Droit international général

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By Andrey E. Zuev, Saint Petersburg

The modern period of the development of civilization is known to increasingly impart the character of imperativeness to the principle of cooperation between states, transforming its initially basically declarative formula of relations between states into an imperative content, fixed as obligations of the states to ensure the right to a fair hearing not only at the level of formal access to justice, but also at the level of enforcement of judgments as the highest manifestation of justice in the state organization of social management.

The emerging tendency to move from the mainly impersonated forms of doing business, mediated by the concept of legal person and based on governmental mechanisms, on the one hand,  to individual responsibility, on the other hand, reflects the achievement of a new level of opportunities for self-realization of a person, which, thanks to the development of the institution of intellectual property and other legal mechanisms of individualization of the surrounding world, is becoming increasingly apparent the creator in the world of tangible and intangible assets, at the same time accepting the responsibility for her or his own actions and their consequences, both in business and in personal matters.

CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS IN CIVIL OR COMMERCIAL MATTERS, concluded at a diplomatic conference in The Hague on July 2, 2019 as part of the Hague Conference of Private International Law, became one of the new forms of translating the principle of cooperation between states into their specific legal obligations with respect to each person, creating a new platform for the development of the institution of recognition of foreign court decisions, both multilaterally and bilaterally.

The need of the international Community in this Convention, is directly related to the development and complication of international relations and business projects, to such an extent that the existing international treaties are explicitly foreseen  by some states as insufficiently reliable to achieve legal certainty and justice in the sphere of the access to justice, and especially  at the stage of recognition and enforcement of foreign state courts judgments.

This is expressed, inter alia, in  the fact that even having in place the system of international commercial arbitration, which uses the system of arbitration courts that has been tested for centuries, this system being based on the formation of the judiciary, appointed by the parties to the dispute and / or in accordance with the rules chosen by the parties, to resolve the dispute, the states are faced with the need to respond to the apparent lack of protection, independence, and competence of the arbitrators. This gives rise to arbitration decisions that do not meet the requirements of legal justice in the eyes of the state courts, designed to decide about the possibility of recognition and enforcement within their jurisdiction of foreign commercial arbitration awards, on the grounds of international treaties, and  their own constitutional rules of national legal order.

State justice, based on the principle of jura novit curia and having three main stages of verifying the compliance of a court ruling with the law in the broad sense, is opposed in the legal field by arbitration awards, whose authors are not required to know the law like the state courts, and, as a rule, do not bear the risks of their awards’ cancellation for this motive.

At the same time, the consequences of arbitral awards can have such a significance for society that a state which acts on behalf of the whole nation and in its interests cannot allow the risks associated with insufficient protection and / or insufficient competence of arbitrators in the international commercial disputes. In this regard, we are witnessing the emergence of a significant number of specially created state courts, whose activities are specifically aimed at considering disputes of international nature, and the judgments of which will also require recognition and enforcement on the territory of foreign states.

As we know, there are legal orders that authorize their courts to recognize and enforce foreign judicial decisions in their territory, in the absence of a relevant international treaty, and other legal orders that do not authorize their courts to make judgments on the recognition and enforcement of foreign judicial decisions in the absence of an international treaty. The emerging paradoxical situation leads to an imbalance in the relations between states.

This imbalance can sometimes be overcome by the practice of courts based on the principle of cooperation between states, as well as on international courtesy and reciprocity. At the same time, the international relations are now acquiring such quality and quantity that the international community is looking for ways to universalize relations in this area, in order to ensure access to justice at all stages.

The creation of state based international commercial courts for international disputes, the adoption of the Hague Convention on the recognition and enforcement of foreign judgments in civil and commercial matters in 2019, as well as the Hague Convention 2005 on the Agreement on the selection of courts, all that reflects the newest stage in the development of private international law and procedure, which requires international brainstorming sessions, an understanding of the capabilities of each legal system in ensuring the accessibility and urgency of justice as an obligation of states, coming from the principle of cooperation enshrined in the UN Charter and binding all the states of the planet Earth.

In this regard, the Journal of «Pravovedenie» (Jurisprudence) opens a call for papers for the articles in a special issue of the journal dedicated to the cooperation of states, in ensuring access to justice at the stage of recognition and enforcement of decisions of foreign state courts on its territory.

For these reasons, we would respectfully like to invite authors to contribute to this issue of the Journal, and offer their articles on these issues of private international law and process.

Articles are to be written in English or in Russian, and may be of length from 0.75 to 2 copyright sheets (author sheet is a unit of measurement of 40,000 characters, including spaces)). The articles are to be uploaded to the journal website at:

https://pravovedenie.spbu.ru/about/submissions

When editing your article, please follow our style guide, available on our website.

We need to receive your article no later than May 1, 2021.

Articles are subject to review in accordance with the rules of the Journal.

We shall be very thankful if you let us know in advance of your plans to participate in the issue, as we have to plan the volume of the printing.

Please send in anticipation a message about your intention to submit an article for this special issue of the journal to the following email address: pravovedenie@spbu.ru

Guest Editors

Gabriele Crespi Reghizzi, Doctor of Laws,

Full Professor of the Civil Law Department at Saint Petersburg State University;

former Ordinarius, University of Pavia

Andrey E. Zuev, Attorney-at-law, Contracted Professor of the Department of International law at Saint Petersburg State University, Member of the Russian Association of International law

Further information here.

For those who are interested in the HCCH 2019 Judgments Convention see also the HCCH/Bonn University Conference on 25 and 26 September 2020.

The Hague Academy of International Law announced the extension of the deadline to apply for the 2021 Centre for Studies and Research (postponement of the 2020 edition) until 1 September 2020. The programme will take place between 16 August and 3 September 2021 and will focus on the topic of Applicable Law Issues in International Arbitration.

The programme description reads:

International arbitration has long been the most successful method for settling all kinds of international commercial disputes, and still is – notwithstanding the surrounding criticism – the leading method for settling disputes between foreign investors and the host state. One of the characteristics of international arbitration is that it to a large extent relies on an international or transnational legal framework. The effects of arbitration agreements and of arbitral awards, as well as the role of the courts regarding arbitration agreements and awards, are regulated in international conventions such as the New York or the ICSID Conventions. Furthermore, although there is room for specificities of national law, commercial arbitration acts are largely harmonised especially through the impact of the UNCITRAL Model Law. Similarly, even if arbitral institutions try to distinguish one from each other by providing for some specific tools, the essential content of arbitration rules does not vary. It can be said, consequently, that the transnational framework of arbitration is intended to create to the extent possible an autonomous system of dispute resolution, which can be applied in a uniform way irrespective of the country in which the proceedings take place or the award is sought enforced. The procedural autonomy of arbitration may also have an impact on how arbitral tribunals relate to the substance of the dispute.

As arbitral awards are final and binding, and domestic courts and ICSID annulment committees do not have the power to review them in the merits, arbitral tribunals enjoy a considerable flexibility in selecting and applying the rules of law applicable to the dispute, even though they are constrained to respect the will of the parties. Legal literature has strongly emphasized that this flexibility creates an expectation of delocalization: both from the procedural and from the substantive point of view, arbitration is described as a method for settling disputes that strives for uniformity on a transnational level and should not be subject to national laws. The autonomy and flexibility of arbitration, however, are not absolute. The international instruments that regulate arbitration either make, in some contexts, reference to national law or call for the application of (general or concrete) international law. Also, they do not cover all aspects of arbitration, thus leaving room for national regulation. Additionally, the restricted role that courts and ICSID ad hoc committees have in arbitration does not completely exclude that national law may have an impact. While court and committee control is not a review in the merits, application of the parameters for validity or enforceability of an award, even where these parameters are harmonised, may depend on national regulation.

Importantly, the definition of what disputes are arbitrable is left to national law. While the scope of arbitrability has been significantly expanded starting from the last two decades of the last century, there are signs now that it may be restricting. The scope of arbitrability may be looked upon as a measure of the trust that the legal system has in arbitration. From another perspective, it may represent the way in which States approach the settlement of international commercial disputes: intending to keep an exclusive power by means of the exclusion of private deciders, or adopting the role of controllers of the regularity of arbitration. As far as investment arbitration is specifically concerned, it is well known that States’ attitudes are diverse and may change from time to time. In both cases, States’ policy choices may have an impact on applicable law issues.

All the foregoing considerations, succinctly exposed, are the frame for the present topic. On such a basis, it is possible to develop two lists of issues to be individually addressed. The first list deals with the fundamental aspects of the topic. Among the issues included therein, some refer to all types of arbitration, while others are rather specific to either commercial or investment arbitration. The second list responds to the fact that the applicable law is not necessarily unitary. Indeed, according to the principle of severability, a different law may apply to the procedural aspects and to the substantive aspects of the dispute, and within these two categories there are further possibilities for severing the applicable law. Thus, one can wonder to which issues is it appropriate to apply international sources of law, to which issues is it appropriate to apply soft sources of law, to which is it appropriate to apply national sources of law, and to which issues is it appropriate to apply (or to create) transnational standards. Or a combination of these sources? On which basis may this selection be made, and what are its effects on the autonomy of arbitration, on the expectations of the parties and on the credibility and legitimacy of arbitration as an out-of-court judicial system that enjoys enforceability?

The Directors of Research, Prof. Giuditta Cordero-Moss (University of Oslo) and Prof. Diego Fernández Arroyo (Sciences Po, Paris), invite applications from researchers including students in the final phase of their doctoral studies, holders of advanced degrees in law, political science, or other related disciplines, early-stage professors and legal practitioners. Applicants should identify the specific topic on which they intend to write. Participants will be selected during the fall of 2020, and will convene at The Hague during the programme period to finalize their papers. The best articles will be included in a book to be published in the fall of 2022.

All applicants are required to register online via the appropriate registration form.

More information about the programmes of The Hague Academy of International Law can be found here.

Written by Saloni Khanderia

Associate Professor Saloni Khanderia (Jindal Global Law School, O.P. Jindal Global University, Sonipat, India) recently published a new paper in the Oxford University Commonwealth Law Journal on ‘The ascertainment of the applicable law in the absence of choice in India and South Africa: a shared future in the BRICS’. The article may be accessed here.

The Russian journal Pravovedenie has issued a call for papers on Recognition and enforcement of foreign judgments: problems and prospects.

Having regard to the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, the editors seek contributions to be published in a special issue of the journal focusing on the cooperation of States in ensuring access to justice at the stage of recognition and enforcement of foreign decisions.

The deadline for submissions is 1 May 2021.

More details are available here.

In T‑574/18 Agrochem-Maks the General Court at the end of May upheld the Commission Regulation not extending market authorisation for the active substance oxasulfuron, a pesticide. The EC Regulation noted that EFSA, the European Food Safety Authority, had identified a large number of data gaps resulting in the inability to finalise the risk assessment in several areas and that ‘in particular, the available information on oxasulfuron and its metabolites did not allow finalising the assessment of the overall consumer exposure, the groundwater exposure, the risk to aquatic organisms, earthworms, soil macro and microorganisms and non-target terrestrial plants’. Since  ‘it has not been established with respect to one or more representative uses of at least one plant protection product that the approval criteria provided for in Article 4 of Regulation … No 1107/2009 [on plant protection products; see here, GAVC] [were] satisfied’, authorisation was not renewed.

The case at issue is brought by a small Croatian, family-owned company. That is a change from the classic pattern in this kind of cases, with large bio-agricultural industry routinely taking cases to the CJEU in laser-shoot fashion, hoping they might hit the target once or twice.

The General Court extensively outlines the procedure foreseen in the relevant EU laws, thereby identifying the core issue in near all of these cases held under the precautionary principle: the EU courts do not carry out a merits review; rather, they assess whether holes have emerged in the preparation of a decision, which could mean that the Institutions could not reasonably have come to the decision they came to.

That is no different here: at 62: ‘the EU Courts must verify that the relevant procedural rules have been complied with, that the facts admitted by the Commission have been accurately stated and that there has been no manifest error of appraisal or misuse of powers’. At 65, per CJEU T-13/99 Pfizer: ‘a scientific risk assessment carried out as thoroughly as possible on the basis of scientific advice founded on the principles of excellence, transparency and independence is an important procedural guarantee whose purpose is to ensure the scientific objectivity of the measures adopted and preclude any arbitrary measures.’

Specifically for current Regulation: at 66: ‘the burden of proving that the conditions for approval or renewal under Article 4 of Regulation No 1107/2009 are met lies, in principle, with the notifier.’ At 67 per CJEU T-584/13 BASF Agro: ‘it is the person seeking approval who must prove that the conditions of such approval are met in order to obtain it, and not the Commission which must prove that the conditions of approval are not met in order to be able to refuse it’.

The General Court then at length considers the procedure followed, including the reasons for the identified gaps, and then assesses the application of the precautionary principle to same: at 109 ff with reference to the 2000 Communication on the Precautionary Principle, COM(2000)1. Crucially, at 121, as noted ‘(u)nder Regulation 1107/2009 when the applicant words its renewal application, it bears the burden of proving the efficacy and safety of the substance in question.’ ‘Since it did not discharge that burden, the approval of the active substance could not be renewed.’

The case highlights once again the crucial nature of administrative compliance with the rulebooks under EU regulatory law. Many of us will have sat through presentations by EFSA or EC officials outlining the rules in excruciating and yes, not very sexy detail. Yet to follow procedure to a tee is crucial to ensure defence against corporations taking issue with the findings at the CJEU.

The case also emphasises the importance of burden of proof and, preferably, the ‘no data, no market’ rule in EU regulatory law.

There might of course still be an appeal with the Court.

Geert.

EU environmental law (with Leonie Reins), Edward Elgar, 2018, p.28 ff.

Precautionary principle, standard of proof, standards of judicial review. https://t.co/gHDzyIQS1u pic.twitter.com/R1Z1qCy4qq

— Geert Van Calster (@GAVClaw) May 29, 2020

Must Article 107 TFEU be interpreted as meaning that a system whereby a private, non-profit eco-body, approved by the public authorities, receives contributions from those who place on the market a particular category of product and who enter into a contract with it to that effect, in return for a service consisting in the organisation on their behalf of the treatment of the waste from those products, and redistributes to operators responsible for the sorting and recovery of that waste, subsidies the amount of which is set out in the approval, in the light of environmental and social targets, is to be regarded as State aid within the meaning of that provision?

That is the question as phrased in C‑556/19 Société Eco TLC and on which Pitruzzella AG Opined on 28 May. TLC stands for Textiles, Lignes de maisons, and chaussures (textiles, household linen and shoes). Producers or as the case may be first importers pay a fee to the collective body in lieu of their personal commitments under extended producers responsibility per Waste Framework Directive 2008/98.

The AG of course revisits the definition of ‘State Aid’ under CJEU C-379/98 Preussen Elektra, on which more here and here. Preussen Elektra remains controversial for it would seem to give Member States quite a bit of room for manoeuvre to reach the same result as direct State Aid more or less simply by inserting a private operator who receivs funds directly from private operators however in line with direct State instructions on level and modalities of payment.  The AG opines that in the case at issue there is no State Aid however he directs further factual lines of enquiry (ia re the State control over payments by the collective body to recyclers.

Geert.

Handbook of EU Waste law, 2nd ed. 2015 OUP, para 4.116 ff.

State Aid, collective #waste recycling bodies. https://t.co/UaPdf4T69b

— Geert Van Calster (@GAVClaw) May 29, 2020

Jean-Sylvestre Bergé and Giulio Cesare Giorgini have edited Le sens des libertés économiques de circulation – The sense of economic freedoms of movement, published by Bruylant.

At a time in which economic freedoms of movement (economic law, free trade, international trade and European freedoms of movement) are increasingly being challenged, it is crucial to explore in depth the capacity of disciplines (law, human and social sciences, hard sciences) to question the sense of these freedoms. Different forms of knowledge thus question the conception that their constructions and analyses relate to these freedoms. What directions are being taken? What are the objectives pursued? Are there any gaps between the initial ambitions and the achievements that can be observed today? Bringing together experienced researchers and young researchers in an intergenerational dialogue, this book is original and multidisciplinary, international and comparative in nature. It places the contemporary dynamics of economic law and flow phenomena in a perspective that allows their comprehension through studies organised around clearly identified issues.

The table of contents is can be found here.

See here for more information.

Maura Alessandri just published Casebook sui contratti di vendita internazionale (in Italian) She kindly provided the following summary.

This year international trade law celebrates the 40th birthday of the “United Nations Convention on Contracts for the International Sale of Goods”, adopted in Vienna on 11 April 1980 (hereinafter referred to as “CISG”).

Although the CISG has been in force in Italy since 1 January 1988, Italian companies are often not familiar with its rules and tend to ignore its existence or not to apply it  (even when it applies automatically). Case law on CISG is gaining an increasing importance in Italy.

With a view to making the CISG better and more readily known, this Casebook aims to provide international trade lawyers and practitioners with a guide, easy to read and quick to consult, of the most significant judgments and arbitration awards issued in Italy in application of CISG.

It includes a selection of 96 Italian judgments and 12 arbitral awards. These include some of the most significant and well-known judgments which have become an important and useful reference for Judges and lawyers since they deal with the most frequent questions in practice. The publication of most of the arbitral awards have been authorized by the National and International Chamber of Arbitration of Milan, one of the most prestigious Chambers of Arbitration which daily deals with international trade law issues.

The published materials aim to help international trade lawyers to easily track the precedents which solved specific issues regarding the CISG’s autonomous and internationally oriented application and avoid what Honnold called “homeward trend”.

The book is intended for consultation through an analytical index of selected keywords in order to lead the reader directly to the relevant judgments and arbitral awards.

The following issues come up in the decisions taken up in the Casebook:

• some decisions quote foreign decisions to promote the CISG’s uniform interpretation and application;
• some decisions stress that uniform substantive law (i.e. the CISG) prevails over the rules of private international law (such as the Hague Convention of 1955);
• some show the correct steps to be followed in order to check whether the CISG applies (either directly or indirectly). The direct application of CISG represents the most frequent scenario, i.e. an Italian company selling goods to a company which has its place of business in another Contracting State;
• some decisions deal with the relationship between the CISG and the General terms and conditions (and the so-called Battle of the forms);
• other decisions focus on what is (under an autonomous and uniform interpretation) a reasonable time for the notice of lack of conformity of the goods or which is the place of delivery (including Incoterms) with a view to ascertaining the competent court (and thus dealing with forum shopping’s issues);
• some decisions ascertain which is the competent court when dealing with an international sales contract, applying for example EU Regulation no. 44/2001 (precedessor of no. 1215/2012), or the Brussels Convention of 1968;
• in the same framework, arbitration is also frequently used in international trade law; the arbitral awards are intended to provide some cases (which are usually kept strictly private and confidential and not easily known) in which arbitrators have interpreted and applied CISG’s rules.

The book contains: 1) a list of the judgments and awards cited in chronological order, 2) the text of these judgments and awards, 3) the Italian (unofficial) text of the CISG, 4) a list of the Contracting States, and 5 ) a reasoned analytical index that constitutes the true asset and  increases the usefulness of the book.

Title: Maura Alessandri, “Casebook sui contratti di vendita internazionale. Raccolta ragionata della giurisprudenza italiana (sentenze e lodi arbitrali) sulla Convenzione di Vienna del 1980 sui contratti di vendita internazionale di beni mobili (CISG)”, Bologna, Bonomo Editore, 2020, ISBN: 978-88-6972-156-4

Available at Bonomo Editore or on Amazon.

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 13 December 2018, the Dutch Supreme Court (Hoge Raad) has submitted a long-awaited preliminary question to the Court of Justice of the EU (C-815-/18): does the Posting of Workers Directive apply to road transport operations? The referring judgment (in Dutch) is available here.

The Posting of Workers Directive (96/71/EC) contains ‘mini’ conflict of laws rules for some important labour law regulations, such as minimum wages. These rules determine i.a. when these labour law regulations are mandatorily applicable in cross-border labour flows in the EU and consequently can have a profound impact on cross-border road transport operations. The aim of the Directive: to balance the free movement of services, worker protection and fair competition.

But why did this preliminary question actually need to be posed? It seems unconventional to assume that this Directive, which generally aims to regulate labour flows in the EU, should not apply to the particular labour flows in the road transport sector. The background of this ambiguity is that the Directive has been developed particularly in view of the labour flows in the construction sector and is tailored accordingly. In this sector, it is often about relatively simple facts: a construction worker usually works in Member State A and is temporarily posted to Member State B to work only in that state. The ‘scope rules’ of the Directive mirror this situation: a part of the labour law regulations of the temporary country of work, other than the country of usual employment, must be guaranteed to the worker (art. 2(1) Posting of Workers Directive).

These ‘scope rules’ are indeed difficult to apply to the atypical labour flows in road transport. There are many different employment models in road transport, but the common denominator is that, in principle, labour is not performed in one temporary country of work, but in a whole number of consecutive ‘very’ temporary countries of work, and, additionally, precisely because of these highly mobile activities it is often impossible to designate a country of ‘usual’ employment.

A perfect illustration is the employment model in the FNV case that forms the basis of the preliminary questions to the Court of Justice EU. In short: a Hungarian transport company posts drivers to a Dutch transport company to carry out transport in and from the Netherlands throughout the EU. The drivers are paid the lower Hungarian salary. The trade union FNV does not agree with the drivers being paid this lower salary and initiates court proceedings against the Hungarian transport companies before the Dutch courts.

Ruling in first instance: the Posting of Workers Directive applies; the ‘where’ scope rule of the Directive also includes the ‘from where’-rule. Consequence: the Dutch (minimum) wage is due. Ruling in second instance: the Posting of Workers Directive does not apply; the Directive cannot be interpreted as that it contains a ‘from where’-rule. Consequence: the Dutch (minimum) wage is not due. The Supreme Court concluded that this is not an acte eclair or éclairé and submitted the case to the Court of Justice EU.

In his conclusion of 30 April 2020, AG Bobek provides his take on the matter: 1. The Posting of Workers Directive applies to the road transport sector; 2. In order to qualify as a ‘temporary country of work’ within the meaning of the Directive, there must be a sufficient connection between the working activities and the country of work (and thus, in a sense, the Directive includes a ‘from where’-rule). E.g. according to the AG, the mere crossing of a territory (transit operations) will, as a rule, not meet the requirement of a sufficient connection, whereas posting drivers from transport company A to B to work in and from the premises of transport company B gives a good indication of a sufficient link. This seems to be good news for the trade union FNV.

AG Bobek’s conclusion is in line with the general assumption of the EU legislator that the Posting of Workers Directive applies to road transport. During the development of the new Posting of Workers Directive in 2018, which explicitly excludes the road transport sector from its scope (for the time being), the EU institutions (Council, Parliament, Commission) stated that the Posting of Workers Directive applies to road transport:

‘The new elements of this Directive will apply to the transport sector once the sector specific legislation (currently under negotiation) enters into force. Until that moment, there is a clear understanding by the three institutions and the Member States that the rules of the 1996 Posting Directive shall apply. This was called into question by a number of Member States in the past.’

From a legal point of view, this outcome can be well substantiated. Among other things, the AG points out that the Posting of Workers Directive fully excludes working activities in the maritime sector from its scope (Article 1(2) Posting of Workers Directive), which could indicate that the rest of the transport sectors are covered.

The AG also rightly rejects the argument that the Posting of Workers Directive does not apply to road transport because its legal basis is the free movement of services, which would not apply to the transport sector because this sector is regulated separately in the transport title of the TFEU (see in particular Article 58(1) TFEU). The AG considers it peculiar to interpret the scope of secondary EU law narrowly, in spite of the clear wording of the specific instrument. Moreover, according to the AG, this could create additional block exemptions, which are not contained, or at least hinted at, anywhere in the text of such a secondary law instrument. The AG then refers to other sectors that are regulated separately in the Treaties, such as public health, energy, tourism or culture and states that it would be a stretch to conclude that the Directive also misses application to working activities in these sectors. Finally, the AG indicates that, in any event, it is generally considered that legislation based on the free movement of services could apply to the transport sector.

The fact that the legal basis of the Posting of Workers Directive has no implications for its applicability to the transport sector was actually long and widely assumed. However, a recent judgement of the CJEU in the Dobersberger case (C-16/18) caused a great deal of confusion in this respect and the AG was therefore obliged to pay more attention to the matter. In the Dobersberger case it was about an employment model in a railway context; more specifically about the catering working activities of Hungarian personnel in trains, plying the route between Hungary, Austria and Germany. In this case, the CJEU starts its reasoning by observing that the legal basis of the Posting of Workers Directive is the free movement of services and that transport activities are regulated by the separate transport title; the Court then considers that catering activities (in a train) do not qualify as transport activities and that the case therefore could be examined in the light of the Posting of Workers Directive. By constructing its reasoning as such, the CJEU strongly suggests that the Posting of Workers Directive cannot apply to transport activities. Fortunately, AG Bobek now clarifies that the CJEU has not explicitly ruled that the Posting of Workers Directive cannot apply to transport activities and to that extent paves the way for the CJEU in the present FNV case to apply the Posting of Workers Directive.

Considering the general assumption of the EU legislator that the Posting of Workers Directive applies to road transport and the strong legal arguments mentioned above, it is to be expected that the Court will follow the AG in this respect.

Now that it has been established that the Posting of Workers Directive may apply to road transport operations, a second question must be addressed: when exactly can we speak of a temporary country of work within the meaning of the Posting of Workers Directive? The AG solves this question by pointing to the requirement of a sufficient link, which must be assessed on a case by case basis and taking into account all specific circumstances.

According to the AG, reference can be given to the interpretation of the habitual workplace criterion in Article 8 of the Rome I Regulation (Regulation 593/2008; the Directive’s ‘big brother’ that determines which employment law as a whole is applicable to the employment contract and to which the Directive can deviate with its mandatory labour law regulations).

In the Koelzsch case (C-29/10), the CJEU has given specific criteria for the interpretation of the ‘habitual workplace’ of Article 8 Rome I in the context of road transport operations, which, according to AG Bobek, is relevant for the definition of the temporary country of work in the Directive, since ‘both instruments seek to ascertain certain types of material connections between the worker and a given Member State’. The CJEU summed up various factors, such as the place: from which the work is carried out, where the work is carried out, where instructions are received, where the work is organised by the driver, where the lorries are parked, where the lorries are unloaded and to which the driver returns. The AG additionally points to the Nogueira case (C-168/10 and C-169/16) and the overall importance of aiming to reflect the ‘true nature of legal relationships’ and to prevent ‘circumvention strategies’.

It is more difficult to predict to what extent the AG will be followed by the Court on this second point. Indeed, the solution proposed by the AG concerning the sufficient link and the wide margin of appreciation can lead to very complex cases, which could turn out to be rather uncertain for transport planning in the sector. In addition, the EU proposal providing clarifications on the application of the Posting of Workers Directive to road transport operations (COM 2017, 278), currently under negotiation in Brussels, will not solve this either, given the primary focus of this proposal on bilateral, crosstrade and cabotage operations (without discussing the employment model of the posting of personnel between companies at all). See yesterday’s post on this blog and here for more information on this proposal.

To summarise: AG Bobek concludes that the Posting of Workers Directive can apply to road transport operations, which means that, i.a., the minimum wages of Member States where the drivers temporarily work must be guaranteed. This is in line with the general assumption of the EU legislator and is well founded in law. It is to be expected that the Court of Justice will follow the AG in this respect.

According to the AG, the criterion of a sufficient link should play an important role in determining the temporary country of work within the meaning of the Posting of Workers Directive. The criteria given by the CJEU in the Koelzsch case with regard to the definition of the ‘habitual workplace’ in the Rome I Regulation can provide guidance in this matter. It is more difficult to predict to what extent the Court will follow the AG regarding this point.

The author is a member of the International Institute for International and Foreign Law, a Hague-based NGO which has been providing legal consultancy to professionals (judges, lawyers, notaries, mediators etc.) regarding private international law and foreign law for over a hundred years.

In La Micro Group (UK) Ltd & Anor v La Micro Group, Inc & Ors[2020] EWHC 1405 (Ch) 1st Claimant, LA Micro Group (UK) Ltd (“LA (UK)”), is an English company. It was incorporated in 2004 and acquired by the 2nd Claimant, Mr David Bell, a British citizen resident in England. It now has two issued shares, one in the name of Mr Bell, and one in the name of the 3rd Defendant, Mr Arkadiy Lyampert. Mr Bell and Mr Lyampert are also the two directors of the company. The substantive question raised in the action is as to the beneficial ownership of LA (UK). The position of the Claimants is that Mr Bell and Mr Lyampert are not only the legal owners of the two issued shares but also the beneficial owners, and that they are each entitled to 50% of the distributable profits of the company by way of dividends. Mr Lyampert’s position is the same, although he has indicated that he does not intend to take any active part in the proceedings. All defendants are resident in California.

This preliminary issue is one of jurisdiction given claimants seek permission to serve out of jurisdiction. There are a variety of proceedings in California: disputes between Mr Frenkel and Mr Lyampert in 2010 led to Mr Frenkel and some of LA Inc’s other employees, including Mr Gorban, leaving LA Inc and starting a competing business called IT Creations, Inc (“ITC”). In the words of the Court of Appeal of California, “a profusion of lawsuits followed”.

It is i.a. argued by defendants that it would an abuse of process for LA Inc to relitigate the same issues as were decided by that judgment, even if the CAL judgments do not strictly give rise to res judicata given the differences between parties.

At 49 Nugee J holds on that particular issue that the relevant CAL Judgment did not decide anything about whether LA Inc had lost its rights to a beneficial interest in LA (UK), and the findings of fact on which the Claimants rely were not necessary to the English court’s decision on any of the matters that were in issue.

Of specific interest to the blog is the forum non conveniens application at 58 ff., with at 68 ff consideration of whether one of the pending CAL proceedings is the mirror image of the English ones, which would count heavily in a forum non consideration given the English law’s preference for the whole issue to be submitted to one tribunal. At 78 Nugee J  sums up the core issue:

The choice is between (i) allowing the English proceedings to continue so that a definitive answer can be given to one discrete question (has LA Inc lost its beneficial interest?) which will then enable the Californian court to proceed on a correct understanding of what has been decided in England rather than on what is said to be a misapprehension; or (ii) requiring the Claimants, unless they are willing to abandon their claims, to go to California to argue matters that on the view I take are matters of English law and largely concern acts taking place in England.

At 77 Nugee J expresses strong support for Gleichlauf:

(T)here are many advantages in questions of law being decided by a home court rather than a foreign court. Evidence and cross-examination is not required, which is likely to make resolution of the point both quicker and cheaper. And the court is familiar with its own law, in a way that it is not with foreign law, which means that the court’s resolution of the issues is likely to be both easier and more soundly based. Other things being equal, I have no doubt that it is preferable, both in terms of practical convenience and in terms of the ends of justice, for questions of English law to be argued in England as questions of law rather than for them to be argued in California as questions of fact on expert evidence (and possibly, although I have no evidence as to whether this would be the case, before a jury).

He concludes at 92:

England is the most appropriate forum for those matters to be decided; but even in relation to the declarations in respect of Mr Lyampert’s share, leaving the parties to litigate in California has a mix of advantages and disadvantages and there is not in my judgment sufficient to displace England as the forum in which the dispute can most suitably be tried for the interests of all the parties and for the ends of justice.

Nugee J does not therefore give Gleichlauf preponderant weight ab initio. Yet all other things being equal, Gleichlauf in this case pushed back a finding of forum non.

Geert.

Application for stay on forum non conveniens grounds. Dismissed.
Nugee J: 'Leaving parties to litigate in CAL has mix of (dis)advantages, not sufficient to displace EN as forum in which dispute can most suitably be tried for the interests of all parties and for ends of justice. https://t.co/Rm3i16dEPg

— Geert Van Calster (@GAVClaw) June 3, 2020

In February 2020, the Spanish Constitutional Court ordered the review of a judgment requiring the actor Christopher Lee to pay 710.000 Euros to the author of a painting that was used to promote a film without the latter’s permission.

The Court considered that the Commercial Court of Burgos (Spain) had violated Lee’s fundamental right to an effective judicial protection, in that it had not heard him nor proceeded to personal service of the judgement at any time prior to issuing an enforcement order against the actor in October 2009.

The controversy relates to the movie Jinnah and, specifically, to one of the posters by which it was promoted. The Commercial Court of Burgos considered that the use of the work “constituted an infringement of exclusive rights” and awarded a compensation to the author of the work.

The  lawsuit had been filed by the painter against a business corporation (The Quaid Project Limited), Mr. Christopher Frank Carandini Lee and Mr. Juan Francisco Aneiros Rodríguez, as representative of the official website of Christopher Lee. The three co-defendants were domiciled in London; neither The Quaid Project Limited nor Mr. Carandini Lee appeared. At the time, only Mr. Aneiros could be personally served at the address established in a contract previously signed with the plaintiff.

The decision against Lee was therefore taken in absentia. It has turned out that the Burgos Court’s attempts to have the claim and the judgment served to the defendant at the addresses provided by the claimant were unsuccessful, and that the Court contented itself with service by publication. After the judgment was delivered, a writ of execution (auto de despacho de ejecución) was granted and certified as a European enforcement order, thus allowing for enforcement to be tried in the United Kingdom (Lee’s place of residence).

According to the Constitutional Court, the absence of personal service led to a violation of Lee’s right of access to justice, for it prevented him from participating in proceedings where his financial obligations were at issue. The Court also expressed doubts regarding the assessment of the damages, which had been made without calling for any expertise. Despite this, the Court in Burgos had considered the figure to be appropriate and in September 2010 had ordered that the defendants’ bank accounts be seized, requesting information for this purpose from different banking entities.

After learning about the proceeding “through a letter” written by the claimant’s lawyers, that reached him “through a London-based office,” in February 2014 Lee asked unsuccessfully for the proceedings to be declared void. The actor passed away in June 2015; an application was filed with the Constitutional Court by his heirs, which in a judgment dated February 24 has ruled in favor of C. Lee.

Before the Constitutional Court, the claimant in the ordinary proceedings contested the legal standing of Lee’s heirs in light of UK succession law, relying in particular on the condition of testamentary executor and manager of the estate of Birgit Lee.

The Constitutional Court dismissed this part of the defense recalling its previous case law based on Article 162.1 b) of the Spanish Constitution and Article 46.1 b) of the Constitutional Court Act, whereby legal standing derives from having “a legitimate interest”. The category is interpreted broadly and granted to any person whose legal stance (“círculo legal”) may be harmed by the violation of a fundamental right, even if the violation does not occur directly against him or her.

The Court went on to add that, in the past, the heirs of a deceased plaintiff had been admitted to take over in an “amparo” appeal for the defense of personality rights. When (like in the case under examination) the ruling on “amparo” entails economic consequences for the estate, the recognition of legal standing to the heirs is even more reasonable.

The main issue raised by the appellants before the Constitutional Court focused on the violation of the late Lee’s right to a due process, caused by the wrongful application by the Spanish commercial court of Regulation (EC) No 805/2004 creating a European Enforcement Order (EEO) for uncontested claims. In this context, the appellants argued first  that only a judicial decision ending the ordinary proceedings, and not the writ of execution can be certified as an EEO. Secondly, in a nutshell, they contested the enforceability of the resolution adopted in absentia, with service having been made by edicts by a court which relied on the informations given by the claimant without further ado.

The Constitutional Court was silent as to the first prong of the complaint. In my view, the appellant was wrong: whereas according to Article 517 Spanish Code of Civil Procedure (Ley de Enjuiciamiento Civil) the enforcement title is indeed the decision on the merits, the definition of “resolution” comprises as well the writ of execution which in Spanish procedural law follows and opens up the enforcement procedure itself.

As to the second prong, the Court was requested to examine whether the application made by the Spanish commercial court of the EEO Regulation, granting the EEO based on service by publication, violated the right to effective judicial protection of the defendant. For this purposes, the Constitutional Court started by asserting that the Burgos Court, to the extent it applied rules of European Union law, must have been aware that it was not only bound by Article 24.1 of the Spanish Constitution, but also by Article 47 of the Charter of Fundamental Rights of the European Union (CFREU).

The Constitutional Court focused then on how service had been made, in order to assess whether in the procedure prior to the adoption of the judgement the certification of which is at stake , the rights to a hearing and to self-defense of the debtor had been respected. This examination is reserved for cases in which the non-appearance of the defendant amounts to a tacit admission of the claim or of the facts alleged by the creditor under the law of the Member State of origin, and, as a consequence, the claim may be deemed “uncontested” for the purposes of Regulation No 805/2004. Regarding service without proof of receipt by the debtor (Article 14 of the Regulation), the Regulation describes various admissible modalities, all of which require that the debtor’s domicile is known with certainty. In this way, the Regulation establishes a minimum standard of the right of defense so as to ensure that the non-appearance of the debtor was conscious and voluntary, thus an absence of the intention to challenge the credit can be inferred therefrom.

At this point, the Constitutional Court makes the most important assertion of its judgment, acknowledging the need to assess “whether a notification by edicts made totally ignoring the debtor’s address, which may eventually be valid in our system from the point of view of Article 24.1 [Spanish Constitution], is also valid from the perspective of Article 47 CFREU for the purposes of granting a European Enforcement Order”. It goes on saying that “the answer to this question, taking into account Recital 13 of Regulation 805/2004 and the decision of the Court of Justice (First Chamber) in Case C-292/10, Cornelius de Visser, of 15 March 2012, must be negative. The Court of Justice of the European Union affirms that although a default judgment is among the titles that can be certified as European enforcement orders (Article 3 of the Regulation), this is not the case when it has been issued without determining the domicile of the respondent” (the translation is mine).

In my view, this is not a bad judgment. However, one cannot avoid feeling a little bit dismayed when learning  that one of the defendants, Mr. Juan Aneiros, who could be served at his domicile, was the son-in-law of C. Lee and, as said, the manager of his official website. Difficult to believe that C. Lee could only learn about the process after he had been sentenced to pay, but not before. However, this was for the Constitutional Court to decide; it has spoken and – not unimportat in this tough times for the EU – followed the case law of the CJEU.

This book examines the rules, principles, and doctrines in Nigerian law for resolving cases involving cross-border issues. It is the first book-length treatise devoted to the full spectrum of private international law issues in Nigeria. As a result of increased international business transactions, trade, and investment with Nigeria, such cross-border issues are more prevalent than ever. The book provides an overview of the relevant body of Nigerian law, with comparative perspectives from other legal systems. Drawing on over five hundred Nigerian cases, relevant statutes, and academic commentaries, this book examines jurisdiction in interstate and international disputes, choice of law, the enforcement of foreign judgments and international arbitral awards, domestic remedies affecting foreign proceedings, and international judicial assistance in the service of legal processes and taking of evidence. Academics, researchers, and students, as well as judges, arbitrators, practitioners, and legislators alike will find Private International Law in Nigeria an instructive and practical guide.

The table of contents and more information on the book can be found on the publisher’s website: https://www.bloomsburyprofessional.com/uk/private-international-law-in-nigeria-9781509911165/

Written by Inez Lopes (Universidade de Brasília) and Fabrício Polido (Universidade Federal de Minas Gerais)

Following the successful repercussion of the Webinar PIL & Covid-19: Mobility of Persons, Commerce and Challenges in the Global Order, which took place between 11 and 22nd May 2020, the Scientific Committee headed by Prof. Dr Inez Lopes (Universidade de Brasília), Prof. Dr Valesca R. Moschen (Universidade Federal do Espírito Santo), Prof. Dr Fabricio B. Pasquot Polido (Universidade Federal de Minas Gerais), Prof. Dr Thiago Paluma (Universidade Federal de Uberlandia) and Prof. Dr Renata Gaspar (Universidade Federal de Uberlandia) is pleased to announce that the Webinar´s videos are already available online (links below). The committee thanks all those professors, staff and students who enthusiastically joined the initiative. A special thank is also given to the University of Minas Gerais and the Brazilian Centre for Transnational and Comparative Studies for the online transmissions. The sessions were attainable to both participants and the audience.

On the occasion of the Webinar, scholars and specialists from Argentina, Brazil, Uruguay, Mexico, Portugal, Spain and the United Kingdom shared their preliminary views on Private International Law (PIL) related issues to the existing challenges posed by Covid-19 outbreak in Europe and the Americas. The main objective of the Webinar was to focus on the discussions on three main multidisciplinary clusters for PIL/Covid-19 research agenda: (I) Private International Law, International Institutions and Global Governance in times of Covid-19; (II) Protection of persons in mobility and Covid-19: human rights, families, migrants, workers and consumers; (III) International Commerce and Covid-19: Global supply chains, investments, civil aviation, labour and new technologies.

The initiative brought together the ongoing collaborative research partnerships among peers from the University of Brasília-UnB, Federal University of Minas Gerais-UFMG, Federal University of Uberlândia-UFU, Federal University of Espírito Santo-UFES, State University of Rio de Janeiro, Federal Rural University of Rio de Janeiro, FGV Law/São Paulo, Federal University of Paraná, Federal University of Rio Grande do Sul, Universidad Nacional del Litoral/Argentina, Universidad de la República/Uruguay, CIDE/Mexico, University of Coimbra/Portugal, University of Minho/Portugal, Universidad de València/Spain, University of Edinburgh/UK, and besides to members of the American Association of Private International Law – ASADIP, the Latin American Society of International Law, the Latin American Research Network of International Civil Procedure Law and the Brazilian Association of International Law.

The proposal for e-gathering specialists was made in line with the intense academic engagement to explore potential critical views related to current and future avenues for Private International Law during a pandemic crisis. One could remark the strong narratives about “global” and “domestic” health crises and their interactions with the practical operation of PIL lawmaking and decision-making processes. More generally, participants raised several issues on how PIL framework, norm-setting and dispute resolution mechanisms would be intertwined with global health emergencies, national public health interests, social isolation and distancing, inequalities, poverty, the demise of social protection on global scale and restrictions on the mobility of families, groups, individuals, companies and organizations during a pandemic crisis.

The Webinar participants also talked about an expedite PIL agenda on core issues related to state and non-state actors’ practices during Covid-19 health crisis, challenges to international commerce, investment, labour and technologies and enforcement of human rights in cross-border cases. In view of the three clusters and specific topics, the Webinar sessions went into the analysis of the actual and potential impacts of Covid-19 outbreak on PIL related areas, its methodologies and policy issues. Participants highlighted that the PIL sectors on applicable law, jurisdiction, international legal (administrative and judicial) cooperation and recognition of foreign judgments will remain attached to the objective of resolving urgent cases, such as in the field of family and migration law (e.g. cases of international abduction, family reunion vs. family dispersion), consumer law, labour law, international business law and overall in cross-border litigation (e.g. reported cases involving state immunity, bankruptcy, disruption of global supply chains).

Likewise, there was a converging view amongst participants that PIL and its overarching principles of cooperation, recognition and systemic coordination will be of a genuine practical meaning for what is coming next in Covid-19 pandemic. Also, values on cosmopolitanism, tolerance and integration going back to the roots and veins of the Inter-American scholarship to PIL studies (since the end of 19th century!) may help to improve institutions dealing with local, regional and global. Likely those principles and values could provide PIL community with ‘cautionary tales’ in relation to existing trends of opportunistic nationalism, refusal of cooperation and threats with foreign law bans (for example, with regard to specific states, migrants and even businesses). As to policy level and to State practices (connected to international politics and public international law), participants have raised various concerns about the mobility of persons, sanitary barriers and national campaigns perniciously devoted to spreading xenophobia, marginalising groups, minorities and migrants. Some participants have also referred to the dangers of unilateral practices of those States advocating a sort of international isolation of countries and regions affected by Covid-19 without engaging in cooperation and dialogues. Even in those extreme cases, there will be harmful consequences to PIL development and its daily operation.

Inevitably, the tragedies and lost lives in times of Coronavirus have made participants reflect upon the transformative potentials for international scholarship and policy in a multidisciplinary fashion. For example, as remarked in some panels, in order to engage in a constructive and policy-oriented approach, PIL scholarship could refrain from any sort of ‘black-letter’ reading or absenteeism concerning Covid-19.  At this stage, a sort of ‘political awareness’ should be encouraged for studies in public and private international law.  Issues on economic reconstruction (rather than simply ‘economic recovery’), access to public health, disruptive technologies, generational environmental concerns, labour markets, access to credit will be highlighted in global governance talks during Covid-19 pandemic and beyond. Some participants conceive the moment as “reality shock” rather than “mindset change” in facing good/bad sides of the pandemic.

As a preliminary matter of housekeeping method, participants shared some conceptual and normative questions in advance to the Webinar as a kick-off stage. A first teaser was initially to generate discussions about the interplay between state actors, international institutions, International Health Law and PIL. One of the departing points was the impact of the global sanitary emergency on individuals, families, organizations and companies and overlapping goals of state powers, public ordering and transnational private regulation. In addition, participants raised further concerns on the current international institutional design and PIL roles. Covid-19 accelerated and openly exposed the weakness of international institutions in guiding States and recalling their obligations concerning the protection of citizens during national emergencies or providing aid to most states affected by the outbreak of a pandemic disease. That scenario reveals existing gaps and bottlenecks between international, regional and national coordination during health emergencies (for example, the World Health Organization, Organization of American States and the European Union in relation to Member States). Participants also proposed further questions whether a global health emergence would change current views on jurisdiction (prescriptive, adjudicatory and executive), particularly in cases where cooperation and jurisdictional dialogues are refused by states in times of constraints and ambivalent behaviours in global politics.

Interdisciplinary PIL approaches also allowed participants to draw preliminary lines on the intersectionality between global health, national policies and jurisdictional issues, particularly because of the distinct regulatory frameworks on health safety and their interplay with cross-border civil, commercial and labour matters. The Coronavirus outbreak across the globe paves the way to rethink roles and new opportunities for international organizations, such as the United Nations, WHO, WTO, the Hague Conference of Private International Law, European Union, ASEAN, Mercosur and Organization of American States. One of the proposals would be a proper articulation between governance and policy matters in those international institutions for a constructive and reactive approach to the existing and future hardship affecting individuals, families and companies in their international affairs during pandemics and global crises. Since Private International Law has been functionally (also in historical and socio-legal dimensions) related to “the international life” of individuals, families, companies, organizations, cross-border dealings, a more engaged policy-oriented approach would be desirable for the PIL/global health crisis interplay. To what extent would it be possible to seek convergence between PIL revised goals, health emergencies, new technologies, governance and “neo-federalism” of organizations for advanced roles, new approaches, new cultures?

Some panels have directly referred to the opportunities and challenges posed ahead to PIL research agenda as well as to international, transnational and comparative studies. Both the Covid-19 outbreak and the global crisis require a study to continuously commit with inter- and multidisciplinary research and even strategically to recover some overarching values for a global order to be rebuilt. Reinforced and restorative cooperation, cosmopolitanism, ethics of care, solidarity and the entitlement of human rights (for instance, new proposed formulations for the right to development under the UN 2030 Agenda) are inevitably related to practical solutions for global health crises and emergencies. Humankind has been in a never-ending learning process no matter where in the globe we live. In a certain fashion, the despicable speech and behaviour of certain governments and global corporations’ representatives during the fight against the coronavirus generated endurable feelings in scholarly circles worldwide. Besides, political agents’ disdain regarding lost lives will never be forgotten.

How could PIL resist and respond to global challenges involving politics, international affairs and global health while at the same time it will be confronted with upcoming events and processes associated to extremist discourses and hatred, disinformation, historical revisionism, ‘junk science’ or everything else that disregards principles of global justice, international cooperation and protection of the rights of the person in mobility? Perhaps it is too early to reach consensus or a moral judgment on that. Nevertheless, the fight against Coronavirus/Covid-19 seems to extoll the powerful narratives of alterity, care, social protection, equalities, science, access to knowledge and education. Private International Law may play an important and critical role during forthcoming ‘austerity projects’ that may come during these dark sides and days of our History. As recalled by participants, the present requires our communities to engage in new proposals to support people, enterprises, consumers, workers and governments in their aspirations and endeavours for improving ‘social contracts’ or creating new ones. A pandemic crisis would not be the last stop or challenge.   

For the sake of a peaceful and safe global community, PIL has ‘tools and minds’ to raise awareness about a balanced, fairly and universally oriented compromise to keep global, regional and national legal regimes operating in favour of the mobility of persons, the recognition of foreign situations, enforcement of human rights, allocation of distributive international trade, as well as engaging in environmental and human development goals. For example, recent academic writings on hardship or ‘force majeure’ theories could indeed focus on technical solutions for international contracts and liability rules, which are suitable for accommodating certain interests (the ‘zero-sum’ game?) among public and/or private parties during Covid-19 and after that. Yet those reflections could not isolate themselves from a broader discussion on major social and economic hurdles associated to business environments worldwide, such as unequal access to finance, trade imbalance, precarious work, digital dispossession by new technologies and multi-territorial and massive violation of human rights. From now on, global fairness and solidarity appear to be crucial for a common talk and shared feeling for countries during their socioeconomic reconstruction. Cooperation remains a cornerstone to pursue equilibrium strategies and surely PIL and its academic community will remain a great place for an authentic and constructive exchange between ideas beyond PIL itself. Stay with your beloved, stay safe!

Inez Lopes (Universidade de Brasília)
Fabrício Polido (Universidade Federal de Minas Gerais)

*********

International Law, International Relations and Institutions: narratives on Covid-19 & challenges for Private International Law

05/11 – Monday – 10:30

Raphael Vasconcelos – State University of Rio de Janeiro; Fabrício B. Pasquot Polido – Federal University of Minas Gerais; Renata Gaspar – Federal University of Uberlândia

Video here

PIL, Global Governance, mobility of persons and Covid-19: enforcement of sanitary measures, international public policy and critical debates

05/12 – Tuesday – 16:30

Paula All – National University of Litoral/ Argentina; Rosa Zaia – Federal University of Uberlândia; Renata Gaspar – Federal University of Uberlândia

Video here

PIL, state immunity, international organizations and cross-border civil/commercial litigation in Covid-19

05/13 – Wednesday – 10:30

Valesca R. Borges Moschen – Federal University of Espírito Santo; Martha Olivar Jimenez – Federal University of Rio Grande do Sul; Fabrício B. Pasquot Polido – Federal University of Minas Gerais; Tatiana Cardoso Squeff – Federal University of Uberlândia

Video here

Emerging issues for international protection of consumer tourist and Covid-19

05/14 – Thursday – 10:30

Guillermo Palao Moreno – University of València/Spain; Tatiana Cardoso Squeff – Federal University of Uberlândia; Valesca R. Borges Moschen – Federal University of Espírito Santo

Video here

Covid-19, persons in mobility, social and sexual rights at transnational level: violence, vulnerability, xenophobia and discrimination

05/15 – Friday – 10:30

Tatyana Friedrich – Federal University of Paraná; Mariah Brochado – Federal University of Minas Gerais; Francisco Gomez – University of València / Spain; Raphael Vasconcelos – State University of Rio de Janeiro

Video here

Global digital economy, data protection, online misinformation and cybersecurity in times of Covid-19: jurisdictional and international legal cooperation

05/18 – Monday – 10:30

Anabela Susana Gonçalves – University of Minho / Portugal; Alexandre Pacheco – Getúlio Vargas Foundation – FGV / Direito-SP; Fabrício B.P. Polido – Federal University of Minas Gerais; Inez Lopes – University of Brasília – UnB

Video here

Civil aviation and Covid-19: current landscape for transportation of passengers and international commercial transactions

05/19 – Tuesday – 10:30

Inez Lopes – GDIP-Aéreo-Espacial / University of Brasília; Fabrício B. Pasquot Polido – Federal University of Minas Gerais; Marcelo Queiroz – GDIP-Aéreo-Espacial / UnB and GETRA / UnB; Fernando Feitosa – GDIP-Aero-Espacial / UnB and GETRA / UnB

Video here

Covid-19, foreign investments, integrated markets and PIL goals: regulatory choices, critical infrastructure and litigation

05/20 – Wednesday – 10:30

Laura Capalbo – University of the Republic / Uruguay; Veronica Ruiz Abou-Nigm – University of Edinburgh / UK; Ely Caetano Xavier Junior- ICHS – Federal Rural University of Rio de Janeiro

Video here

Covid-19 & future of work in the global order: aspects of DIP, employment contracts, outsourcing and worker protection

05/21 – Thursday – 10:30

Marcia Leonora Orlandini – Federal University of Uberlândia; Marcel Zernikow – State University of Rio de Janeiro; Maurício Brito – GDIP-Transnational Justice / UnB

Full video here.

Covid-19, International commerce, global supply chains, WTO and beyond

05/22 – Friday – 16:30

María Mercedes Albornoz – CIDE / Mexico; Rui Dias – University of Coimbra / Portugal; Fabio Morosini – Federal University of Rio Grande do Sul; Renata Gaspar – Federal University of Uberlândia

Full video here

Covid-19, PIL and new technologies: research opportunities for Ph.D Students 05/19 – Tuesday – 19:00

Cecília Lopes – Master’s Student / UFMG; Fernanda Amaral – Master’s Student / UFMG

Full video here

Covid-19, PIL and protection of vulnerable communities: research opportunities for Ph.D Students

05/22, Friday – 10:30 – Márcia Trivellato – Doctoral candidate/ UFMG;  Thaísa Franco de Moura – Doctoral candidate/ UFMG; Diogo Álvares – Master student/UFMG;

Full video here

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 31 May 2017 the European Commission launched a proposal to adopt a special conflict-of-laws rule that determines (i.a.) which minimum wages apply to the highly mobile cross-border working activities of lorry drivers (COM 2017, 278). After more than three years of heavy debate, this proposal was profoundly modified and the Council and the European Parliament still do not find each other, leaving many aspects to be still worked out (see also the Legislative Train on the European Parliament’s website). The purpose of this piece is to give an overview of the background of this proposal, the current state of affairs and the possible influence of a special conflicts-of-law rule on the sector from a conflict-of-laws perspective.

The background of this proposal can be traced back to the unfair competition that has arisen in the EU road transport sector as a result of the enlargements of the EU to central and eastern EU Member States (in 2004, 2007 and 2013). This has led to a tripled increase in minimum wage differences between EU Member States. Given that labour costs are the largest expense in the provision of transport services, this creates a major competitive advantage for providers from low-wage EU member states.

In fifteen years, this has caused a metamorphosis of the road transport sector, with Eastern EU Member States now leading the lists of the largest transport providers in the EU. Several Western EU Member States, such as Germany and France, have responded to this competitive pressure by adopting their own national minimum wage legislation to be applied to transport operations on their territory. As a result, the EU road transport sector has become severely fragmented and the social position of drivers has been put under pressure. How could this have gone so wrong?

In the EU we have always agreed that it is not sustainable or responsible to allow competition that is purely based on labour costs. To this end, we have introduced minimum wages within the national borders and EU-wide we have developed the so-called ‘Posting of Workers Directive’ (1996/71). This Directive stipulates, amongst other things, that the minimum wages of the temporary country of employment must be applied if this is more favourable for the employee. In this way, it is ensured that efficient and innovative market players can actually compete on this efficiency and innovation (and thus not only on wage costs).

However, the Posting of Workers Directive did not come about with regard to road transport, but mainly with regard to the construction sector, where various social/economic problems arose in the 1990s. As a result, the Directive is very difficult to apply to the atypical and highly mobile road transport sector and this has led to widely divergent interpretations in the Member States, in many cases simply not enforcing the Directive at all with regard to this sector. In practice, this allows for direct competition on labour costs, with all its undesirable consequences as described above.

The EU legislator now wants to put an end to this situation by developing a special conflict-of-laws rule for minimum wages in road transport, which, among other things, determines to which transport operations the Posting of Workers Directive does and does not apply. The contrasts between Western and Eastern EU Member States, but also to some extent between central and peripheral Member States, makes for a lengthy legislative process lasting more than three years.

On 12 December 2019 the European Commission, the European Council and the European Parliament have reached a provisional agreement about some important aspects of the conflicts-of-law rule, which was approved to a certain extent within the institutions themselves in the following months: on 21 January 2020 the Parliament’s TRAN Committee accepted the provisional agreement informally by letter to the other institutions, the Council then adopted an official position on 7 April 2020 and the Commission gave its approval to the Council’s position on 14 April 2020 (subject to a number of matters not relevant here).

This looked very promising, but on 8 June 2020 the TRAN Committee suddenly threw a spanner in the works: the TRAN Committee adopted some severely different amendments compared to the position of the Council. If the plenary approves this, the negotiations will become very difficult. Yet, in this controversial legislative procedure it would not be the first time that the plenary rejects the position of the TRAN committee. To be continued!

If we take a closer look at the official position of the Council, a number of things stand out. Firstly, it is made clear that the mere crossing of a territory by lorries, also known as ‘transit’ operations, is excluded from the scope of the Posting of Workers Directive and that therefore the minimum wages of the crossed territory may not be applied to these activities. These operations are considered to be insufficiently closely connected to this territory and by extension the application of the minimum rates of pay cannot be justified.

On the other hand, the proposal provides that activities that remain within a certain territory, e.g. transport by a Polish transport company between The Hague and Rotterdam, also referred to as ‘cabotage’ operations, do fall within the scope of the Posting of Workers Directive and must therefore be subject to the minimum wages of the country where the cabotage is carried out from the first moment of the operation and if this is more favourable for the employee. These operations are deemed to have a connection only with the territory on which the cabotage is carried out and the application for these minimum rates of pay is therefore justified. In short: green light for transit operations and red light for cabotage operations.

So far the newly adopted amendments of the TRAN committee from the European Parliament on 8 June 2020 are largely in accordance with this.

But what about those intermediate forms of transport, such as bilateral transport operations between Member States A and B, or so-called ‘crosstrade’ operations carried out by a transport company from Member State A between Member States B and C? This is a lot more complicated and has been a hot issue in the legislative negotiations. Ultimately, the Council agreed to exempt bilateral transport operations, whether or not in combination with a maximum of two consecutive operations, from the Posting of Workers Directive, and therefore the minimum wages may not be applied to these operations. Crosstrade, on the other hand, must, according to the proposal, fall under the Posting of Workers Directive and are therefore subject to the minimum wages, from the first moment of this operation and if this is more favourable to the employee.

This does not sit well with the TRAN Committee, which states in its recently adopted amendments that: 1) on the one hand there should be much more possibilities to combine a bilateral transport with other transport operations and 2) on the other hand that a ‘certain number of cross-trade operations should be exempted from posting rules.’ The TRAN Committee thus opts for a much more liberal point of view. It seems that the Corona crisis also exerted influence on the discussions: many East-European Member States now regress to the argument that the road transport sector already severely suffers from the Corona crisis and point to the pivotal importance of the delivery of medicine and goods, which should release transport companies from the obligation to safeguard the social protection of their drivers.

Whatever the outcome of the negotiations, it is already clear that if a special conflict of laws rule for road transport will be adopted, it can be seen as a real ‘game changer’ for the sector since it would bring much more legal certainty regarding the application of the Posting of Workers Directive. Regarding some transport operations, internationally operating transport companies will have to take serious notice of the minimum wages they have to guarantee their drivers. Non-compliance with this new legislation is strongly discouraged: along with the new posting rules, the EU legislator aims to provide for a whole package of enforcement and control measures that are mandatory for the Member States and in which, for the first time, the EU legislator also keeps aspects under its own control.

New enforcement authorities should also be taken into account. In addition to possibly setting up a European road transport agency in the future, the more general European Labour Authority (ELA) has been set up in 2019, with the true mandate ‘to promote fair labour mobility within the EU’. It is expected that the ELA will be able to play a far-reaching role, unprecedented in the history of the EU, in the enforcement of social legislation; including in the road transport sector.

See for more information on this topic my recent article ‘Posting drivers in the EU road transport sector’, ERA Forum 2020 (freely available online). For those who read Dutch, see my PhD ‘Sociale concurrentie en conflictenrecht in het Europees wegtransport’, University of Antwerp 2018 (freely available online).

* The author is a member of the Hague-based ‘International Institute of International and Foreign Law’: www.iji.nl, which has been providing legal consultancy to professionals (judges, lawyers, notaries, mediators etc.) regarding private international law and foreign law for over a hundred years.

The Mexican Academy of Private International and Comparative Law (AMEDIP) will be holding its XLIII Seminar entitled “Private International Law in the current international climate” from 18 to 20 November 2020 for the first time online!

One of the topics to be discussed is COVID-19 and private international law. In addition, two Hague Conventions feature prominently in the list of topics submitted for discussion: the 1996 HCCH Protection of Children Convention and the recent 2019 HCCH Judgments Convention.

Potential speakers are invited to submit a paper in Spanish, English or Portuguese by 16 August 2020. Papers must comply with the criteria established by AMEDIP and will be evaluated accordingly. Selected speakers will be required to give their presentations preferably in Spanish as there will be no interpretation services but some exceptions may be made by the organisers upon request.

Participation is free of charge. The platform that will be used is Zoom and it will also be streamed via Facebook Live. For more information, please click here.

By a decision of 13 March 2020, the Munich Court of Appeal, having regard to the expected delay in the processing of a request for service in China, allowed a resident of Germany to effect service by publication on a person of known residence in China, after sending an e-mail for information purposes.

The claimant, a resident of Germany [G], had obtained an injunction in Germany. This was served on the respondent (a resident of China) [C] while the latter attended an exhibition in Germany.

Two months later, G filed a motion for the imposition of a fine [an Ordnungsmittelantrag] against C before the Court of First Instance of Munich. Pursuant to § 891 of the German Code of Civil Procedure, the debtor must be heard before such a decision is taken.

G requested to serve the application for the fine by publication, although he was aware of C’s whereabouts. G founded the request upon the serious delay to be expected in case of service through the Chinese judicial assistance channels, based on the Hague Service Convention. The Court of First Instance dismissed the request.

G challenged the decision before the Munich Court of Appeal.

The Court of Appeal reversed the decision of the Court of First Instance. It found that G had produced sufficient evidence, presumably emanating from the Munich Court statistics, proving the delay in the processing of requests by the Chinese authorities, i.e. nearly 18 months or more, which would seriously infringe his rights.

In this situation, the court continues, the interests of the creditor in effective legal protection outweigh the interests of the debtor in presenting his case before the Court. It ruled that the creditor must inform the debtor about the application via electronic communication channels known to the creditor and also used by the debtor. The creditor must also inform the debtor about the request for service by publication, and the possibility for the debtor to appoint a representative to receive documents on his behalf in Germany, including English-language translations.

The Court of Appeal also ruled that in view of the short limitation period of only two years provided in Article 9(1) 2 EGStGB (Introductory Law to the German Penal Code), the creditor’s right to legal protection would not be respected if she would be forced to execute the service of documents in China through judicial assistance channels, despite the known problems with this procedure. On the other hand, the debtor’s right to be heard could be violated by granting service by publication before the creditor has been informed by the debtor about the application, the request of service by publication and the possibility of appointing a representative. The final decision on the proper procedure would be left to the Court of First Instance.

The judgment has been reported (in German) by Benedikt Windau with a note here.

I have mixed feelings about the judgment. On the one hand, I would endorse the innovative idea of involving frequently used communication channels between the parties for information purposes on service of process modalities. This has been also proposed in the preparatory stages of the Service Regulation Recast (which should be published anytime soon). Regrettably, however, it has not been adopted by the competent legislative bodies.

On the other side, the Court is approaching the matter in full defiance of the Hague Service Convention, to which Germany and China are signatories. The ruling is founded upon § 185(3) of the German Code of Civil Procedure, and the interesting part here is the second scenario envisaged in the provision, i.e. when service of process does not raise hopes of success.

Prior to the application of the domestic rule, one would expect a reasoning on how the court by-passed the Service Convention. Surely the Court would have no reason to engage in a detailed analysis if the debtor was indeed of unknown residence. A sheer reference to Article 1(2) of the Convention would suffice. However, notwithstanding the fact that the debtor’s whereabouts were known to the creditor, and without even stating why Article 15 Hague Service Convention was unworthy of any reference, the court followed the course every judge prefers the most, i.e. the application of national rules.

The importance of the Service Convention has been repeatedly underlined in German legal scholarship. The Federal Republic of Germany has made a declaration concerning Article 15 (the six – months rule). In the judgment of the Supreme Court referred by the Munich Court of Appeal, the former ruled against service by publication with regard to a Russian party [BGH NJW-RR 2009, p. 855].

To sum up, the judgment raises (at least) two interesting and rather intriguing questions: If we follow this path: (a) what would be the value of Article 15 in the future? and more broadly, (b) what would be the consequences in a wider dimension? Will other contracting States follow suit?

Place of Performance – A Comparative Analysis is the title of a book authored by Chukwuma Samuel Adesina Okoli. It recently appeared in the Studies in Private International Law series of Hart Publishing.

The blurb reads:

This book provides an unprecedented analysis on the place of performance. The central theme is that the place of performance is of considerable significance as a connecting factor in international commercial contracts. This book challenges and questions the approach of the European legislator for not explicitly giving special significance to the place of performance in determining the applicable law in the absence of choice for commercial contracts. It also contains, inter alia, an analogy to matters of foreign country mandatory rules, and the coherence between jurisdiction and choice of law. It concludes by proposing a revised Article 4 of Rome I Regulation, which could be used as an international solution by legislators, judges, arbitrators and other stakeholders who wish to reform their choice of law rules.

The table of contents and more information are available here.

The University of Lausanne (LL.M. Programme in International Business Law and CEDIDAC), along with the Massachusetts Institute of Technology Connection Science Lab and the AI Transparency Institute are inviting abstracts on Artificial Intelligence (AI) and Dispute Resolution, or Distributed Ledger Technologies (DLT) and Private International Law (PIL).

Papers of interest on AI and Dispute Resolution might discuss: the impact of AI on decision-making; the impact of AI on access to justice; transparency of arbitral data; control over arbitral data; potential risks to confidentiality in view of AI; personal data protection in arbitration; and, AI and arbitral uncertainty.

Papers of interest on DLT & PIL might discuss: the law applicable to crypto assets; the law applicable to transfers on a blockchain; the law applicable to transfers outside a blockchain; the law applicable to smart contracts; the law applicable to decentralised autonomous organisations; and, jurisdiction and choice of court.

The latter list of topics follows the headings listed in Permanent Bureau of the Hague Conference on Private International Law, Prel. Doc. 28 of February 2020, Proposal for the Allocation of Resources to Follow Private International Law Implications relating to Developments in the Field of Distributed Ledger Technology, in particular in relation to Financial Technology.

Deadline for papers: 1 February 2021.

More information here.