Droit international général

Graham Woloff eaor Calzaturificio Zengarini eaor re Akkurate Ltd, [2020] EWHC 1433 (Ch) concerns the question whether the court has the power under section 236(3) of the Insolvency Act 1986 to require persons resident in the EU to produce books and papers and an account of their dealings with a company being compulsorily wound up in England and Wales (it is not disputed that Akkurate’s centre of main interests (“COMI”) was in England and Wales under the European Insolvency Regulation EIR).

EIR 2000 applies to this case, because the winding up of Akkurate was before 26 June 2017, however the issue is not materially different in the new Regulation. There are inconsistent first instance decisions which Vos C reviews ia at 27 ff and at 54 after consideration, he considers s236(3) does not have extraterritorial effect on the basis of what he considers to be the binding authority of Re Tucker (a bankrupt) [1990] Ch. 148. however that following the EIR 2000 (unchanged in EIR 2015) the European regime can and does extend the territoriality of purely domestic insolvency provisions. CJEU authority cited is in particular C-339/07 Seagon v Deko Marty Belgium (at 58 ff) – which I find may be a bit optimistic. Vos C also decides that he can and should apply his discretion to grant orders as formulated at 68.

Clearly, post Brexit, the situation will revert to Tucker. Which would make the English courts less attractive than their continental counterparts – although of course one would have to wait for CJEU authority to confirm the issue less equivocally.

Geert.

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

 

EU #Insolvency Regulation 1346/2000. Whether EN court has power to require persons resident in EU to produce documents re company with COMI in EN.

Held, considering CJEU authority: Yes. https://t.co/0dcgtOc7fF

— Geert Van Calster (@GAVClaw) June 4, 2020

Mad Atelier International BV v Manes [2020] EWHC 1014 (Comm) engages among others Articles 29-30 BIa on lis alibi pendens and its relation with issue estoppel. Stewart Chirnside has analysis here and  I am happy to refer. The judgment itself is not straightforward for Bryan J had much to decide – I agree with his conclusion at 124 on A29-30 BIa related issues that he is

‘satisfied that the French Civil Proceedings does not give rise to any issue estoppel because, for the reasons that I have given: (1) The decision of the Paris Commercial Court on such issues is not final or conclusive; (2) The parties to both proceedings are not privies; (3) The issues identified by Mr Manès were not issues concluded by the court, but rather comments on the state of the evidence, and (4) The issues in the English Proceedings are significantly broader than the issues in the French Civil Proceedings. Each of these is, in and of itself, fatal to the contention that an issue estoppel arises from the Paris Judgment, and I find that no issue estoppel arises.’

Geert.

 

 

 

Recognition and enforcement. Res judicata. Issue estoppel. https://t.co/yJDw3uHMD6 https://t.co/ACwZWMB6Wg

— Geert Van Calster (@GAVClaw) May 1, 2020

The author of this post is Vincent Richard, Senior Fellow at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law.

On 14 May 2020, the CJEU gave a preliminary ruling in Bouygues travaux publics, a case regarding the binding effect of social security certificates issued by the social security authority of a Member State on the courts of another Member State where workers are posted. The judgment was rendered in the context of French criminal proceedings against Bouygues travaux publics for infringements of labour law during the construction of the EPR nuclear power plant in Normandy.

Background

EPR nuclear reactors represent the new generation of nuclear power plants conceived to be safer than current reactors. Construction have started in Finland and France fifteen years ago but both projects ran into costly delays. So far, two reactors have been completed in Taishan, in the Guangdong province of China while the European nuclear plants are still under construction.

The EPR nuclear plants constructed in Olkiluoto in Finland is scheduled for 2021 after a dispute that was concluded with a settlement whereby the Areva-Siemens consortium agreed to pay 450 million euros to the Finnish utility company TVO. Two more reactors are being built at Hinkley Point in England with a starting date scheduled between 2025 and 2027.

Construction of the French EPR reactor started in 2007 in Flamanville in Normandy with a projected cost of 3.3 billion euros. According to French newspapers, completion is now expected for 2023 with a total cost of more than 12 billion euros. The project has faced technical difficulties but it has also run into legal troubles surrounding employment contracts of Eastern European workers.

Criminal Proceedings in France

To complete such a massive project, Bouygues travaux publics formed a limited partnership with two other undertakings and it subcontracted the contract to an economic interest grouping that included, among others, Welbond, a company domiciliated in France. This grouping itself used subcontractors, including Elco, a company established in Romania to supply Romanian workers and Atlanco Ltd, a temporary employment company established in Ireland with a subsidiary in Cyprus and an office in Poland to supply Polish workers.

An investigation by the French nuclear safety authority and then the French police revealed that, between 2008 and 2012, there had been more than one hundred unreported workplace accidents on the construction site, as well as several other infringements of French labour law. Subsequently, Polish workers sued the above-mentioned companies before the labour court of Cherbourg, France, and French prosecutors initiated criminal proceedings against Bouygues, Welbond and their subcontractors before the criminal court in Cherbourg (all decisions in French can be found here).

On appeal, the court of appeal of Caen held that the companies were guilty of the offences of concealed employment and unlawful provision of workers. It ruled that Elco, the Romanian company, could not rely on the European legislation on posting of workers because it had a stable and continuous activity in France. Therefore, the contracts should be characterised as French employment contracts and the company should have complied with French labour law and declared the workers to French authorities prior to their recruitment. Workers were hired in Romania for the sole purpose of working in France and some of them had worked there for more than 24 months. Similarly, Atlanco had hired temporary Polish workers to work in France through its Cypriot branch by making them sign a contract drawn up in Greek. Atlanco never appeared in court but Bouygues and Welbond were held guilty of concealed employment offences for the workers supplied by Atlanco, by not declaring the workers to French authorities. This “declaration prior to recruitment of employees” aims to register workers officially so that the offence of concealed employment be easier to prove in the absence of such declaration.

Question Referred to the CJEU

The main argument of the defendants was to rely on the legal value of the E101 and A1 certificates that they had provided to French authorities. These certificates were required by regulations n. 1408/71 and 574/72 (replaced respectively by regulations n. 883/2004 and 987/2009) on the coordination of social security systems. These forms, issued by the social security authority of the Member State of origin, certify that the worker is covered by the social security of that Member State and thus exclude the application of another social security legislation.

According to CJEU case law in Herbosch Kiere and A-Rosa Flussschiff GmbH, the certificates are binding on both the social security institutions and on the courts of the Member State where the work is carried out. If the authority of this Member State raises doubts as to the correctness of the certificate, the issuing authority in the Member State of origin must re-examine the grounds on which the certificate was issued (Fitzwilliam). In Altun, the CJEU provided for a limited exception whereby a court can disregard the certificate when evidence supports the conclusion that a certificate was obtained fraudulently and only if the issuing authority fails to take that evidence into consideration for the purpose of reviewing the certificate.

In the present case, French lower courts have applied French labour law, whereby employers have to make a declaration to social security authorities prior to recruiting employees. This declaration allows to complete several administrative formalities at once. It aims to register workers officially not only to the social security scheme but also to the occupational health services or retirement schemes. Before the Cour de cassation (which is the French Supreme Court for civil and criminal disputes) the defendants argued that this declaration was not necessary because French authorities were bound by the foreign certificates, and therefore French social security and labour laws do not apply. Unsure about the scope of these certificates, the French Supreme Court asked the CJEU whether the binding effect of the certificates regarding the affiliation to social security extends to the law applicable to the labour obligations of the employer, such as the French declaration prior to recruitment. For the CJEU, the question is tantamount to deciding whether the certificate binds the court of the Member State where employees are working not only in the area of social security, but also in the area of employment law.

Ruling

In its decision, the CJEU stresses that the certificates are designed to facilitate freedom of movement for workers and that Member States should apply the principle of sincere cooperation, laid down in Article 4(3) TEU, which also entails the principle of mutual trust. Consequently, the certificates create a presumption that workers are properly affiliated to the social security scheme of the issuing Member State and this declaration is binding on the Member State where the work is carried out. However, because the certificates are prescribed by the European regulations on the coordination of social security systems, their scope is limited to social security matters, and they do not have a binding effect in employment law matters.

The Court held:

Article 11(1)(a), Article 12a(2)(a) and (4)(a) of Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to their families moving within the Community, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 647/2005 of the European Parliament and of the Council of 13 April 2005 and Article 19(2) of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems, must be interpreted as meaning that an E 101 Certificate, issued by the competent institution of a Member State, under Article 14(1)(a) or Article 14(2)(b) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to their families moving within the Community, in the version amended and updated by Regulation No 118/97, as amended by Council Regulation (EC) No 1606/98 of 29 June 1998, to workers employed in the territory of another Member State, and an A 1 Certificate, issued by that institution, under Article 12(1) or Article 13(1) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, as amended by Regulation (EC) No 465/2012 of the European Parliament and of the Council of 22 May 2012, to such workers, are binding on the courts or tribunals of the latter Member State solely in the area of social security.

Comment

This decision is not ground-breaking but it will help the French authorities in their fight against social dumping. If the French Supreme Court considers that the effect of the declaration prior to recruitment are broader than social security legislation, French prosecutors will be able to sue employers before criminal courts for offences of concealed employment if companies do not submit this declaration to French authorities. That being said, in the EPR case, the court of appeal ordered defendants to pay fines ranging from 15.000 to 60.000 euros while the loss to French social security is estimated by French newspapers to be between 10 and 12 million euros.

Overall, the reasoning of the CJEU in this case and in Altun will be familiar to specialists of the Area of Freedom, Security and Justice. Here, the principle of mutual trust is derived from the principle of sincere cooperation enshrined in Art. 4(3) TEU rather than from the principle of mutual recognition of judgments of Art.67(3) TFUE but its function as an interpretative imperative is the same. Similarly, the CJEU accepted in Altun that mutual trust is not without limit and that there may be exceptional circumstances in which a court is allowed to disregard a legal document issued in another Member State.

Written by Mayela Celis – The comments below are based on the author’s doctoral thesis entitled “The Child Abduction Convention – four decades of evolutive interpretation” at UNED

As mentioned in a previous post, after many years in the making, the Guide to Good Practice on the grave-risk exception (Article 13(1)(b)) under the Child Abduction Convention (grave-risk exception Guide or Guide) has been published. Please refer to our previous posts here and here. This Guide to Good Practice deals with a very controversial topic indeed. The finalisation and approval of this Guide is without a doubt a milestone and thus, this Guide will be of great benefit to users.

For ease of reference, I include the relevant provision dealt with in the Guide. Article 13(1)(b) of the Child Abduction Convention sets out the following: “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – […] b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. […]” (our emphasis).

The comments on the grave-risk exception Guide will be divided into two posts. In the present post, I will analyse the Guide exclusively through the lens of human rights. In the second post, I will comment on some specific legal issues of the Guide but will also touch upon on some aspects of human rights law. These posts reflect only my personal opinion. Given the controversial nature of this topic, there might be other different and valid opinions out there so please bear that in mind.

At the outset, it should be noted that this Guide is only advisory in nature and thus nothing in the Guide may be construed as binding upon Contracting Parties to the 1980 Convention (and any other HCCH Convention) and their courts (paras 7 and 8 of the Guide) Therefore, courts have enough leeway to supplement it and take on board what they see fit.

Human rights law is gaining importance every day, also in private international law cases. However, apart from some fleeting references to the United Nations Convention on the Rights of the Child (pp. 16 and 56), there are no references to human rights case law in the Guide. Indeed, the increasing number of judgments of the European Court of Human Rights (ECtHR) is not mentioned in the Guide, even though dozens of these judgments have dealt with the grave-risk exception (Art. 13(1)(b)) under the Child Abduction Convention; thus there appears to be an “elephant in the room”. We will try to respond in this post to the following questions: what has been the contribution of the ECtHR on this topic and what are the possible consequences of the absence of references to human rights case law in the Guide.

In this regard, I refer readers to our previous post regarding the interaction of human rights and the Child Abduction Convention here and my article entitled: The controversial role of the ECtHR in the interpretation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, with special reference to Neulinger and Shuruk v. Switzerland and X v. Latvia (in Spanish only but with abstracts in English and Portuguese in the Anuario Colombiano de Derecho Internacional). To view it, click on “Ver artículo – descargar artículo”, currently pre-print version, published online in March 2020.

Before going into the substance of this post, it is perhaps important to clarify why the case law of the ECtHR in child abduction matters is of such great importance in Europe and beyond, perhaps for the benefit of our non-European readers. First, in addition to being binding upon 47 States party to the European Convention on Human Rights, which represent about half of the total number of Contracting Parties to the Child Abduction Convention (45%), the case law of the ECtHR not only applies to child abduction cases between European States. It will also apply, for example, if the requested State in child abduction proceedings is a party to the European Convention on Human Rights and the requesting State is not. Indeed, the geographical location of the requesting State and whether it is a party to the European Convention on Human Rights are not relevant. See for example, Neulinger and Shuruk v. Switzerland (Application No. 41615/07), Grand Chamber, where the requesting State was Israel, and X v. Latvia (Application No. 27853/09), Grand Chamber, where the requesting State was Australia, both of which are not a party to the European Convention. Secondly, not only European citizens can launch proceedings before the ECtHR. All of this is nicely summarised in Article 1 of the European Convention on Human Rights, which sets out that “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention” (our emphasis).

In X v. Latvia, the Grand Chamber of the ECtHR has established a legal standard in the handling of child abduction cases where the 13(1)(b) exception has been raised (and indeed other exceptions of the Child Abduction Convention such as Articles 12, 13(1)(a), 13(2) and 20), which is the following:

“106. The Court [ECtHR] considers that a harmonious interpretation of the European Convention and the Hague Convention (see paragraph 94 above) can be achieved provided that the following two conditions are observed. Firstly, the factors capable of constituting an exception to the child’s immediate return in application of Articles 12, 13 and 20 of the Hague Convention, particularly where they are raised by one of the parties to the proceedings, must genuinely be taken into account by the requested court. That court must then make a decision that is sufficiently reasoned on this point, in order to enable the Court to verify that those questions have been effectively examined. Secondly, these factors must be evaluated in the light of Article 8 of the Convention (see Neulinger and Shuruk, cited above, § 133).” (our empahsis)

[…]

“118. As to the need to comply with the short time-limits laid down by the Hague Convention and referred to by the Riga Regional Court in its reasoning (see paragraph 25 above), the Court reiterates that while Article 11 of the Hague Convention does indeed provide that the judicial authorities must act expeditiously, this does not exonerate them from the duty to undertake an effective examination of allegations made by a party on the basis of one of the exceptions expressly provided for, namely Article 13 (b) in this case.” (our emphasis)

In addition, the ECtHR indicates that domestic courts must conduct “meaningful checks” to determine whether a grave risk exists (paragraph 116 of X v. Latvia), and to do so a court may obtain evidence on its own motion if for example, this is allowed under its internal law.

Importantly, this case also underlines the need to secure “tangible” measures of protection for the return of the child (paragraph 108 of X v. Latvia).

Moreover, there are at least two issues in the Guide that could have benefited from a human rights analysis, namely the incarceration of (mainly) the abducting mother upon returning the child to the State of habitual residence and the separation of siblings.

With regard to the first issue, it should be noted that the fact that the mother will be incarcerated upon returning the child to the State of habitual residence could have serious consequences for the child. The Guide has correctly explained the different ways in which such an outcome could be avoided. However, the Guide concludes with the following: “The fact that the charges or the warrant cannot be withdrawn is generally not sufficient to engage the grave risk exception” (paragraph 67).

In my view, where objective reasons have been raised by the mother to refuse to return to the State of habitual residence, such as incarceration, there should be a human rights analysis in the light of Article 8 of the European Convention on Human Rights. While there might be some cases where incarceration may not be sufficient to refuse a return, there might be other cases were this would place the taking parent and the child in grave risk of harm or intolerable situation. By way of example, objective reasons for not returning could include a long incarceration or a disproportionate sanction, the fact the other parent cannot take care of the child upon the incarceration of the other parent, the inability to contest custody while imprisoned, etc. According to the ECtHR, an analysis should be undertaken as to whether these actions are necessary in a “democratic society”. Accordingly, the decision of the mother not to return based on a whim should not be considered seriously. See, for example, the ECtHR cases, Neuliger and Shuruk v. Switzerland (Application No. 41615/07), Grand Chamber (as clarified by X v. Latvia (Application No. 27853/09), Grand Chamber)), and B. c. Belgique (Requête No. 4320/11). Arresting and handcuffing the mother at the airport has undoubtedly a tremendous impact on children; so all efforts should be geared via judicial co-operation and direct judicial communications to make sure that charges are dropped as mentioned in the Guide (first part of paragraph 67 of the Guide).

As regards the second scenario, it is important to note that the separation of siblings when one of them has successfully objected to being return under Article 13(2) under the Child Abduction Convention may inflict harm on the children and may be difficult to enforce. The Guide noted that every child should be considered individually and concluded that “Consequently, the separation of the siblings resulting from the non-return of one child (regardless of the legal basis for the non-return) does not usually result in a grave risk determination for the other child” (paragraph 74).

According to article 12 of the UN Convention on the Rights of the Child, the views of the child should be given due weight in accordance with the age and maturity of the child. By ordering the return of usually the younger sibling(s) and forcing the mother to make a choice between returning with one child and staying with the child who objected, a judge could not be giving enough weight to the views of the child objecting to being returned. This is especially the case when we are dealing with full siblings and all are subject to return proceedings. In my view, and given that the reason for not returning are the views, in particular, of the older child, this should be factored in when the judge exercises his or her discretion.  See, for example, the ECtHR case, M.K. c. Grèce (Requête n° 51312/16). Obviously, if the separation of siblings is due to the action of the mother by not wanting to return, then a separation of the siblings would most likely not be a ground for refusing the return.

The underlying basis of the above is that the Child Abduction Convention is for the protection of children and not to vindicate the position of adults who are immersed in a legal battle or to merely sanction the abductor.

The standard in X v. Latvia should be kept in mind when dealing with international child abduction cases. Given that the grave-risk exception Guide is silent on this, practitioners would need to supplement the Guide with relevant literature and case law on human rights if they are dealing with a case in Europe. Practitioners outside Europe having a child abduction case which is being resolved in Europe may need to do the same in order to know what their possibilities of success and options are.

In this day and age, and as mentioned by the honorable Eduardo Vio Grossi, judge of the Inter-American Court of Human Rights, in a recent virtual forum (“Challenges to Inter-American Law”), the focus should not only be on sanctioning States for violations of human rights but we should assist States in not getting sanctioned by providing the necessary guidance and if possible, paving the way.

The Court of Justice delivered this week, on 4 June 2020, its judgment in case C‑41/19 (FX v GZ, represented for legal purposes by her mother), which is about the Maintenance Regulation.

Context: “By decision of the Sąd Okręgowy w Krakowie (Regional Court, Krakow, Poland) of 26 May 2009, FX was ordered to make monthly maintenance payments of around EUR 100 for the benefit of his daughter GZ, a minor, retroactively from June 2008.

20 Further to GZ’s application of 20 July 2016, the Amtsgericht Köln (Local Court, Cologne, Germany), by order of 27 July 2016, decided that an order for enforcement was to be issued in respect of the aforementioned decision of the Sąd Okręgowy w Krakowie (Regional Court, Krakow).

21 On the basis of that order declared enforceable, GZ, represented for legal purposes by her mother, initiated enforcement proceedings against FX in Germany. Challenging those proceedings, FX lodged before the Amtsgericht Köln (Local Court, Cologne) on 5 April 2018 an application opposing enforcement, pursuant to Paragraph 767 of the ZPO.

22 In support of his application, FX submits that the maintenance debt at issue in the main proceedings was discharged either directly until 2010 or, since December 2010, through the Maintenance Fund (Poland), to which FX claims to have reimbursed the sums paid to GZ to the extent of his financial capacity. FX maintains that, in any event, the debt has been predominantly settled”.

Issue: “The referring court has doubts, in the first place, as to whether the application opposing enforcement that FX lodged before it falls within its international jurisdiction.

24 On the one hand, the referring court states that if that application is to be treated as a matter relating to maintenance obligations within the meaning of Article 1 of Regulation No 4/2009, it has no international jurisdiction under that regulation and accordingly the Polish courts would have exclusive jurisdiction to examine FX’s objection that the maintenance debt at issue in the main proceedings has been discharged.

25 In that regard, the referring court notes that part of the German literature takes the view that an application opposing enforcement under Paragraph 767 of the ZPO is in fact to be treated as a matter relating to maintenance obligations within the meaning of Regulation No 4/2009 in so far as the objections raised in such an application, in particular those relating to the fulfilment or subrogation of that claim, are ultimately directed against the order for enforcement as such rather than the manner of the enforcement, which is to be assessed purely under enforcement law. Similarly, the referring court points out that that application opposing enforcement functionally corresponds to an application seeking reduction of the maintenance claim in respect of which an order for enforcement has been issued, which modification application, under Article 8 of Regulation No 4/2009, is subject to the jurisdictional principles set out therein. In the referring court’s view, that interpretation, which is supported by part of the German literature and which the referring court is inclined towards, is the only one compatible with the objective pursued by that regulation, namely guaranteeing the protection and jurisdictionally privileged status of the maintenance creditor, without, accordingly, the creditor having to defend himself, before the courts of the Member State of enforcement of the claim for which an order of enforcement has been issued, against an application opposing enforcement concerning substantive objections to that claim.

26 On the other hand, the referring court observes that the German legislature, conversely, is evidently of the opinion that the courts of the Member State of enforcement of a maintenance claim have jurisdiction to adjudicate on an application opposing enforcement, such as that provided for in Paragraph 767 of the ZPO, in which the debtor is authorised to raise objections to the claim itself. According to the referring court, the prevailing view in Germany is furthermore that such an application opposing enforcement does not come under matters relating to maintenance obligations within the meaning of Regulation No 4/2009 on the ground that, inter alia, the legal protection objective sought is directed solely against the enforcement of the claim, whereas the continuance of the original order remains untouched.

27 If that second position is to prevail, the referring court asks, in the second place, whether FX’s application opposing enforcement is then to be treated as ‘proceedings concerned with the enforcement of judgments’ within the meaning of Article 24(5) of Regulation No 1215/2012.

28 According to the referring court, the judgments of 4 July 1985, AS-Autoteile Service (220/84, EU:C:1985:302) and of 13 October 2011, Prism Investments (C‑139/10, EU:C:2011:653) are not capable, by themselves, of providing an answer to that question. Indeed, they were delivered in the regulatory framework preceding the entry into force of Regulation No 4/2009. In addition, pursuant to Article 1(2)(e) of Regulation No 1215/2012, that regulation does not apply to maintenance obligations”.

Question: “By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether an application opposing enforcement lodged by a maintenance debtor against the enforcement of a decision given by a court of the Member State of origin and which established that claim falls within the scope of Regulation No 4/2009 or that of Regulation No 1215/2012 and the international jurisdiction of the courts of the Member State of enforcement”.

Response from the Court of Justice: “Council Regulation (EC) No 4/2009 […] is to be interpreted as meaning that an application opposing enforcement brought by the maintenance debtor against enforcement of a decision given by a court of the Member State of origin and which established that debt, which has a close link with the procedure for enforcement, falls within its scope and is within the international jurisdiction of the courts of the Member State of enforcement.

Pursuant to Article 41(1) of Regulation No 4/2009 and to the relevant provisions of national law, it is for the referring court, being a court of the Member State of enforcement, to adjudicate on the admissibility and the validity of the evidence adduced by the maintenance debtor, seeking to support the submission that he has predominantly discharged his debt”.

Source: here

Before a court of a Member State of enforcement, a debtor lodges an application opposing enforcement of a maintenance decision given by a court of another Member State. The court of the Member State of enforcement asks the Court of Justice whether that application falls within the scope of the Maintenance Regulation or that of Brussels I bis Regulation and whether the jurisdiction to rule on the application lies with the courts of the Member State of enforcement.

In essence, these are the questions at stake in the case C-41/19, FX. Back in February, we reported on the Opinion of AG Bobek presented in this case.

In its Judgment of 4 June 2020, the Court follows its Advocate General to a large extent and considers that an application opposing enforcement, which has a close link with the procedure for enforcement, falls within the scope of the Maintenance Regulation and is within the international jurisdiction of the courts of the Member State of enforcement.

First, at paragraphs 31 to 33 of that Judgment, it is observed that the Maintenance Regulation is an instrument governing, inter alia, enforcement of decisions of the courts of the Member States in matters relating to maintenance obligations, these matters being excluded from the Brussels I bis Regulation pursuant to its Article 1(2)(e). As such, the Regulation covers the proceedings on enforcement of a maintenance decision.

Next, at paragraph 35, it is stated that when an application opposing enforcement is connected with an action seeking enforcement of a decision in matters relating to maintenance obligations, it falls within the scope of the Maintenance Regulation, just as that decision itself.

After that, at paragraphs 36 to 42, the Court tackles the question whether the courts of the Members State of enforcement have jurisdiction to rule on such application opposing enforcement. In contrast to the Brussels I bis Regulation and its Article 24(5), the Maintenance Regulation does not contain a provision explicitly concerning jurisdiction at the stage of enforcement. Nevertheless, the Court considers that a court of the Member State of enforcement has jurisdiction under the Maintenance Regulation to adjudicate on an application opposing enforcement where that application has a close link with the action for enforcement brought before it.

While both the Opinion and the Judgments seem to come the conclusion that the Maintenance Regulation contains an implicit rule on jurisdiction at the stage of enforcement that is inherent in the system of that regulation (see point 43 of the Opinion; paragraphs 36 and 38 of the Judgment), the reasonings backing that conclusion seem to differ at least in some aspects.

At point 44 et seq. of his Opinion, AG Bobek argued mainly that a rule according to which international jurisdiction for enforcement belongs to the courts of the Member State where enforcement is sought is ‘an expression of what could be considered a general principle of international law connected with State sovereignty’. Therefore, according to the Advocate General, it is not necessary to have recourse to Article 24(5) of the Brussels I bis Regulation as a supplementary provision in order to be able to establish that the courts of the Member State of enforcement also have jurisdiction with regard to the enforcement of maintenance decisions within the scope of the Maintenance Regulation.

In its Judgment, the Court does not reproduce the aforementioned argument. At paragraphs 37 et seq., it rather infers an implicit rule on jurisdiction from the structure and objectives of the Maintenance Regulation. While doing so, it seems to rely on the idea that, jurisdiction-wise, the procedures closely linked to the enforcement, such as the opposition against it, should not be disconnected from the enforcement itself.

Finally, at paragraphs 44 et seq., the Judgment provides some guidance on interpreting the Maintenance Regulation which may be of assistance to the referring court in connection with a ground of opposition relating to the satisfaction of the debt.

Written by María Barral Martínez, a former trainee at the European Court of Justice (Chambers of AG Campos Sánchez-Bordona) and an alumna of the University of Amsterdam and the University of Santiago de Compostela

The Hoge Raad Neederlanden (The Dutch Supreme Court), the referring court in the case Supreme Site Service and Others, C-186/19, harbours doubts regarding the international jurisdiction of Dutch courts under the Brussels I bis Regulation, in respect to a request to lift an interim garnishee order. An insight on the background of the case can be found here and here, while the implications of that background for admissibility of request for a preliminary ruling are addressed in section 1 of the present text.

In replying to a preliminary ruling request made by that court, AG Saugmandsgaard Øe issued his Opinion. Advocate General concluded that a flexible approach should be taken when interpreting the concept of “civil and commercial matters” within the meaning of Article 1(1) of the Brussels I bis Regulation. AG was of the view that an action for interim measures as the one brought by SHAPE, aimed at obtaining the lifting of a garnishee order, qualifies as civil and commercial matters, within the meaning of Article 1(1), provided that such garnishee order had the purpose of safeguarding a right originating in a contractual legal relationship which is not characterised by an expression of public powers, a matter that is left to the referring court to verify. For presentation of AG reasoning and its analysis in relation to interim measures, see section 2.

Moreover, according to AG, alleged claims of immunity enjoyed under international law by one of the parties to the proceedings had no significance, when it comes to the analysis of the material scope of the Brussels I bis Regulation. Against this background, the case provides a good opportunity to explore jurisdictional issues in the face of immunities, such as the debate regarding international jurisdiction preceding the assessment of immunities, and what can be inferred from the case-law of the Court of Justice and the European Court of Human Rights in that respect. Next, it requires us to determine whether the case-law developed in relation to State bodies and their engagement in acta iure imperii can be applied mutatis mutandis to the international organisations. Finally, it revives the concerns on whether the scope of the Brussels I bis Regulation should be determined in a manner allowing to establish international jurisdiction under that Regulation even though enforcement against public authorities stands little chances, be that international organisations as in the present case. These issues are discussed in section 3.

1.     Admissibility of the preliminary reference

Advocate General Saugmandsgaard Øe made some remarks on the admissibility of the preliminary ruling and on whether a reply of the Court of Justice would be of any avail to the referring court.

It should be recalled that at national level, two sets of proceedings were initiated in parallel. In the first set, – the proceedings on the merits – Supreme, the private-law companies, sought a declaratory judgment that it was entitled to the payment of several amounts by SHAPE, an international organisation. These proceedings were under appeal before the Den Bosch Court of Appeal because SHAPE challenged the first instance court’s jurisdiction. In the second set – the proceedings for interim measures where the preliminary ruling originated from – SHAPE brought an action seeking the lift of the interim garnishee order and requesting the prohibition of further attempts from Supreme to levy an interim garnishee order against the escrow account.

In the opinion of AG, the preliminary ruling was still admissible despite the fact that the Den Bosch Court of Appeal ruled on the proceedings on the merits granting immunity of jurisdiction to SHAPE in December 2019 – the judgment is under appeal before the Dutch Supreme Court. He opined that the main proceedings should not be regarded as having become devoid of purpose until the court renders a final judgment on the question whether SHAPE is entitled to invoke its immunity from jurisdiction, in the context of the proceedings on the merits and whether that immunity, in itself, precludes further garnishee orders targeting the escrow account (point 35).

2.     Civil and commercial matters in respect of substantive proceedings or interim relief proceedings?

The Opinion addressed at the outset the question on whether the substantive proceedings should fall under the material scope of the Brussels I bis Regulation in order for the interim relief measures to fall as well within that scope. As a reminder, the object of the proceedings on the merits, is a contractual dispute over the payment of fuels supplied by Supreme to SHAPE, in the context of a military operation carried out by the latter.

As AG signalled, to answer the question several hypotheses have been put forward by the parties at the hearing held at the Court of Justice. The first hypothesis, supported by the Greek Government and Supreme, proposed that in order to determine if an action for interim measures falls within the scope of the Regulation, the proceedings on the merits should fall as well under the material scope of the Regulation. In particular, the characteristics of the proceedings on the merits should be taken into account. The second hypothesis, supported by SHAPE, considered that the analysis should be done solely in respect to the proceedings for interim measures. The European Commission and the Dutch and Belgian Governments opined that in order to determine if the action for interim measures can be characterised as civil and commercial matters, it is the nature of the right which the interim measure was intended to safeguard in the framework of the interim relief proceedings that matters.

Endorsing the latter hypothesis, AG indicated that an application for interim measures cannot be regarded as automatically falling within or outside the scope of the Brussels I bis Regulation, depending on whether or not the proceedings on the merits fall within that scope, simply because it is ancillary to the proceedings on the merits (point 51). To support his conclusion, AG followed the line of reasoning developed by the Court in the context of the instruments preceding the Brussels I bis Regulation. In that regard, the Court has held that to ascertain that provisional/protective measures come within the scope of the Regulation, it’s not the nature of the measures that should be taken into account but the nature of the rights they serve to protect. To illustrate this: in Cavel I, the Court held that interim measures can serve to safeguard a variety of rights which may or may not fall within the scope of the now Brussels I bis Regulation (then the Brussels Convention) depending on the nature of the rights which they serve to protect. This has been confirmed in Cavel II: “ancillary claims accordingly come within the scope of the Convention according to the subject-matter with which they are concerned and not according to the subject-matter involved in the principal claim”. Further, in Van Uden, the Court held that “provisional measures are not in principle ancillary to arbitration proceedings but are ordered in parallel to such proceedings and are intended as measures of support. They concern not arbitration as such but the protection of a wide variety of rights”. This case-law has been also confirmed in recent judgments of the Court, namely in Bohez – where a penalty payment was imposed as a measure to comply with the main judgment – and Realchemie Nederland concerning an action brought for alleged patent infringement in the context of interim proceedings, where a prohibition in the form of payment of a fine was ordered.

In brief, what matters in this discussion on interim measures falling or not within the scope of the Brussels I bis Regulation, is not the relation between the main proceedings and the interim measures, the crucial factor being the purpose – determined from a procedural law standpoint – of the interim relief measure vis-à-vis the proceedings on the merits: an interim measure falling within the scope of the Regulation has to safeguard the substantive rights at stake in the main proceedings. In the present case, the substantive right in question is a credit arising from a contractual obligation that Supreme holds against SHAPE.

3.     Whether immunities play a role in determining if an action can qualify as “civil and commercial matters” within the meaning of Article 1(1) of the Regulation

One of the particularities of the case is that in the second set of proceedings where the preliminary ruling originated, SHAPE and JFCB (NATO) have introduced an action for interim relief measures, based on immunity from execution. SHAPE alleged that its immunity from execution flowing from the 1952 Paris Protocol trumps any jurisdiction derived from that Regulation.

It is against this background that the Dutch Supreme Court asked the Court of Justice if the fact that an International Organisation claims to enjoy immunity from execution under public international law, bars the application of the Brussels I bis Regulation or has an impact on its application ratione materiae. In his Opinion, Advocate General considered that the referring court is concerned by the actions relating to “acts or omissions in the exercise of state authority” linked to the concept of “acta iure imperii” – a concept which is also used in international law in relation to the principle of State immunity.

The Opinion tackled the question of immunities under public international law and concluded that a dispute where an International Organisation is a party, should not be automatically excluded from the material scope of the Brussels I bis Regulation. Interestingly, some aspects of the reasoning that allowed to reach that conclusion echo the doctrinal debates on the interplay between the jurisdictional rules of EU private international law, on the one hand, and the immunity derived from public international law, on the other hand.

• Does immunity precede the jurisdiction under EU PIL?

At point 72, AG rejected the arguments advanced by the Austrian Government, who argued that the Brussels I bis Regulation should not apply to the case at hand. In the view of this government, if an international organisation takes part in a dispute, the immunity that this organisation enjoys on the basis of customary international law or treaty law, characterizes the nature of the legal relationship between the parties. In other words, a criterion based on the nature of a party (scil. the fact that it is an international organization that is a party to proceedings) should suffice to decline jurisdiction under the Brussels I regime.

In that respect, AG made some interesting remarks: first, by applying the Brussels I bis Regulation to a dispute where an International Organisation is a party, there is no breach of Article 3(5) TUE and of the obligation to respect public international law enshrined in that provision. Second, if, based on the Brussels I bis regime, a national court declares its international jurisdiction over a dispute,  potential immunity claims advance by the parties will not be affected, as they are to be considered at a later stage of the proceedings. AG departed from the premise that the assessment on immunities should take place after the national judge seised with the case looks into the substance of the merits, including party allegations. This is therefore, at a second stage, after the national court has decided over its international jurisdiction within the first stage, that the immunity needs to be ascertained and its limits set (point 69).

This approach resonates with the idea that national courts are not supposed to engage in an in-depth analysis of the substance at that very first stage, when they are determining their own jurisdiction. They should not be undertaking a mini-trial, ascertaining jurisdiction requires only a first approximation to the facts of the case, solely for the purpose of determining jurisdiction. In FlyLaL II, a case concerning jurisdictional issues pursuant to the Brussels I Regulation, in respect of an action for damages brought for infringement of competition law, the Court observed that at the stage of determining jurisdiction “the referring court must confine itself to a prima facie examination of the case without examining its substance”. The statement draws on AG Bobek’s Opinion presented in the aforementioned case: “[d]etermination of jurisdiction should be as swift and easy as possible. Thus, a jurisdictional assessment is by definition a prima facie one. […] The jurisdictional assessment will, in practice, require a review of the basic factual and legal characteristics of the case at an abstract level.”

From the ECtHR case-law (see, most notably, Waite and Kennedy v. Germany) dealing with immunities of international organizations and the right to a remedy enshrined in Article 6 ECHR, a similar reading can be extracted. National courts deciding on granting of an immunity – be [it] immunity of jurisdiction or from execution – and performing the “reasonable alternative means” test, inevitably engage in a substantive analysis of the merits. To ensure that the claimant’s right to access justice is not breached, requires more than an abstract examination of the facts. This would seem to favour the idea that determination of international jurisdiction precedes a substantive analysis of the circumstances of the case in respect to any alleged claim of immunities made by the parties.

However, it is still not clear how this reasoning can be reconciled with judgments of the Court of Justice in the cases Universal Music International Holding and Kolassa. There, the Court of Justice held that according to the objective of the sound administration of justice which underlies the Brussels I Regulation, and respect for the independence of the national court in the exercise of its functions, a national court in the framework of ascertaining its international jurisdiction pursuant to the Brussels I regime, must look at all the information available to it. Although such an assertion seems to be construed in very general terms, one may well wonder what exactly a court assessing its international jurisdiction under the Brussels I bis Regulation is required to look at. Should it be a minimal review of the substance or a prima facie analysis strictly focused on the nature of the elements of the action – relevant in the context of the connecting factors used by the rules on jurisdiction –,including all the information available before the court?

If the answer would be the latter, that means that in the case at hand, the immunity from execution relied on by SHAPE in support of its action should be taken into account.

A reading of paragraphs 53 to 58 in the Court of Justice’s recent judgment in Rina, hints that in order to establish its own jurisdiction under the Brussels I bis Regulation, a national court has to take into consideration all available information. In the case at issue, party allegations where a party (Rina) invokes immunity of jurisdiction. While at first glance this instruction does not steer away from the judgments in Universal Music International Holding and Kolassa, what the Court proposes here is definitely more complex than a first approximation to the facts of the case. At paragraph 55 the Court notes “a national court implementing EU law in applying [the Brussels I Regulation] must comply with the requirements flowing from Article 47 of the Charter. […] The referring court must satisfy itself that, if it upheld the plea relating to immunity from jurisdiction, [the claimants] would not be deprived of their right of access to the courts, which is one of the elements of the right to effective judicial protection in Article 47 of the Charter.” If the national courts were to engage in such analysis – in a similar fashion as the ECtHR established in regards to Article 6 ECHR – it will certainly go beyond a mere examination in abstracto, implying rather a deep dive on the merits.

Moreover, the judgment in Rina seems to suggest that the analysis of international law cannot be avoided even when it comes only to the question whether the Brussels I regime applies or not. At paragraph 60, the Court of Justice explained “[t]he principle of customary international law concerning immunity from jurisdiction does not preclude the national court seised from exercising the jurisdiction provided for by that regulation in a dispute relating to such an action, where that court finds that such corporations have not had recourse to public powers within the meaning of international law.” Again, for the examination of these matters in the framework of determining international jurisdiction, a greater level of scrutiny is required. A national judge would have to dig dipper in the facts and party allegations to come to the conclusion that a certain party did not have recourse to public powers. Something that is everything but a swift and easy exercise.

• Does the case-law developed in the context of State bodies apply to international organisations?

Be that as it may, while an immunity claim does not automatically rule out the application of the Brussels I bis Regulation according to AG Saugmandsgaard Øe, the key question in his analysis is to determine if actions related to acta iure imperii under Article 1(1) of the Regulation are applicable to international organisations. It flows from the Court of Justice well-settled case-law that disputes between a State body and a person governed by private law come within the scope of civil and commercial matters, if the public authority in question does not act in the exercise of its public powers. At point 75 of his Opinion, AG made a reference to the judgment in Eurocontrol and indicated that exceptions under Article 1(1) in fine can extend to acts and omissions carried out by an international organisation. He remarked that, the concept of “public powers” established under the Court’s case-law, not only relates to State responsibility but refers also to those situations where a public authority acts under the umbrella of its public powers.

Advocate General moved then to analyse the Court of Justice case-law concerning liability of the State for acts and omissions carried out in the exercise of sovereign authority. Here matters get a bit complicated.

On the one hand, it remains to be seen how that case-law could be applied mutatis mutandis to international organisations. Leaving aside the question of immunities and putting emphasis on the notion of “civil and commercial matters” within the meaning of Article 1(1) of the Brussels I bis Regulation, the acts and omissions of an international organization are strictly connected with the powers conferred to the organisation for its proper functioning. Thus, one could wonder whether a functional test would be more suitable to determine if the acts or omissions were carried out by an international organization in the exercise of its public powers: a demarcating line could be drawn between non-official (non-related to the mission of the organization) acts and omissions and those of official nature, therefore necessary to fulfil the organisation’s mandate.

On the other hand, concerning the criteria applied by the Court when analysing if a public authority has exercised its powers of State authority, there is no “one size fits all” solution. As AG rightly pointed out at point 84 of his Opinion, the Court has still to sort out the interplay between different criteria: matters characterising the legal relationship between the parties, the subject-matter of the dispute and the basis of the action and the detailed rules governing the action brought.

To illustrate this point: in Préservatrice Foncière TIARD, the Court looked mainly at the legal relationship between the parties, while in Baten and Sapir and Others the Court did not refer to the legal relationship between the parties but focused on the subject-matter of the dispute and the basis of the action brought. Hence, the alternative or cumulative use of these criteria – or a flexible one- seem to reflect the need to provide an adequate response to the case-specific factual context of a particular case.

In that sense, AG pointed out that the criterion concerning the basis of the action is not relevant in all cases, it will be determinant in situations where is not established that the substantive basis of the claim is an act carried out in the exercise of public powers. For that reason, at 90, AG considered more appropriate that the action is based on a right originating from an act of public authority or in a legal relationship characterized by a manifestation of public power.

• Does the perspective of anticipated recognition/enforcement influence the interpretation of the notion of “civil and commercial matters”?

It is worth mentioning that some commentators (see also Van Calster, G., European Private International Law, Hart Publishing, 2016, p. 32) pointed out that, in the light of the judgment in Eurocontrol, the scope of application of the Brussels I bis Regulation should be interpreted by taking into account the perspectives of recognition and enforcement. Thus, if immunity bears no significance at the stage of determining jurisdiction, but it is later granted/recognised resulting in refusal of recognition and/or enforcement, concerns are raised regarding what is the practical use of exercising jurisdiction under the Brussels I bis Regulation against public authorities when there are little chances of recognition/enforcement.

On this point, the Spanish Supreme Court – in a case concerning the enforcement of a judgment rendered in Germany in favour of a private party against the Republic of Argentina –, held that a declaration of enforceability issued in relation to a general enforcement order does not breach the rules on immunity of execution. The Spanish Court precised that only when specific legal attachment measures are taken, a court should determine if the property in question is subject to execution. Thus, the issue of immunity of execution and the assessment whether the property to be executed is for commercial or official purposes would be at stake at a second stage of the enforcement procedure, not interfering with the application of the Brussels I regime.

 

 

Cambridge University Press has just published the second edition of the Concise Commentary on the Rome I Regulation edited by Franco Ferrari.

In addition to Ferrari himself, the authors of the commentary are Markus Altenkirch, Christoph Althammer, Jan Bischoff, Tim W. Dornis, Jan D. Lüttringhaus, Spyros Makris,  Sebastian Omlor, Francesca Ragno, Martin Schmidt-Kessel, Björn Steinrötter, and Felipe Temming.

The blurb reads:

This book offers an updated article-by-article commentary of the Rome I Regulation, applicable in the courts of nearly all European countries to identify the law applicable to international contracts. The commentary is authored by an international group of academics and practitioners, who all have practical experience with international contracts and, thus, were able to focus on the needs of practice. This volume will be not only a reference guide for judges and practitioners alike, but also a crucial resource for academics and researchers.

More information available here.

Many thanks indeed Kevin La Croix for flagging the suit brought in New York by a group of Bayer AG shareholders, against Bayer (with seat at Leverkusen, Germany), concerning the not altogether successful purchase of Monsanto by Bayer. Kevin has excellent analysis and I am happy to refer.

Claimants of course pre-empt arguments of lack of subject-matter jurisdiction and, subsidiarily, forum non conveniens – please refer to Kevin’s overview for the arguments to and fro. Most interesting. It brought back to me echoes of the Australian case of Tiger v Morris, not because the subject-matter is similar (it is not) but because in this increasingly globalised world (despite Covid19), courts everywhere are increasingly asked to consider the reach of their courts in cases with competing local and foreign interests. Comity considerations underlying the historic roots of conflict of laws are being brought back to the fore, no doubt also partially as a result of the impact of third party financing, contingency fees etc.

One to keep an eye on. One wonders whether Bayer might be launching a related case in Germany, then triggering A33/34 considerations.

Geert.

 

 

Forum shopping, corporate law. Lex causae undoubtedly German law. Shareholder seeking to take advantage in particular of procedure.

via @alahav https://t.co/TBcKULJIQc

— Geert Van Calster (@GAVClaw) March 18, 2020

Bertrand Copigneaux, Nikita Vlasov and Emarildo Bani of IDATE DigiWorld, Nikolay Tcholtchev and Philipp Lämmel of Fraunhofer Institute for Open Communication Systems, Michael Fuenfzig, Simone Snoeijenbos and Michael Flickenschild from Ecorys, and Martina Piantoni and Simona Frazzani from Grimaldi Studio Legale, have written a Study on Blockchain for supply chains and international trade at the request of the European Parliament.

The study was commissioned by the Panel for the Future of Science and Technology (STOA) and managed by the Scientific Foresight Unit, within the Directorate-General for Parliamentary Research Services (EPRS) of the Secretariat of the European Parliament.

The abstract reads:

This study provides an analysis of blockchain technology in the context of international trade. It analyses the potential impacts of blockchain development and applications in eight use cases for supply chains and international trade. It also provides an analysis of the current legislative framework and existing initiatives.

Based on this analysis, and following a broad consultation of relevant organisations, the study identifies several challenges in international trade documentation and processes, and presents a range of policy options for the European Parliament.

The Study concludes by developing 20 policy options, which are organised in six themes.

Customs facilitation through blockchain

1. The European Commission could act as a bridge between EU customs authorities interested in employing blockchain technology for the digitalisation of customs, with a view to jointly developing further proofs of concept.

2. EU Single Window working groups could run through the blockchain key questions to be addressed within the guidelines developed by the World Economic Forum by means of consultations with authorities, private sector groups and mixed focus groups, to explore whether there is a business case for its development.

3. The European Commission could look to its partners in mutual recognition agreements to explore the possibility of sharing Authorised Economic Operator information via blockchain.

Involvement of small and medium-sized enterprises in the blockchain sphere

4. The European Commission could be encouraged to help SMEs keep abreast of blockchain applications relevant for their particular role in the value chain.

5. Funds could be made available to support collaboration between SMEs as both suppliers of solutions and end-users of global value chains. 

Sustainable trade through blockchain

6. The European Commission could be provided with the budget to scale up the solutions being developed under Blockchain for Social Good, particularly those relating to fair trade.

7. The European Commission could include blockchain technology solutions in the considerations for designing the practical aspects of an EU carbon border tax.

Leadership in standardisation of blockchain technology

8. The European Commission could continue to play a leading role in the standardisation process, continue its close collaboration with international partners and strive to provide a platform to enable the various actors working on pilots and standards to engage with each other in order to avoid fragmentation.

9. The European Commission could make use of the Multi-Stakeholder Platform on ICT Standardisation to further collaborate with various stakeholders on blockchain standardisation.

10. Beyond dialogue with third countries on standardisation, the EU could lead by example and set standards itself by introducing blockchain-based services for example in customs or financial transparency, based on which private actors, third countries, and international standardisation organisations could orient themselves.

11. Support could be given to the work of the European Blockchain Partnership, and collaboration encouraged with the International Association for Trusted Blockchain Applications, in order to work towards a comprehensive ecosystem of international supply chains using blockchain technology.

Evidence-based policymaking in the area of blockchain

12. Parliament could engage more actively in the work already going on at EU level with regard to blockchain technology and international trade by observing relevant organisations such as the European Blockchain Partnership or asking the European Commission for regular updates on their work.

13. Networks, such as the European Blockchain Partnership, the Observatory and others could be promoted. To this end the Parliament could also promote and fund further research in the area, including a mapping of regulatory readiness in the EU, its Member States and international partners.

14. The European Commission could be made aware that solutions should include reporting indicators and specific plans on how results will be measured, communicated and developed into lessons learned. 

15. Progress of work already being done in piloting blockchain at EU level could be monitored closely and support given for setting up future use cases and pilots under the European Blockchain Services Infrastructure and the Connecting Europe Facility.

16. Use could be made of funding schemes for research and business to support the EU’s efforts in the early stage development of blockchain-related projects in trade and supply chains.

17. In the context of the International Association for Trusted Blockchain Applications, the European Commission could be supported and encouraged to establish a public–private partnership in the area of blockchain for international trade and supply chains.

Awareness raising for the use of blockchain

18. Regarding blockchain’s potential to improve efficiency and support EU values such as transparency, fair trade, and social and environmental responsibility, the EU could promote recognition of the technology and its use in trade and supply chains.

19. Successful proof of concepts, pilots and the available building blocks on the Connecting Europe Facility platform could be promoted among Member States, private stakeholders and citizens to increase familiarity among stakeholders with the technology and its uptake.

20. The European Commission and Member States could be encouraged to make use of their roles as members of international organisations such as the World Trade Organization, the World Customs Organization and the United Nations Centre for Trade Facilitation and Electronic Business to promote trade digitalisation and the use of blockchain technology.

The Study can be freely downloaded here. A Briefing summarizing the findings of the Study is available here.

On 25 May 2020, the CJEU has resumed its activity. This means hearings will be held again. None is scheduled for June on PIL matters, though.

The decision of the third Chamber (Prechal, Rossi, Malenovský, Biltgen, Wahl) in C-41/19, FX, is expected for 4 June.

The case arises from a request for a preliminary ruling made by the Amtsgericht Köln. It is about a child resident in Poland, who had obtained a decision from the Polish courts establishing the maintenance obligations of her father, resident in Germany. After getting a declaration of the enforceability of the Polish maintenance decision in Germany, the maintenance creditor seeks to have that decision enforced there. The debtor opposes enforcement on the basis that his payment obligations have been largely fulfilled; to this aim, he has lodged an application opposing before the German courts. The key issue raised by the request for a preliminary ruling is whether the German courts have jurisdiction to rule on that application on the basis of Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. AG Bobek’s Opinion was published on 27 February 2020. He suggests the CJEU answer in the following terms:

Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, and, in particular, Article 41(1) thereof, should be interpreted as meaning that the courts of the Member State where the enforcement of a maintenance decision given in another Member State is sought have jurisdiction to adjudicate on an application opposing enforcement, in so far as it is intrinsically connected with enforcement proceedings, it does not seek the modification or review of the maintenance decision, and it is based on grounds that could not have been raised before the court that issued the maintenance decision. Those conditions appear to be fulfilled by the application of opposition to enforcement based on the discharge of the debt at issue in the present case, which is nonetheless ultimately for the referring court to verify.

A separate post will appear on this blog concerning the Court’s judgment.

Additionally, two Opinions will be delivered on 18 June 2020, one by AG Szpunar (C-433/19, Ellmes Property Services) and the other by AG Campos Sánchez-Bordona (C-540/19, WV).

The former addresses a request from the Austrian Oberster Gerichtshof on the first subparagraph of Article 24(1) of the Brussels I bis Regulation. The OG asks whether the provision is to be interpreted as meaning that “actions brought by a co-owner seeking to prohibit another co-owner from carrying out changes to his property subject to co-ownership, in particular to its designated use, arbitrarily and without the consent of the other co-owners, concern the assertion of a right in rem”. Should the question be answered in the negative, the CJUE should determine Article 7(1)(a) whether concern contractual obligations to be performed at the location of the property.

In C-540/19, the German Bundesgerichthof requests the CJEU to decide whether a public body which has provided a maintenance creditor with social assistance benefits in accordance with provisions of public law can invoke the place of jurisdiction at the place of habitual residence of the maintenance creditor under Article 3(b) of the Maintenance Regulation, in the case where it asserts the maintenance creditor’s maintenance claim under civil law, transferred to it on the basis of the granting of social assistance by way of statutory subrogation, against the maintenance debtor by way of recourse. A good occasion to review C-433/01.

Finally, I would also like to mention AG Hogan’s Opinion on C-454/19, Staatsanwaltschaft Heilbronn, delivered the 4 June 2020. At first sight the questions referred to the Court had little to do with PIL:

(a) Is primary and/or secondary European law, in particular Directive 2004/38/EC of the European Parliament and of the Council, in the sense of a full right of EU citizens to move and reside freely within the territory of the Member States, to be interpreted as meaning that it also covers national criminal provisions?
(b) If the question is answered in the affirmative: does the interpretation of primary and/or secondary European law preclude the application of a national criminal provision which penalises the retention of a child from his guardian abroad where the provision does not differentiate between Member States of the European Union and third countries?

This notwithstanding, Regulation 2201/2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II bis) and the case law of the Court relating thereto are very much present in the Opinion.

Jefferies International Ltd & Anor v Cantor Fitzgerald & Co & Ors [2020] EWHC 1381 (QB) engages everything including the kitchen sink (but excluding Articles 33-34 Brussels Ia, one assumes because no competing foreign suits were pending when the English courts were seized) in its application for a stay.

The First to Third Claimants [together Jefferies] and the First to Third Defendants [together Cantor] carry on business in the financial services industry internationally, including investment banking and capital markets business and in particular in the international power and renewables sector. The First Defendant is a general partnership organised under the laws of New York. The Second Defendant is an unlimited company registered in England and regulated by the Financial Conduct Authority. The Third Defendant is a limited liability company incorporated in Hong Kong. The action arises out of what has become known as a team move. Jefferies’ case is that on 20 November 2017 twenty-six of its employees each resigned in materially identical terms, almost all of the resignations took place at 11.00 am London time notwithstanding that this was outside the normal working hours of those who worked in New York and Hong Kong, each of the employees in each jurisdiction instructed the same solicitors and each now works for Cantor. Jefferies asserts that Cantor has directed each of the twenty-six employees to refuse to honour repayment obligations in respect of certain “Replacement Awards” and “Bonuses” which were triggered by their resignations and subsequent employment by Cantor.

The following issues were agreed for determination:

i) Are the claims of Jefferies US against Cantor US subject to an arbitration agreement between Jefferies US and Cantor US, and if so should those claims be stayed pursuant to the Arbitration Act 1996 section 9?

ii) Should Jefferies’ claims against Cantor US and Cantor HK be stayed because England is not the proper place for determination of those claims?

iii) Should Jefferies’ claims against Cantor US and Cantor HK be stayed because Jefferies breached its duty of fair presentation on its without notice application for permission to serve out?

iv) Do Jefferies’ claims against Cantor US and Cantor HK, insofar as they relate to repayment agreements governed by New York law, have no reasonable prospects of success, because those repayment agreements are unenforceable as a matter of New York law?

v) Should service of the claim form and particulars of claim on Cantor US and Cantor HK and the Order of Master Thornett granting permission to serve Cantor US and Cantor HK out of the jurisdiction be set aside on any of the above grounds?

vi) Should the proceedings (or any part of them not otherwise stayed on the above grounds) be stayed on case management grounds pending final award in the FINRA arbitration?

vii) Should Jefferies’ claims against the Employee Defendants be stayed as a result of exclusive jurisdiction clauses in relevant repayment agreements favouring the courts of the State of New York?

viii) Should Jefferies’ claims against the Employee Defendants be stayed on case management grounds pending final award in the FINRA arbitration?

Master Cook dismissed all applications for a stay in a surprisingly (given the size of the list) succinct judgment and readers are best referred to the text itself for perusal. Other than Articles 33-34 (see above), only abuse of process I think could have been added to this extensive list of attempted grounds for a stay.

Geert.

 

Application for stay on the basis of i.a. forum non, case management, preference to #arbitration.
All dismissed. Claims to proceed, with English anchor defendant. https://t.co/nsvXupnH4z

— Geert Van Calster (@GAVClaw) June 2, 2020

The Diesel scandal has produced a wave of litigation word-wide. We are still waiting for the CJEU’s decision on whether claims can be brought in Austria by Austrian purchasers (Case C-343/19). The Advocate General’s opinion in this case has been the subject of an earlier post on this blog.

One of the important issues in the case pending before the CJEU is whether claimants can be expected to sue Volkswagen (VW) at its seat.  VW has its seat in Wolfsburg; thus, the competent court for such claims would be the Regional Court (Landgericht) of Braunschweig (Brunswick). The Braunschweig Regional Court has, however, now introduced a new hurdle for claimants who want to sue VW at its seat.

The Court at VW’s Seat Has Spoken

On 30 April 2020, the Regional Court of Braunschweig gave judgment (docket no 11 O 3092/19) on a case concerning a German debt collection company that had brought a “collective action” based on a number of claims against VW assigned to it by Swiss purchasers who bought cars fitted with the illicit software. The debt collection company was licensed under the German Act on Out-of-Court Legal Services (Rechtsdienstleistungsgesetz – RDG).

The Regional Court dismissed the action on the basis that the company could not dispose of the authorisation necessary under the RDG to pursue the claim, despite being licensed in Germany. It specifically found that neither the company nor its employees had any knowledge of Swiss law. Such expertise was however indispensable for the present case because the Regional Court of Braunschweig assumed that the claims assigned to the company would be governed by Swiss law.

An Overly Simplistic Conflict-of-Laws Analysis

The Regional Court derived the applicability of Swiss law from Article 4(1) of the Rome II Regulation. The court concluded that the place where the damage occurred, which is decisive under this rule, was Switzerland because the purchasers had paid for the cars from Swiss bank accounts.

The Regional Court seems to refer in this respect to the CJEU judgment in Kolassa, which – in the context of international jurisdiction – had considered the place where a bank account is managed as relevant for the localisation of financial loss. However, this judgment concerned the specific situation of prospectus liability, not the sale of cars. It cannot be considered as establishing a general rule, as the CJEU has clarified in its later judgment in Universal Music.

The localisation of loss in the ‘Dieselgate’ cases is much more difficult and intricate, as the Advocate General has pointed out in its conclusions in Case C-343/19. The fact that the cars have been paid from Swiss bank accounts alone will not suffice to establish the applicability of Swiss law. Other circumstances will have to be considered, such as the place of domicile of the purchasers, or the place where they use their cars (see the comment on the AG’s conclusions here).

An Undue Restriction of Access to Justice 

More problematic still is that the Regional Court Braunschweig denied the debt collection company standing to sue VW in Germany on the grounds that it lacks sufficient knowledge of Swiss law. This argument relies on a very restrictive interpretation of German law, which requires debt collection companies to have only general legal expertise; not specific expertise in foreign law. Moreover, the ruling ignores the fact that debt collection companies may instruct experts on Swiss law to advise on certain points of the legal case. Indeed, the court will probably have to do the same were it to try the case, because it also lacks the necessary knowledge of Swiss law (see sec. 293 of the German Code of Civil Procedure).

The judgment raises an unacceptable barrier for the enforcement of foreign claims against VW in Germany. Victims whose claims are based on foreign law cannot use German debt collection companies to advance their claims, as the latter have been found not have the required expertise in foreign law. But they also cannot go via foreign debt collection companies, as these do not have the necessary German license and can only provide “temporarily and occasionally” legal services in this country (sec. 15 German Act on Out-of-Court Legal Services). To instruct a German lawyer will be too burdensome as the purchaser would have to shoulder the litigation risk of losing the case.

It is Now Up to the CJEU

The Regional Court of Braunschweig has set up an additional obstacle for foreign claims in the Diesel scandal. This makes it much more difficult to sue VW at its seat. It is hard not to form the impression that the Regional Court was looking for an efficient way to rid itself of an unattractive case. The case illustrates the difficulties foreign claimants face when bringing an action at VW’s seat. Hopefully, the CJEU will take note of this when it decides whether car purchasers may bring actions against VW abroad.

Prof. Fabrizio Marrella (“Cà Foscari” University of Venice) has recently published the second edition of his textbook on international business law: “Manuale di diritto del commercio internazionale” (CEDAM, 2020), with a foreword of Prof. Andrea Giardina. A presentation has been kindly provided by the author (the complete TOC is available on the publisher’s website):

The Second Edition of this reference textbook (the first and foremost in the Italian language) combines the best aspects of a conceptual, systemic approach and a practical approach. It provides a rigorous and well grounded intellectual framework for understanding the most significant contractual and regulatory issues in international business law. The new edition has been revised and updated to take into account Incoterms 2020 as well as new issues of sales, transport and insurance law, payments and bank guarantees. All aspects of private international law are developed in view of their application in an arbitration or State court context.

Title: F. Marrella, “Manuale di diritto del commercio internazionale”, Padua, CEDAM, 2020.

ISBN: 9788813373672. Pages: 936. Available at CEDAM.

Thank you Helene Peroz for flagging the French Supreme Court on 13 May last referring to the CJEU for clarification of the Bolagsupplysningen case-law. The case concerns Gtflix Tv which I understand is a Czech adult entertainment corporation, who is suing Mr X, himself a producer of porn and domiciled at Hungary, arguing Mr X has defamed them in public comments.

Gtflix claim both retraction and correction of the comments, and symbolic damages. X argues the French courts do not have jurisdiction and the Court of Appeal at Lyons agreed. It held that Gtflix cannot suffice with a simple show of accessibility of the comments in France: for it to establish jurisdiction, Gtflix was required to show real damage to its reputation in France.

The Supreme Court first of all held that Bolagsupplysningen is good authority for acts of unfair competition between competitors – a finding which was not as such made in Manitou v JCB and on which the court does not refer to the CJEU. The applicable law issues which I discussed earlier in the week, were not subject of the Cour de Cassation’s assessment.

The court then does refer to the CJEU to ask whether Bolagsupplysningen means that a claimant who requests both rectification /retraction and damages, has to necessarily turn to courts with full jurisdiction or whether they can continue to turn for the damages part, to all courts with locus damni jurisdiction.

The specific question referred, is

“Les dispositions de l’article 7, point 2, du règlement (UE) n° 1215/2012 doivent-elles être interprétées en ce sens que la personne qui, estimant qu’une atteinte a été portée à ses droits par la diffusion de propos dénigrants sur internet, agit tout à la fois aux fins de rectification des données et de suppression des contenus, ainsi qu’en réparation des préjudices moral et économique en résultant, peut réclamer, devant les juridictions de chaque État membre sur le territoire duquel un contenu mis en ligne est ou a été accessible, l’indemnisation du dommage causé sur le territoire de cet État membre, conformément à l’arrêt eDate Advertising (points 51 et 52) ou si, en application de l’arrêt Svensk Handel (point 48), elle doit porter cette demande indemnitaire devant la juridiction compétente pour ordonner la rectification des données et la suppression des commentaires dénigrants ?” ;

Geert.

(Handbook of) European private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2

 

Unlike the High Court in BVC v EWF [https://t.co/2TjXwU3Hpj], the French SC does refer to the CJEU for further specification of C-194/16 Bolagsupplysningen [https://t.co/W5cCaB3QGf]
Re jurisdiction in the event of libel via the internet. https://t.co/5BTfNPzhzN

— Geert Van Calster (@GAVClaw) May 20, 2020

X v Y [2020] EWHC 1116 (Fam) is an uncomplicated case for conflict of laws aficionados. It includes a bit of Vorfrage, a bit of qualification, and a bit of temporal application of Brussels IIa.

Applicant Mr X seeks against the respondent Miss Y to rectify, as he sees it, a decree of divorce granted in relation to his marriage to Miss Y as long ago as 1997. They were married, first of all at a ceremony in Madrid on 25 May 1993, without the knowledge of any member of the wider family. Relationships between the wider families then mellowed to a degree, and there was apparently a second ceremony of marriage conducted in a Registry Office in London on 31 May 1994.

Relevant divorce and financial orders followed  in 1996 and 1997. The divorce petition had been based upon the assertion that the marriage to be dissolved was the second marriage, namely the one conducted in England in May 1994. No reference was made to the earlier marriage conducted in Madrid in 1993. Respondent’s case is that she considers that she is still married to Mr X, and that the Spanish marriage governs their status, and that they cannot be divorced unless and until there are divorce proceedings in Spain. She has, however, indicated a willingness to agree to a contrary outcome, provided a very substantial financial settlement is now made in her favour.

The 1996 petition only referred to the 1994 marriage, and it was that marriage that was referred to in the decree nisi and the decree absolute. It is important to Mr X that the declaration of his divorced status is sound, one assumes because he has remarried. He therefore seeks to rectify the decree absolute, and before it the decree nisi, so that they reflect that the marriage being dissolved was the Spanish marriage in 1993.

The Brussels II Regulation only entered into force in 2005 and jurisdiction for the decrees was governed by section 5 of the Domicile and Matrimonial Proceedings Act 1973: “The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if) either of the parties to the marriage (a) is domiciled in England and Wales on the date when the proceedings are begun or (b) was habitually resident in England and Wales throughout the period of one year ending with that date.” Mr X was domiciled in England and Wales at the time, there was therefore valid jurisdiction.

Relevant authority for the correction or variation, is Thynne v Thynne [1955] 3 All ER 129 which McFarlane J applies to rectify the decree nisi and the decree absolute, so that they record the marriage that was being dissolved as being the Spanish marriage of 1993.

Geert.

 

The Future of the Law of Contract brings together an impressive collection of essays on contract law. Taking a comparative approach, the aim of the book is to address how the law of contract will develop over the next 25 years, as well as considering the ways in which changes to the way that contracts are made will affect the law.

Topics include good faith; objectivity; exclusion clauses; economic duress; variation of contract; contract and privacy law in a digital environment; technological change; choice of court agreements; and Islamic finance contracts.

The chapters are written by leading academics from England, Australia, Canada, the United States, Singapore and Malaysia. As such, this collection will be of global interest and importance to professionals, academics and students of contract law.

 

Table of Contents

1. An Overview

Michael Furmston

2. The Implied Obligation of Good Faith

Howard Hunter

3. Good Faith and the Supreme Court of Canada

Stephen Waddams

4. The Quagmire of Utmost Good Faith in Insurance Law: A Comparative Study of Malaysian, Australian, and English Laws in Consumer Insurance Contracts

Cheah You Sum

5. Objectivity

J. W. Carter and Michael Furmston

6. Automated Transactions and the Law of Contract: When Codes are Not Congruent

Roger Brownsword

7. The Resilience of Contract Law in Light of Technological Change

Eliza Mik

8. A Collision of Contract and Privacy Law in a Digital Environment—An Accident Waiting to Happen! A Comparative Study

Cirami Mastura Drahaman

9. Setting Out a Comprehensive Legal Framework to Govern Exclusion Clauses in Malaysia: Lessons from the United Kingdom and Australia

Loganathan Krishnan

10. Economic Duress: Present State and Future Development: England, Australia and Malaysia

Sri Bala Murugan

11. The Validity of Choice of Court Agreements in International Commercial Contracts Under the Hague Choice of Court Convention and the Brussels Ia Regulation

Mukarrum Ahmed

12. De-Identification of Islamic Finance Contracts by the Common Law Courts

Adnan Trakic

 

Professor Michael Furmston is an internationally–acknowledged authority on contract and commercial law. The author of the leading textbook Cheshire Fifoot & Furmston on Contract (17th edition 2017) and Editor of the Construction Law Reports, volumes 1-150, his published work extends to over 20 books and many dozens of articles, chapters and other contributions.

An eminent academic, he has taught at Oxford, where he was a Fellow of Lincoln College; at Bristol, where he was Dean of the Faculty of Law and Pro Vice Chancellor; and also at other institutions of international standing. He was appointed Emeritus Professor at Bristol in 1998 and Dean and Professor at Singapore Management University’s School of Law.

Professor Furmston was called to the English Bar in 1960 (Gray’s Inn) and has been a Bencher of Gray’s Inn since 1989. He appeared in the House of Lords in Ruxley Electronics and Construction Ltd v Forsyth on the measure of damages for defective construction and has acted as consultant to many clients, owners, contractors and consultants on commercial and construction law.

The background in Wright v Ver [2020] EWCA Civ 672 is the mysterious history of Bitcoin and its creator, ‘Satoashi Nakamoto’. “Satoshi Nakamoto” is the pseudonym used by the person, or persons, who developed Bitcoin. On 31 October 2008 an academic paper was published under the name of Satoshi Nakamoto titled “Bitcoin: A peer to peer electronic cash system”. The academic paper described the manner in which the electronic cash system operated. Dr Craig Wright, claimant and appellant, is a national of Australia who now lives in Surrey. He has lived in the UK since December 2015 after emigrating from Australia. He also became a citizen of Antigua and Barbuda in 2017. He is a computer scientist with a particular interest in cryptocurrencies, including Bitcoin. Dr Wright says that he is Satoshi Nakamoto.

Roger Ver, defendant and respondent, is a bitcoin investor and commentator on bitcoin and other cryptocurrencies. Mr Ver was born in California, and raised in Silicon Valley. He moved to Japan in 2005. In 2014 he renounced his US citizenship and became a citizen of St Kitts & Nevis, although he continues to live in Japan. Mr Ver does not accept that Dr Wright is Satoshi Nakamoto.

The judgment does not address whether Dr Wright is Satoshi Nakamoto.

Dr Wright claims that he was libelled by Mr Ver in a YouTube Video posted on the Bitcoin.com YouTube channel on about 15 April 2019, a tweet containing the YouTube Video posted on Mr Ver’s Twitter Account on 3 May 2019, and a reply on Mr Ver’s Twitter Account posted on 3 May 2019 some 8 minutes after the tweet from Mr Ver. The defamatory meaning of these publications is said to be that Dr Wright “had fraudulently claimed to be Satoshi Nakamoto, that is to say the person, or one of the group of people who developed Bitcoin”.

Never more (data produced were broken down over periods) than 7 of the total YouTube views were in the UK. 7% of Mr Ver’s Twitter followers are in the UK. By judgment dated 31 July 2019 Mr Justice Nicklin found that England and Wales was not clearly the most appropriate place in which to bring the libel claim in this action and made a declaration that the Court had no jurisdiction to hear the claim.

The Court of Appeal, Dingemans LJ leading, agreed. Brussels Ia is not engaged. The jurisdictional test is section 9 of the Defamation Act 2013 – I previously discussed it in Sadik v Sadik: ‘A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.’

At 56 Dingemans notes that after Brexit, the Act’s reach will increase.

The first instance judge had argued inter alia that the evidence showed that Dr Wright was putting down roots in the UK and that would increase the reputational interests that Dr Wright had in this jurisdiction but that could not displace the global reputation that he enjoyed.

Dr Wright’s counsel submitted that the judge had set Dr Wright an impossible task by requiring him to adduce evidence of actual harm to his reputation in each candidate jurisdiction, and concluding that in the absence of such evidence Dr Wright could not satisfy the jurisdictional test. Further it was submitted that the judge had wrongly failed to carry out a comparative assessment as to whether each candidate jurisdiction was appropriate for the claim, and therefore failed to carry out the task mandated by s9.

Relevant factors for jurisdiction are discussed at 61 ff. Evidence will have to be shown of all the places in which the relevant statement has been published, as well as the number of times it has there been published. Targeting the publication at an English audience clearly will be an issue. Further elements include the availability of fair judicial processes in the other jurisdictions in which publication occurred. The available remedies from the Courts of the other jurisdictions may be relevant, as may be the costs of pursuing proceedings in each possible jurisdiction. Other factors that might impact on access to justice, for example language barriers, can be relevant. The location of likely witnesses is another feature that may be relevant. This list of factors is not exhaustive.

In a mercifully succinct manner, Dingemans J reviews all the elements and decides the test has not been met here.

A good primer for the 2013 Act.

Geert.

 

On 10–11 October 2019, the Albert-Ludwig-University of Freiburg (Germany) hosted the final conference of the German branch in the framework of the research project “Informed Choices in Cross-Border Enforcement” (IC2BE). Funded by the Justice Program (2014-2020) of the European Commission, the project aimed to assess the working in practice of the “second generation” of EU Regulations on procedural law for cross-border cases, i.e. the European Enforcement Order, Order for Payment, Small Claims and the Account Preservation Order Regulations (see our earlier post here). As a result, an open-access database of CJEU and national case law has been created which is available here. The presentations given at this conference have now been published in the second issue of the 2020 volume of the Zeitschrift für Vergleichende Rechtswissenschaft (German Journal of Comparative Law), Germany’s oldest continuously published review of comparative and PIL legal issues. The abstracts of the articles read as follows:

Informierte Entscheidungen in der grenzüberschreitenden Forderungsdurchsetzung – Vorstellung und Ergebnisse eines internationalen Forschungsprojekts [Informed Choices in Cross-Border Enforcement – Presentation and Results of an International Research Project]

Jan von Hein, University of Freiburg (Germany) – ZVglRWiss 119 (2020) 123–142

An efficient cross-border enforcement is more important than ever in light of the increasing economic integration of the EU. In order to achieve this aim, creditors may freely choose between enforcing a claim under Brussels Ibis or by means of the 2nd generation Regulations. Thus, weighing the pros and cons of choosing between one of the various options has become more difficult. This article presents the main findings of the EU-funded study „Informed Choices in Cross-Border Enforcement – IC2BE“, which is based on an extensive evaluation of case law and interviews with practitioners from eight Member States.

 

Der Anwendungsbereich der EU-Verordnungen zur grenzüberschreitenden Forderungsdurchsetzung [The scope of the EU Regulations on Cross-Border Enforcement of Claims]

Michael Stürner, University of Konstanz (Germany) – ZVglRWiss 119 (2020) 143–166

As part of the judicial cooperation in civil matters, the EU has issued a number of regulations on cross-border enforcement of debts. So far, this harmonization brings about piecemeal solutions with a certain lack of coherence. While those Regulations all apply in civil and commercial matters, they differ in their scope of application depending on the individual goal pursued by the act. The paper analyses those differences with a view to the material and geographical scope of application and discusses possible steps towards a reform, such as the abolition of the Enforcement Order Regulation or the consolidation of the various legal acts in a horizontal instrument (“Regulation Brussels 0”).

 

Die Sicherung von Forderungen im europäischen Zivilprozessrecht [Interim measures to secure monetary claims in European Civil Procedure]

Christian Heinze, University of Hanover (Germany) – ZVglRWiss 119 (2020) 167–196

Interim measures to secure monetary claims are addressed in several instruments of European civil procedure law, ranging from jurisdiction and recognition of foreign judgments, over special rules for cross-border proceedings and into sectoral procedural law for intellectual property disputes. The following article provides an overview of the relevant provisions and develops proposals on how a more coherent regulation at European level could be achieved.

 

Der Beitrag der Gerichtsorganisation zur Effizienz der grenzüberschreitenden Forderungsdurchsetzung [The Contribution of National Judicial Organization to the Efficiency of the International Recovery of Money Claims]

Christoph Althammer, University of Regensburg (Germany) – ZVglRWiss 119 (2020) 197–219

Measures taken by the national judicial organization have so far played only a minor role in improving cross-border enforcement of claims and diverge considerably in the European Member States. This is where the competence of the European legislature conferred by Art. 81 TFEU ends, so that harmonization efforts that are autonomous for the Union are difficult to implement. So far, the topic has been of practical importance in connection with the concentration of jurisdiction in central courts and the transfer of judicial matters to other judicial officers. However, the ECJ has recently made it clear in a different technical context that it wants to shape the national judicial organization more “European” in the future.

 

Der Beitrag der modernen Informationstechnologie zur Effizienz der grenzüberschreitenden Forderungsdurchsetzung [The Contribution of Information Technology to the Efficiency of the International Recovery of Money Claims]

Florian Eichel, University of Berne (Switzerland) – ZVglRWiss 119 (2020) 220–236

The article outlines how digitization and digitalization may contribute to make cross-border judicial recovery of money claims more efficient. It also considers the proposals for reform of the European Service and the European Evidence Regulations.

 

Anerkennungs- und Vollstreckungsversagungsgründe im Europäischen Zivilprozessrecht [Grounds for Refusing Recognition and Enforcement of Foreign Judgments in European Civil Procedural Law]

Haimo Schack, University of Kiel (Germany) – ZVglRWiss 119 (2020) 237–253

Even after the abolition of exequatur proceedings in art. 39 Brussels Ibis Regulation the grounds for non-recognition in art. 45 have been kept intact, albeit only after a separate motion by the debtor. Many other EU regulations, however, have significantly restrained the control by the enforcement State. The concurring and different provisions ask too much of the practitioners and invite abuse. The constitutionally mandated protection of the debtor in the enforcement State must not be sacrificed on the altar of an absolutely free movement of judicial decisions. The Regulation (EC) No. 805/2004 creating a European Enforcement Order for uncontested claims is outdated and should be scrapped.

 

Schnittstellen und Wechselwirkungen zwischen dem europäischen Zivilprozessrecht und dem nationalen Vollstreckungsrecht [Interfaces and Interactions between European and National Enforcement Law]

Caroline Meller-Hannich, University of Halle (Germany) – ZVglRWiss 119 (2020) 254–275

There are various ways of transferring a title into the enforcement system of foreign European Union member states, depending on the applicable EU-Regulation. This leads to an unclear legal situation that is to be solved by either the consolidation of the regulations of the second generation or by drafting one unitary system allowing for the freedom of enforcement title movement within the scope of all regulations. The German national executive and implementing law also needs to be revisited. The abolition of the exequatur in the Brussels Ia Regulation has resulted in unanswered questions concerning the enforcement procedure that must be clarified by jurisdiction. This applies in particular to the interpretation and adaptation of the title, the possible enforcement measures and the differentiation between the requirements of enforceability and the conditions for the enforcement procedure. This article will highlight these unanswered questions and suggest potential solutions.

Christopher Marsden (University of Sussex) has posted Transnational Internet Law on SSRN.

The greatest, and certainly to a Westphalian nation-state-centered universe most revolutionary, challenge for regulation is the increasing co-operation between national, regional and international networks of regulators, to regulate the Internet. Reidenberg coined the term ‘lex informatica’ to explain its transnational legal nature, based on Berman and Kaufman’s analysis of mediaeval lex mercatoria, rather than Jessup’s transnational law. In Part 2, I briefly consider the technical standards that permit Inter-networking and thus the Internet. Part 3 examines how standards – including commercial and legal standards – have created a transnational lex informatica. In Parts 4-5, I focus on two phenomena of the transnational Internet law evolution. The first is governance by contract for all commercial transactions, even those that are ostensibly free of monetary value, in which the contractors are trading private information for advertising revenue. The second is the ‘open Internet’, laws protecting some aspects of network neutrality.

The paper is forthcoming in Peer Zumbansen (ed.), Oxford Handbook of Transnational Law (OUP 2020). It can be downloaded here.