invalid due to the change in law, namely, replacement of domestic international succession rules by the Succession Regulation.

The doubt before the Court of Justice was whether Article 83(2) of the Succession Regulation may apply to the choice of the applicable law (namely, Austrian law) contained in the donation mortis causa contract signed in 1975. The answer was negative. The Court of Justice held that Article 83(2) concerns only “the validity of the choice of law applicable to the succession as a whole”, whereas (it seems that) “the choice of Austrian law concerned only the agreement as to succession concluded by the deceased in the main proceedings in respect of one of his assets and not the succession as a whole, with the result that the condition for applying Article 83(2) of that regulation cannot be considered satisfied in such circumstances (para. 39)”.

This seems a reasonable conclusion, provided that the Succession Regulation is built on the unitary principle, meaning that one single law governs succession. This principle applies functionally, meaning that one single law governs succession “from the opening of the succession to the transfer of ownership of the assets forming part of the estate to the beneficiaries” (recital 42 of the Regulation) and territorially, meaning that one single law governs succession “irrespective of the nature of the assets and regardless of whether the assets are located in another Member State or in a third State” (recital 37).

Additionally, it might be added that the choice of applicable law with respect to agreements as to succession (Article 25) relates only to the question of their admissibility, substantive validity, and their binding effects between the parties, including the conditions for their dissolution. This should not be equated with the choice of law applicable to succession as a whole (which governs succession in general, for example, the question of liability for debts – Article 23(2)(g)).

Conclusion

To conclude, it was rightly confirmed in the UM judgment that, in accordance with the Succession Regulation, a donation mortis causa giving rise to a right in rem after the death of the donor constitutes an agreement as to succession within the meaning of this regulation. Additionally, in general, in a succession case there might be more than one disposition of property upon death, including agreements as to succession providing for donations mortis causa of particular assets, but there can only be one single law applicable to succession as a whole, which governs “all civil-law aspects of succession to the estate of a deceased person” with respect to all the assets of the deceased.

Advocate General Rantos opined two weeks ago in C-581/20 Skarb Państwa Rzeczypospolitej Polskiej reprezentowany przez Generalnego Dyrektora Dróg Krajowych i Autostrad v TOTO SpA – Costruzioni Generali et al. – I propose we shorthand the case as ‘TOTO’.

Following public procurement, the Polish treasury granted the works for the construction of a stretch of motorway to an Italian consortium. In the contract, choice of court is made for Poland. The necessary guarantees eg for payment of fines in the event of late completion, were underwritten by a Bulgarian insurance company, whose guarantee is subject to Polish law. The consortium  to no avail sought negative declaratory relief (with a view to obtaining a finding that no fines are due under the contract) and injunctive relief (with a view to prohibiting the Polish authorities from exercising the guarantee) with the Polish court with substance matter jurisdiction. However it subsequently secured the injunctive relief from a Bulgarian court with Article 35 Brussels Ia provisional measures jurisdiction. This relief expressed itself inter alia in custodial attachment of the guarantees which the Polish authorities had sought to exercise with a European Order for Payment form. That Bulgarian relief is now before the Bulgarian Supreme Court.

The questions before the court are  whether the provisional measures can at all be ordered under the A35 gateway given that they might concern acta iure imperii and not civil and commercial matters; and if the matter is within the scope of BIa, whether the A35 court may still order such measures if the court with subject-matter jurisdiction has denied them. Finally, whether if the issue is within the scope of BIa, the ordinarily applicable Bulgarian rule that no such relief may be ordered against public authorities, must be set aside.

The Advocate-General suggests the Court settle the questions mainly by recourse to the lis pendens rule of A29 ff of the Regulation, rather than by the alternative of focusing on the ‘provisional’ nature of the measures imposed by the A35 court. A29 ff do not limit their application to substance matter proceedings hence if and when the lis pendens conditions are met, the court last seized must (identical cases) or may (related cases) relinquish its jurisdiction. The opposite is true, as well: if the A35 court has been seized first, the court with subject-matter jurisdiction has been gazumped at least for provisional measures.

The AG also (55 ff) suggests that choice of court must be read to include authority for the chosen court to issue provisional measures, but not (unless expressly agreed; an issue of contractual interpretation which must be left to the national judge to assess) the exclusion of other courts to exercise their A35 jurisdiction.

Finally if the court with subject-matter jurisdiction has taken a definitive decision viz the provisional measures, that decision travels under Title III BIa and A45 does not seem to offer room to object to recognition and enforcement. Should that decision not yet be definitive, the ordinary lis pendens rules must apply.

This is a case with rather important contractual drafting and civil procedure consequences.

Geert.

EU Private International law, 3rd ed 2021, 2.512ff, 2.550 ff, 5.584 ff.

 

Opinion Rantos AG this morning in C-581/20 TOTO: Brussels Ia, Jurisdiction.
Relationship (including lis pendens) between A35 provisional measures court, and court with substantive jurisdiction.https://t.co/ei9WcXeUGY pic.twitter.com/8q8IAVCbvD

— Geert Van Calster (@GAVClaw) September 9, 2021

I am delighted to announce the publication of the last edition of the Code de droit international privé luxembourgeois. The main purpose of the book is to gather all the norms applicable in Luxembourg in the field (international conventions, European regulations and national legislation).

A new feature of the book is to include references to case law. Now that Luxembourg courts have made many of their judgments publicly available, it was possible to identify many cases which have applied the most important of these norms and offered interesting interpretations. The book also identifies interesting cases in those fields where the law is entirerly judge made, such as choice of law in filiation or matrimonial matters (for anybody married before the entry into force of the Matrimonial Regulations).

The code is a perfect companion to my treatise on Luxembourg private international law. The first volume, which is dedicated to choice of law in the fields of obligations, property and corporations, was published a year ago (Droit international privé luxembourgeois, vol. 1 : Conflits de lois – Théorie générale, Obligations, Biens, Sociétés).

The next volume will be dedicated to international litigation and arbitration in Luxembourg, and will hopefully be published soon after the Luxembourg parliament will pass a new law on arbitration.

In its judgments delivered in the cases WB, C-658/17 and E.E., C-80/19, the Court of Justice already addressed the question whether a notary dealing with succession-related matters is a “court” for the purposes of the Succession Regulation. In these cases, however, the requests for a preliminary ruling originated from the proceedings pending before the national courts.

By contrast, in the case OKR, C-387/20, the request for a preliminary ruling is brought before the Court by a Polish notary [or, to be more specific, by a notarial clerk/assistant (fr. “clerc de notarie”, pl. “zast?pca notarialny”), yet this nuance does not seem to affect the outcome of the case at hand].

The case itself concerns a Ukrainian national living in Poland who is the joint owner of an estate situated in that Member State. A Polish notary is requested to draw up a notarial will which would contain a choice-of-law clause opting for Ukrainian law and modify the legal order of succession. The notary refuses to perform the notarial act on the ground that the choice of Ukrainian law in the will would be unlawful.

The refusal to perform the notarial act in question is challenged by an appeal brought by the interested party: under Polish law, such appeal is lodged through the refusing notary who may still perform the notarial act, if he or she deems the appeal justified. In the request for a preliminary ruling it is argued that within this framework the notary acts as an authority of first instance.

On its merits, the request for a preliminary ruling revolves around the choice of law under Article 22 of the Succession Regulation and a bilateral agreement with Third State that takes precedence over the Regulation and does not explicitly provide for choice of law in matters of succession.

However, as noted by Carlos Santaló Goris in his outline of the request for a preliminary ruling, the case provokes a no less intriguing question whether a Polish notary faced with an appeal is a “court” within a meaning of Article 267 TFEU and as such can submit a preliminary reference to the Court.

That question is addressed by the Court in its order delivered early this September. It receives a negative answer and, as a consequence, the request for a preliminary ruling lodged by a notary is considered to be inadmissible.

Even a cursory reading of the order reveals that, for the Court, a notary faced with an appeal against his or her refusal is not deciding a legal dispute and is not delivering a decision of judicial nature. Therefore, according to the Court, the notary is not engaged in exercise of a judicial function: he or she only confirms the refusal to perform a notarial act or performs the notarial act accordingly to the initial request of the interested party (paragraphs 25 and 28).

Those findings lead to the conclusions that, “for the purposes of the present reference for a preliminary ruling”, a notary (scil. a notarial clerk/assistant) cannot be classified as a “court” within the meaning of Article 267 TFEU (paragraph 34).

It is noteworthy that in this order the Court makes it clear that the notion of “court” in the meaning of Article 3(2) of the Succession Regulation is broader in scope than the notion of “court” in the sense of Article 267 TFEU (paragraph 31).

The order is available here (no English version yet).

Last week Costa Rica signed the HCCH Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019 HCCH Judgments Convention). The HCCH news item is available here.

It should be noted that in order to consent to be bound by the treaty, Costa Rica would need to deposit an instrument of ratification, acceptance or approval. In the meantime, a signatory State has the obligation not to defeat the object and purpose of a treaty prior to its entry into force (article 18 of the UN Vienna Convention on the Law of Treaties).

Costa Rica made the following declaration: “in accordance with article 14, paragraph 3, of the Convention, the Republic of Costa Rica declares that it shall not apply Article 14, paragraph 1, of the Convention.”

Article 14(1) of  the HCCH 2019 Judgments Convention states the following:  “No  security,  bond  or  deposit,  however  described,  shall  be  required  from  a  party  who  in  one Contracting State applies for enforcement of a judgment given by a court of another Contracting State on the sole ground that such party is a foreign national or is not domiciled or resident in the State in which enforcement is sought.” Article 14(3) of the HCCH 2019 Judgments Convention allows States to file a declaration stating that they will not apply Article 14(1).

In this regard, it should be noted that many HCCH Conventions contain a similar provision. This is particularly the case of the  HCCH 1980 Access to Justice Convention, whose objective is precisely, as its name suggests, to promote access to justice by ensuring that “the mere status as an alien or the absence of residence or domicile in a State are not grounds for discrimination with regard to access to justice in that State” (HCCH outline of this Convention).

The HCCH 1980 Access to Justice Convention strikes the right balance by eliminating such a requirement and at the same time allowing the enforceability of orders for costs (Chapter II, arts 14-17). The latter is somewhat similar to Article 14(2) of the HCCH 2019 Judgments Convention and undoubtedly was a source of inspiration during the negotiations.

The interesting fact is that Costa Rica is a party to the HCCH 1980 Access to Justice Convention. Thus, Costa Rica is not allowed to impose any security, bond or deposit on the basis of a person being a foreign national or of not having his or her domicile or residence in Costa Rica if the conditions of Article 14 of the HCCH 1980 Access to Justice Convention are met, at least in its relations with the Contracting States to the said Convention.

Nevertheless, the declaration of Costa Rica underlines the fact that some States continue to impose such a requirement (although admittedly this requirement is fading away in some regions of the world). And thus the promotion of the HCCH 1980 Access to Justice Convention and all other HCCH Conventions that promote the principle of non-discrimination continue to be all the more relevant.

***

The HCCH 2019 Judgments Convention is not yet in force. In accordance with its article 28: “This Convention shall enter into force on the first day of the month following the expiration of the period during which a notification may be made in accordance with Article 29(2) with respect to the second State that has deposited its instrument of ratification, acceptance, approval or accession referred to in Article 24.”

There are currently four signatory States: Costa Rica, Israel, Uruguay and Ukraine. The act of signing a treaty does not count towards the timeline specified in article 28 of the HCCH 2019 Judgments Convention as it is not an instrument of ratification, acceptance, approval or accession.

 

On 9 September 2021 the Court of Justice pronounced its judgment in the case RK (C-422/20) concerning the mechanism of the transfer of jurisdiction under the Succession Regulation. The judgement also gives an insight into transitional provisions of the regulation. The preliminary questions originate from the Higher Court in Cologne (Oberlandesgericht Köln). The opinion on the case was delivered earlier this year by Advocate General Szpunar. The case was already commented here by Matthias Weller.

Facts of the Case

A mutual will was drafted in 1990 in German language, in which CR and her husband (German national) designated each other as heirs. After the death of the husband, last habitually resident in Spain, CR applied to a German court for, inter alia, a European Succession Certificate. The jurisdiction of German courts was successfully contested by RK, the deceased’s brother. Hence, CR commenced proceeding in Spain. On CR’s request, the Spanish court decided not to hear the case noting that German courts are better placed to do so, due to practical circumstances, including CR’s residence and location of assets. CR filed another application to German court accompanying it with the decision of the Spanish court.

Transfer of Jurisdiction Mechanisms

It is worth reminding that pursuant to Article 4 of the Succession Regulation, the courts of the Member State of the last habitual residence of the deceased are competent in succession matters. Also, the law applicable is designated by this connecting factor (Article 21(1)), which allows for the coincidence of ius and forum so desired by the Regulation. It may happen however that the deceased has chosen (one of) national laws as applicable, which results in the distortion of the ius and forum principle. To avoid this (at least to certain extent), the Regulation, as explained by recital 27 “provides for a series of mechanisms”, which should restore the situation, in which the competent court applies its own succession law as applicable. These mechanisms are provided for in Articles 5 – 9 of the regulation and consist of the “transfer” of jurisdiction to the courts of the Member State the law of which was chosen as applicable by the deceased.

In accordance with one of the mechanisms, based on Article 6(a), the court seized pursuant to Article 4, may at the request of one of the parties, decline jurisdiction if a court of another Member State is “better placed to rule on the succession” given “practical circumstances of the succession, such as the habitual residence of the parties and the location of the assets”. In such case, pursuant to Article 7(a), the “national” courts “have jurisdiction to rule on the succession”, provided that “a court previously seised has declined jurisdiction in the same case” pursuant to Article 6.

Declining of Jurisdiction

In the RK case, the Oberlandesgericht Köln has doubts if it may assume that the Spanish court declined its jurisdiction pursuant to Article 6(a), given that this is not clearly stated in its decision. Answering this first question, the Court of Justice underlined that it is not crucial that the declining of jurisdiction is express, as long as refraining from hearing the case indicates that the court will not hear it, because another court was found to be better placed to do so (para. 37). This conclusion is justified by the aim of creating in the EU an area of freedom, security and justice based in the mutual trust between Member States (para. 37). The Court of Justice found that the regulation does not provide for the form, in which the declining of jurisdiction should be pronounced (para. 36). It also noticed that the Spanish court used the expression of the Spanish language version of the regulation, namely “to refrain from hearing” (abstenerse de conocer), instead of “to decline jurisdiction”, which is used in other language versions, including the German one. The difference in the wording in the language versions of the regulation and the resulting differences in the wording of decisions should not be relevant, when the intention of the declining court is clear enough.

Assuming jurisdiction after decline

The Oberlandesgericht Köln had also doubts if before assuming jurisdiction pursuant to Article 7(a) it may verify whether the prerequisites for declining jurisdiction pursuant to Article 6(a) were met. Namely whether a valid choice of applicable law was made, whether there was an application for “transfer” filed by one of the parties and whether it was examined if another court is in fact better placed to hear the case (para. 41).

Answering the second question, the Court of Justice underlined that no such verification may be exercised (para. 52). The Court of Justice classified the decision on declining jurisdiction as a “judgement” subject to automatic recognition in other Member States, without any possibility of reviewing it as to its substance (para. 45-47). Such conclusion is justified by the principle of mutual recognition of judgements and mutual trust (para. 48). It seems that as an effect of such recognition the court seized pursuant to Article 7(a) must assume jurisdiction (compare para. 58 in fine of the opinion).

The Court of Justice does not give clear response to the doubt that resonates in the opinion whether the decision on declining jurisdiction pursuant to Article 6(1) is binding the court seized pursuant to Article 7(1) as to the determination of law applicable, as declining jurisdiction assumes the exitance of a valid choice of applicable law made by the deceased. On one hand, the court of a Member State assuming jurisdiction pursuant to Article 7(1) should be able to assess independently, which law is applicable (para. 36 opinion). On the other hand, one should not differentiate between a choice of applicable law, which is valid for the purpose of declining jurisdiction and a choice, which is valid for the purpose of establishing applicable law (para. 46 of the opinion). The opinion seems to opt for the “stronger” effect of the judgement, including the determination as to applicable law (para. 46 in fine of the opinion).

Choice of Applicable Law Presumption

As already mentioned, the prerequisite for declining jurisdiction pursuant to Article 6(1) is that “the deceased had chosen as the law to govern his succession the law of a Member State of which he was a national (recital 27)”. In the case at hand, the mutual will of 1990 contained no such choice. As, pursuant to Article 84, the Succession Regulation applies from 17 August 2015 to the succession of persons who die starting from that day (Article 83(1)), it contains transitional provisions relating to dispositions of property upon death made before 17 August 2015 of a deceased person, whose succession is governed by the Succession Regulation.

Pursuant to Article 83(4), in case of a disposition of property upon death made prior to 17 August 2015, there is a presumption that the deceased has chosen as applicable the law, in accordance with which this disposition was made, provided that this law could be chosen pursuant to the regulation (namely, it is a national law of the deceased). For example, in the commented case, assuming that the mutual will was indeed made in accordance with German law (at least, as mentioned in the judgment, it was prepared in German language), German law is presumed to be chosen by the deceased, who was a German national at the moment of making the choice and/or at the moment of death. Unfortunately, the Court of Justice is silent on how to determine whether the disposition was made “in accordance with” a given succession law.

The answer to the third preliminary question posed by the Oberlandesgericht Köln concerns the above provision of Article 83(4). The Court of Justice stated that the choice of applicable law, which is the prerequisite for transfer mechanism of Article 6(1) may result from the operation of the above presumption (para. 61). However, as results from the answer to previous questions, the court assuming jurisdiction pursuant to Article 7(1) is not allowed to verify the existence of the prerequisite.

Conclusion

It seems that in RK the Court of Justice provides for practical solutions, considering specificities of procedural laws of Member States and understanding that declining jurisdiction may be pronounced in different forms. The conclusion that no control may be exercised over the decline decision pursuant to Article 6(1) also seems perfectly in line with mutual trust principle as implemented in the instruments on EU judicial cooperation in civil matters. It is not entirely clear however whether this decision has a binding effect on courts of other EU Member States also with respect to the determination of applicable law, as a valid choice made by the deceased is a prerequisite for such decision. Additionally, one may regret that the Court of Justice have not elaborated on what does it mean that a disposition of property upon death was made “in accordance with the law” of a given state for the purpose of Article 83(4).

Sanchez-Bordona AG Opined last week in C-296/20 Commerzbank AG v E.O, a case on the consumer section of the Lugano Convention however in essence on the international element required to trigger consumer protection in private international law. The distinguishing feature of this case lies in the fact that, at the time when the contract was concluded, both parties were domiciled in the same State (Germany), whereas, when recovery was sought through the courts, the customer was domiciled in Switzerland.

The international nature of the situation therefore came about subsequently rather than being present at the outset.

The Advocate General is absolutely right to point to the objective of the consumer section of Lugano, and indeed Brussels Ia, to protect the consumer as the economically weaker party; and in C-98/20 mBank, the Court held that the consumer’s domicile needs to be determined at the time of the instigation of the suit, not the conclusion of the contract (or a later date in the proceedings) even in those circumstances where the consumer failed to inform the professional party of the change of domicile.

The AG however also insists on the predictability of forum both as claimant and as defendant, for the economic operator.

His provisional conclusion therefore (73-74), following analysis of the travaux, is that the international element needs to be present at the outset. However then comes the oddity of A17(3) Lugano, which mirrors A19(3) Brussels Ia:

‘The provisions of this Section may be departed from only by an agreement [conferring jurisdiction]:… 3. which is entered into by the consumer and the other party to the contract, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same State bound by this Convention, and which confers jurisdiction on the courts of that State, provided that such an agreement is not contrary to the law of that State.’

[With respect to the last element of this Article, it is indeed by no means certain that national law allows for such agreement and the AG (87) notes same].

The Jenard Report viz the Brussels 1968 Convention explains that that rule was included for reasons of equity to benefit a seller or lender domiciled in the same State as the buyer or borrower in the case where the latter establish themselves abroad after the contract has been concluded. The AG opines that the purely domestic setting of A17(3) must not be extended to the remainder of the consumer section, instead keeping it confined to the particular circumstances of that subsection.

In subsidiary fashion, the AG proposes that if the CJEU does not follow him on the generally required international element at the outset, it limit the extensive  application of the consumer section to cases where the economic operator pursues in the State of the consumer’s new domicile a trade or profession such as that which gave rise to the conclusion of the contract.

Interesting.

Geert.

EU Private International Law, 3rd ed. 2021, 2.222 ff.

Opinion SÁnchez-Bordona this morning in C‑296/20 Commerzbank. Jurisdiction, #Lugano Convention. International element required to trigger consumer section.https://t.co/9wM8T3Po4m pic.twitter.com/WJvKsOuz4l

— Geert Van Calster (@GAVClaw) September 9, 2021

Marketa Trimble (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted The Public Policy Exception and International Intellectual Property Law on SSRN.

The abstract reads:

Public international law affects private international law (conflict of laws) in a myriad of ways. This article discusses potential effects of international intellectual property (“IP”) law on the application of the public policy exception, which is used as a limitation on the application of foreign law and on the recognition and enforcement of foreign judgments. The article describes the function of the exception and its treatment in existing academic projects on IP law issues in private international law. It provides examples of the uses of the exception in IP cases and contemplates the frequency of the use of the exception in such cases. The article reviews international IP treaties, including IP chapters of free trade agreements, as possible sources of relevant public policies and evaluates whether a foreign IP law compliance with international intellectual property treaties could serve as a factor in the public policy exception analysis. The article suggests that courts give some weight in the public policy exception analysis to a finding of a foreign IP law’s compliance with international IP treaties but recognizes that the proposed approach would need to be nuanced and account for diverse circumstances.

The article is forthcoming in the Annali Italiani del Diritto D’Autore, Della Cultura e Dello Spettacolo.

Aldricus – Salah satu kebutuhan yang diperlukan anak adalah mainan. Beberapa ayah bunda pasti pernah merasakan rewelnya anak saat tidak diberi mainan kan ? akan tetapi terkadang sebagai orang tua ayah bunda juga merasa khawatir, terhadap beberapa mainan anak yang bisa berbahaya dan tidak bermanfaat. Selain itu juga kebanyakan harganya hal. Eits tenang kami punya jawabanya, yaitu Lego selain manfaatnya yang mengedukasi. Bisa mendorong kreativitas dan imajinasi anak. Lego juga mudah didapatkan dan sangat terjangkau bagi dompet ayah bunda. Berikut kami rangkum daftar lego murah mulai dari harga 100 Ribuan :

1. LEGO Ninjago 70661 Spinjitzu Zane Blocks & Stacking Toys

Lego ini  diperuntukan untuk anak usia 7 tahun keatas dan didesain fun & playfun loh parents. Karena bentuknya yang didesain seperti ninja, membuat anak kalian semangat dalam memainkanya. Dan tentu saja bukan hanya diperuntukan untuk anak laki-laki, tapi juga untuk perempuan. Selain itu, lego ini memiliki 3 attachment untuk mode serangan, kecepatan, dan pertahanan. Membuat anak mampu menciptakan teknik tertentu, kemungkinan tidak terbatas, sehingga lebih mendorong kreativitas anak. Harganya cukup terjangkau dimulai dari 130.000rban aja lo parents.

2. Mainan Lego Block isi 714 Pcs Edukasi

Lego block merupakan mainan yang dapat disusun secara bebas, sehingga mampu melatih saraf motorik anak. Selain bentuk block dalam paketnya juga tersedia roda, sehingga anak bisa membuat mobil, kereta dan lainya. Harganya sangat murah loh parents dengan isi 714 Pcs di bandrol dengan harga 133.000.

3. MR Block 406 PCs

MR Block merupakan Lego Block yang banyak dijumpai di marketplace. Item yang dapat dijumpai dalam satu paket bermacam-macam. Mulai dari orang-orangan, dan ada juga block berbentuk mobil. Banyaknya variasi item yang ada di MR Block ini sudah tentu mendorong anak-anak untuk lebih kreatif dalam mengimajinasikan pikiranya. Selain itu MR Block juga mampu meningkatkan sosialisasi dengan teman-teman. Harga MR Block dengan isi 406 Pcs ini dibandrol dengan cukup terjangkau lo parents dimulai dengan 175.000.

Masih banyak lagi lego yang harganya sekitar seratus ribuan. Kita tinggal memilihnya di toko mainan terdekat.

The post Lego Murah Harga 100 Ribuan appeared first on Aldri Blog.

Further to CoL’s posts on recent case law of the ECJ last week, we allow ourselves to draw CoL readers’ attention to the judgment of the ECJ of 9 September 2021, C-422/20 – RK ./. CR, on the interpretation of jurisdictional provisions of the European Succession Regulation (ESR), upon reference by the Higher Regional Court (Oberlandesgericht) of Cologne, Germany. Neither the ECJ’s judgment, nor AG Maciej Szpunar’s Opinion of 8 July 2021 is yet available in English translation. The following summary draws on the original German texts.

The referring national court asked (1) whether it is required, for a declaration of lack of jurisdiction by the court previously seised as provided for in Article 7(a) ESR, that the latter court expressly declines jurisdiction, or whether an implicit declaration suffices if it is clear by interpretation that that court has in fact declined jurisdiction? The national court further asked (2) whether the court of a Member State whose jurisdiction is to emerge from a declaration of lack of jurisdiction by another Member State court is entitled to examine whether the conditions for such a declaration were in fact fulfilled. In particular, the referring court asked (a) whether the second court may examine whether the testator validly chose the applicable law in accordance with Article 22 ESR, whether (b) a request for a declaration of lack of jurisdiction, as required by Article 6(a) ESR has been brought by one of the parties in the first proceedings, and (c) whether the first court correctly assessed that the courts of the Member State of the chosen law are better placed to rule on the succession. In a last question, the referring court asked (3) whether Articles 6(a) and 7(a) ESR are applicable if the testator has not made an express or implied choice of law in a testamentary disposition before 17 August 2015 but the law applicable to the succession may be inferred from Article 83(4) ESR.

The ECJ held that (1) no express declaration of lack of jurisdiction is required under Article 6(a) ESR, as long as the first court’s intention can be clearly inferred from its decision, that (2) the second court has no competence to review the first court’s declaration of lack of jurisdiction and (3) that Articles 6(a) and 7(a) ESR remain applicable if the applicable law may only be inferred from Article 83(4) ESR.

As to the first question, the Court made clear that certain differences in the Spanish language version of the ESR in Article 6(a) – “abstenerse de conocer” (in translation something like: “abstain from assuming jurisdiction”) – on which the Spanish first court had relied – are of no relevance for the autonomous interpretation of the ESR, to be exercised acccording to general and well established principles in light of all of its language versions and its objectives (para. 30). These do not require any particular form for a declaration under Article 6(a), and requiring such a form would jeopardize the objective of the ESR as laid down in Recital 27 Sentence 1, i.e. “to ensure that the authority dealing with the succession will, in most situations, be applying its own law”.

In relation the second question, the Court made reference to AG Spzunar’s Opinion (para. 39) and confirmed the latter’s finding that no second review may take place of the first court’s decision under Article 6(a) ESR (paras. 40 et seq.), not least because such as decision is a “decision” in the sense of Article 3(1) (g) ESR that falls within the scope of Chapter IV of the ESR on the recognition of decisions of the courts of other Member States (para. 42). The Court concludes that the first court’s decision under Article 6(a) ESR is binding for the second court both in its result – declaration of lack of jurisdiction – as well as in relation to its underlying findings about the conditions that Article 6(a) ESR requires. In the latter respect the Court made expressly reference to its earlier judgment of 15 November 2012, C-456/11 – Gothaer Versicherung, which means that its notion of a European res iudicata developed there is to be extended to the type of conditions found fulfilled by the first court here: “Any other interpretation would jeopardize the principles of mutual recognition and mutual trust on which the system of the ESR grounds” (para. 45, translation is my one).

For answering the third question the Court explained that Article 83(4) ESR contains a presumption of a choice of law by the testator that is to be attributed the same effects as a choice of law directly undertaken under the ESR (para. 53).

Written by Alexander A. Kostin, Senior Research Fellow at the Private Law Research Centre (Moscow, Russia) and counsel atAvangard law firm

and Valeria Rzyanina, junior associate, Avangard Law Firm

The Decree of the Arbitrazh (Commercial) Court of the Volga District of December 23, 2019 N F06-55840 / 2019 docket numberN A12-20691 / 2019, addresses service of process on the Russian party by the Cypriot court by e-mail and thus the possibility of further recognition of a foreign judgment.

1. Factual background

1.1. Within the framework of the court proceedings, the Russian party (the defendant in the Cypriot proceedings) was notified by the Cypriot court by sending a writ of service of process to the known e-mail addresses of the defendant. In order to substantiate the manner of service, the Cypriot court referred to Art. 9 of Decree 5 of the Rules of Civil Procedure (Cyprus), according to which “In any case, when the court considers that, for any reason, the service provided for in Rule 2 of this Decree will not be timely or effective, the court may order a substitute for personal service, or other service, or substitute for a notice of service in any way that will be found to be fair and correct in accordance with the circumstances”.

1.2. After the default judgment of the Cypriot court was rendered, an application for its recognition was lodged with the Arbitrazh Court of the Volgograd Region. In addressing the issue of compliance with the notification rules, the Russian court referred to paragraph 2 of Art. 24 of the Treaty on Legal Assistance of the USSR-Cyprus 1984 on civil and family matters, according to which judgments are recognized and enforced if the party against whom the judgment was made, who did not appear and did not take part in the proceedings, was promptly and duly notified under the laws of the Contracting Party in the territory of which the judgment was made. The foreign judgment in question was recognized and enforced by the Russian court based on the fact that the proper manner of the notification was confirmed by the opinion of experts under Cypriot law. The Ruling of the Supreme Court of the Russian Federation of March 27, 2020 N 306-ES20-2957 in case N A12-20691 / 2019 left the acts of the lower courts unchanged.

2. Analysis of the Decree of the Arbitration Court of the Volga District of December 23, 2019 N F06-55840 / 2019 in the case N A12-20691 / 2019

2.1. At first glance the logic of the Supreme Court and lower courts appears to be flawless. Nevertheless we find it important to correlate the provisions of paragraph 2 of Art. 24 of the 1984 Legal Aid Treaty with the provisions of Art. 8 of the Treaty. Article 8 requires that: “the requested institution carries out the service of documents in accordance with the rules of service in force in its state, if the documents to be served are drawn up in its language or provided with a certified translation into this language. In cases where the documents are not drawn up in in the language of the requested Contracting Party and are not provided with a translation, they are handed over to the recipient if only he agrees to accept them. ”

2.2. In this regard, it should be taken into account that when using the wording “notified under the laws of a Contracting Party,” the Treaty States simultaneously tried to resolve the following situations:

1) where the parties were in the state of the court proceedings at the time of the consideration of the case. In this case, the national (“domestic”) law of the State in which the dispute was resolved shall apply;

2) where the parties were in different states at the time of the consideration of the case. In this case, the provisions of the relevant international treaty shall apply, since the judicial notice is [a] subject to service in a foreign state and, therefore, it affects its sovereignty.

2.3. In this regard, attention should be paid to the fact that under the doctrine and case law of the countries of continental law, the delivery of a judicial notice is considered as an interference with the sovereignty of the respective state. The following are excerpts from case law. Excerpts from legal literature are provided for reference purposes:

1. a) “The negotiating delegations in The Hague faced two major controversies: first, some civil law countries, including Germany, view the formal service of court documents as an official act of government; accordingly, they view any attempt by a foreign plaintiff to serve documents within their borders as an infringement on their sovereignty ” – Volkswagen Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988);
2. b) “The exclusive competence to carry out acts of state power on its own territory follows from the sovereignty of states. As a rule, a state cannot perform actions of this kind within the borders of another state without violating its sovereignty and, therefore, without violating international law. An act is compatible with this right only if it is permitted by a specific international regulation, for example, if it is agreed in a treaty concluded between the states concerned, or if it is unilaterally accepted by the state in which it is carried out. When the notification is given abroad without permission under international law, this notification is invalid under Swiss domestic law due to its supremacy – Decision of the Swiss Federal Court of 01.07.2008 in case No. BGer 4A_161 / 2008.
3. c) “According to the traditional German law approach, delivery is considered to be an act of sovereignty.”- Rasmussen-Bonne H-E., The pendulum swings back: the cooperative approach of German courts to international service of process P. 240;
4. d) “From prospective of the Japanese state, certain judicial acts of foreign courts, such as the service of court notices and the receipt of evidence, are considered as a manifestation of sovereignty.”- Keisuke Takeshita, “Sovereignty and National Civil Procedure: An Analysis of State Practice in Japan,” Journal of East Asia and International Law 9, no. 2 (Autumn 016): 361-378

2.4. In light of the above, the interpretation of the Treaty on Legal Assistance of the USSR-Cyprus 1984, according to which a party located in the territory of Russia is subject to notification in accordance with Art. 8 of the Treaty, seems to be preferable.

We welcome further discussion on this intricate matter.

Written by Alexander A. Kostin, Senior Research Fellow at the Private Law Research Centre (Moscow, Russia) and counsel atAvangard law firm

and Valeria Rzyanina, junior associate, Avangard Law Firm

(This is a synopsis of an article published  in the Herald of Civil Procedure Law Journal N 1/2021 in Russian)

 Issues concerning cross-border insolvency rarely arise in Russian case law. For this reason, the Decree of the Arbitrazh Court of the Moscow District dated 22.11.2018 docket number N A40-39791 / 2018 is of particular interest to both practitioners and academics.

1. The factual background of case No. ?40-39791 / 2018

A bankruptcy procedure had been introduced at a German court against the Russian individual having the status of an individual entrepreneur under German law. After the opening of this procedure in Germany, the Russian debtor donated an apartment in Moscow to her daughter.

As a consequence of the said acts the bankruptcy trustee of the Russian debtor brought an action before the Moscow Arbitrazh (Commercial) Court, requesting the following relief: 1) to recognize the judgment of the German court opening the bankruptcy proceedings; 2) to set aside the agreement for donation of the apartment; 3) to enforce the judgment of the German court by prohibiting the alienation of this immovable property upon the completion of the bankruptcy procedure in Germany; 4) to attach the said immovable property in Russia.

On 01.10.2018 the Moscow Arbitrazh (Commercial) Court (First instance) dismissed the claim relating to the setting aside of the agreement of donation on the ground that that application was not heard by the German court and consequently it could not be resolved within the framework of the procedure for recognition of the German  judgment. The court of First instance specifically held that the question relating to the validity of the agreement of donation should be resolved in separate proceedings to be brought before the Russian courts.

In further proceedings the Moscow Arbitrazh (Commercial) Court (First instance) recognized the judgment of the German court on the opening of the bankruptcy proceedings (decision of 07.12.2018). With reference to Art. 343 of the German Bankruptcy Ordinance and the Russian case Law (docket number No. A56-22667 / 2007), the Russian court acknowledged the existence of reciprocity in relation to the recognition of Russian court judgments in Germany as prescribed by the German Federal Law “On insolvency (bankruptcy)”. The Russian court made an express finding that the foreign court order did not violate the exclusive jurisdiction  over bankruptcy matters, because the debtor’s activities as an individual entrepreneur are regulated by the law of the Federal Republic of Germany (Article 1201 of the Civil Code of the Russian Federation – “The law applicable to determination of the ability an individual to engage in entrepreneurial activity”).

However, the Moscow Arbitrazh (Commercial) Court (1-st instance) rejected the part of the foreign insolvency judgment relating to the prohibition of the debtor to dispose of immovable property until the completion of the insolvency proceedings. In the court’s opinion, in this  respect the exclusive competence of the Russian courts and the public order of the Russian Federation had been violated (Article 248 of the Arbitrazh [Commercial] Procedure Code of the Russian Federation). At the same time, the court of first instance also noted that the bankruptcy trustee is entitled to institute separate bankruptcy proceedings against the debtor in order to set aside the agreement for donation of the apartment before the Russian courts.

2. Analysis of case ?40-39791 / 2018

The key question in this situation concerns the correct procedure for setting aside the transaction for the transfer of the immovable property as the restitution of the proper value is dependent on the said action. In turn  the success of the said action depends on the following issues: 1) procedural capacity of a bankruptcy trustee, including the issue whether the recognition of a foreign judgment is a prerequisite for granting procedural capacity to a foreign bankruptcy trustee; 2) the law applicable to avoidance of the donation agreement.

2.1.          Procedural capacity of a foreign bankruptcy trustee.

In view of the fact that the foreign bankruptcy trustee is regarded as the legal representative of the debtor, his/her powers (including the power to bring an action) are recognized if the corresponding limitation of the capacity of the debtor is recognized in its turn.

Under Art. 1197 of the Civil Code of the Russian Federation, the legal capacity of an individual is governed by his personal law (lex personalis).The personal law of an individual refers to the law of the country of his/her nationality (clause 1 of article 1195 of the Civil Code of the Russian Federation). Consequently, the personal law of a Russian national is the law of the Russian Federation.

In the present situation, the legal capacity of the Russian debtor had been limited by a foreign judgment. In this case, the legal effect of the  foreign judgment on limitation of capacity  did not fall within the scope of the applicable substantive law since the judgment was not rendered by the country of his/her nationality. For that reason, the bankruptcy trustee’s legal capacity (including procedural capacity) could not be recognized by virtue of the Russian national conflict of laws rule.

In its turn the possibility of recognition of the foreign judgment on the opening of bankruptcy proceedings is questionable for the following reasons. Although in the present matter the Moscow Arbitrazh (Commercial) Court argues that the capacity of the debtor shall be governed by the German law as the law of the country where the defendant was doing business (Art. 1201 of the Russian Civil Code) it needs to be noted that the capacity of the person to conduct business-related  activities  arises from  general civil legal capacity (Art. 1195-1197 of the Civil Code of the Russian Federation). Taking into account the above, the said judgment on the opening of the insolvency proceedings appears to be in  conflict with the Russian public order.

2.2.          Law applicable to avoidance of the donation agreement.

In order to establish that the agreement for donation of the apartment is void the bankruptcy trustee referred to the fact that the apartment forms an integral part of the bankruptcy estate pursuant to paragraph 1 of Art. 35 of the German Insolvency Ordinance, as well as under clause 1 of Art. 213.25 of the  Federal Law “On Insolvency (Bankruptcy)”. With reference to the fact that the agreement for donation of the apartment was concluded after the  commencement of  foreign bankruptcy proceedings against the Russian debtor, the trustee argued that the transaction should be deemed void under Art. 61.2. of The Federal Law “On Insolvency (Bankruptcy)” as  a “suspicious transaction”.

In our view application of Art. 61.2. of The Federal Law “On Insolvency (Bankruptcy)” to invalidate the debtor’s agreements within the framework of a foreign insolvency does not seem to be entirely justified due to the following. Due to the fact that the bankruptcy procedure against the Russian debtor had been opened by a German court, the legal consequences of this procedure should also be determined by German law. Another question is whether these legal consequences are recognized in the Russian Federation). In this case, the fact of initiation of bankruptcy proceedings against a Russian national at a foreign court does not provide grounds for the application of Russian bankruptcy law.

In our view the following ways to set aside the agreement within the framework of the foreign insolvency exist.

Primarily, it appears that the donation agreement entered into after the commencement of foreign insolvency proceedings may be regarded as a void transaction under the Russian law due to the fact that it was intended to defraud  creditors (Articles 10 and 168 of the Civil Code of the Russian Federation).

Secondly, it could be argued that the recognition of a foreign bankruptcy entails that the effects of that foreign bankruptcy also apply to all actions that took place in the territory of Russia, including the possibility to apply foreign bankruptcy grounds to avoid contracts. However, this line of argument may not be entirely in line with the provisions of the Russian Civil Code under which Russian law applies to contracts in relation to land plots, subsoil plots and other real estate located in the territory of the Russian Federation (paragraph 2 of Art. 1213 of the Civil Code of the Russian Federation).

Conclusion

The Decree of the Arbitrazh (Commercial) Court of the Moscow District dated 22.11.2018 docket number N A40-39791 / 2018 as well as other court findings represent an interesting interplay between the legal provisions relating to the recognition of foreign insolvency and the application of Russian law for avoidance of the debtor’s transactions. In the present matter the Russian court clearly ruled in favor territoriality of foreign insolvency proceedings. However, we remain hopeful that one day the approach will change and the Russian courts will uphold the principle of universality of foreign insolvency.

 

 

On Thursday 14 October 2021 an online M-EPLI roundtable will take place on private international law issues relating to the recognition and enforcement of foreign (mostly US) punitive damages judgments in countries outside of Europe.

The event is organised by Lotte Meurkens and Cedric Vanleenhove and the Maastricht European Private Law Institute.

It is not frequent that a request for a preliminary reference on matters concerning civil and commercial litigation is assigned to the Grand Chamber. It has happened though already several times in relation to Article 7 (2) Brussels I bis Regulation (or the corresponding provisions in the previous instruments). It will happen again in case C-251/20, where the French Cour de Cassation asks for help to determine the place where the damage occurred and, consequently, the competent court to adjudicate on an action for damages due to disparagement.

The opinion of AG Hogan has just been published. Long, but easy to follow in spite of the absence of subheadings, it provides a rich and accurate overview of the case law of the Court in relation to the infringement of rights -privacy, copyrights, intellectual property- on the internet in order to address (see at 42)

“whether, in view of the reasons given by the Court to justify the exclusive jurisdiction of certain courts in relation to the deletion or rectification of disputed content [published on the internet], it would be appropriate also to recognise the exclusive jurisdiction of those same courts in relation to compensation”,

a point which

“implicitly raises the question of whether, in the judgment of 17 October 2017, Bolagsupplysningen and Ilsjan (C‑194/16, EU:C:2017:766), rather than simply distinguishing earlier case-law in this manner, the Court further intended to effect a complete reversal of its case-law and thus abandon the mosaic approach with regard to claims for damages as well” .

Spoiler: he believes it did not; also, that it should not; at most, he would agree to have the mosaic solution combined with the “focalization” criterion that has been used in certain areas (reference is made, among other, to Football Dataco and Others, C‑173/11, EU:C:2012:642).

I see no point in summarizing here the many arguments put forward by AG Hogan, among which the “dialogue” with AG Bobek; an assessment of the mosaic solution in case of SLAPP; the same, in the light of the main objectives of the Brussels I bis Regulation, as dealt with in the case law of the Court on Article 7(2); all this, with support of scholars’ views, English or French. The original is in English, thus easily accessible – easier, in any event, for those not reading French.

It should be born in mind, in addition, that, in fact, according to the AG

“the present case is not the right one for the Court to take a position on whether or not the mosaic approach should be maintained, refined or even abandoned. Indeed, in the case in the main proceedings, the applicant is alleging not that the contents in question would constitute acts of defamation, but that those would instead violate French law relating to acts of dénigrement, which is a form of malicious falsehood”,

rather belonging to the domain of unfair competition rules (under French law). Eventually, the AG addresses the question referred as one related to the materialization of a damage of a strictly economic nature. He elaborates from this perspective in points 98 and ff, to conclude with this proposal to the Court:

“Article 7(2) of Regulation No 1215/2012 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 must be interpreted as meaning that a claimant who relies on an act of unfair competition consisting in the dissemination of disparaging statements on the internet and who seeks both the rectification of the data and the deletion of certain content and compensation for the non-material and economic damage resulting therefrom, may bring an action or claim before the courts of each Member State in the territory of which content published online is or was accessible, for compensation only for the damage caused in the territory of that Member State. In order, however, for those courts to have the requisite jurisdiction it is necessary that the claimant can demonstrate that it has an appreciable number of consumers in that jurisdiction who are likely to have access to and have understood the publication in question.”

Which of the contents of the opinion will be taken up by the Court is difficult to say. As we know it, the Court tends to remain cautious. In relation to a provision as slippery as Article 7(2) Brussels I bis Regulation, an interpretation focused strictly in the circumstance of the case at hand seems advisable, no matter how frustrating this may be for scholars and practitioners, and how much such approach endangers the consistency of the application of the rule itself. In any event, judging from experience there is little doubt that requests on the same provision will continue to be addressed to Court as long as its text remains unchanged.

The second issue of 2021 of the Dutch journal Nederlands Internationaal Privaatrecht is published. This includes the following articles:

K. Henckel on Rechtskeuze in het ipr-arbeidsrecht: enkele gedachten over het begunstigingsbeginsel (in English Choice of Law in PIL labour law: Some Thoughts on the Principle of Favourability). This article is available open access here.

This article discusses the preferential law approach that is enshrined in Article 8(1) Rome I Regulation. This provision limits the effects of a choice of law in the sense that the choice may not deprive the employee of the protection afforded to him by the mandatory provisions of the law that would have applied in the absence of a choice. It is generally accepted that the law that is most favourable to the employee merits application. The determination of this preferential law requires a comparison between the chosen law and the law that would have applied in the absence of such a choice. The article examines the method of comparison used throughout Dutch case law which shows that a preferential law approach is rarely applied. Instead, the majority of judgments apply the mandatory provisions of the objectively applicable, Dutch, law without further explanation. Since the application of the preferential law approach seems to be plagued by ambiguity, this article questions the desirability and practical feasibility of the comparison between the chosen law and the mandatory provisions of the law that would have applied in the absence of such a choice.

L.C.J. van Apeldoorn on Erkenning van internationale rechtspersonen in het Nederlandse privaatrecht (in English, Recognition of International Legal Persons in Dutch Private Law)

This article examines the grounds for the recognition of the legal personality of international legal persons in Dutch private law, focusing in particular on foreign states and international organizations. Based on an analysis of the decision of the Dutch Hoge Raad (Supreme Court) in UNRRA/Daan, it is argued that the legal personality of international organizations is recognised by means of the (analogous) application of a rule, codified in Article 10:119 of the Dutch Civil Code, according to which the legal personality of a corporation depends on its personal law. When considering the personal law of international organisations, which is public international law including the terms of the founding treaty, decisive is not whether the organisation is an international legal person, but whether it is granted, on the basis of public international law, legal personality in the legal orders of its member states. The rule governing the recognition of the legal personality of international organisations is not applicable to foreign states because public international law does not imply or require that states are afforded legal personality in municipal law. Rather, it is argued, the legal personality of foreign states is recognised on the basis of an unwritten rule of Dutch private international law, originating in international comity, that attributes legal personality to foreign states. The application of this rule coincides in practice with the application of another rule also originating in comity, requiring as a matter of public international law that foreign states are granted standing to be party to legal proceedings before municipal courts.

C. Okoli on An analysis of the Nigerian Court of Appeal’s decisions on Foreign Choice of Court Agreements in the year 2020

In Nigeria valid commercial contracts between parties are treated as sacrosanct and binding by Nigerian courts. It is however uncertain (unlike in the European Union) whether a valid foreign choice of court agreement, which is a term of the parties’ contract, will be enforced by Nigerian courts. In this connection, the decisions of Nigerian courts are not consistent. Nigerian courts have applied three approaches to the enforcement of foreign choice of court agreements – ouster clauses, the Brandon test, and the contractual approach. This article analyses the approach of Nigerian appellate courts to the enforcement of foreign choice of court agreements in light of three Court of Appeal decisions delivered in the year 2020.

Stuij on Iura novit curia en buitenlands recht. Een rechtsvergelijkend en Europees perspectief (in English Iura Novit Curia and Foreign Law. A Comparative and European Law Perspective) – PhD dissertation Erasmus University Rotterdam

The thesis was defended on 29 April 2021. The analysis is centred around the Latin legal maxim iura novit curia in relation to the application of foreign law in civil proceedings. The thesis is a result of a comparative research into Dutch, German, and English law, as well as European law. The European dimension focuses on the influence of the ECHR – in particular Article 6 – and Article 47 of the EU Charter of Fundamental Rights, as well as the influence that the EU law can have on national procedural law. The author analyses, evaluates and recommends several approaches to the problem of foreign law in civil litigation. From a supranational perspective, he concludes that parties should have the option to waive the applicability of foreign law, unless compelling interests are at stake. He also discusses the conditions under which the judges are authorized to require the parties to cooperate. Within this framework a proposal is made not to establishing a general duty to apply conflict of laws and foreign law ex officio at supra- or international level. If the application of the law has to be strengthened, the emphasis must be placed on knowledge of foreign law (novit). This means that strengthening access to foreign law should be prioritised, and preferably through an instrument that combines different ways of providing information, so as to be sufficiently effective. In this context attention can be given to the different phases of research into the content of foreign law and to the various actors that play a role in this.

More information about this NIPR issue can be found here.

This post was contributed by Fabienne Jault-Seseke, who is Professor at University Paris Saclay (UVSQ), and a member of GEDIP.

Decisions of the French Supreme Court on civil and criminal matters (Cour de cassation) on res judicata regarding foreign decisions are rare. The judgment in which, on 8 September 2021, its social Division (Chambre sociale) questions the Court of Justice of the European Union (ECJ) is all the more remarkable.

Background

In this case, the plaintiff, who had been hired by French bank BNP to work in the London branch under a contract subject to English law, was posted in Singapore, and had entered into a contract subject to French law for that purpose. He was then posted to London and dismissed for misconduct during his secondment to Singapore.

The employee brought an action before the Employment Tribunal in London. The English tribunal found that the procedure followed by the employer was, under English law, unfair and ordered BNP to pay the sum of £81,175. BNP did not challenge the decision. Almost a year later, the employee brought various claims before the Conseil de prud’hommes (the court of first instance in matter of labour law) in Paris relating to the termination of his employment contract. The French court declared the claims relating to his dismissal inadmissible, because of the res judicata effect of the English judgment.

On appeal, the judgment was overturned: the Court of Appeal followed the employee’s argument, considering that the res judicata effect of the English decision relates only to the unfairness of the dismissal and that the various claims for compensation had not been examined by the English tribunal. BNP appealed to the Court of Cassation: in its view, the res judicata effect of the English decision prevents the French judge from hearing the claims relating to the dismissal of the person concerned.

Reference

Interesting questions were put to the Cour of Cassation, which took the opportunity to make a reference for a preliminary ruling to the ECJ.

As a starting point, the Cour de cassation asserted that that recognition in general and res judicata in particular are autonomous European concepts, citing ECJ, 15 November 2012, C-456/11, Gothaer Allgemeine Versicherung AG in support for that proposition. But the court then noted that a foreign judgment which has been recognised under Article 33 of Regulation No 44/2001 must in principle have the same effects in the State in which recognition is sought as it does in the State of origin (ECJ 4 February 1988, Hoffmann, C-145/86).

After a long analysis, the Cour de cassation asked the following questions (see below for French version).

Firstly, do Articles 33 and 36 of Regulation No 44/2001 lead to the conclusion that, where the law of the Member State of origin of the decision prevents the same parties from bringing a new action to rule on claims that could have been made in the initial proceedings (this would be the case in English law, pursuant to the Henderson v. Henderson case of 20 July 1843 of the Court of Chancery, which was referred to French courts by BNP), the court of another Member State, whose law provided for a similar obligation of concentration of claims (as is the case in French law, in particular in labour law with Article R. 1452-6 of the Labour Code, which has now been repealed, but which was applicable at the time before the French court) to rule on such claims?

In other words, does the obligation to concentrate claims provided for by the legal system of the State from which the decision emanates prevent the court of another Member State, in which a similar obligation exists, from hearing the action brought between the same parties in order to rule on claims that could have been formulated in the proceedings in the court of origin?

Should the answer be positive, other questions will inevitably arise. What would be the solution if only one of the two legal systems provides such an obligation to concentrate claims? Indeed, as Gilles Cuniberti noted on this blog, “the vast majority of scholars in Europe debate whether res judicata should be governed by the law of the State of origin or the law of the requested State”.

Secondly, and more classically, the Social Chamber questions the Court of Justice on the notions of cause and subject-matter. There are already a number of decisions of the Court of Justice on these issues but they concern lis pendens and not res judicata. It would however be consistent to retain the same requirements to define lis pendens and res judicata. In this case, the question is whether an action for unfair dismissal in the United Kingdom has the same cause of action and the same subject-matter as an action for dismissal without real and serious cause in French law or an action for payment of bonuses or premiums provided for in the employment contract since these actions are based on the same contractual relationship between the parties?  The French Supreme Court wonders whether a distinction should be made between damages for dismissal without real and serious cause, which could have the same cause and the same subject-matter as the compensatory award, and the redundancy and notice payments which, under French law, are due when the dismissal is based on a real and serious cause but are not due in the event of dismissal based on serious misconduct.

The answers that the Court of Justice will give to these questions will not only have consequences on the further integration of the European judicial area, but also on its tolerance toward certain procedural strategies.

—

In the French original, the questions of the Cour de cassation read:

1°/ Les articles 33 et 36 du règlement (CE) n° 44/2001 du Conseil, du 22 décembre 2000, concernant la compétence judiciaire, la reconnaissance et l’exécution des décisions en matière civile et commerciale doivent-ils être interprétés en ce sens que, lorsque la loi de l’État membre d’origine de la décision confère à cette dernière une autorité telle que celle-ci fait obstacle à ce qu’une nouvelle action soit engagée par les mêmes parties afin qu’il soit statué sur les demandes qui auraient pu être formulées dès l’instance initiale, les effets déployés par cette décision dans l’État membre requis s’opposent à ce qu’un juge de ce dernier État, dont la loi applicable ratione temporis prévoyait en droit du travail une obligation similaire de concentration des prétentions statue sur de telles demandes ?

2°/ En cas de réponse négative à cette première question, les articles 33 et 36 du règlement n° 44/2001 du Conseil doivent-ils être interprétés en ce sens qu’une action telle que celle en « unfair dismissal » au Royaume-Uni a la même cause et le même objet qu’une action telle que celle en licenciement sans cause réelle et sérieuse en droit français, de sorte que les demandes faites par le salarié de dommages-intérêts pour licenciement sans cause réelle et sérieuse, d’indemnité compensatrice de préavis et d’indemnité de licenciement devant le juge français, après que le salarié a obtenu au Royaume-Uni une décision déclarant l’ « unfair dismissal » et allouant des indemnités à ce titre (compensatory award), sont irrecevables ? Y a-t-il lieu à cet égard de distinguer entre les dommages-intérêts pour licenciement sans cause réelle et sérieuse qui pourraient avoir la même cause et le même objet que le « compensatory award », et les indemnités de licenciement et de préavis qui, en droit français, sont dues lorsque le licenciement est fondé sur une cause réelle et sérieuse mais ne sont pas dues en cas de licenciement fondé sur une faute grave ?

3°/ De même, les articles 33 et 36 du règlement n° 44/2001 du Conseil doivent-ils être interprétés en ce sens qu’ont la même cause et le même objet une action telle que celle en « unfair dismissal » au Royaume-Uni et une action en paiement de bonus ou de primes prévues au contrat de travail dès lors que ces actions se fondent sur le même rapport contractuel entre les parties ?

Saugmandsgaard Oe AG opined (no English version at the time of writing) last week in C‑242/20 HRVATSKE ŠUME on the classic conflict of laws issue of distinguishing contract from tort.. He, oddly perhaps, unless some technical reason for it escapes me, does not entertain the question on the scope of Article 24(5) Brussels Ia’s exclusive jurisdictional rule for ‘proceedings concerned with the enforcement of judgments’.

The Opinion is a Qualificationfest.

The case concerns actions for recovery of sums unduly paid, in other words, undue enrichment. This enrichment came about by a Croatian court having  earlier ordered Hrvatske Šume, debtor of  Futura, both of Croatia, to pay its debt to Futura directly to BP Europe SA, successor to Burmah Oil, both domiciled in Germany. Hrvatske appealed that order however that appeal did not halt the payment. Now that the appeal has turned out to be successful, Hrvatske want their money back yet so far Croatian courts have held that they do not have jurisdiction under Article 7(2) BIa (the case actually went under the the predecessor, Brussels I however there is no material difference).

As the referring court notes, there is no delicti commissi in the case of unjust enrichment: it is a non-contractual obligation in which no delict is committed. (This is the very reason Rome II includes a separate heading for unjust enrichment). One might suggest this would leave forum damni only under A7(2), however the AG correctly in my view re-emphasises the seminal statements in CJEU Kalfelis, that actions under A7(2) concern ‘all actions which seek to establish liability of a defendant  and which are not related to a ‘contract’ within the meaning of Article [7](1)’. Unjust enrichment not seeking to establish liability, A7(2) is not engaged. Along the way, note his discussion of linguistics and his seeking support in Rome II.

At 71 ff the AG distinguishes the wide interpretation of ‘establishing liability’ in CJEU Austro Mechana.

A clear implication of the Opinion is that it confirms a disjoint in BIa /Rome II: not all non-contractual obligations for which Rome II identifies a lex causae, are caught by A7(2) BIa’s forum delicti rule.

The AG also engages with the possibility of Croatia being forum contractus  (he kicks off his Opinion with this issue) and dismisses it, seeking support inter alia in CJEU Handte and also in Rome II specifically providing for an unjust enrichment heading. This part of the Opinion is more optimistically straightforward than one might have expected. Following flightright, Wikingerhof etc., A7(1) has been (unduly, in my view) stretched and it would be good to have the CJEU further clarifying same. (C-265/21, in which I have been instructed, might be just the case).

Geert.

EU Private International Law, 3rd ed. 2021, 2.419 ff.

Opinion Saugmandsgaard Oe this morning, C‑242/20 HRVATSKE ŠUME. Jurisdiction, Brussels Ia, concept of 'contract', delineation with A7(2) forum delicti. Actio pauliana. (In other words, a collection of old chestnuts).https://t.co/3R5qU9rvVn

— Geert Van Calster (@GAVClaw) September 9, 2021