Droit international général

The New York Convention of 1958 owes much of its success to being an international convention setting forth uniform rules. Its uniform enforcement regime not only lowers the parties’ transaction costs of identifying under which circumstances an award will be recognized and enforced across jurisdictions; it also ensures that States cannot justify the failure to comply with their obligations under the New York Convention by reference to domestic law. Still, the courts of different contracting States apply the Convention differently. Oftentimes, this is due to the erroneous understanding of concepts employed by the drafters of the Convention.

To shed the light on this complex matter, on 21 January 2021 the NYU Center for Transnational Litigation, Arbitration, and Commercial Law will host a conference on Autonomous v. Nationalistic Interpretation of the 1958 New York Convention. In this context, a group of internationally renowned scholars will address core issues such as: ‘Autonomous Interpretation of the New York Convention’ (Franco Ferrari); ‘The notion of an arbitral award’ (Burkhard Hess); ‘Arbitration agreement – Scope issues’ (Dennis Solomon); and ‘Arbitrability’ (Winnie Ma).

More information on this event is available here.

 

The new issue of the AJ Contrat (12/2020) Dalloz contains a special dossier to mark the 40th Anniversary of the United Nations Convention on Contracts for the International Sale of Goods (CISG), prepared by Gustavo Cerqueira, full professor at the University of Nîmes, France (in French).

The dossier foreword reads as follows (English translation): “The international sale of goods supports a peace project between Nations. Ninety-four of them share today the same body of substantive rules largely governing the formation and the performance of contracts for the sale of goods as diverse as wine and children’s toys. This uniform law is supported by the United Nations Convention concluded in Vienna on April 11, 1980 (the CISG), which celebrates in 2020 its forty years. This anniversary could not go unnoticed. Few are the instruments on international harmonization that are coming at the age of maturity with such unparalleled authority and vitality. In addition to the constant expansion of its geographical scope of application through the increasing number of accessions, its influence on modernization of certain domestic contract laws, such as the recent legislative reform passed in France, attests to its importance. This can also be measured by the always fascinating questions that arise regarding its existence, its content and its application. Some of them will deserve a sharp analysis, sometimes renewed by those who are participating in this commemorative dossier. Thus, crucial to the success of the Convention – the uniform interpretation remains a challenge, while European Union law recognizes an unexpected importance to the Convention. Also, the CISG’s application still seems to be threatened by the silence of the contractors, while the Convention has dangerous liaisons with the French action directe. The links are no less complex between the foreclosure period and the deadline prescription period, while interest rates reveal unresolved issues. Last but not least, poignant current events call for a reinterpretation of the notion of impediment to perform”.

The dossier contains the following articles (titles have been translated into English):

The challenge of uniform interpretation, by Claude Witz (Saarland University)

The CISG’s articulation with the European Union Law, by Cyril Nourissat (University of Lyon 3)

Back on the parties’ silence about the CISG’s application, by Gustavo Cerqueira (University of Nîmes) and Nicolas Nord (University of Strasbourg)

The Vienna Convention and the action directe:  back on dangerous liaisons, by Etienne Farnoux (University of Strasbourg)

The links between the foreclosure period and the deadline prescription period (about CISG’s Article 39), by Marc Mignot (University of Strasbourg)

The issue of interest rates on arrears, by Franco Ferrari (New York University)

For a reinterpretation of the concept of impediment to perform, by Ludovic Pailler (University of Lyon 3)

The full table of contents is available here (in French).

Sánchez-Bordona AG opined last week in C-913/19 CNP. The issue is whether a Polish court has international jurisdiction to rule on a dispute between a company to which a person injured in a road traffic accident that occurred in Poland had assigned his rights, and the insurance undertaking, established in Denmark, which insures the risks of the person who caused the accident. Krzysztof Pacula has interesting Polish context here. He also gives more background to the market and legal implications of involving third parties (such as garages repairing vehicles and providing replacement vehicles) and I am happy to refer to his analysis.

On applicable law and assignment, the EC has proposed rules which complement Rome I. That proposal is making its way through the Institutions, at snail’s pace. On jurisdiction, CJEU Hofsoe clarified one or two things but also created extra fog. The UKSC distinguished Hofsoe in Aspen Underwriting, not however without great effort and with continuing question marks. This really is an area which could do with co-ordinated Rome I and BIa legislative tweaking.

On the specific issue of branch jurisdiction, the case echoes Ryanair v DelayFix. The AG finalises his analysis on that question as follows:

 a commercial company established in a Member State which operates under a contract with an insurance undertaking established in another Member State may be classified as a ‘branch, agency or other establishment’ of that undertaking if, cumulatively:

–        it operates in a Member State by providing compensation for material damage on the basis of insurance against civil liability arising from the use of motor vehicles the risks connected with which are covered by the insurance undertaking;

–        it has the appearance of an extension of the insurance undertaking; and

–        it has a management body and material facilities such as to enable it to transact business with third parties, so that the latter, although knowing that there will if necessary be a legal link with the insurance undertaking, do not have to deal directly with that undertaking.’

Not of course a set of criteria which lead to much spontaneous predictability – again an issue which in the specific insurance context could do with statutory intervention.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.293 ff, para 2.73 ff.

Opinion Sanchez-Bordona in C‑913/19 CNP this morning the concept of 'branch' (for: branch jurisdiction) in Brussels Ia https://t.co/R0ubu9kTDE
with reference to ZX v Ryanair (on which see https://t.co/LPpDMQwMTE)

— Geert Van Calster (@GAVClaw) January 14, 2021

Marilyn Freeman (University of Westminster, London) has written an in-depth analysis on the Child Perspective in the Context of the 1980 Hague Convention at the request of the Committee on Legal Affairs (JURI Committee) of the European Parliament.

The abstract reads as follows:

This in-depth analysis, commissioned by the Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the Committee on Legal Affairs in the context of the Workshop to mark the 40th Anniversary of the Hague Convention on the Civil Aspects of International Child Abduction, examines the way in which subject children feature within Convention proceedings. It considers the aims of the Convention, and the lack of supranational control of its application. It draws on empirical research relating to the effects and consequences of child abduction to discuss the opportunities for children and young people to participate within Convention proceedings, and highlights the international obligations for such participation within the United Nations Convention on the Rights of the Child, The Charter of Fundamental Rights of the European Union, and other regional instruments. Different jurisdictional approaches are explained, and the role of culture in this context is probed. The impact of COVID-19 on abducted children is also explored.

Here’s an overview of the analysis.

The 1980 Hague Convention considers as paramount children’s interest in matters relating to their custody as well as their protection from the harmful effects of their wrongful removal or retention, and the procedures to secure their prompt return to the State of habitual residence. According to Article 12(1) of the Convention an abducted child under the age of 16 should be returned in less than one year since his/her wrongful removal or retention unless one of the limited exceptions to return under the Convention is established (see Articles 12(2), 13 and 20), and there are opportunities for children’s involvement in the far-reaching decisions which are taken in those proceedings.

The way in which these relevant provisions are interpreted and applied within the 101 Contracting States determine both the extent to which children’s rights are recognised and upheld under the Convention, as well as the success of the Convention in its aim of protecting children from the harmful effects of child abduction.

The present in-depth analysis relies on a small-scale qualitative study based on 34 interviews carried out by Professor Freeman (more about this can be read here). The empirical research sought to reveal more about ‘the lived experiences of those who had been through an abduction many years earlier’ and ascertain ‘whether, and how, the participants felt that the abduction had affected their lives, and if those effects had continued long-term’.

The results indicate that there is often still a lack of awareness by children and young people, and their families, about the opportunities to participate in the proceedings, as well as on how to ensure that their rights are recognised and protected. Furthermore, to observe the right of the children to benefit from meaningful opportunities to participate in the proceedings and prevent harm, it appears that a closer integration of children’s rights’ principles in the application of the Convention is desirable.

The impact of COVID-19 on children subject to abduction proceedings is also discussed. The international nature of these cases and the difficulties and limitations created by the pandemic meant that children had to spend an undesirable period after the decision waiting for return to be carried out. Additionally, a procedure of return can involve periods of quarantine, a situation that can exacerbate the child’s distress due to the separation from the abducting parent who may be a primary or joint primary carer and who may choose not to return with the child or be unable to do so. According to the analysis, the emotional effect of a return ordered in these circumstances may be very difficult for the child to manage. The remote conduct of return hearings can also create challenges for subject children and reflect on their decision about participating in a hearing that concerns them. According to Professor Freeman ‘children should have opportunities to express their views within abduction proceedings whether or not an objection to return has been raised, and regardless of whether or not the jurisdiction involved is governed by a regulatory regime, like Brussels IIa and the upcoming Recast, which specifically address the rights of children to be heard within a specific jurisdictional area’. Thus, to protect children from the harmful effects of child abduction, it is paramount to give children who wish to participate in the proceedings about their abduction the opportunity to be heard when the decision has the potential to impact significantly on their lives.

The analysis concludes that further discussions are necessary in this area as well as a ‘closer incorporation of children’s rights’ principles in the 1980 Convention framework’.

Yesterday, 18 January 2021, Singapore acceded to the HCCH Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, which will enter into force for Singapore on 16 September 2021.

Source: https://www.hcch.net/en/news-archive/details/?varevent=781

Soriano v Forensic News LLC & Ors [2021] EWHC 56 (QB) engages ia the jurisdictional implications of the GDPR (this post focuses solely on the data protection claim). Claimant  (habitually resident in the UK) sues in relation to ten internet publications and various social media postings including on Facebook and on Twitter. He relies on various causes of action including data protection, malicious falsehood, libel, harassment and misuse of private information. Defendants are all domiciled in various US States.

The Brussels Ia Regulation is not engaged; the GDPR is. (On the partial overlap and conflict between BIa and the GDPR see my paper here). A79 GDPR reads

“Right to an effective judicial remedy against a controller or processor

1. 1. Without prejudice to any available administrative or non-judicial remedy, including the right to lodge a complaint with a supervisory authority pursuant to Article 77, each data subject shall have the right to an effective judicial remedy where he or she considers that his or her rights under this Regulation have been infringed as a result of the processing of his or her personal data in non-compliance with this Regulation.
   2. Proceedings against a controller or a processor shall be brought before the courts of the Member State where the controller or processor has an establishment. Alternatively, such proceedings may be brought before the courts of the Member State where the data subject has his or her habitual residence, unless the controller or processor is a public authority of a Member State acting in the exercise of its public powers.”

At 45-47 the ‘establishment’ issue is not much discussed for the claimant at any rate meets with the habitual residence gateway. Focus of the discussion is on A3’s territorial scope provisions (I am not sure I agree with the suggestion at 46 that A79 logically comes before consideration of A3). Reference is made to Google Spain, Weltimmo and  Verein fur Konsumerentenininformation- see also my review with Yuliya Miadzvetskaya here. The European Data Protection Board’s Guidelines 3/2018 on the Territorial Scope of the GDPR are then turned to to consider targeting, processing and ‘related to’ per A3(2) GDPR.

At 60, Claimant’s case on A3 (2)(a) is set out as arguing that the Defendants, to the extent that they are data controllers, offer services to readers in the UK irrespective of payment. As for A3.2(b), it is contended that the website places cookies on readers’ devices and processes their personal data using Facebook and Google analytics for the purpose of targeting advertisements, with Facebook Ireland Ltd and Google Ireland Ltd operating as the registered joint data controller. Further, it is submitted (By Greg Callus – the same counsel as in the Court of Appeal judgment in Wright v Grannath which I reported yesterday) that the Defendants were collecting and obtaining data about the Claimant and were monitoring his behaviour within the UK and the EU with a view to making publishing decisions.

Justice Jay held claimant has no real prospect of success on either (a) or (b). At 64 ff: the ‘journalistic endeavour’ complained of is not oriented towards the UK in any relevant respect; as for article 3.2(a), there is nothing to suggest that the First Defendant is targeting the UK as regards the goods and services it offers; as for article 3.2(b), at 68

First Defendant’s use of cookies etc. is for the purpose of behavioural profiling or monitoring, but that is purely in the context of directing advertisement content. There is no evidence that the use of cookies has anything to do with the “monitoring” which forms the basis of the Claimant’s real complaint: the Defendant’s journalistic activities have been advanced not through any deployment of these cookies but by using the internet as an investigative tool. In my judgment, that is not the sort of “monitoring” that article 3.2(b) has in mind; or, put another way, the monitoring that does properly fall within this provision – the behavioural profiling that informs advertising choices – is not related to the processing that the Claimant complains about (assuming that carrying out research online about the Claimant amounts to monitoring at all).

(Obiter, at 69, it is held that had the good arguable case succeeded, the claim would have withstood a forum non conveniens argument).

At 112 ff the jurisdictional case for libel is upheld.

An interesting illustration of the unsettled nature of jurisdictional claims under the GDPR.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.9.2.5, para 2.258 ff.

 

#GDPR, jurisdiction, merits test and forum non
Claimant represented by @Greg_Callus
On the A79 GDPR issue discussed in the judgment, see my paper here https://t.co/bjIRmMejB3 https://t.co/FJEpJ3nOy2

— Geert Van Calster (@GAVClaw) January 15, 2021

 

He Qisheng, Professor of International Law, Peking University Law School, and Chairman at the Peking University International Economical Law Institute, has published the 7th Survey on Chinese Practice in Private International Law.

This survey contains materials reflecting the practice of Chinese private international law in 2019. First, this paper describes the judiciary’s caseload: Chinese courts decided some 17,000 foreign-related civil and commercial cases, 16,000 maritime cases and 9,648 requests for judicial assistance in 2019. Regarding changes in the statutory framework of private international law, four legislative acts, one set of Regulations and six Supreme People’s Court (SPC) Judicial Interpretations were adopted or amended in 2019 on investment contracts, action preservation in intellectual property, punitive damages, etc. Second, eight typical cases on jurisdictional issues are selected, including jurisdiction clauses, parallel proceedings, and res judicata. Third, seven new representative cases on choice of law relating, in particular, to international transport, force majeure, gambling debts and public order, are examined. Fourth, five cases on the recognition and enforcement of foreign judgments and one SPC Opinion in favour of presumed reciprocity are briefly examined. Finally, this paper also covers seven key cases which reflect the latest development in Chinese private international law on other procedural issues, such as service of process abroad and authentication, and three cases on international arbitration (including the first decision rendered by the China International Commercial Court).

Here are the links to the article:

·         Abstract:
https://academic.oup.com/chinesejil/advance-article-abstract/doi/10.1093/chinesejil/jmaa032/6032845

·         Article (free access):
https://academic.oup.com/chinesejil/advance-article/doi/10.1093/chinesejil/jmaa032/6032845?guestAccessKey=02dcf09b-8bd6-4af4-bc02-9bf523212c37

The European Association of Private International (EAPIL) will host its Second Virtual Seminar on 27 January 2021, 5 to 7 pm (MET). Devoted to the digital teaching of Private International Law and its challenges in Corona times, the Seminar will present tools that may help to improve the digital teaching of our discipline and discuss pervasive problems from the perspective of both professors/lecturers and students.

The Seminar will be structured into two parts. The first part will focus on the perspective of professors/lecturers and the challenges of teaching Private International Law in digital formats. Speakers will be Morten Midtgaard Fogt (University of Aarhus) and Marion Ho-Dac (Polytechnic University of Hauts-de-France, Valenciennes). The second part will take the students’ perspective and discuss different digital teaching tools. Speakers will include Susanne Lilian Gössl (University of Kiel), María-Asunción Cebrián Salvat, Isabel Lorente Martínez and Javier Carrascosa González (all three University of Murcia).

The Seminar will be held via Zoom. If you wish to join, please register here by 25 January 2021 at noon. Registered participants will receive the details to join the Seminar on 26 January 2021.

For more information regarding the Second EAPIL (Virtual) Seminar, please write an e-mail to Susanne Gössl at sgoessl@law.uni-kiel.de.

For information regarding the EAPIL Seminar Series as such please get in touch with the EAPIL Secretary General, Giesela Rühl, at secretary.general@eapil.org.

Background:

The EAPIL (Virtual) Seminar Series seeks to contribute to the study and development of (European) Private International Law through English-language seminars on topical issues. It will provide an easily accessible and informal platform for the exchange of ideas – outside the bi-annual EAPIL conferences. At the same time, it will serve as a means for EAPIL members to connect with other EAPIL members and non-members.

2021 will be a milestone for the International Commission on Civil Status (ICCS). Driven by a powerful internationalisation movement, the new internal regulation of ICCS entered into force on 1 January 2021.

I have interviewed Nicolas Nord, the Secretary General of ICCS, on the Commission’s work, functioning and challenges.

— Can you remind us what the ICCS is and the scope of its activities?

The ICCS is an international organisation created in 1949. The seat is in Strasbourg, in France. Its objectives are to facilitate international co-operation in civil-status matters and to further the exchange of information between civil registrars. A practical approach has always been privileged. The idea is to deal with concrete issues that arise in the daily activity of national authorities.

To achieve the general aims, the ICCS draws up normative instruments. 34 international conventions and 11 recommendations have been adopted till today. Comparative law studies are also carried out. The goal is always the same: harmonizing the provisions in force in the member States on matters relating to the status and capacity of persons, to the family and to nationality and improving the operation of civil-status departments in those States.

It materializes in different ways and has given rise to the creation of original methods. This is the case with multilingual civil status forms which allow any State authority to understand an act issued in another State Party, without having to face the problem of translation. It is an essential tool that also makes life easier for individuals. This is why Convention n° 16 has been so successful. It is in force in 24 States. Uniform acts such as certificates of matrimonial capacity (convention n° 20) or of life (convention n° 27) have also been created. There are the same in all the States parties. Another aspect is cooperation between authorities. Different conventions allow a direct international communication between the civil registrars. This allows for simplified updating of civil status documents in the various States Parties (convention n°3, 23 and 26).

The ICCS also compiles and keeps up to date a documentation on legislation and case-law setting out the law of the member States on the matters falling within its field of competence and provides, on the basis of that documentation, information to the national authorities.

— The ICCS recently adopted a new internal regulation. Can you tell us more about it?

The will of the member States is to modernize the organisation, to adapt it to new challenges and to make it more attractive. Some essential reforms have thus been introduced. Three examples may be given. English becomes the second official language of the organisation, alongside French. Membership is no longer reserved for states but also open, from now on, to any international organisation, any regional economic integration organisation and any other international entity. Membership procedure has been simplified. An approval by the General Assembly is the only requirement.

— What’s in it for the European Private International Law community?

The birthplace of ICCS is in Europe. Most of our members are European. Our instruments are in force in many European countries, although there is of course no geographical limitation. Our desire by introducing a second official language is to allow non-French speaking countries, European or not, to join us in order to work together. We also want to allow the EU to join us.

We have been working with the European Commission for many years now. The cooperation agreement between our two institutions was concluded in 1983. The adoption of the “public documents” regulation, now in force, clearly reflects this cooperation since the methods invented by the ICCS, such as multilingual forms or the coding of civil status forms, have been used in it. However, the instruments of the EU and the ICCS now coexist in Europe. It is a source of complexity and is not always well understood by practitioners. That is why we would like to strengthen our links with the EU.

— Some scholars have recently expressed their worries about the future of the ICCS (here). What do you think?

We fully understand their concern. It is a reaction to the surprising withdrawal of France. There is a risk of disappearance of the organisation if all the States adopt the same attitude of course.This would be prejudicial for the States themselves and for the practitioners of civil status. The reform of the ICCS internal regulation is precisely a reaction to such concerns, in order to make the organisation more attractive and to ensure its sustainability. Our wish is to convince new member states, new international entities to join us and to allow a return of our former members. 

— What are the ICCS’ work forecasts and challenges ahead?

 In September 2021, we are organising a conference on our flagship convention, the convention n° 16. Our wish is to establish a kind of diagnosis and to see what works well, gives satisfaction to the practitioners but also to detect the problems which appeared since 1976, date of its adoption. This is an exciting prospect. Having such feedback will be very enriching, both for the States Parties, the civil registrars and the organisation itself.

In addition to working on the substance of the matter, we want to make our organisation known, highlight its instruments which have demonstrated their effectiveness in practice and convince new States and international organisations to join us, by becoming members or by adopting our instruments.

As a conclusion, I would like to thank Nicolas for the very interesting light he has shed on the ICCS central mission for States and regional organisations such as the European Union to pursue and perhaps even step up their work on the key-issue of civil status for mobile citizens. Let us wish that the ICCS’ makeover will lead to a greater European and international cooperation in the field of civil status in the near future!

Please note that Nicolas is available to answer any questions that fellow blog readers may have on the ICCS.

Digital teaching formats have been in discussion since they became technically possible. Nevertheless, in law and Private International Law, they never became the standard until spring 2020, when Covid-19 led to a general closure of university buildings in many countries. Thus, universities were forced to switch from in-class teaching to digital formats.

As in general teaching Private International Law already is a challenging task, the digital format does not make things easier. Private International Law faces the problem that it is a very abstract field. Therefore, for teachers it is even more paramount than in other fields to revise and ascertain that the content reaches the students in the correct ways and does not get lost in the communication process.

EAPIL takes this finding as an occasion to devote its Second Virtual Seminar to the digital teaching of Private International Law and it challenges in Corona times. The aim of the Seminar is twofold. First, it will discuss and present tools that may help to improve the digital teaching of our discipline, in particular, by making it more “present” and interactive. Second, it will compare problems and approaches from the perspective of both professors/lecturers and students.

The Seminar will be structured into two parts. The first part will focus on the perspective of professors/lecturers and the challenges of teaching Private International Law in digital formats. Speakers will be Morten Midtgaard Fogt (University of Aarhus) and Marion Ho-Dac (Polytechnic University of Hauts-de-France, Valenciennes). The second part will take the students’ perspective and discuss and present different digital teaching tools. Speakers will include Susanne Lilian Gössl (University of Kiel), María-Asunción Cebrián Salvat, Isabel Lorente Martínez and Javier Carrascosa González (all three University of Murcia).

The Seminar will take place on 27 January 2021 from 5 to 7 p.m. (MET) via Zoom.

If you wish to join, please register here by 25 January 2021 at noon. Registered participants will receive the details to join the Seminar on 26 January 2021.

The Seminar’s programme is as follows:

5:00 p.m.
Opening and Introduction
Susanne Gössl

— PART ONE

5:10 p.m.
Digital Teaching of Private International Law – The Danish Perspective
Morten Midtgaard Fogt

5:20 p.m.
Digital Teaching of Private International Law – The French Perspective
Marion Ho-Dac

5:35 p.m.
Discussion

— PART TWO

5:55 p.m.
Digital Teaching of Private International Law – the Students’ Perpective
Susanne Gössl

6:10 p.m.
Experiences with Certain Tools

“Presence” in Digital Teaching of Private International Law
María-Asunción Cebrián Salvat

Tools to Support Digital Teaching of Private International Law
Isabel Lorente Martínez

Good Things from a Bad Time: Open Experiences in Private International Law Digital Teaching
Javier Carrascosa González

6:35 p.m.
Discussion

7 p.m.
Conclusions

For more information, please write an e-mail to Susanne Gössl at sgoessl@law.uni-kiel.de.

Wright v Granath [2021] EWCA Civ 28 is not the only litigation involving Mr Wright, defamation and bitcoin gossip: see my review of Wright v Ver [2020] EWCA Civ 672 (judgment to which Popplewell LJ refers for connections between Mr Wright and the UK) here. The judgment appealed here is Wright v Granath [2020] EWHC 51 (QB). Jurisdictional grounds evidently include the CJEU case-law right up to Bolagsupplysningen.

The title of this post is courtesy of Greg Callus, one of counsel for the claimant.

Defendant, Magnus Granath, is a citizen of Norway, resident in Oslo. He has tweeted on various technology issues, including cryptocurrencies, and has an interest in Bitcoin and its development. He believes that Dr Wright’s claim to be Satoshi Nakamoto (the developer of bitcoin) is false, a statement that was also tweeted at the since deleted @Hodlonaut account. By 15 May 2019 Dr Wright’s advisers thought they had identified Mr Granath as the owner of the @Hodlonaut account, and sent a further letter via Facebook and LinkedIn seeking confirmation. The letter was served by hand on Mr Granath on 20 May 2019. Meanwhile on the previous day, 19 May 2019, Mr Granath issued proceedings in the Oslo District Court seeking in effect a declaration of non-liability aka NDR: Negative Declaratory Relief: a classic (and as Popplewell LJ justifiably suggests, CJEU-blessed) flip side of the coin action to avoid jurisdiction of the English courts. 

It is common ground that the Norwegian court was first seised. Jurisdiction was accepted by the Norwegian courts right through to the Supreme Court (talk about speedy proceedings: within a year the jurisdictional issue was considered at first instance, appeal and SC) on the basis that the relief sought was “global” in the sense that it was not limited to any harm or loss suffered in Norway, and that A5(3) Lugano was applicable because the “harmful event” occurred in Norway, that being where Mr Granath lived and published the tweets (locus delicti commissi).

CJEU Gubish Machinenfabrik and The Tatry clarify for the English version of Brussels I hence also of Lugano (assuming the requirement of parrallel interpretation of the lis alibi pendens rule) what was already clearer in other language versions:  A27 Lugano requires three identities: identity of parties; identity of object or ‘ subject-matter ’; and identity of cause.

In the establishment of identity of cause of action, the ‘ cause of action’ comprises the facts and the rule of law relied on as the basis of the action (CJEU Gubbisch). 

Coming then to the decision, Popplewell J dissented, with Singh LJ and Moylan LJ allowing the appeal. At 41 ff Popplewell J discusses the cause of action criterion, with the core at 48-49: he identifies two core differences between the English and the Norwegian claims: 

there are two differences between the English and Norwegian Claims whose significance requires examination. The first is that the Norwegian Claim identifies negligence as a necessary ingredient of liability under Norwegian law, and asserts the absence of negligence on Mr Granath’s part. This gives rise to the possibility that Mr Granath could succeed in Norway on a basis that would not be inconsistent with liability to Dr Wright in England under English law: if the Norwegian Court were to hold that the tweet was untrue because Dr Wright is Satoshi Nakamoto, and there was no defence of lawfulness by way of public interest or freedom of expression, but that Mr Granath was entitled to his declaration on the grounds that although the tweet was wrong it was not negligently so, Dr Wright would have established all the ingredients of an English law defamation claim. However the consequence of the Court now declining jurisdiction under article 27 would be to preclude him from pursuing that English law claim or obtaining the relief it would provide.

The second difference between the claims is that were Mr Granath to fail in full in Norway, the relief available there to Dr Wright by way of counterclaim would not be co-extensive with that available in a successful English law claim. It would not include a s.12 statement; and it might not include an injunction. I say “might not” because it was in dispute as to whether that was so. Dr Wright sought to adduce expert evidence of Norwegian law before the Judge below, but permission was refused on the grounds that it came too late, with the result that there was no relevant evidence of Norwegian law or practice before the Court. Mr Tomlinson asserted that an injunction must be available in Norway as an effective remedy guaranteed by the EU Charter, but later confirmed that Norway was not a signatory to the Charter and not bound by it. He submitted in the alternative that such relief would be available as part of Dr Wright’s article 8 rights under the European Convention on Human Rights, but that is not self-evident to me and the point was not explored in argument. I shall assume for the purposes of my analysis that an injunction is not available in Norway because for the reasons explained below I do not regard any such unavailability as precluding the application of article 27.

At 51 ff, Popplewell J’s important take-aways from Gubisch, are that  when considering objet, the search is not for complete identity, but for identity on a question “which lies at the heart of” the two actions. Same does not mean same. The two claims need not be “entirely identical” (at 55). And at 56 that there can be the necessary identity of cause without complete identity of legal issues in the two sets of proceedings. Here too same does not mean same.

Further precedent is considered extensively (much of it discussed on the blog) leading to summary of the principles at 90 and application in fact at 93 ff: Popplewell J would have held that the claims have the same cause and the same objet and that A27 Lugano requires the EN claim to be dismissed.

At 99 ff he dismisses the argument,  which was encouraged (wrongly in my view, as readers know) by Vedanta and EuroEco, that the application of A27 to Mozaic claims as here, be an abuse of EU law. There is no authority to suggest that A27 is inapplicable to defamation claims, and no sound reason for restricting its applicability, and on this Singh LJ and Moylan LJ agree.

Of note is that Popplewell LJ is spot on at 101 where he says

in any tort claim in which article 5(3) confers a choice of jurisdiction on the claimant for a global claim, the choice is equally conferred on a defendant by way of an NDR claim; in each case the option is circumscribed by the simple and automatic mechanism (per Gantner paragraph 30) in article 27 of who starts first. That is not an abuse of the regime established by the Convention, but rather its implementation.

Singh LJ and Moylan LJ allowed the appeal, however: Moylan LJ for the majority summarises at 160 ff, largely on the basis of the same authority as that discussed by Popplewell (with The Alexandros at the core). At 168:

Although I agree with Popplewell LJ when he says, at paragraph 81, that irreconcilability may be a helpful tool in evaluating whether the article 27 test is met, the potential for conflicting decisions will not determine whether the causes of action are the same.

I should like to refer to the litmus test proposed by Adrian Briggs and applied eg in Awendale: whether a decision in one set of proceedings would have been a conclusive answer in the other. If it would, then there is identity of cause of action.

The appeal is allowed, the case may continue in E&W – clearly irreconcilability at the recognition stage might still be an issue.

Should the UK be successful in its Lugano accession attempt, this case will be crucial authority post The Alexandros. In the alternative, it will be among the last echoes of Lugano in the E&W courts.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.15.1.

Lis alibi pendens, Lugano, defamation claims
Held: A27 does not apply because the proceedings in Norway and the proceedings in England do not involve the same cause of action. https://t.co/1pijVLyvib

— Geert Van Calster (@GAVClaw) January 15, 2021

Burkhard Hess (Max Planck Institute, Luxembourg) has published the second edition of his treatise on European Civil Procedural Law (Europäisches Zivilprozessrecht).

The English abstract of the book reads:

The book explores the European law of civil procedure from a systematic and dogmatic perspective by comprehensively assessing and providing a detailed explanation of all the instruments adopted in this area of the law. Based on the case law of the Court of Justice of the European Union (CJEU), the book expounds on the legislative powers of the European Union (EU), the different regulatory levels of European procedural law, its underlying concepts and legislative techniques. Against this background, it addresses the interfaces of the European law of civil procedure with the civil procedures of the EU Member States and the judicial cooperation with third States. 

This treatise also focusses on latest developments such as the protection the independence of the judiciary and of the rule of law in the Member States of the EU. Moreover, it tackles alternative dispute resolution and arbitration, as well as the latest policy of the European Commission in the digitization of national justice systems. To further contextualize the development of the European law of civil procedure, it also provides the reader with a thorough understanding of preliminary reference procedures before the CJEU. In its final chapter, it addresses the current policy debate towards a European code of civil procedure.

This reference book is an essential reading for academics, regulators, and practitioners seeking reliable and comprehensive information about the European law of civil procedure. It also addresses trainee lawyers and students interested in cross-border litigation and dispute resolution, as well as those who wish to specialize in European business law.

More information is available here.

Issue 1/2021 of RabelsZ is now available online! It contains the following articles:

 

Reinhard Zimmermann (Hamburg): Zwingender Angehörigenschutz im Erbrecht ­- Entwicklungslinien jenseits der westeuropäischen Kodifikationen (Mandatory Family Protection in the Law of Succession), RabelsZ 85 (2021) 1–75 – DOI: 10.1628/rabelsz-2020-0092

Following on from an earlier contribution devoted to the development of the notions of forced heirship and compulsory portion, this contribution pursues the development of mandatory family protection for legal systems beyond the West European codifications: in postsocialist countries of Central and Eastern Europe, in Nordic states, in South and Central American codifications, and in countries without a code of private law, i.e. England and the legal systems originally based on English law. An interesting panorama of different solutions thus presents itself, in particular legal systems operating with fixed shares in the estate, those making available a fixed share only in cases of need, those awarding asum substituting for maintenance claims, or those turning the claim of the closest relatives into a discretionary remedy. Overall, an observation made in the previous essay is confirmed: a tendency towards achieving greater flexibility in legal systems traditionally operating with fixedshares. The concept of family provision originating in New Zealand, while providing a maximum degree of flexibility, cannot however serve as a model to be followed. The question thus arises whether maintenance needs are the criterion balancing legal certainty and individual justice in the comparatively best manner.

  

Florian Eichel (Bern): Der „funktionsarme Aufenthalt“ und die internationale Zuständigkeit für Erbscheinverfahren (International Jurisdiction in Simple Succession Cases with an “Habitual Residence of Minor Significance”), RabelsZ 85 (2021) 76–105 – DOI: 10.1628/rabelsz-2020-0093

In order to prevent inefficient parallel proceedings in international succession cases, the EU Succession Regulation concentrates jurisdiction in a single Member State. In the Oberle case (C-20/17), the ECJ decided that this jurisdiction also extends to non-contentious proceedingsregarding the issuance of certificates of succession. In cases in which the deceased had moved abroad late in life, this could lead to a “remotejustice”, as the certificate of succession would have to be issued there, even when the heirs and the assets are located in another MemberState. This concerns in particular non-contentious succession cases which are of a simple nature, but such cases were not in the focus of lawmakers. The article shows that the Succession Regulation crafts solutions so as to avoid “artificial jurisdictions”. Whereas a flexibledetermination of the habitual residence is not a viable solution, there is room to allow proceedings in the Member State whose law isapplicable by way of exception and thus to establish jurisdiction in that state. In the cases WB (C-658/17) and EE (C-80/19), the ECJ hasshown another way of dealing with these cases and thereby enabling a citizen-friendly way of treating international succession cases.

  

Leonhard Hübner (Heidelberg): Die Integration der primärrechtlichen Anerkennungsmethode in das IPR (The Primary Law Recognition Method and Its Integration into Private International Law), RabelsZ 85 (2021) 106–145 – DOI: 10.1628/rabelsz-2020-0094

Since Savigny, private international law (PIL) has been chiefly shaped by the referral method. More recently, EU primary law has appeared on the scene as a rival that threatens to override the traditional system as a result of the influence that the fundamental freedoms and the freedom of movement have on PIL. This can be observed in the case law of the ECJ dealing with the incorporation of companies and names as personal status rights. The ECJ has determined certain results based on EU primary law without touching upon the (national) conflict rules. This “second track” of determining the applicable law was already labelled as the recognition method almost twenty years ago. According to previous interpretations of case law, it is limited to the two areas of law mentioned above. In particular, controversial topics in the culturallysensitive area of international family law, such as the recognition of same-sex marriages, are according to the prevailing opinion not coveredby the recognition method. However, various developments, such as the ECJ’s Coman decision and the discussion on underage marriage in German PIL, raise doubts as to whether this purported limitation is in line with the integration concept of EU primary law. The questiontherefore arises as to how a meaningful dovetailing of conflict-of-law rules and EU primary law can be achieved in PIL doctrine.

  

Christiane von Bary / Marie-Therese Ziereis (München): Rückwirkung in grenzüberschreitenden Sachverhalten: Zwischen Statutenwechsel und ordre public (Retroactive Effect in International Matters, Change of the Applicable Law, and Public Policy), RabelsZ 85 (2021) 146–171 – DOI: 10.1628/rabelsz-2020-0095

While German law does provide for a detailed differentiation as regards retroactive effect in the domestic context (II.), retroactivity has rarelybeen discussed in transnational cases relating to civil matters. The national solutions cannot generally be transferred to the international level; instead, it is crucial to rely on the methods of private international law – in particular rules dealing with a change of the applicable law and withpublic policy. German private international law largely prevents retroactive effects from occurring through the methodology developed for dealing with a change of the applicable law (III.). Distinguishing between completed situations, ongoing transactions and divisible as well as indivisible long-term legal relationships, it is possible to ensure adherence to the principle of lex temporis actus. If the retroactive effect iscaused by foreign law, it may violate public policy, which allows and calls for an adjustment (IV.). When determining whether a breach of publicpolicy occurred in a case of retroactivity, it is necessary to consider the overall result of the application of foreign law rather than just the decision as to which foreign law is applicable. For guidance on whether such a result violates public policy, one has to look at the national principles dealing with retroactive effect.

 

The author of this post is Lorenzo Acconciamessa, a PhD student at the University of Palermo and a teaching assistant at the Catholic University of the Sacred Heart in Milan.

By a ruling of 4 November 2020, the Italian Constitutional Court declared that the combination of Italian rules precluding the formation of a child’s birth certificate that mentions two women as mothers is not at odds with the Italian Constitution. However, it acknowledged that the Constitution does not preclude the Parliament from reforming such rules and, therefore, from allowing the formal and direct recognition of same-sex parenthood in Italy.

The Facts

The case concerned a same-sex couple of Italian nationals who had entered into a registered civil union in Italy and had decided to have a child. However, provided that the Italian Statute on Medically Assisted Procreation precludes same-sex couples from resorting to such practice in Italy, they went abroad, where one of them conceived a child. Then, they went back to Italy, where the biological mother gave birth to the child. The Registrar of the Municipality dismissed their request to have the intended mother indicated as parent in the birth certificate and, accordingly, the latter only mentioned the biological mother.

The couple asked the Tribunal of Venezia to rectify the birth certificate, since they wanted both of them be mentioned. However, the Tribunal acknowledged that the legislation in force in Italy does not allow for such a ruling. In particular, it considered that the prohibition of direct recognition of same-sex parenthood arises from the combined application of the Italian Statute on same-sex partnerships and the Regulation concerning the Registry of births and deaths, as interpreted in the light of the above-mentioned prohibition to access to medically assisted procreation.

The Question Submitted to the Constitutional Court

According to the Tribunal, such combination of norms is at odds with the Italian Constitution and with some rules of international human rights law, namely those stipulated in Articles 8 (right to private and family life) and 14 (prohibition of discrimination) of the European Convention on Human Rights, Article 24, paragraph 3 (right to a relationship with both the child’s parents), of the Charter of Fundamental Rights of the European Union, and Article 2 (right to equality and non-discrimination) of the UN Convention on the Rights of the Child.

In a previous post in this blog I have explained that, under Article 117, paragraph 1, of the Italian Constitution, as interpreted by the Constitutional Court, international treaties in force for Italy cannot be derogated from through legislation. Thus, domestic legislation inconsistent with an international obligation of Italy must be considered to be unconstitutional and declared void.

In the Tribunal’s view, the result of the combined application of the said rules violates the parents’ and the child’s fundamental rights. As for the formers, it breaches their right to parenthood and to procreation, as well as the prohibition of discrimination on grounds of sexual orientation and financial status. As a matter of fact, if the couple had the possibility of giving birth to the child abroad, they would had the right to obtain the record of the foreign birth certificate mentioning both of them as parents, pursuant to the case-law of the Italian Supreme Court (which refers to same-sex female couples, not same-sex male couples). As for the child, the Tribunal considered that the latter’s best interests demand the parental relationship be established with the biological and the intended mother.

The Ruling

The Constitutional Court considered that the non-recognition of same-sex parenthood is not at odds with the Italian Constitution, nor with the international human rights norms invoked by the Tribunal: it does not violate the parent’s and/or the child’s fundamental rights.

Those instruments, in the Court’s view, do not guarantee a right to become parents, nor a right to same-sex parenthood. At the same time, given the natural infertility of same-sex couples, limiting their access to parenthood does not involve an illegitimate form of discrimination and falls within the State’s margin of appreciation, as established by the European Court of Human Rights (ECtHR) in the 2019 Advisory Opinion.

In this regard, it should be considered that in 2018 the ECtHR had the opportunity to rule on same-sex couples’ right to access to medically assisted procreation. It dismissed the case on admissibility grounds, given that the applicants had not exhausted the domestic remedies provided for by the French legal order (Charron and Merle-Montet v. France). Therefore, in the view of the subsidiarity principle, the ECtHR held that domestic courts should have had the possibility to rule on the matter.

The (in)admissibility decision, however, does not exclude that the ECtHR could rule in the future that Articles 8 and 14 of the ECHR do require to allow same-sex married couples to have access to medically assisted procreation at the same conditions than heterosexual couples.

It remains that, according to the Constitutional Court, the right to same-sex parenthood is not currently recognized as a fundamental right and, therefore, cannot be invoked for declaring void the domestic rules allegedly violating it. On the other hand, the Constitutional Court admitted that the Constitution and international human rights law do not preclude Italy from recognizing that right. Nevertheless, provided that it is a sensitive issue involving a delicate balancing of interests, it falls within the Parliament’s exclusive margin of appreciation.

As for the best interests of the child, the Constitutional Court recognized that it is true that Italy has a duty to recognise the relationship between the child and the intended mother. However, provided that the conditions established by the ECtHR in the above-mentioned Advisory Opinion are fulfilled (namely, (i) effective recognition of the relationship, (ii) rapidity and (iii) assessment of all the relevant circumstances in the child’s best interests), the State enjoys a wide margin of appreciation in choosing the legal instrument for establishing such relationship.

The Constitutional Court considered, again, that Article 44, paragraph 1, of the Italian Statute on Adoption allows the intended mother to adopt her partner’s child. The so-called “adoption in particular cases”, however, does not create a full parent-child relationship from a legal point of view.

In my view, the Court failed to take into consideration the recent developments in the ECtHR’s case-law, notably as expressed in its recent ruling in the D. v. France case. In that case, the ECtHR concluded that Article 8 had not been violated precisely because the French legal order allows the intended mother to apply for the full adoption of the partner’s child. Even in this regard, however, the Constitutional Court concluded that a “different and wider protection of the child’s best interest” would be constitutionally legitimate, and that therefore the Parliament could reform – in the exercise of its own political discretion – the current legislation with the view of allowing the full-establishment of the relationship between the intended mother and the child.

Conclusion

The Constitutional Court did not rule, as the Tribunal had asked, that the recognition of same-sex parenthood is required by the Italian Constitution and international human rights law. The Court merely recognized that, in any case, neither the Constitution nor international human rights law prohibit same-sex parenthood. It remains to be seen whether the Parliament, in the exercise of its political discretion will decide to reform the current legislation in Italy concerning those issues.

Despite the timid recognition of the (hypothetical) constitutional legitimacy of same-sex parenthood, the Constitutional Court opted for exercising its self-restraint in favour of the legislator. It seems that the Court is not ready to rule on such sensitive and ethical issues.

In the meantime, the Court has announced that on 27 January 2021 it will hold a public hearing in the case concerning the constitutional legitimacy of the Italian rules of private international law (currently) precluding the recognition of a foreign birth certificate attesting the existence of a parent-child relationship between a child born abroad by resorting to gestational surrogacy and his intended parent.

Will the Court continue to exercise its self-restraint approach?

This Thursday, Advocate General Campos Sánchez-Bordona presented his Opinion in the case CNP, C-913/19. In this case, a Polish court asks the Court of Justice to interpret the special jurisdictional rules in matters relating to insurance contained in Section 3 of Chapter II of the Brussels I bis Regulation, in conjunction with Article 7(2) and (5) of that Regulation.

At the request of the Court, the Opinion focuses on the interpretation of the notion of “branch, agency or other establishment” within the meaning of Article 7(5) of the Regulation. However, as it results from point 3 of the Opinion, the future judgment of the Court will supplement its case-law pertaining to the aforementioned Section 3, complementing in particular the judgment in Hofsoe.

Context of the request for a preliminary ruling

In the judgment in Hofsoe, the Court of Justice answered the question of a Polish referring court by stating, in essence, that Articles 11 and 13(2) of the Brussels I bis Regulation cannot be relied on by a natural person, whose professional activity consists, inter alia, in recovering claims for damages from insurers and who relies on a contract for the assignment of a claim concluded with the victim of a road accident, to bring before a court of the Member State in which the injured party is domiciled a civil liability action against the insurer of the person responsible for that accident.

The judgment in Hofsoe clarified the issue of great relevance (not only) for Polish legal practice and scholars. In Poland, at least since 2011, in the wake of the Supreme Court case-law, the number of disputes pertaining to the recovery of an amount corresponding to the rental payment for a replacement vehicle from the insurer covering the civil liability of the person responsible for a road accident has been increasing. This case-law clarified, in essence, that the insurance coverage provided under a compulsory motor insurance policy covers purposeful and economically justified expenses pertaining to the rental of a replacement vehicle.

The market reacted. In practice, the owner of a damaged vehicle who rented a replacement vehicle for the duration of the vehicle repair period could quite commonly, instead of making the rental payment, assign a claim against the insurer of the person responsible for the accident to a professional (automobile repair workshop, vehicle rental company or professional whose activity consists in recovering claims for damages from insurers etc.). The professional would claim an amount corresponding to the rental payment from the insurer and the owner could use the replacement vehicle without having to make any payment.

In the European Single Insurance Market it was only a question of time before the national courts had to settle similar disputes in cross-border context. In fact, the request for a preliminary ruling in the case Hofsoe originated from one of such disputes. Here, the preliminary question resulted from the fact the Section 3 (“Jurisdiction in matters relating to insurance”) aims to guarantee more protection to the weaker party (policyholder, insured, beneficiary and –  where a direct action is permitted – injured party) than the general rules of jurisdiction provide for. It was, thus, necessary to establish whether an assignee being a professional in the insurance sector can be considered as a weaker party.

Unsurprisingly, the case CNP, C-913/19 also derives from proceedings before a Polish court, where the applicant relies on a contract for the assignment to bring an action against the insurer of the person responsible for a road accident.

Facts in the main proceedings

A vehicle owned by an individual is damaged in a road accident provoked by another person insured against civil liability in respect of the use of motors vehicles under a contract concluded with an insurer established in Denmark. As we learn from point 17 of the Opinion, the road accident occurs in Poland.

For the duration of the vehicle repair period, its owner concludes a contract with an automobile repair workshop under which a replacement vehicle is rented in return for payment. Instead of making the rental payment, the owner assigns to the automobile repair workshop the future claim against the aforementioned insurer.

Subsequently, the automobile repair workshop assigns that claim to CNP, a liability limited company established in Poland.

CNP sends a request for payment of the rental amount to a limited liability company (“Polins”) established in Zychlin, Poland, which represents the interests of the Danish insurer as a foreign insurance undertaking in Poland. The adjustment of the insurance claims is supposed to be dealt with by another Polish limited liability company (“Crawford Polska”), acting on behalf of the insurer. Crawford Polska informs CNP that an action against the Danish insurer can be brought “either pursuant to provisions on general jurisdiction or before a court competent for the place of residence or seat of the policyholder, insured party, beneficiary or another person entitled under the insurance contract”.

Failing to obtain full payment of the rental amount, CNP brings an action against the Danish insurer before a Polish court. It argues that this court has jurisdiction to hear the case because, according to the information made public by the insurer, its main representative in Poland (Polins) has its seat in Zychlin.

The insurer argues that the claim should be rejected due to the lack of jurisdiction of the Polish court. This court decides to refer three question for a preliminary ruling.

Considerations of the referring court on the preliminary questions Distinguishing the present case from the case Hofsoe

The referring court indicates that some factual elements distinguish its request for a preliminary ruling from that previously referred in the case Hofsoe. It notes that, in the present case, the defendant engages in insurance activity in Poland, while the case Hofsoe concerned a German insurance undertaking which was liable for the damage caused by a German national, and the road traffic incident in question occurred in Germany. It does not explicitly state how these differences should affect the interpretation of the Brussels I bis Regulation.

Regardless, in the case Hofsoe, the owner of the damaged vehicle seemingly assigned the claim against the insurer directly to the applicant in the main proceedings, who the Court characterised as “professional in the insurance sector” (see points 42 and 43 of the judgment in Hofsoe). In the present case, the claim was first assigned to the repair workshop and then by this repair workshop to CNP. Against this background, it stems from the request for a preliminary ruling that the applicant argues that the refusal to recognise jurisdiction of the Polish courts will result in automobile repair workshops refusing to carry out repairs or in customers having to cover the costs themselves. It seems that this argument is based on the assumption that “repair” costs cover also the expenses pertaining to the rental of a replacement vehicle and that the assignment of insurance-related claims offers additional protection to the persons considered as weaker parties in matters relating to insurance. However, in the wording of the preliminary questions, this twofold assignment is not explicitly mentioned – the first question concerns “a [professional] having acquired [a claim] from an injured party”.

In its request for a preliminary ruling, the referring court also points out that while Denmark did not take part in the adoption of the Brussels I bis Regulation, it notified its decision to apply the content of the Regulation.

Interplay between first and second question

As mentioned above, in his Opinion, AG Campos Sánchez-Bordona addresses the second preliminary question pertaining to the interpretation of Article 7(5) of the Brussels I bis Regulation.

The referring court considers that the second question should be analysed only if the first question is answered in the affirmative.

By its first question, the referring court is asking, in essence, whether – taking into account Articles 10 and 13(2) of the Brussels I bis Regulation – the applicant in the main proceedings is not barred from relying on Article 7(2) and Article 7(5) of the Regulation.

It seems that, by this question, the referring court seeks to establish whether an action can, as to its substance, fall within the scope of the Section 3 (“matters relating to insurance”), yet the applicant bringing that action and being a professional could be barred from relying on the rules on jurisdiction provided for in Articles 10 and 13(2) of that Section (as he is not a “weaker party”) and also from relying on the rules on jurisdiction of the Section 2 (because an action in matters relating to insurance is covered exclusively by the Section 3).

In fact, while the referring court seems not to entertain that interpretation, it notes that wording of Article 10 of the Brussels I bis Regulation could support it (“in matters relating to insurance, jurisdiction shall be determined by the Section 3, without prejudice to Article 6 and aforementioned Article 7(5)”). This reference could be read in the light of the terms of Article 13(2), according to which Article 10 shall apply to actions brought (only) by the “injured party” directly against the insurer.

The referring court notes that its doubts are also inspired by Article 12 of the Regulation (“In respect of liability insurance or insurance of immovable property, the insurer may in addition be sued in the courts for the place where the harmful event occurred”). This court wonders whether this provision would not be superfluous if Section 2 and its Article 7(2) were applied in parallel with it.

Opinion of AG

By the second question, addressed by AG at the request of the Court, the referring court is asking whether a company operating in a Member State which adjusts losses under compulsory insurance against civil liability in respect of the use of motor vehicles pursuant to a contract with an insurer established in another Member State is this insurer’s “branch, agency or other establishment” within the meaning of Article 7(5) of the Brussels I bis Regulation.

At the outset is it worth observing that, regardless of the applicant’s position, the referring court seems to consider that Crawford Polska (and not Polins) is the relevant entity for the purposes of Article 7(5) of the Regulation. At points 53 – 58 of his Opinion, AG clarifies the issue and proceeds on that premise.

Next, at points 59 – 68, AG analyses whether the criteria established by the Court in its case-law and required to consider that the relevant entity is a “branch, agency or other establishment” are met.

Finally, at points 69 – 112, AG delves into the relation between Article 7(5) of the Regulation, on the one hand, and the Directive 2009/138/EC on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II), on the other hand.

Ultimately, at point 113, AG proposes to answer the second question by considering:

“Article 7(5) of [the Brussels I bis Regulation] must be interpreted as meaning that a commercial company established in a Member State which operates under a contract with an insurance undertaking established in another Member State may be classified as a ‘branch, agency or other establishment’ of that undertaking if, cumulatively:

it operates in a Member State by providing compensation for material damage on the basis of insurance against civil liability arising from the use of motor vehicles the risks connected with which are covered by the insurance undertaking;

it has the appearance of an extension of the insurance undertaking; and

it has a management body and material facilities such as to enable it to transact business with third parties, so that the latter, although knowing that there will if necessary be a legal link with the insurance undertaking, do not have to deal directly with that undertaking.”

Instead of presenting an extensive synthesis of the Opinion, it is best to recommend giving it an attentive lecture. As it stems from 36 of the Opinion, it provides guidance not only in the insurance-related contexts, but also in other instances where the application of Article 7(5) of the Brussels I bis Regulation comes into question.

Advocate General Campos Sánchez-Bordona delivered today his opinion in case C‑913/19 (CNP spółka z ograniczoną odpowiedzialnością v Gefion Insurance A/S), which is about Article 7.5 Brussels I bis.

The parties: “CNP [] is a limited liability company established in Poland.

[Gefion] is an insurance undertaking established in Denmark. [Crawford Polska] established in Poland, is the undertaking authorised by Gefion to ‘settle claims in full’, as well as to ‘represent Gefion in all proceedings … before the courts and other public authorities’. [Polins], a second undertaking located in Żychlin (Poland), also represents Gefion in Poland.

The facts: “On 28 February 2018 a road traffic accident occurred in Poland, involving a collision between the vehicle belonging to the injured party and the vehicle belonging to the party responsible for the accident. At that time, the latter had taken out with Gefion a contract of insurance against the civil liability of the owner of the motor vehicle. [] while the car was being repaired, the injured party concluded with the repair workshop a contract for the rental of a replacement vehicle. [] By way of payment for the rental service, that person assigned his claim against Gefion to the repair workshop. At the end of the rental, the workshop issued a VAT invoice for the service. [] CNP acquired from the repair workshop, by way of a contract for the assignment of claims, the right to pursue against Gefion the claim for reimbursement of the costs of renting the replacement vehicle. [] CNP requested Gefion to pay the amount on the invoice. It sent the request to Polins’ address.

[] Gefion instructed Crawford Polska to assume responsibility for payment of the claim. Acting for and on behalf of Gefion, Crawford Polska validated the invoice in part and accepted part of the amount claimed. []     In the same document relating to the aforementioned matters, Crawford Polska referred to the possibility of making a claim against it as the entity authorised by the insurance undertaking. It also included information on the possibility of claiming against Gefion, either under the general provisions on jurisdiction or before the court with jurisdiction for the place where the policyholder, the insured person, the beneficiary or any other person entitled under the insurance contract is resident or established”.

The proceedings: “On 20 August 2018, CNP brought an action against Gefion before the Sąd Rejonowy w Białymstoku (District Court, Białystok, Poland). With respect to the international jurisdiction [of that court], [CNP] cited the information published by Gefion to the effect that its principal representative in Poland is Polins. It asked for service of documents intended for Gefion to be effected at Polins’ address.

25.      Gefion, as defendant, opposed the grant of the application on the ground that the Polish court lacked jurisdiction. It cited, as the provision applicable to jurisdiction, Article 5(1) of the Regulation. After arguing that CNP is a business entity engaged in the purchase of claims arising from insurance contracts, it submitted that CNP is not a policyholder, insured person or beneficiary and that, consequently, it does not have the capacity to bring an action before the court of a Member State other than that where the insured person is established.

26.      CNP submitted in reply that the defendant is on the list of insurance undertakings from EU/EFTA Member States notified in Poland and supervised by the Komisja Nadzoru Finansowego (Financial Supervision Committee, Poland); that it sells policies in Polish territory; and that it is unacceptable that someone subrogated to the injured party’s claim should not be able to seek reimbursement of the repair costs in question before the court for the place where the harmful event and the repair took place”.

The opinion: “Article 7(5) of [Brussels I bis] must be interpreted as meaning that a commercial company established in a Member State which operates under a contract with an insurance undertaking established in another Member State may be classified as a ‘branch, agency or other establishment’ of that undertaking if, cumulatively:

–        it operates in a Member State by providing compensation for material damage on the basis of insurance against civil liability arising from the use of motor vehicles the risks connected with which are covered by the insurance undertaking;

–        it has the appearance of an extension of the insurance undertaking; and

–        it has a management body and material facilities such as to enable it to transact business with third parties, so that the latter, although knowing that there will if necessary be a legal link with the insurance undertaking, do not have to deal directly with that undertaking”

Source: http://curia.europa.eu/juris/document/document.jsf?docid=236431&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=22755183

This report has been prepared by Priyanka Jain, a researcher at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law, and Ph.D. candidate at the University of Luxembourg.

 

Introduction:

 

On 9-11 December 2020, ERA – the Academy of European Law – organized an online seminar on “Privacy and Data Protection: Recent ECtHR & CJEU Case Law”.  The core of the seminar was to provide an update on the case law developed by the European Court of Human Rights (ECtHR) and by the Court of Justice of the European Union (CJEU) with relevance for privacy and data protection law since 2019. The key issues discussed were the distinction between the right to privacy and data protection in the jurisprudence of the ECtHR and CJEU, the impact of the jurisprudence on international data transfers, notions of ‘essence of fundamental rights’ ‘personal data processing’, ‘valid consent’ and so on.

 

 

Day 1: Personal Data Protection and right to privacy

 

Gloria González Fuster (Research Professor, Vrije Universiteit Brussel (VUB), Brussels) presented on the essence of the fundamental rights to privacy and data protection in the existing legal framework with a specific focus on the European Convention on Human Rights (Art. 8 of ECHR) and the Charter of Fundamental Rights of the EU (Art. 7, Art. 8)

 

Article 8 of the Convention (ECHR) guarantees the right to respect private and family life. In contrast, Art 52(1) EU Charter recognizes the respect for the essence of the rights and freedoms guaranteed by the Charter. Both are similar, but not identical. This can be validated from the following points:

• As per Art 8 (2) ECHR – there shall be no interference with the exercise of this right except such as in accordance with the law, whereas Art 52 (1) states that any limitation to the exercise of right and freedoms recognized by the Charter must be provided for by law.
• The Art 8 (2) ECHR stresses the necessity in a democratic society to exercise such an interference, whereas Art 52(1) of the EU Charter is subject to the principle of proportionality.
• Respect for the essence of rights and freedoms is mentioned in Art 52 (1) but not mentioned in Art 8 (2).
• Also, Art 8 (2) states that the interference to the right must be only allowed in the interests of national security, public safety, or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or the protection of the rights and freedoms of others. At the same time, Article 52 (1) states that any limitations to rights must meet objectives of general interest recognized by the Union or the need to protect others’ rights and freedoms.

 

In the Joined Cases C?293/12 and C?594/12, Digital Rights Ireland; the Court addressed the interferences to the rights guaranteed under Articles 7 and 8 caused by the Data Retention Directive. An assessment was carried out as to whether the interferences to the Charter rights were justified as per Article 52(1) of the Charter. In order to be justified, three conditions under Article 52(1) must be fulfilled. The interference must be provided for by law, and there must be respect for the essence of the rights, and it must be subject to the principle of proportionality. Certain limitations to the exercise of such interference/ infringement must be genuinely necessary to meet objectives of general interest. The Directive does not permit the acquisition of data and requires the Member States to ensure that ‘appropriate technical and organizational measures are adopted against accidental or unlawful destruction, accidental loss or alteration of data’ and thus, respects the essence of the right to privacy and data protection. The Directive also satisfied the objective of general interest as the main aim of the Directive was to fight against serious crime, and it was also proportional to its aim of need for data retention to fight against serious crimes. However, even though the Directive satisfied these three criteria, it did not set out clear safeguards for protecting the retained data, and therefore it was held to be invalid.

 

It is pertinent to note here that the ECHR does not contain any express requirement to protect the ‘essence’ of fundamental rights, whereas the Charter does. However, with regard to Art 8 of the ECHR, it aims to prohibit interference or destruction of any rights or freedoms with respect for private and family life. This can be possibly interpreted so as to protect the essence of the fundamental right of private and family life. This is because a prohibition of the destruction of any right would mean affecting the core of the right or compromising the essence of the right.

 

Gloria, also examined Article 7 of the Charter, which guarantees a right to respect for private and family life, home and communications, and Article 8, which not only distinguishes data protection from privacy but also lays down some specific guarantees in paragraphs 2 and 3, namely that personal data must be processed fairly for specified purposes. She analyzed these Charter provisions concerning the Regulation (EU) 2016/679 (GDPR). GDPR creates three-fold provisions by imposing obligations on the data controllers, providing rights to data subjects, and creating provision for supervision by data protection authorities.

 

She also addressed the balance between the right to privacy and the processing of personal data of an individual on one hand and the right to information of the public on the other. Concerning this, she highlighted the interesting decision in C-131/12, Google Spain, wherein it was stated that an interference with a right guaranteed under Article 7 and 8 of the Charter could be justified depending on the nature and sensitivity of the information at issue and with regard to the potential interest of the internet users in having access to that information. A fair balance must be sought between the two rights. This may also depend on the role played by the data subject in public.

It was also discussed in the judgments C-507/17, Google v CNIL; and Case C-136/17 that a data subject should have a “right to be forgotten” where the retention of such data infringes the Directive 95/46 and the GDPR. However, the further retention of the personal data shall only be lawful where it is necessary for exercising the right of freedom of expression and information. The ruling was on the geographical reach of a right to be forgotten. It was held that it is not applicable beyond the EU, meaning that Google or other search engine operators are not under an obligation to apply the ‘right to be forgotten’ globally.

In the next half of the day, Roland Klages, Legal Secretary, Chambers of First Advocate General Szpunar, Court of Justice of the European Union, Luxembourg, presented on the topic: “The concept of consent to the processing of personal data”. He started with a brief introduction of GDPR and stated that there is no judgment on GDPR alone as it has been introduced and implemented recently, but there are judgments based on the interpretation of Directive 95/46 and the GDPR simultaneously.  He commented on the composition of the ECJ, which sits in the panel of 3,5, 15 (Grand Chamber), or 27 (Plenum) judges. The Grand Chamber comprises a President, vice-president, 3 presidents of a 5th chamber, rapporteur, another 9 judges, appointed based on re-established lists (see Article 27 ECJ RP).

 

He discussed the following cases in detail:

 

C – 673/17 (Planet49): Article 6(1) (a) GDPR states that the processing of data is lawful only if the data subject has given consent to the processing of personal data for one or more specific purposes. “Consent” of the data subject means any freely given, specific, informed, and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by clear affirmative action, signifies agreement to the processing of personal data relating to him or her.[1] This clearly indicates that consent is valid only if it comes from the active behavior of the user as it indicates the wishes of the data subjects. A consent given in the form of a pre-selected checkbox on a website does not amount to active behavior. It also does not fulfill the requirement of unambiguity. Another important aspect of the ruling was that it does not matter if the information stored or retrieved consists of personal data or not. Article 5(3) of Directive 2002/58/ EC (Directive on privacy and electronic communications)protects the user from interference with their private sphere, regardless of whether or not that interference involves personal or other data. Hence, in this case, the storage of cookies at issue amounts to the processing of personal data. Further, it is also important that the user is able to determine the consequence of the consent given and is well informed. However, in this case, the question of whether consent is deemed to be freely given if it is agreed to sell data as consideration for participation in a lottery is left unanswered.

 

Similarly, in case C -61/19 (Orange Romania), it was held that a data subject must, by active behavior, give his or her consent to the processing of his or her personal data, and it is upto the data controller, i.e., Orange România to prove this. The case concerns contracts containing a clause stating that the data subject has been informed about the collection and storage of a copy of his or her identification document with the identification function and has consented thereto. He also discussed other cases such as case C-496/17, Deutsche Post, and C- 507/17, Google (discussed earlier), demonstrating that consent is a central concept to GDPR.

 

 

Day 2: “Retention of personal data for law enforcement purposes.”

 

On the next day, Kirill Belogubets, Magister Juris (Oxford University), case lawyer at the Registry of the European Court of Human Rights (ECtHR), started with a presentation on the topic:

 

“Retention of personal data for combating crime.”

 

Kirill Belogubets discussed the case of PN v. Germany. No. 74440/17 regarding the processing of personal identification of data in the context of criminal proceedings. In this case, a German citizen was suspected of buying a stolen bicycle. Authorities collected an extensive amount of data such as photographs, fingerprints, palm prints, and suspect descriptions. It must be noted here that with regard to the right to respect for private life under Article 8 of the ECHR, the interference must be justified and fulfill the test of proportionality, legitimacy, and necessity. The authorities expounded on the likelihood that the offender may offend again. Therefore, in the interest of national security, public security, and prevention of disorder and criminal offenses, it is essential to collect and store data to enable tracing of future offenses and protect the rights of future potential victims. Thus, the collection and storage of data in the present case struck a fair balance between the competing public and private interests and therefore fell within the respondent State’s margin of appreciation.

 

With respect to margin of appreciation, the case of Gaughran v. The United Kingdom, no. 45245/15was also discussed. This case pertains to the period of retention of DNA profiles, fingerprints, and photographs for use in pending proceedings. The Court considered storing important data such as DNA samples only of those convicted of recordable offences, namely an offense that is punishable by a term of imprisonment. Having said that, there was a need for the State to ensure that certain safeguards were present and effective, especially in the nature of judicial review for the convicted person whose biometric data and photographs were retained indefinitely.

 

However, it has been highlighted that the legal framework on the retention of DNA material was not very precise. It does not specifically relate to data regarding DNA profiles and there is no specific time limit for the retention of DNA data. Similarly, the applicant has no avenue to seek deletion because of the absence of continued necessity, age, personality, or time elapsed. This has been laid down in the case of Trajkovski and Chipovski v. North Macedonia, nos. 53205/13 and 63320/13.

 

Mass Collection and Retention of Communications data

In the next half, Anna Buchta, Head of Unit “Policy & Consultation”, European Data Protection Supervisor, Brussels brought the discussion on Article 7 and 8 of the Charter and Article 8 of the Convention along with the concept of ‘essence’ of fundamental rights, back to the table. With regard to this discussion, she described the case C-362/14 Maximilian Schrems v DPC, which highlights that ‘any legislation permitting the public authorities to have access on a generalized basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life, as guaranteed by Article 7 of the Charter.’ In this context, EU member states must recognize the confidentiality of communication as a distinct legal right. In this case, it was the first time where a Directive was invalidated due to non-confirmation with the ECHR. It was laid down that the safe harbor principles issued under the Commission Decision 2000/520, pursuant to Directive 95/46/EC  does not comply with its Article 25(6), which ensures a level of protection of fundamental rights essentially equivalent to that guaranteed in the EU legal order. The Decision 2000/520 does not state that the United States, infact, ‘ensures’ an adequate level of protection by reason of its domestic law or its international commitments.

 

Traffic and Location data

She also commented on the indefinite retention of data, which might lead to a feeling of constant surveillance leading to interference with freedom of expression in light of CJEU cases C-203/15 and C-698/15 Sverige and Watson. In these cases, the Court agreed that under Article 15(1) of the Directive 2002/58 / EC, data retention could be justified to combat serious crime, national security, protecting the constitutional, social, economic, or political situation of the country and preventing terrorism. However, this must only be done if it is limited to what is strictly necessary, regarding categories of data, means of communication affected, persons concerned, and retention period. Traffic data relating to subscribers and users processed and stored by the provider of a public communications network or publicly available electronic communications service must be erased or made anonymous when it is no longer needed for the transmission of a communication without prejudice to paragraphs 2, 3, and 5 of this Article 6 and Article 15(1) of the Directive. This was reiterated in C-623/17 Privacy International. It must be noted here that these data can be retained only if there is evidence that these data constitute an identifiable link, at least an indirect one, to criminal activities. Data with regard to the geographical location again requires objective factors. It must be retained if there exists a risk of criminal activities in such areas. These locations may correspond to places that are vulnerable to the commission of serious offenses, for instance, areas that receive a large number of people, such as airports, train stations, toll-booth areas, etc.

 

The Court differentiated between generalized and targeted retention of data. Real-time collection and indeterminate storage of electronic communications surveillance involving traffic and location data of specific individuals constitute targeted retention. In this context, the case of C?511/18, C?512/18 and C?520/18, La Quadrature du Net and Others were also relied upon, with a focus on the following findings:

Targeted real-time collection of traffic and location data by electronic communication providers that concerns exclusively one or more persons constitutes a serious interference that is allowed where:

• Real-time collection of traffic and location data is limited to persons in respect of whom there is a valid reason to suspect that they are directly or indirectly involved in terrorist activities. With regard to persons falling outside of that category, they may only be the subject of non-real-time access.
• A court or an administrative authority must pass an order after prior review, allowing such real-time collection. This must be authorized only within the limits of what is strictly necessary. In cases of duly justified urgency, the review must take place within a short time.
• A decision authorizing the real-time collection of traffic and location data must be based on objective criteria provided for in the national legislation, which must clearly define the circumstances and conditions under which such collection may be authorized.
• The competent national authorities undertaking real-time collection of traffic and location data must notify the persons concerned, in accordance with the applicable national procedures.

 

 

Last but not least, the EU Commission as well as the CJEU have started looking at the national laws of data retention and specifically inclined to define national security in manner so as to increase their own role in the area. However, data retention schemes are divergent across the Member States. It is essential to create clearer and more precise rules at the European level to enable the Courts to develop the best ways to strike a balance between the interactions of privacy rights with the need to tackle serious crime. The different legal rules in the area of data retention restricted cooperation between competent authorities in cross-border cases and affected law enforcement efforts. For instance, some Member States have specified retention periods, whereas some do not, a fact from which conflict-of-laws problems may arise. While some Member States for example Luxembourg precisely define ‘access to data’, there are Member States, which do not. This was pointed out by the EU Council in the conclusion of the data retention reflection process in May 2019, wherein it was emphasized that there is a need for a harmonised framework for data retention at EU level to remedy the fragmentation of national data retention practices.

 

Day 3: Data Protection in the Global Data Economy

 

The discussion of the third day started with a presentation by Professor Herwig Hofmann, Professor of European and Transnational Public Law, the University of Luxembourg on the well-known Schremscases namely, C-362/14, Schrems I; C-498/16, Schrems vs Facebook; and C-311/18, Schrems II;which involves transatlantic data transfer and violation of Article 7 and 8 of the Charter. In the clash between the right to privacy of the EU and surveillance of the US, the CJEU was convinced that any privacy agreements could not keep the personal data of EU citizens safe from surveillance in the US, so long as it is processed in the US under the country’s current laws. The guidelines in the US for mass surveillance did not fit in the EU. Therefore, privacy shield could not be maintained.

He also highlighted that international trade in today’s times involves the operation of standard contractual terms created to transfer data from one point to another. Every company uses a cloud service for the storage of data, which amounts to its processing. It is inevitable to ensure transparency from cloud services. The companies using cloud services must require transparency from cloud services and confirm how the cloud service will use the data, where would the data be stored or transferred.

 

In the last panel of the seminar Jörg Wimmers, Partner at TaylorWessing, Hamburg, spoke about the balance between Data protection and copyright.

The case discussed in detail was C-264/19 Constantin Film Verleih GmbH, which was about the prosecution of the user who unlawfully uploaded a film on YouTube, i.e., without the copyright holder’s permission. In this regard, it was held that the operator of the website is bound only to provide information about the postal address of the infringer and not the IP address, email addresses, and telephone numbers. The usual meaning of the term ‘address’ under the Directive 2004/48 (Directive on the enforcement of Intellectual Property rights) refers only to the postal address, i.e., the place of a given person’s permanent address or habitual residence. In this context, he also commented on the extent of the right to information guaranteed under Article 8 of the said Directive 2004/48. This was done by highlighting various cases, namely, C-580/13, Coty and C-516/17, Spiegel Online, noting that Article 8 does not refer to that user’s email address and phone number, or to the IP address used for uploading those files or that used when the user last accessed his account. However, Article 8 seeks to reconcile the right to information of the rightholder/ intellectual property holder and the user’s right to privacy.

 

Conclusion:

 

To conclude, the online seminar was a total package with regard to providing a compilation of recent cases of the ECtHR and CJEU on data protection and the right to privacy. A plethora of subjects, such as the balance between data protection and intellectual property rights, privacy and data retention, and respect for the essence of fundamental rights to privacy, were discussed in detail. The data retention provision established by the new Directive on Privacy and Electronic Communications may be an exception to the general rule of data protection, but in the current world of Internet Service providers and telecommunication companies, it may not be easy to ensure that these companies store all data of their subscribers. Also, it is important to ensure that data retained for the purpose of crime prevention does not fall into the hands of cybercriminals, thereby making their jobs easier.

 

[1] Article 4 No.11 GDPR

Geert van Calster has just published the third edition of the book titled “European Private International Law: Commercial Litigation in the EU” with Hart.

The blurb reads as follows:

This classic textbook provides a thorough overview of European private international law. It is essential reading for private international law students who need to study the European perspective in order to fully get to grips the subject.
Opening with foundational questions, it clearly explains the subject’s central tenets: the Brussels I, Rome I and Rome II Regulations (jurisdiction, applicable law for contracts and tort). Additional chapters explore the Succession Regulation, private international law and insolvency, freedom of establishment, and the impact of PIL on corporate social responsibility. The new edition includes a new chapter on the Hague instruments and an opening discussion on the impact of Brexit.
Drawing on the author’s rich experience, the new edition retains the book’s hallmarks of insight and clarity of expression ensuring it maintains its position as the leading textbook in the field.

 

The purpose of the book is to serve as an introductory text for students interested in EU Private International Law. The book can also be appreciated by non-EU students interested in EU Private International Law since it serves as an introductory text. It contains seven core chapters including the introduction. The full table of contents and introduction are provided free to readers and can be accessed respectively here and here

From what I have read so far in the introduction, this book is highly recommended. It brings the subject of EU Private International Law to the doorstep of the uninitiated and refreshes the knowledge of any expert on Private International Law (“PIL”). Though the core foundation of the book is on EU PIL, it contains some comparisons to other systems of PIL especially in the common law, in order to illustrate. Importantly, the introduction ends with the implications of Brexit for EU PIL and some interesting speculations.

More information on the book can be found here

Noëmie Reichling (PhD, Avocat à la Cour, France) has just published a monograph on Fundamental Principles of Civil Litigation in the European Judicial Area, based on her doctoral thesis: Les principes directeur du procès civil dans l’espace judiciaire européen. Etude à partir du procès civil transfrontalier, PUAM, 2020.

The author has provided the following abstract in English:

Since the Treaty of Amsterdam entered into force on the 1st of May 1999 and the “communitarisation” of judicial cooperation in civil matters, the European Union has adopted many legal instruments relating to cross-border litigation, to the extent that one can now refer to a distinct “European International Private Law”, the governing principles of which have yet to be defined. By comparison, the French Code of Civil Procedure includes an entire chapter devoted to the governing principles applicable to civil trials. Based on a study of the European civil justice area, four governing principles can be identified: the adversarial principle, the principle of the judge’s active role, the principle of urgency and the principle of cross-border dialogue. In prospective terms, it follows that the possibility of these four principles’ being enacted in EU law is a matter worthy of examination. Several obstacles can be identified, none of which appears to be insuperable. Having been recognised as a possibility, such a consecration also seems desirable on the grounds of its several demonstrable advantages. The legal basis and vehicle of the above-mentioned four principles’ legal enshrinement remain to be determined. In this regard, article 81 of the Treaty on the Functioning of the European Union, pertaining to judicial cooperation in civil matters, could serve as a legal basis. In terms of implementation, this study also argues in favour of regulations over directives.

More details available here.

The Public Institution for Social Security v Al Rajaan & Ors [2020] EWHC 2979 (Comm) engages in lengthy discussion anchor jurisdiction (A6) and choice of court (A23) under the Lugano Convention which of course, albeit with some important mutatis mutandis, echoes Brussels I and Brussels Ia.

Henshaw J summarises the key issues at 74:

i)                    whether the exclusive jurisdiction clauses (‘EJCs’) relied on were agreed between the parties and incorporated into their respective contracts, applying;

a)                  the formal validity requirements set out in Lugano Convention Article 23/Recast Brussels Regulation Article 25, and

b)                 if relevant, the laws governing the contracts i.e. Swiss or Luxembourg law;

ii)                  if so, whether the EJCs satisfy the requirements for material validity under Lugano Convention Article 23/Recast Brussels Regulation Article 25;

iii)                if so, how the EJCs are to be interpreted under their respective governing laws;

iv)                whether, and if so to what extent, the EJCs apply to claims against the applicants;

v)                  if and to the extent that the EJCs apply to only some claims against particular applicants, or apply to some but not all of the applicants, whether this court has jurisdiction over the remainder of the claims pursuant to Lugano Convention Article 6(1)/Recast Brussels Regulation Article 8(1); and

vi)                whether the court should decline jurisdiction over the claims against Pictet Asia and Pictet Bahamas (seeing as they are neither EU or Lugano States domiciled) on forum non conveniens grounds.

 

The judgment is lengthy. These are my highlights:

• At 107 following review of CJEU authority including Refcomp and Hoszig, the finding that the issue of validity of choice of court by incorporation are to be addressed solely by reference to the requirements of what is now A25 BIa and the corresponding provision in Lugano Convention Article 23. This requires real consent which is discussed with reference ia to Profit Investment Sim at 109 ff.
• At 127 ff Henshaw J discusses the issue obiter under Swiss cq Luxembourg law as putative leges contracti for choice of court. At 142 the judge concludes that under Swiss law, as under EU law, it is sufficient, in order to incorporate a jurisdiction agreement into the parties’ contract, that the parties have made a written agreement which incorporates by reference general terms including a jurisdiction clause. Ditto with less discussion under Luxembourg law, at 148.
• At 187 ff: the issue of material validity under EU law. This discussion kicks off with a review of what one of the parties calls the ‘proximity requirement’: per C-214/89 Powell Duffryn (CDC, too, is discussed), the fact that choice of court (only) extends to a ‘particular legal relationship’ (reference here is also made to Etihad, at the time of the judgment this had not yet benefitted from the Court of Appeal‘s judgment). At 201 ff Justice Henshaw takes a broad view:

In principle I would agree that if a jurisdiction clause is not clear, then it may be restrictively construed, consistently with the policy expressed in the relevant EU case law of promoting certainty and avoiding parties being taken by surprise.  On the other hand, I see no reason why parties cannot make a jurisdiction clause in deliberately wide-ranging terms which covers many, or indeed all, of their present and future contractual relationships.  I do not read the Opinion of the Advocate General in Refcomp as indicating the contrary.  Refcomp was essentially concerned with whether a jurisdiction clause could be relied on against a sub-purchaser of goods, and it is notable that the CoJ referred in its judgment to “the principle of freedom of choice on which Article 23(1) is based” (§ 40).  Nor do I read Powell Duffryn as restricting the parties’ ability to choose the scope of the particular legal relationships to which a jurisdiction clause is to apply.

• Whether the claims at issue meet the ‘proximity’ requirements is then discussed at length, under EU law and again, obiter, under Swiss and Luxembourg law, largely leading to a conclusion of lack of jurisdiction in England and Wales for many of the claims.
• Anchor jurisdiction is discussed for some of the claims at 403 ff, leading to a classic discussion of the (CJEU Kalfelis introduced) close connection requirement, and at 418 support for the fragile Court of Appeal finding in Privatbank, that that the word “expedient” in the context of the lis alibi pendens provision in Lugano Convention Article 28 must mean “desirable” as opposed to merely practicable or possible. At 427 the issue of fragmentation of proceedings is discussed: what should the court do where a claimant is required to sue a defendant in an overseas jurisdiction under A23 Lugano in relation to some claims, but seeks to pursue in this jurisdiction (a) connected claims against the same defendant, or (b) connected claims against another defendant, in reliance on A6? Henshaw J concludes the E&W courts should not entertain the accessory claims.
• Forum non is discussed at 480 ff, with the final conclusion being that E&W does not have jurisdiction for any of the claims.

I fully expect there is scope for appeal.

Those criticising the intensity of jurisdiction squabbles will find ammunition in this 497 para judgment.

Geert.

EU Private International Law, 3rd ed. 2021, big chunks of Chapter 2.

 

Successful jurisdictional challenge engaging both anchor and choice of court jurisdiction under Lugano.
A lengthy judgment which I shall certainly post on soon on the blog. https://t.co/9r3a7zlyxi

— Geert Van Calster (@GAVClaw) November 6, 2020