Droit international général

Shawn He reported recently on a Chinese judgment refusing the declaration of enforceability of an arbitral award issued by the Independent Film & Television Alliance Arbitration Court.

The Tianjin Intermediate People’s Court dismissed the application on two grounds: No standing to be sued of the Chinese company, and notification vices.

One point which should be highlighted is the duration of the proceedings: The application was filed on March 2018, and the judgment (in first instance) was rendered on May 2020…

On 16 July 2020, the Government of Portugal decided to start the process whereby Portugal will, in due course, become a party to the United Nations Convention on Contracts for the International Sale of Goods (CISG).

Today, the Convention is internationally in force for 93 States. Once in force for Portugal, it will be binding on all the current members of the European Union, with the exception of Ireland and Malta.

by Professor Dr Robert Magnus

The chair of civil law III at the Faculty of law and economics of the University of Bayreuth offers a position as a

Doctoral researcher / PhD Student (m/w/d)

which should be filled as soon as possible. The position is limited for a period of two years and is preferably granted for the purpose of preparing a doctoral thesis. The position is part-time (50 % of regular working hours) with the salary and the benefits of a public service position in the state of Bayern, Germany (TV-L E13, 50 %).

The Doctoral researcher will be working in the department of law. His main task will be to assist the research projects of his supervisor in the area of civil law, civil procedural law, arbitration law, conflict-of-laws and comparative law. The position includes the possibility to prepare a doctoral thesis. Applicants should fulfill the requirements to prepare a doctoral thesis under the doctoral degree regulation of the University of Bayreuth. It is expected that the first state examination is accomplished at least with the grade “vollbefriedigend”. The position additionally requires the Applicant to be proficient in German.

Furthermore, the Applicant should be interested in the areas of expertise of the supervisor; preferably there is already knowledge in these fields. Desirable are good skills in English and IT-expertise.

Applicants with a disability as described in SGB IX (§ 2 Abs. 2, 3) will be preferred in case of equal qualifications. The advertising chair of civil law as well as the University of Bayreuth are interested in increasing the quota of women; therefore, we strongly encourage female candidates to apply.

Please send your application with the usual documents (especially CV, Abitur certificate, transcript of records, State Examination certificate(s) via email (preferably in a pdf file) to Ms. Birgit Müller, chair of civil law III at the Faculty of Law and economics, University of Bayreuth, 95440 Bayreuth, Tel.: +49 (0)921 – 55-6071, E-Mail: ze3.sekretariat@uni-bayreuth.de.

The French Committee for private international law will hold a conference on the codification of private international law in the afternoon of 9 October 2020, in Paris.

The first speaker will be Geraldine Gazo, who practices in Monaco, and who will present the recent law on private international law adopted by Monaco in 2017.

The second speaker will be Justice Jean-Pierre Ancel, who is a former president of the first civil Chamber of the Cour de cassation, and now presides over a working group on the codification of French private international law.

The exact time and location are to be announced on the website of the Committee.

Woo-jung Jon is the author of Cross-border Transfer and Collateralisation of Receivables – A Comparative Analysis of Multiple Legal Systems, published by Hart Publishing.

Legal systems around the world vary widely in terms of how they deal with the transfer of and security interests in receivables. The aim of this book is to help international financiers and lawyers in relevant markets in their practice of international receivables financing. Substantively, this book analyses three types of receivables financing transactions, ie outright transfer, security transfer and security interests. This book covers comprehensive comparison and analysis of the laws on the transfer of and security interests in receivables of fifteen major jurisdictions, encompassing common law jurisdictions, Roman–Germanic jurisdictions and French–Napoleonic jurisdictions, as well as relevant EU Directives. To be more specific, this book compares and analyses the relevant legal systems of the US, Canada, New Zealand, Australia, Korea, Japan, France, Belgium, England, Hong Kong, Singapore, China, Germany, Austria and the Netherlands. Furthermore, in order to analyse those legal systems from the international perspective, this book compares relevant international conventions; it also proposes to establish an international registration system for the transfer of and security interests in receivables.

More information here.

On 31 July 2020, the Depositary (i.e. the Ministry of Foreign Affairs of the Kingdom of the Netherlands) notified that the Marshall Islands acceded to the HCCH Service Convention. A six-month period for filing objections has been set to run from the date of the Depositary’s notification until 31 January 2021. In the absence of any objection from an already ratifying State, the Convention will enter into force for the Marshall Islands on 1 February 2021.

So far the Marshall Islands has made no declarations under the treaty (think for example of Articles 8, 10, 15 and 16). Nor has it designated Central Authority. While this can be done at a later date, it is undoubtedly of great importance that the designation of Central Authority be made as soon as possible for the treaty to operate smoothly and avoid potential objections, even if this is only a theoretical possibility as the objection-mechanism has never been used in practice.

In the Pacific region, there are a few other States already a party to the Service Convention, such as the Philippines (date of entry into force: 1 October 2020!), Japan and Australia.

The HCCH news item is available here.

The Hague Conference announced today that the Marshall Islands ratified on 29 July 2020 the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, which will enter into force for this country on 1 February 2021.

Source: here

Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020 laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector and amending Directive 2006/22/EC as regards enforcement requirements and Regulation (EU) No 1024/2012  has been published today at the OJEU (L 249, 31.7.2020, p. 49).

Readers of this blog will be interested in particular by Article 1 paragraphs 1 to 9.

The Directive should be read with the declaration of the European Commission on the “Mobility Package I on road transport”, equally published at the OJEU (C 252, 31.7.2020, p. 1).

Sources: here et there

Recently published paper The Reception of Collective Actions in Europe: Reconstructing the Mental Process of a Legal Transplantation, authored by Csongor István Nagy, Professor at the University of Szeged, is a must read for those studying collective actions in EU. It is intended to identify the differentia specifica of the European collective actions as opposed to those in US, which in itself is not an easy task as there are various models in different Member States. However, the paper elegantly navigates these waters and offers a firm grasp of the history and present state on this increasingly important topic on this side of the Atlantic (you may track the EU developments at the legislative train site). For the rest, you need to read the paper…

It is published in Journal of Dispute Resolution, Vol. 2020, No. 2, pp. 413-443 (2020), and also available at SSRN.

Apostolos Anthimos has posted on SSRN a paper titled Recognition and Enforcement of Foreign Judgments in the Field of Bilateral Conventions of Greece with Balkan States.

The purpose of this paper is to present the current legislative framework and the practice of Greek courts with respect to the recognition and enforcement of foreign judgments falling under the scope of bilateral conventions signed with Balkan States. Prior to presenting individual conventions and related case-law, few brief remarks are given on the role of bilateral treaties in the Greek landscape. A special chapter is dedicated to the conditions for recognition and enforcement, cutting horizontally through all conventions included in the scope of this paper. The findings of the research suggest that, on a bilateral level, judgments from the Balkan States are generally recognized in Greece.

Readers of this blog may be interested to hear of a new textbook on private international law, recently published by LexisNexis. The Conflict of Laws in New Zealand is the first comprehensive treatment of the subject from a New Zealand perspective. Drawing on principles developed in common law countries while adopting a comparative perspective, it explains how New Zealand law has developed into an indigenous body of rules to deal with problems of jurisdiction, choice of law, recognition of judgments and international civil procedure. The textbook may be of interest to scholars and academics outside New Zealand who are looking for a comparative treatment of problems in modern private international law, as well as any lawyers who find themselves interacting with New Zealand law in practice.

The first part of the book covers the four distinct functions of the conflict of laws: adjudicatory jurisdiction (including personal and subject-matter jurisdiction), choice of law, recognition and enforcement of judgments, and international civil procedure. The second part of the book addresses the conflict of laws rules as they relate to the main subject areas of private law, including obligations, property and trusts, succession, family law and corporations and insolvency

After years of discussion the Council of the European Union and the European Parliament have finally reached agreement on the reform of the Evidence and the Service Regulation. The new rules aim to improve the cross-border taking of evidence as well as the cross-border service of documents in particular through an enhanced use of information technology (notably electronic communication and videoconferencing).

The European Parliament’s official press release is available here. For a more detailed coverage see the contributions on the International Litigation Blog and the EAPIL Blog. 

Written by Vito Bumbaca, University of Geneva

On 16 July the CJEU issued its preliminary ruling in case E.E. & K.-D. E. (CJEU, C-80/19, ECLI:EU:C:2020:569, not yet available in English). The case concerned, inter alia, the assessment of the deceased’s habitual residence under the EU Succession Regulation No. 650/2012. Given the novelty of the ruling, which represents the very first CJEU assessment of the deceased’s habitual residence under the EU Succession Regulation, we will focus on this particular aspect only.

Facts:

A Lithuanian mother and her son moved to Germany to live with the mother’s husband. Prior to her death in Germany, she drew up a testament in Lithuania, naming her son as her sole heir. The mother owned an apartment in Lithuania and when she died (in Germany), her son approached a notary in Lithuania concerning the apartment and in order to obtain a Certificate of Succession. This notary refused both requests based on their interpretation of the EU Succession Regulation according to which the deceased’s last habitual residence was in Germany at the time of death. The deceased’s son appealed against such a decision; subsequently the proceedings reached the Lithuanian Supreme Court (Lietuvos Aukš?iausiasis Teismas), which decided to stay proceedings and ask the preliminary ruling of the CJEU. The CJEU found that a person can have only one habitual residence.

Relevance:

This is the first CJEU ruling on the determination of the deceased’s habitual residence under the EU Succession Regulation.

It is  welcomed to the extent that it provides a guiding assessment of the hierarchical order and practical implementation of recitals 23, 24 and 25. These are considered as explanatory rules for the determination of international competence and applicable law in matters of EU 25 cross-border succession based on habitual residence as a primary connecting factor.

Specifically, the Court clarifies which key factors should be assessed in the determination of the deceased’s habitual residence by virtue of the above-mentioned recitals and in line with the objectives followed by the EU Succession Regulation. Furthermore, it confirms that, when assessing the deceased’s habitual residence at the time of death, a lengthy determination of the deceased’s life circumstances preceding his/her death should be made. Lastly, it leaves unresolved the factual assessment of the manifestly closest connection criterion applicable on an exceptional basis.

Brief analysis:

According to the Court, the deceased cannot simultaneously have more than one habitual residence at the time of death (§ 41). This however does not exclude the possibility of acquiring an alternative and consecutive habitual residence at different points in time during the deceased’s life. The Court indicated that by virtue of recital 23 the main element in determining the deceased’s habitual residence is the stability of his/ her stay, and therefore of his/ her physical presence, at the time of death (§ 38). In the absence of stability, therefore on a subsidiary basis (§ 39), recital 24 advises national authorities, in some circumstances including notaries (§ 46), to refer to the deceased’s nationality (personal factor) and/ or assets (economic factor). Finally, the criterion relating to the “manifestly closest connection” in relation to the determination of applicable law will have to be applied in a strict manner and not subsidiary to the complex determination of habitual residence, in accordance with the principles of predictability and legal certainty as provided for by the EU Regulation (§ 37). The exceptional use of the “manifestly closest connection” criterion, however, is left to the judicial discretion of the first seised national courts (§ 45).

Ultimately, according to the Court’s reasoning, which follows the Advocate General’s Opinion of 26 March 2020 (§ 52), the element of stability relating to the deceased’s physical presence at the time of death must be sought in the reasons (subjective element) and the conditions (objective element) of his/ her stay showing a close and stable link between the succession and the given State, in line with the objectives of the EU Succession Regulation (§ 37). The assessment of both objective and subjective elements, and generally of habitual residence, should consider the deceased’s life circumstances at the time of death and the years preceding his/ her death (§ 23). Such a “lengthy” determination of the deceased’s life assessment leaves the debate open as to its pertinence in an increasingly globalised society within which cross-border settlements regularly occur, in particular when involving expats holding multiple nationalities and various assets in different countries.

Lastly, the Court has made clear that the habitual residence assessment must be twofold in matters of competence and threefold in relation to applicable law. With regard to competence, according to the Advocate General, the Court first seised will have to look primarily at the duration and regularity of the deceased’s settlement and subsidiarily at his/ her nationality and/ or assets. In relation to the deceased’s settlement, the Advocate General clarified that duration (time factor) cannot be considered, in itself, a decisive element and that it should be accompanied by other relevant factors such as the deceased’s family and social integration, or his/ her proximity to the State in question (Advocate General’s Opinion, § 54). Furthermore, the Advocate General confirmed that, in line with recital 24, the contexts typically falling under the subsidiary assessment of the deceased’s nationality and/ or assets are: (i) the scenario involving expats; and (ii) that involving a “peripatetic” cross-border movement and life not allowing the establishing of stable connection (Advocate General’s Opinion, § 55-57).

In relation to applicable law, the Court first seised should consider, as a last resort when none of the above elements can be traced, specific factors indicating a situation falling under “manifestly closest connection”. According to the EU Succession Regulation, and confirmed by the Advocate General (§ 25 of the Opinion), a typical situation falling under “manifestly closest connection” is when the deceased moved to his/ her new habitual residence fairly recently before his/ her death. Nonetheless, the Court has not yet identified any specific elements for the determination of the exceptional “manifestly closest connection” criterion (§ 59).

The number of transnational couples continuously increases within the European Union. At the same time, there are still large differences between the national rules on matrimonial property regimes and on the property consequences of registered partnerships. These disparities do not only affect the property relations among such couples themselves, but also – and even more – third parties contracting with transnational couples.

Some jurisdictions provide, for instance, that contracts between one spouse and a third party are not legally effective without the consent of the other spouse, especially in case of real estate transactions. One example of such a rule is the notorious Article 215(3) of the French Code Civil.

Third parties can be surprised by such limitations because they may not be aware that the law of another jurisdiction applies. In many cases, third parties may not even know at all that their business partner belongs to a couple with a transnational background. There is thus a strong need for third party protection not only on the national level, but also in private international law.

In the future, these conflict-of-laws problems must be solved on the basis of the new Council Regulations (EU) 1103/2016 and 1104/2016, which became applicable in their entirety on 29 January 2019. The scope of the Regulations explicitly includes third-party relations. However, the Regulations only provide fragmentary rules on third party protection. A new book analyses these provisions, identifies open questions and submits proposals how the gaps in the Regulations could be filled (Stephan Gräf, Drittbeziehungen und Drittschutz in den Europäischen Güterrechtsverordnungen, Mohr Siebeck 2019).

As the title indicates, the book is written in German. It starts with a comparative analysis of the differences between the national rules on matrimonial property regimes focussing on third party effects. In a subsequent chapter, the author outlines the conflict of law rules of the Regulations and points out that the applicable law can hardly be foreseen by third parties.

On this basis, Stephan Gräf analyses the core provision of third-party protection in both Regulations, namely their respective Article 28 (protection of the good faith of third parties). Although the provision appears to be quite detailed, it is in fact merely fragmentary and partially inconsistent. For example, it does not mention the exact subject of the required good faith of the third party (the applicable law, the particular matrimonial regime within the applicable law or the particular legal effect of the applicable law?). The provision also does not clarify that it is restricted to contractual transactions.

The Regulations furthermore contain provisions for the protection of third-party rights in case of a change of the applicable law with retroactive effect. The wording of the provisions, however, is extremely short. Many questions are left to the interpretation by the courts. Stephan Gräf analyses the scope and the legal consequences of these provisions. He shows, for instance, that they also apply when the applicable law changes only with effect for the future.

The book furthermore deals with the highly controversial coordination between international property law (lex rei sitae rule) on the one hand and the international matrimonial law on the other hand. This matter also affects third parties contracting with married persons. The author argues for the primacy of the lex rei sitae in so far as immovable property is concerned. On this point, he disagrees with the Kubicka decision of the European Court of Justice, which deals with the relationship between the EU Succession Regulation and the lex rei sitae rule.

Additionally, the book addresses the Regulations’ rules on jurisdiction (Articles 4 et seq.). It focuses on the question whether these rules apply in disputes between married persons and third parties. Despite its relevance this question has rarely been discussed so far. The Regulations lack explicit provisions on this matter. Relying on the ECJ’s approach on Article 27 of the Brussels I Regulation (recast: Article 29), Stephan Gräf argues that Articles 4 et seq. of the Regulations govern where matrimonial property law is the “heart of the action”. In disputes with third parties, this is rarely the case, as matrimonial property law typically only becomes relevant on the level of preliminary questions.

Overall, this new book provides valuable insights on the relation of Regulations on matrimonial property regimes and on the property consequences of registered partnerships with the rights and obligations of third parties. Interestingly, the author not only addresses the protection of spouses, but also that of third parties that do not know about the family relation. The Regulations are still young, and is to be expected that this book will influence their interpretation and application in practice.

In January 2018, we reported on the Recognition and Enforcement of Foreign Judgments in Asia, a publication by the Asian Business Law Institute (ABLI).

The sequel to this publication, the Asian Principles for the Recognition and Enforcement of Foreign Judgments, will shortly be released by ABLI. This is a more ambitious piece of work which seeks to set out the principles which are common to the countries within the scope of the ABLI Foreign Judgments Project (namely the 10 ASEAN Member States and Australia, China, India, Japan and South Korea). There are 13 principles in total and each principle is accompanied by a commentary which fleshes out how the various countries apply each principle.  Among other things, the principles cover the rules on international (or ‘indirect’) jurisdiction, reciprocity, the enforcement of non-money judgments, public policy, due process and inconsistent judgments. A detailed write-up on the project and principles can be found at Adeline Chong, ‘Moving towards harmonisation in the recognition and enforcement of foreign judgment rules in Asia’ (2020) 16 Journal of Private International Law 31-68 (https://doi.org/10.1080/17441048.2020.1744256).

ABLI has kindly offered to ‘soft-release’ the 13 principles which form the subject-matter of the 13 chapters of the Asian Principles to readers of conflictsoflaws.net. The 13 principles are set out below.

The Asian Principles will be released in eBook and hardcopy formats. Further details are available here.

Asian Principles for the Recognition and Enforcement of Foreign Judgments

Principle 1

As a general proposition and subject to these Principles, a foreign judgment in a commercial matter is entitled to recognition and enforcement.

Principle 2

A foreign judgment is eligible for recognition and enforcement if the court of origin has international jurisdiction to render that judgment.

The typical grounds on which a court is considered to have international jurisdiction include:

(a) where the judgment debtor was present, resident or domiciled in the country of the court of origin;

(b) where the judgment debtor, being a corporation, had its principal place of business in the country of the court of origin;

(c) where the judgment debtor submitted to the jurisdiction of the court of origin by invoking its jurisdiction or by arguing the merits of the case against it; and

(d) where the judgment debtor submitted to the jurisdiction of the court of origin by way of a choice of court agreement for the court of origin.

Principle 3

A foreign judgment is eligible for recognition and enforcement if it is final.

Principle 4

The court addressed must not review the merits of a foreign judgment, except to the extent necessary for the application of these Principles.

A foreign judgment may not normally be challenged on the ground that it contains an error of fact or law, or both.

Principle 5

A foreign judgment is eligible for recognition and enforcement if there is reciprocity between the country of the court addressed and the country of the court of origin.

Principle 6

Monetary judgments that are not for a sum payable in respect of a foreign penal, revenue or other public law are enforceable.

Principle 7

Non-monetary judgments that are not preliminary or provisional in nature may be enforced.

Principle 8

Recognition and enforcement of a foreign judgment may be refused if the judgment was obtained by fraud.

Principle 9

Recognition and enforcement of a foreign judgment may be refused if to do so would be manifestly incompatible with the public policy of the country of the court addressed.

Principle 10

Recognition and enforcement of a foreign judgment may be refused if there was a lack of due process in the proceedings before the court of origin.

Principle 11

Recognition and enforcement of a foreign judgment may be refused if it is inconsistent with a judgment in a dispute between the same parties that is given by the court addressed.

Recognition and enforcement of a foreign judgment may be refused if it is inconsistent with an earlier judgment given by a court of another country between the same parties and on the same subject matter, provided the earlier judgment fulfils the requirements for recognition.

Recognition and enforcement of a foreign judgment may be refused on the ground that proceedings between the same parties and on the same subject matter are pending before the court addressed if the court addressed was seized of the matter before the court of origin.

Principle 12

A foreign judgment that has as its object a right in rem in immovable or movable property is eligible for recognition and enforcement.

Principle 13

A foreign judgment that is objectionable in part may be severed and the unobjectionable part recognised and enforced.

In advising on a territorial restriction in an insurance clause earlier this month, I studied the CJEU judgment in C-581/18 Rheinland, important for the (limitations to the) reach of Article 18 TFEU, the general non-discrimination requirement on the basis of nationality. Bobek AG had earlier opined, and the Court followed, that in the absence of harmonisation and in a scenario with no EU links, Article 18 TFEU is not engaged. I had missed the AG’s earlier opinion – forgive me if I am late to this party.

It is important to sketch the context: Bobek AG had summarised the facts as

A German patient received, in Germany, defective breast implants manufactured by Poly Implant Prothèse SA (‘PIP’), a French undertaking that is now insolvent. The patient seeks compensation before the German courts from Allianz IARD SA, the French insurer of PIP. In France, manufacturers of medical devices are under a statutory obligation to be insured against civil liability for harm suffered by third parties arising from their activities. That obligation led PIP to conclude an insurance contract with Allianz, which contained a territorial clause limiting the cover to damage caused on French territory only. Thus, PIP medical devices that were exported to another Member State and used there were not covered by the insurance contract.

In this context, the Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main, Germany) enquires whether the fact that PIP was insured by Allianz for damage caused by its medical devices on French territory only, to the exclusion of that potentially caused in other Member States, is compatible with Article 18 TFEU and the principle of non-discrimination on grounds of nationality contained therein.

This post is not on Article 18 TFEU. Rather, consider the excellent (and eloquent) discussion by Bobek AG at 109 ff. Does the imperative of equal protection of all European citizen-consumers, in the absence of EU harmonising law on the issue, preclude a national rule that, in effect, limits insurance cover to persons who undergo surgery on the territory of the Member State, thus indirectly limiting the cover to citizens of that Member State? Bobek AG emphatically and despite moral sympathy for the victims, says no. The alternative would be ‘like Dassonville on steroids’ (at 111), it would ‘turn regulatory competence within the internal market on its head’ (at 109).

Consider his link with conflict of laws at 114-115:

In other words, the fact that goods once came from another Member State is not a sufficient reason to suggest that any matter later concerning those goods is covered by EU law. If that logic were to be embraced, by a questionable interpretation of Article 18 TFEU, the movement of goods in Europe would become (once again) reminiscent of medieval legal particularism, [at footnote 78 he refers to the excellent work by my legal history colleague Randall Lesaffer] whereby each product would, like a person, carry its own laws with it. Goods would be like snails, carrying their homes with them in the form of the legislation of their country of origin, to be applicable to them from their production to their destruction.

Such a consequence would not only displace any (normal) territoriality in the application of laws, but would also generate conflicts of regulatory regimes between the Member States. Indeed, such an expansionist interpretation of Article 18 TFEU could make the legislation of any of the Member States potentially applicable on the same territory without any clear and objective criteria as to which legislation should prevail in a given dispute, with the victim being able to choose the most favourable legislation.’

Most delightful analysis.

Geert.

On 13 May 2020, the French Supreme Court for private and criminal matters (Cour de cassation) issued an interesting decision on jurisdiction based on Article 7(2) of the Brussels I bis Regulation in case of online defamation (here).

The French Court implemented the Bolagsupplysningen and Ilsjan Case ruled by the Court of Justice of the European Union (CJEU) in 2017, but also asked for clarification on its scope of application to the CJEU (here).

A Czech company, Gtflix Tv, content producer and distributor, sued a film director and distributor, MX, domiciled in Hungary, before French court for unfair competition resulting from online defamation. The company accused MX of having used insulting language against itself and its website materiel on different online forums and websites. Therefore, the company asked for the removal and rectification of the defaming contents as well as for financial compensation. According to it, French jurisdiction should arise under Article 7(2) of the Brussels I bis Regulation, since French viewers are the main audience. MX opposed a lack of international jurisdiction. The Court of Appeal of Lyon followed the latter position and dismissed the demand. Gtflix Tv appealed to the Supreme Court.

The legal issue submitted to the French Supreme Court was therefore to determine if any relevant connecting factors pursuant Article 7(2) of the Brussels I bis Regulation, as interpreted by the CJEU, could assert the French jurisdiction.

The application of Article 7(2) of the Brussels I bis Regulation (corresponding to Article 5(3) of the Brussels I Regulation) regarding online defamation matters is not a new issue. In the eDate Case on online infringements of personality rights, the CJEU held that the victim has “the option of bringing an action for liability, in respect of all the damage caused, either before the courts of the Member State in which the publisher of that content is established or before the courts of the Member State in which the centre of his interests is based”. In addition, the Court of justice also admitted that the victim could bring “his action before the courts of each Member State in the territory of which content placed online is or has been accessible” but “only in respect of the damage caused in the territory of the Member State of the court seised”.

Then, this acquis was partially extended by the Bolagsupplysningen and Ilsjan Case to infringements related to online publication of incorrect information and failure to remove comments. On the one hand, the CJEU ruled, by analogy, that the victim could bring an action for rectification and removal of the contested comments and for compensation in respect of all the damage sustained “before the courts of the Member State in which its centre of interests is located”. On the other hand, the CJEU refused to distribute the jurisdiction between “the courts of each Member State in which the information published on the internet was accessible” to rule on rectification and removal of the comments. It is worth noting that the Court of Justice left out the claim for damages.

In the present case, the French Supreme Court applied, by analogy, the Bolagsupplysningen acquis to the unfair competition claim, following publication on the Internet of defaming information against Gtflix TV and failure to remove comments. Since France is not the Member State in which the victim has its centre of the interests under Article 7(2) of the Brussels I bis Regulation (the Czech Republic is), nor the Member State in which the defendant, MX, is domiciled pursuant Article 4, French courts have no competent jurisdiction to hear this part of the case. However, according to the French Supreme Court, the question of jurisdiction for financial compensation remains unclear (for other national judgements on this issue, see the post of Geert Van Calster on Gtflix Tv). Should the Bolagsupplysningen interpretation be extended to that additional issue and exclude the distribution of jurisdiction based on the different places where the information published on the Internet is accessible? Or, on the contrary, should the eDate alternative in favour of the fragmentation of jurisdiction remain applicable? Following the latter solution, French courts could indeed have a partial jurisdiction.

This is the question referred by the French Supreme Court to the CJEU.

As encouraged by the CJEU in its Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings, the French Supreme Court sketched out a response. Considering the proper administration of justice, it took position in favour of an extension of the Bolagsupplysningen ruling. The competent jurisdiction for ruling on rectification and removal of online comments under Article 7(2) of the Brussels I bis Regulation should have an exclusive jurisdiction to rule on damages, because of the obvious connection between the two actions.

This solution would make online defamation claims much easier and more predictable. And it would contribute to adapt the European jurisdictional rules to the transnational digital area.

For the earliest possible starting date, the Max Planck Institute for Comparative Law and Private International Law in Hamburg  is offering up to two positions as a

under the supervision of Prof. Dr. Ralf Michaels in a full-time or part-time capacity.

More info here

Written by Fieke van Overbeeke, Legal Counsel at the International Institute for International and Foreign Law  – the Netherlands and research fellow at the University of Antwerp – Belgium

On 10 June conflictoflaws.net posted a piece about ‘new conflict of laws rule for minimum wages in road transport’. At that time it seemed that the EU institutions still needed to overcome severe difficulties. However, fully according to the course of events around this very unpredictable file, on 10 July the institutions officially reached a compromise: the directive with conflict of law rules for road transport was finally has adopted and it will enter into force 18 months after publication in the EU’s Official Journal.

In short about these conflict of law rules: 1) Transit operations do not fall under the Posting of Working Directive and the labour conditions, i.a. minimum wages, cannot be applied to this type of transport; 2) Cabotage operations do fall under the Posting of Working Directive and the labour conditions should be guaranteed to this type of transport (‘guaranteed’ because this only needs to be done in case these conditions are more favourable to the lorry driver, see Article 3 section 7 Posting of Working Directive); 3) Bilateral operations do not fall under the Posting of Working Directive, and some correlated crosstrade operations do not either; 4) Crosstrade operations are supposed to fall under the Posting of Working Directive (however, a clear rule about this is lacking and provokes many questions).

The author of this post is Giulio Monga, a PhD student at the Catholic University of the Sacred Heart, Milan.

On 16 April 2019, the Italian Supreme Court (Corte di Cassazione) ruled on the relevance of the Incoterm “FCA – Free Carrier (named place of delivery)” to the operation of Article 5(1) of the Brussels I Regulation , corresponding to Article 7(1) of the Brussels I bis Regulation.

An Italian company (Agusta) sued a French company (Team) before the Court of Frosinone seeking the termination of the sales agreement concluded between the two, on the ground that the goods supplied by the latter were defective. Team argued that the seised court lacked jurisdiction. It observed that the goods had been sold FCA (Free Carrier) the Paris International Airport, thereby contending that Paris ought to be regarded as the place of delivery agreed by the parties for the purposes of Article 5(1)(b), first indent, of the Brussels I Regulation (pursuant to the latter provision, jurisdiction over sales of goods lies with the courts for the place “where, under the contract, the goods were delivered or should have been delivered”).

Incoterms are standard commercial terms drawn up by the International Chamber of Commerce (ICC). Under the FCA rule, the seller undertakes to deliver the goods, cleared for export, to the carrier or another person nominated by the buyer at the seller’s premises or at another named place. The seller bears all costs and risks of delivery, while the buyer undertakes to take care of the delivery of the goods to their final destination, bearing the costs and risks of the onward carriage.

The Italian Supreme Court recalled that in Electrosteel the Court of Justice of the European Union held that the seised court, in order to verify its jurisdiction under Article 5(1)(b), first indent, of Brussels I Regulation, must first ascertain whether the parties have agreed on a place of delivery in the contract. For this, account must be taken “of all the relevant terms and clauses … which are capable of clearly identifying that place, including terms and clauses which are generally recognised and applied through the usages of international trade or commerce, such as the Incoterms …”. According to the Corte di Cassazione, where an Incoterm is incorporated into a contract, and the issue arises of the relevance of that incorporation to the issue of jurisdiction, the seised court must assess whether the Incoterm in question is merely concerned with the allocation of the risks and costs related to the transaction, or whether the parties also meant it to identify – with sufficient clarity – the place of delivery of the goods.

The Corte di Cassazione concluded that by incorporating the Incoterm FCA into their contract, the parties failed to agree on a clear identification of the place of delivery of the goods for the purposes of Article 5(1)(b) of the Brussels I Regulation. The Incoterm FCA, the Court argued, concerns nothing more than the allocation between the parties of the risks and costs related to the transaction.

Regrettably, the Corte di Cassazione failed to state the reasons for the latter finding. The Court acknowledged that the key issue is whether the chosen Incoterm conveys an agreement of the parties as to the place of delivery of the goods, but did not provide an analysis of the Incoterm FCA, as used in the contract at issue, and did not explain why the naming of the International Airport of Paris could not be regarded as signifying an agreement to that effect (according to the ICC rules that accompany the Incoterms, when goods are sold FCA the seller ‘must deliver the goods to the carrier … nominated by the buyer at the named point, if any, at the named place …’).

Actually, all Incoterms concern the allocation of risks and costs between the parties. By providing for such allocation they perform, in fact, the key part of their job. On top of that, however, they may – as the Court of Justice acknowledged in Electrosteel – convey an agreement as regards the place of delivery. Whether this happens in a particular case depends on the analysis of the circumstances. The way in which the Corte di Cassazione engaged in this analysis is, methodologically, unconvincing. Arguably, one should examine the rules set out by the ICC itself to describe the Incoterm in question, and any other element as may help determine the intended meaning of the agreement (the negotiations between the parties etc.). The fact is that the Corte di Cassazione failed to indicate the circumstances which it considered to be relevant to the issue, and failed to elaborate on their assessment. It merely stated, in rather general terms, that the incorporation of the Incoterm FCA is not evidence, as such, of an agreement as to the place of delivery of the goods.

It’s a missed opportunity, for establishing a clear methodology, ideally one shared by domestic courts across the EU, would serve the needs of predictability and would foster the uniform application of the Brussels I regime.