Droit international général

AG Szpunar delivered today his opinion in Case C‑253/19 (MH, NI v OJ, Novo Banco SA), which is about the concept of the ‘centre of main interests’ of the Insolvency bis Regulation.

The background and the question: “1. The concept of the ‘centre of main interests’ formed the cornerstone of the system established by Regulation (EC) No 1346/2000. That concept was set out in Article 3(1) of that regulation, and was used as a connecting factor designating the courts having jurisdiction to open insolvency proceedings against a debtor. […] the Court had not yet had the opportunity to address the interpretation of that concept in the context of natural persons not exercising an independent business or professional activity who benefit from the free movement of persons and workers.
2. Regulation No 1346/2000 was repealed by Regulation (EU) 2015/848, which also uses the concept of ‘centre of main interests’. The question in the present case is as follows: can the Court’s case-law, developed within the framework of Regulation No 1346/2000 and relating to that concept, be transposed — and if so, to what extent — to proceedings against a natural person who is in the situation referred to above? This case thus provides the Court with the opportunity to rule on jurisdiction in insolvency matters in relation to any person not pursuing an activity as a self-employed person who exercises his right of free movement, and whose assets are located in the Member State of his former habitual residence”.

The suggested response: “Article 3(1), first and fourth subparagraphs, of Regulation (EC) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings must be interpreted as meaning that the presumption that the habitual residence of a debtor who is a natural person not engaged in a self-employed activity is the centre of his main interests may be rebutted if the place of habitual residence does not fulfil its role as the place where a debtor’s economic decisions are taken, as the place where the majority of his revenue is earned and spent, or as the place where the major part of his assets is located.

However, that presumption cannot be rebutted in favour of the Member State within the territory of which a debtor’s sole immovable asset is located in the absence of any other indication that the centre of that debtor’s main interests is located in that Member State. That fact may be determined on the basis of objective factors which are ascertainable by third parties (current and potential creditors) and relate to the financial interests of that debtor”.

Source: here

AG Szpunar delivered on 23 April 2020 his opinion in Case C‑73/19 (Belgische Staat v
Movic BV, Events Belgium BV, Leisure Tickets & Activities International BV), which is about the concept of ‘civil and commercial matters’ in Brussels I bis.

The issue: “In its judgment of 1 October 2002, Henkel, the Court held that the concept of ‘civil and commercial matters’, which defines the scope of the majority of EU instruments of private international law, encompassed proceedings in which an action for an injunction preventing the use of unfair terms was brought by a consumer protection association. By this reference for a preliminary ruling, the referring court asks the Court to determine whether that concept also encompasses proceedings in which the public authorities of a Member State bring an action in relation to unfair market and/or commercial practices”.

The suggested response: “Article 1(1) of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that proceedings relating to an action brought by the public authorities of a Member State against persons governed by private law established in another Member State, in which a declaration is sought that infringements constituting unfair commercial practices have taken place, together with an order for the cessation of those practices, an order for measures of publicity at the expense of the defendants, and an order for penalty payments to be made in a fixed amount in respect of every future infringement, fall within the scope of ‘civil and commercial matters’ within the meaning of that provision.

On the other hand, such proceedings do not fall within the scope of that expression in so far as they relate to an action in which the public authorities seek the grant of special powers that go beyond those arising from the rules applicable in relationships between private individuals”.
Source: here

The Court of Appeal in [2020] EWCA Civ 574 Enka Insaat Ve Sanayi AS v OOO “Insurance Company Chubb” & Ors has overturned Baker J in [2019] EWHC 3568 (Comm) Enka Insaat ve Sanayi v OOO “Insurance Company Chubb” et al. which I reviewed here.

The case is mostly about the proper law of the arbitration agreement (Flaux J using the shorthand the ‘AA law’) aka the lex arbitri. Given that this is excluded from Rome I, residual rules apply which of course under English common law has Sulamerica as its main authority. In this case Enka contends that the AA law is English law, and Chubb Russia that it is Russian law. It is common ground that the lex contractus is Russian law, but the route to that conclusion is also in issue.

The dispute in this case raises the question of the relative weight to be given to the curial law (that is, the law of the seat, GAVC) of the arbitration agreement and the main contract law, where they differ, in determining the AA law. At 69:  ‘It is a question on which it would be idle to pretend that the English authorities speak with one voice. It would appear that there are also differences of approach between other jurisdictions in international arbitration generally’.

At 109 Flaux J concludes that parties have impliedly chosen that the proper law of the arbitration agreement should coincide with the curial law and be English law, and further, at 119 that ‘there has been no delay by Enka in this case which provides any good reason for not granting injunctive relief. I would treat this as a classic case, like The Angelic Grace, in which the court should grant an injunction to restrain the further conduct of proceedings brought in breach of an English law arbitration agreement.’

Anti-suit therefore granted.

For those interested in choice of law in arbitration, the judgment is required reading.  None of the Rome I (let alone Brussels Ia) issues discussed at the High Court are further discussed here, hence for the purposes of this blog I shall leave the analysis here.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.1. 

The latest issue of the Italian Journal Diritto del commercio internazionale (34.1/2020) features an article (in English) on “Brexit and Cross-Border Insolvency Looking Beyond the Withdrawal Agreement” written by Antonio Leandro (University of Bari).

The abstract of the article reads as follows: “The UK and the EU have concluded the Withdrawal Agreement which officially triggers the so-called Brexit. However, the real effects of the Brexit still are unclear, at least as regards the future following the end of the transition period provided for by the Withdrawal Agreement during which the UK will be treated as if it were a Member State. After the transition period, mini hard Brexit(s) are in fact likely for matters currently governed by the EU Law that the Parties will not want to relocate in new legal frameworks, such as bilateral treaties. The paper addresses the consequences of a mini hard Brexit for cross-border insolvency proceedings involving the UK and the Member States with the aim to explain why this specter should be avoided”.

Today, Advocate General Szpunar delivered his Opinion in Case C-253/19 – MH, NI v. OJ, Novo Banco SA. As is generally known, Article 3 of Regulation 2015/848, entitled ‘International jurisdiction’, provides in paragraph 1:

‘The courts of the Member State within the territory of which the centre of the debtor’s main interests is situated shall have jurisdiction to open insolvency proceedings (“main insolvency proceedings”). The centre of main interests shall be the place where the debtor conducts the administration of its interests on a regular basis and which is ascertainable by third parties.

In the case of a company or legal person, the place of the registered office shall be presumed to be the centre of its main interests in the absence of proof to the contrary. That presumption shall only apply if the registered office has not been moved to another Member State within the 3-month period prior to the request for the opening of insolvency proceedings.

In the case of an individual exercising an independent business or professional activity, the centre of main interests shall be presumed to be that individual’s principal place of business in the absence of proof to the contrary. That presumption shall only apply if the individual’s principal place of business has not been moved to another Member State within the 3-month period prior to the request for the opening of insolvency proceedings.

In the case of any other individual, the centre of main interests shall be presumed to be the place of the individual’s habitual residence in the absence of proof to the contrary. This presumption shall only apply if the habitual residence has not been moved to another Member State within the 6-month period prior to the request for the opening of insolvency proceedings.’

As the Opinion explains (paras. 4 et seq.):

4. The applicants are married to each other and, since 2016, have been resident in Norfolk (United Kingdom), where they are engaged in paid employment. The couple made a request to the Portuguese courts to declare them insolvent. The court of first instance declared that it did not have international jurisdiction to rule on their request, holding that, under the fourth subparagraph of Article 3(1) of Regulation 2015/848, the centre of their main interests was their place of habitual residence, namely the United Kingdom.

5. The applicants brought an appeal against that judgment before the referring court, claiming that it was based on a misinterpretation of the rules laid down by Regulation 2015/848. In that regard, they submitted that, in so far as the sole immovable asset that they owned was located in Portugal, where all the transactions which gave rise to their insolvency had occurred, the centre of their main interests was not their place of habitual residence (United Kingdom), but was located in Portugal. Moreover, they claimed that there is no connection between their current place of residence and the events that led to their insolvency, which occurred entirely in Portugal.

6. The referring court has doubts as to the correct interpretation of Article 3(1) of Regulation 2015/848 and is uncertain, in particular, of the criteria to be used for the purpose of rebutting the simple presumption laid down in that provision for natural persons not exercising an independent business or professional activity, according to which, for such persons, the habitual residence of the concerned party is presumed to be the centre of that party’s main interests in the absence of proof to the contrary.

7. In that regard, the referring court points out that recital 30 of that regulation states that, in the case of natural persons not exercising an independent business or professional activity, it should be possible to rebut that presumption, for example where the major part of the debtor’s assets is located outside the Member State of the debtor’s habitual residence.

AG Szpunar proposed (paras. 65 et seq.) that the Court should answer the question referred for a preliminary ruling by the Tribunal da Relação de Guimarães (Court of Appeal, Guimarães, Portugal) as follows:

Article 3(1), first and fourth subparagraphs, of Regulation (EC) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings must be interpreted as meaning that the presumption that the habitual residence of a debtor who is a natural person not engaged in a self-employed activity is the centre of his main interests may be rebutted if the place of habitual residence does not fulfil its role as the place where a debtor’s economic decisions are taken, as the place where the majority of his revenue is earned and spent, or as the place where the major part of his assets is located.

However, that presumption cannot be rebutted in favour of the Member State within the territory of which a debtor’s sole immovable asset is located in the absence of any other indication that the centre of that debtor’s main interests is located in that Member State. That fact may be determined on the basis of objective factors which are ascertainable by third parties (current and potential creditors) and relate to the financial interests of that debtor.

by Marie Elaine Schäfer

The cross-border expansion of EU companies’ economic activities not only leads to a globalised market, but also impacts human rights as well as the environment in countries worldwide. The recent rise of claims against EU companies for the violations committed by their subsidiaries located in third countries is a by-product of that context. With Germany being the world’s third largest importing country, the question of corporate responsibility for harmful events abroad is crucial. The present post provides an overview of the most recent legal developments on that topic.

“National Action Plan” and voluntary principle

The central aspect of Germany’s approach to prevent human rights violations and environmental damages caused by German companies’ foreign subsidiaries is a voluntary – as opposed to binding – principle.

In 2016, the German Government adopted the “Nationaler Aktionsplan Wirtschaft und Menschenrechte” (National Action Plan on Business and Human Rights) to implement the UN guiding principles on Business and Human Rights (Ruggie Principles). This fixed framework is the first of its kind in Germany. The objective of the National Action Plan is to delineate German enterprises’ responsibility to protect human rights: at least 50 per cent of all large companies in Germany (with more than 500 employees) have to implement a system of human rights due diligence by 2020. Accordingly, “[c]ompanies should publicly express their willingness to respect human rights in a policy statement, identify risks, assess the impact of their activities on human rights, take countermeasures if necessary, communicate how they deal with risks internally and externally and establish a transparent complaints mechanism” (see the Report on the National Action Plan).

An inter-ministerial committee (on business and human rights), formed by the Government under the auspices of the German Federal Foreign Office, monitors the status of implementation of human rights due diligence. However, any tangible measures remain optional for companies and inaction entails no consequences yet.

KiK litigation

German courts faced the question of companies’ liability to some extent in the KiK litigation, which ended with a judgment issued by the Court of Dortmund (Germany) in 2019.

The facts of that case are the following: the German textile importer and reseller KiK Textilen and Non-Food GmbH (hereafter, KiK) is listed amongst the ten largest providers in the German textile industry and has over 28.000 employees. In September 2012, 259 people died in a fire in a textile factory in Pakistan and 47 more were injured. The main buyer of the factory’s goods was KiK. In 2015, relatives of three of the deceased victims and one of the injured workers himself started proceedings against KiK in the Regional Court of Dortmund for damages of 30.000 € each for suffering and the death of the deceased victims.

The court ruled that, based on Art. 4(1) of the Rome II Regulation, Pakistani law was applicable. In the main proceedings, that court retained expert evidence on Pakistani Law and dismissed the lawsuit due to the Pakistani limitation period for such claims that ended even before the proceedings in Germany had started. For further general discussion on Article 4(1) of the Rome II Regulation as well as on the potential relevance of Article 4(3) Rome II Regulation see here.

According to the further holdings of the court, the claimants could alternatively hold KiK liable for the events in Pakistan, had an acknowledgement of liability been written. However, KiK had agreed on a code of conduct with the supplier, which the court and the expert on Pakistani law evaluated as an agreement to compensate on an ex gratia basis and not as an acknowledgement of liability. Furthermore, the court stated that, even if German law was applicable, a code of conduct would then, at most, lead to a legal binding agreement between KiK and the supplier. The suppliers’ employees could not file any direct claims against KiK based on the supply contract and the code of conduct, which cannot be seen as a contract to the benefit of a third party under German law (supplementary interpretation of the contract).

In light of this, it is questionable how long the voluntary principle will remain the leading path in Germany’s approach to deal with expanding supply chains and the challenges for both environmental and human rights standards.

Current legislative developments

An alliance of non-governmental institutions (similar to the coalition that launched the Swiss initiative populaire “entreprises responsables – pour protéger l’être humain et l’environnement” in 2016) has formed the “Initiative Lieferkettengesetz” (Supply chain Law Initiative) with the intention of establishing binding obligations as they can be found in the French Duty of Vigilance Law (“loi n°2017-399 relative au devoir de vigilance des sociétés mères et entreprises donneuses d’ordre”). Accordingly, German companies shall establish diligence plans to protect human rights and the environment in the states where their subsidiaries are located. Violations of diligence would lead to sanctions in form of shortening of government aids and high fines. In order to ensure the companies’ liability for violations in German courts, the law would be formed as an overriding mandatory provision in the sense of Art. 9(1) of the Rome I Regulation.

Applied to the KiK litigation, the problem does not only lie within the applicability of German law. As the Court of Dortmund ruled, only a written acknowledgement of liability would enable employees to start proceedings. Since a mandatory system of due diligence would likely take the form of codes of conduct rather than acknowledgements of liability, violations of German law would lead to the sanctioning of the companies but would not offer a cause of action to suppliers’ employees against the German enterprises.

Even though the enactment of a supply chain law remains highly disputed within the government, recent developments show that a change towards binding obligations may be on its way.
The ministers of labour and of development are of the opinion that the voluntary principle does not lead to the desired result, since only about 20 per cent of the companies affected by the National Action Plan have carried out human rights due diligence in 2019. According to Gerd Müller, the minister of development, legislation will follow if a second survey in 2020 does not show any improvement.

In addition to that, in 2019, more than 40 German companies, ranging from larger enterprises, such as Nestlé Germany to Start-Ups, publicly demanded binding obligations to ensure legal certainty and equal competitive competitions.

As shown, German Companies’ responsibility is a question of voluntary implementation of the National Action Plan. In light of the KiK litigation, employees’ proceedings against enterprises will likely have no success, although legislation in this field may lead to higher standards that enterprises then would have to impose to their suppliers abroad.

Still, the introduction of legislation remains uncertain as the result of a second survey on the National Action Plan’s implementation will determine upcoming developments and the future of the German voluntary principle.

As was reported on this blog here, the Munich Dispute Resolution Day on 5 May 2020 was going to focus on “Human Rights Lawsuits before Civil and Arbitral Courts in Germany”, but Covid-19 forced the organisors to reschedule.

Marie Elaine Schäfer, Student Research Assistant at the University of Bonn, Germany

by Nadia Rusinova

The coronavirus will have an enormous impact on how we consume, how we learn, how we work, and how we socialize and communicate. It already significantly impacts the functioning of the justice system – the COVID-19 pandemic and social distancing requirements have required courts to be flexible and creative in continuing to carry out essential functions.

Six weeks ago, it was almost difficult to imagine that in a regular child-related proceeding the hearing could be conducted online, and that the child can be heard remotely. Is this the new normal in the global justice system? This post will first provide brief overview regarding the developments in the conduction of remote hearings, and discuss the limitations, but also the advantages, of the current procedures related to children. Second, it will touch upon the right of the child to be heard in all civil and administrative proceedings which concern its interest, pursuant to Article 12 of the United Nations Convention on the Rights of the Child and how this right is regarded in remote proceedings in the context of the COVID-19 situation. It will also highlight good practices, which are without doubt great achievements of the flexibility and adaptability of the professionals involved in child-related civil proceedings, which deserve to be appreciated and which may provide grounds for significant change in the future (e.g. by using remote tools much more often.)

In civil and administrative proceedings, which concern children, strict insistence on personal attendance is unlikely to be feasible during the Coronavirus pandemic, and may contravene current health guidance, putting both families and professionals at unacceptable risk. As a consequence, the number of children’s hearings scheduled to take place during the Coronavirus pandemic have globally been reduced to only those required to ensure essential and immediate protection of children or to consider orders relating to restriction of liberty. So long as restrictions regarding social distancing remain in place all over the world, many children’s hearings in the next months will be conducted remotely and digital facilities are being put in place to enable a wide range of people to participate remotely in virtual hearings.

I. What the recent experience on the remote hearings shows

 Worldwide, over the past month, thousands of hearings took place remotely, many of them concerning children. How did the authorities comply with the current challenges and also with the right of the child to express its views?

Some countries, like Scotland, issued special rules as an amendment to the existing national law.  In the context of the emergency, the provisions in the Coronavirus Act 2020 Guidance on looked-after children and children’s hearings provisions, issued by the Scottish Parliament as an update to the Coronavirus (Scotland) Bill, are designed to enable best use of very limited resources by local authorities, and the children’s hearings system, so that efforts can be focused on safeguarding the welfare of Scotland’s most vulnerable children, and on supporting families and careers who need it most. The provisions are also time-limited and will automatically expire within six months, unless the Scottish Parliament extends them for a further period of six month.

The American Bar Association has also prepared detailed rules on “Conducting Effective Remote Hearings in Child Welfare Cases” to  distill some best practices and other recommendations for remote or “virtual” hearings, providing special considerations to the judges, and directions for all professionals dealing with child-related proceedings.

The case law of the domestic courts is not less intriguing. In one recent judgment of The Family Court of England and Wales – RE P (A CHILD: REMOTE HEARING) [2020] EWFC 32, delivered by Sir Andrew McFarlane, the issues surrounding the advantages and disadvantages of the remote hearing when the case concerns children are discussed in a very original way. The case concerns ongoing care proceedings relating to a girl who is aged seven. The proceedings are already one year old and they were issued as long ago as April 2019, but the possibilities for multiple appeals in the adversarial proceedings caused immense delay. It has been initiated by the local authority, which have made a series of allegations, all aimed at establishing the child has been caused significant harm as a result of fabricated or induced illness by its mother. The allegations are all fully contested by the mother, and a full final hearing is to take place in order to be decided if the child should be return to its mother or placed in long term foster care. Since April 2019 the child has been placed in foster care under an interim care order. The 15-day hearing was scheduled to start on Monday, 20 April, but the Covid-19 pandemic has led to a lockdown and most Family Court hearings that have gone ahead are being undertaken remotely, over the telephone or via some form of video platform.

II. Challenges

In this light it might be useful to identify some of the issues that the justice system faced in the attempts to comply with the special measures amid the pandemic and the lockdown order in disputes about children.

Must a hearing take place remotely, or this is just an option to be decided on by the court?

All the guidance available aims mostly at the mechanics of the process. The question whether any particular hearing should, or should not, be conducted remotely, is not specifically discussed. In any case, the access to justice principle should in some way provide for flexibility and practicability. In this sense, the fact that a hearing can be conducted remotely, does not in any way mean that the hearing must be conducted in that way.

As Sir McFarlane said, “In pushing forward to achieve Remote Hearings, this must not be at the expense of a fair and just process.” Obviously, the question is how to strike a fair balance between keeping the principle of fair trial as paramount while not putting the child into an intolerable situation that might follow as a consequence of the limitations in this pandemic situation.

In which cases it is justified to hold a remote hearing?

Given the Government’s imposition of the ‘stay at home’ policy in many countries, requests for an attended hearing are highly unlikely to be granted unless there is a genuine urgency, and it is not possible to conduct a remote hearing, taken as a cumulative condition together. If one of these elements is not present, the respective judge should assess the emergency in the particular case.

In general, all cases are pressing when the welfare of children is to be determined. However, some of it indeed call for urgency and it is to be analyzed on a case by case basis, in accordance with the claims of the parties and available evidence. In the discussed case RE P [2020] EWFC 32 the girl was already suffering significant emotional harm by being held “in limbo”, and that she could only be released from this damaging situation of simply not knowing where she is going to live and spend the rest of her childhood, at least for the foreseeable future, by the court decision. As the judge says, “she needs a decision, she needs it now and to contemplate the case being put off, not indefinitely but to an indefinite date, is one that (a) does not serve her interests, because it fails to give a decision now, but (b) will do harm itself because of the disappointment, the frustration and the extension of her inability to know what her future may be in a way that will cause her further harm.”

Another issue to be considered is to which extent the personal impression (for which the face-to-face hearing is best suited to) and the physical presence in the courtroom as a procedural guarantee for fair trial in adversarial proceedings, are decisive in the particular case. In RE P [2020] EWFC 32 sir McFarlane holds that “The more important part, as I have indicated, for the judge to see all the parties in the case when they are in the courtroom, in particular the mother, and although it is possible over Skype to keep the postage stamp image of any particular attendee at the hearing, up to five in all, live on the judge’s screen at any one time, it is a very poor substitute to seeing that person fully present before the court.” This is a case for protection from violence, and taking into account the subjective aspect, the personal impression is crucial. Yet, it might be that other type of cases, with less impact on the life of the child, or when the balance between the urgency and the importance of personal attendance might affect the best interest of the child ,might still be held remotely. In the discussed case the judge refers explicitly to the need of the physical presence of the parties, and especially of the mother, for him to get personal impression, and to give her full opportunity to present her defense and to ensure fair trial. The Court therefore finds that a trial of this nature is simply not one that can be contemplated for remote hearing during the present crisis. It follows that, irrespective of the mother’s agreement or opposition to a remote hearing, the judge holds that this hearing cannot “properly or fairly” be conducted without her physical presence in a courtroom.

A similar approach (with different outcome) has been taken in Ribeiro v Wright, 2020 ONSC 1829, Court of Ontario, Canada. The parties, currently in the process of divorce, and the plaintiff wishes to obtain a safeguard order so that the defendant’s access rights are modified such that they are suspended and replaced by contacts via technological means (Skype, Facetime, etc.). Due to the ongoing divorce procedure at the stage of the application for the safeguard order, some evidence is available already. The judge recognizes that the social, government and employment institutions are struggling to cope with COVID-19 and that includes the court system. Obviously, despite extremely limited resources, the court will always prioritize cases involving children, but it is stated that parents and lawyers should be mindful of the practical limitations the justice system is facing. If a parent has a concern that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion under the domestic law – but they should not presume that raising COVID-19 considerations will necessarily result in an urgent hearing. In this case the judge refuses to start emergency proceeding (which would be conducted remotely), takes into account the behavior of the parents and urge them to renew their efforts to address vitally important health and safety issues for their child in a more conciliatory and productive manner, asking them to return to court if more serious and specific COVID-19 problems arise.

In order to determine some general criteria to be applied when the emergency assessment is to be done, a good general example can be seen in the Coronavirus Act 2020 Guidance on looked-after children and children’s hearings provisions (Scotland). The Scottish Government seeks to empower professional staff and volunteer tribunal members to exercise sound judgment and make decisions to protect and support children and young people, based on available information and in partnership with families. It provides that this exercise of emergency powers should: i. be underpinned by a focus on children’s, young people’s, and families’ human rights when making decisions to implement powers affecting their legal rights; ii. be proportionate – limited to the extent necessary, in response to clearly identified circumstances; iii. last for only as long as required; iv. be subject to regular monitoring and reviewed at the earliest opportunity; v. facilitate, wherever possible and appropriate, effective participation, including legal representation and advocacy for children, young people and family members, and vi. be discharged in consultation with partner agencies.

Furthermore, in the Scottish Children’s Reporter Administration update paper on Children’s Hearings System, issued on 20 April 2020, it is stated that  the reporter assesses and considers each individual child’s case and their unique circumstances, and the panel makes the best possible decision based on the information before them. Priority is given to hearings with fixed statutory timescales, or to prevent an order from lapsing. The UK Protocol Regarding Remote Hearings, issued on 26 March 2020, also sets some general criteria in par. 12 applicable to child-related proceedings, stating that it will normally be possible for all short, interlocutory, or non-witness, applications to be heard remotely.  Some witness cases will also be suitable for remote hearings.

What form the “remote” hearing may take?

There is currently no ‘single’ technology to be used by the judiciary. The primary aim is to ensure ongoing access to justice by all parties to cases before the court, so the professionals and parties involved must choose from a selection of possible IT platforms (e.g. Skype for Business, Microsoft Teams, Zoom, etc.) At present, many courts provide laptops to magistrates with secure Skype for Business and Microsoft Teams installed.

Remote hearings may be conducted using any of the facilities available. Generally, it could be done by way of an email exchange between the court and the parties, by way of telephone using conference calling facilities, or by way of the court’s video-link system, if available. In the specific child related proceedings however, it should be noted that the UN General comment No. 12 (2009) on the right of the child to be heard sets one recommendation in par. 43 – the experience indicates that the situation should have the format of a talk rather than a one?sided examination. Therefore, the use of tools allowing conversational approach, like Skype for Business, BT MeetMe, Zoom, FaceTime or any other appropriate means of remote communication can be considered. If other effective facilities for the conduct of remote hearings are identified, the situation obviously allows for any means of holding a hearing as directed by the court, so there is considerable flexibility.

The timing of the hearing of the child

Naturally, if there are rules in place regarding the timely hearing of the child, in the current situation some adjustments could be accepted. In the domestic systems, when such provisions exist, respective temporary amendments could be a solution to facilitate the activity in these very challenging circumstances.

If we look again at the Coronavirus Act 2020 Guidance on looked-after children and children’s hearings provisions, it provides for situations where it will not be practicable for there to be a hearing within three working days (as prescribed by the law), due to the likely shortage of social workers, reporters, decision-makers, children and families to attend an urgent hearing in the new area. As a result, the Act amends the time limit for some particular proceedings involving children up-to seven days. It is duly noted that in order to avoid unnecessary delays, the respective professionals involved should note these extended timescales, and prepare accordingly.

Is the objection by the parties to the hearing being held remotely decisive?

The pandemic situation is very potentially convenient for the parties who seek delays for one reason or another. As an example, the passage of time could undoubtedly affect the court’s decision to assign custody in parental disputes, or as pointed by the ECtHR in Balbino v. Portugal, the length of proceedings relating to children (and especially in child abduction proceedings) acquire particular significance, since they are in an area where a delay might in fact settle the problem in dispute.

The objections that deserve attention would be most likely based on two grounds: health reasons, related or not to COVID-19, and the technical issue of internet access. When we speak about health reasons, the first logical suggestion would be to request medical evidence. Sadly, in the coronavirus situation this is not the case – simply because one can have contracted it without any knowledge or symptoms, which puts the courts in difficult position having in mind the considerable danger if they take the wrong decision. Therefore, it is justified that the judges continue with the proceedings and do not accede to these kinds of applications, but to indicate that the party’s health and the resulting ability to engage in the court process would be kept under review.

Regarding internet access, this might arise as a difficult issue. On one side, it is easy to say that the arrangements for the party to engage in the process, as they are currently understood, involve the party being in her/his home and joining the proceedings over the internet, and all that’s needed is some basic internet access. It can be also said that the party can go to some neutral venue, maybe an office in local authority premises, a room in a court building, and be with an attorney that they are instructing, keeping a safe socially isolated distance. However, for objective reasons the internet access available might be not sufficient, and this should not lead to a violation of the principle of a fair trial, and the judge should also take these considerations seriously.

How is security and transparency addressed?

This section will briefly touch upon only two of a multitude of issues related to the security and transparency when dealing with remote hearings – the open hearings principle and the recording of the hearing.

Obviously, all remote hearings must be recorded for the purposes of making records of the respective hearing, and it goes without saying that the parties may not record without the permission of the court. Some of the solutions might be recording the audio relayed in an open court room by the use of the court’s normal recording system, recording the hearing on the remote communication program being used (e.g. BT MeetMe, Skype for Business, or Zoom), or by the court using a mobile telephone to record the hearing.

As to the second issue, remote hearings should, so far as possible, still be public hearings. Some of the proceedings concerning children are indeed not public, but this is not the rule. The UK Protocol Regarding Remote Hearings addresses how this can be achieved in times of pandemic: (a) one person (whether judge, clerk or official) relaying the audio and (if available) video of the hearing to an open court room; (b) allowing a media representative to log in to the remote hearing; and/or (c) live streaming of the hearing over the internet, where broadcasting hearings is authorized in legislation. This way, the principles of open justice remain paramount.

It could be suggested that, in established applications moving to a remote hearing, any transparency order will need to be discharged and specific directions made. In the UK Court of protection remote hearings  the authorities are satisfied that, to the extent that discharging the order in such a case engages the rights of the press under Article 10 ECHR, any interference with those rights is justified by reference to Article 10(2), having particular regard to the public health situation which has arisen, and also the detailed steps set out are designed to ensure that the consequences on the rights of people generally and the press in particular under Article 10 are minimized.

III. How to assess if a particular child-related hearing is suitable to take place online?

As noted by Sir McFarlane, whether or not to hold a remote hearing in a contested case involving the welfare of a child is a particularly difficult one for a court to resolve. A range of factors are likely to be in play, each potentially compelling but also potentially at odds with each other. The need to maintain a hearing in order to avoid delay and to resolve issues for a child in order for its life to move forward is likely to be a most powerful consideration in many cases, but it may be at odds with the need for the very resolution of that issue to be undertaken in a “thorough, forensically sound, fair, just and proportionate manner”. The decision to proceed or not may not turn on the category of case or seriousness of the decision, but upon other factors that are idiosyncratic of the particular case itself, such as the local facilities, the available technology, the personalities and expectations of the key family members and, in these early days, the experience of the judge or magistrates in remote working. It is because no two cases may be the same that the decision on remote hearings has been left to the individual judge in each case, rather than making it the subject of binding national guidance.

Therefore, it should be assessed on a case per case basis if a hearing that concerns a child can be properly undertaken over the remote system. Sometimes the proceedings prior to this moment are supporting the judge in allowing the hearing to go remotely – the allegations have been well articulated in documents, they are well known to the parties, the witnesses – members of the medical profession, school staff, social workers – gave or can give their evidence remotely over the video link and for the process of examination and cross-examination to take place. What normally goes wrong is the technology rather than the professional interaction of the lawyers and the professional witnesses. In this sense the case might be ready for hearing and the parties are sufficiently aware of all of the issues to be able to have already instructed their legal teams with the points they to make.

IV. The right of the child to be heard in the context of remote proceedings

It is natural that remote hearings and all means of online communication unavoidably affect the proceedings itself. The current situation, unprecedented as it is and with all the challenges described above, raises the question of specifically how the child should be heard, if at all, and is this an absolute right, considering that providing a genuine and effective opportunity for the child to express their views requires the court to take all measures which are appropriate to the arrangement of the hearing, having regard to the best interests of the child and the circumstances of each individual case?

To explore this right in the light of the COVID-19 pandemic, some background should be provided. As it is pointed in the UN General comment No. 12 (2009) on the right of the child to be heard, the right itself imposes a clear legal obligation on States’ parties to recognize it and ensure its implementation by listening to the views of the child and according them due weight. This obligation requires that States’ parties, with respect to their particular judicial system, either directly guarantee this right, or adopt or revise laws so that this right can be fully enjoyed by the child. Something more – in par. 19 it says that “Article 12, paragraph 1, provides that States parties “shall assure” the right of the child to freely express her or his views. “Shall assure” is a legal term of special strength, which leaves no leeway for State parties’ discretion. Accordingly, States parties are under strict obligation to undertake appropriate measures to fully implement this right for all children.”

The right of the child to be heard is regulated in the same sense in Article 24(1) of the Charter of the Fundamental Rights of the EU and Article 42(2)(a) of Regulation No. 2201/2003 (Brussels II bis). The Hague convention of 25 October 1980 on the Civil Aspects of International Child Abduction also provides in Article 13 that the judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

Brussels IIa recast (Regulation 1111/2019, in force as of August 2022) pays special attention to the strengthening of the right of the child to express his or her view, reinforcing it with special provision – Article 26 in Chapter III “International child abduction”, in compliance with a detailed Recital 39. It states that the court may use “all means available to it under national law as well as the speci?c instruments of international judicial cooperation, including, when appropriate, those provided for by Council Regulation (EC) No 1206/2001” but “in so far as possible and always taking into consideration the best interests of the child” thus retaining some degree of discretion also in this regard.

In Joseba Andoni Aguirre Zarraga v. Simone Pelz (case C-491/10 PPU) however CJEU held that hearing a child is not an absolute right, but that if a court decides it is necessary, it must offer the child a genuine and effective opportunity to express his or her views. It also held that the right of the child to be heard, as provided in the Charter and Brussels II bis Regulation, requires legal procedures and conditions which enable children to express their views freely to be available to them, and the court to obtain those views. The court also needs to take all appropriate measures to arrange such hearings, with regard to the children’s best interests and the circumstances of each individual case.

It is worth noting that in some cases the hearing of the child can be conducted indirectly or via representative, or where it is considered as harmful for the child it can be dispensed with altogether. In the case of Sahin v. Germany, on the question of hearing the child in court, the ECtHR referred to the expert’s explanation before the regional court in Germany. The expert stated that after several meetings with the child, her mother and the applicant, he considered that the process of questioning the child could have entailed a risk for her, which could not have been avoided by special arrangements in court. The ECtHR found that, in these circumstances, the procedural requirements implicit in Article 8 of the ECHR – to hear a child in court – did not amount to requiring the direct questioning of the child on her relationship with her father.

So far, the question how the right of the child to be heard is regarded in the remote hearings, that had to take place recently, is not widely discussed. Therefore, at this moment we should draw some conclusions from the available case-law and emergency rules. Naturally, this right itself cannot be waived and the views of children and young people should be taken into account when emergency placements are first made; the decision at any given time must take into account the best interests of the child. The most appropriate approach would be adjusting the available domestic proceedings, and at all times the local authorities should provide pertinent information to inform this decision and the child must be at the center of all decision making, which includes the social work team listening to the child’s views.

How this might look in practice? First of all, the children as a rule should be offered the opportunity to join their hearing virtually and securely. Testing and monitoring are crucial in order to get as many children as possible able to attend. Good suggestion would be a letter giving them more information about how they can participate via their tablet laptop/PC or mobile phone, information sheet which will explain how they can join a virtual hearing, instructions to help them with the set up. This should be followed by a test to make sure everyone is prepared for the day of the hearing. In accordance with the domestic procedural rules, information about rights and reminder for the children and young people that they have the right to have a trusted adult, an advocate or lawyer attend the virtual hearing to provide support might be also useful.

However, it for sure would not be possible for every child to join its hearing remotely. In this case, they should still provide their views – e.g. by emailing the information to the local team mailbox and the judge will then ensure this information is given to the respective professionals involved in the procedure.

V. Conclusion

The rapid onset of the Covid-19 pandemic has been a shock to most existing justice systems These are times unlike any other, and extraordinary measures are being taken across the world. Many of us are already asking ourselves – why not earlier? And with those changes in place, can things go back to the way they were? Should a regular framework for the development of virtual courtrooms and remote hearings that enables all concerned, including the judges, to operate remotely and efficiently be created, and was it due even before the pandemic? There are no easy answers – but it is well-worth analyzing the options of applying and making full use of the existing online tools and resources in child-related proceedings in the future. Well summarized by Justice A. Pazaratz in Ribeiro v Wright: “None of us have ever experienced anything like this. We are all going to have to try a bit harder – for the sake of our children.”

Nadia Rusinova, LL M., Lecturer in International/European private law, Attorney-at-law, The Hague University of Applied Sciences | International and European Law Department

Province of Balochistan v Tethyan Copper Company [2020] EWHC 938 (Comm) concerns mostly a challenge to an arbitration tribunal ruling for reasons beyond the interest of the blog. In the underlying ICC arbitration (which has not yet concluded but has been stayed pending the present claim), the Defendant to the present claim (“TCC”), an Australian mining company, brings claims against Balochistan, a province of the Islamic Republic of Pakistan, arising out of a mining joint venture. More specifically, the claims arise out of a contract known as the Chagai Hills Exploration Joint Venture Agreement dated 29 July 1993 and governed by the law of Pakistan.

POB seek to contend that the ICC tribunal lacked jurisdiction because the contract containing the arbitration agreement was void for a number of reasons, one of which is that it was allegedly procured by corruption. POB also alleges serious procedural irregularity in a number of respects.

However the challenge is not just an ordinary challenge to an arbitration award. At 67 Henshaw J signals interesting private international law /arbitration /multilevel governance cum regulation issues. Claimants suggest ia that the arbitration

gives rise to a number of complex issues, such as questions of private international law raised in section III of the arbitration claim form about whether applying the English law concept of issue estoppel in the ICC arbitration to certain issues determined in the ICSID arbitration (which is governed by a hybrid of laws including international investment law, US law and public international law) is consistent with the parties’ agreement to apply the law of Pakistan to the substance of their dispute in respect of the CHEJVA. POB suggests that an exchange of pleadings to identify the precise issues in dispute is likely to be of real benefit to the parties and the court: otherwise there is a risk that, if the case proceeds on the basis of the three or so relevant pages of the arbitration claim form and the three or so relevant pages of the responsive witness statement of Ms Reid, the parties will fully understand the detail of each other’s cases only when they exchange skeleton arguments just before the final hearing.

(A solution suggested is ia to hold bifurcation of the issues considered in the challenge to the award). Henshaw J held that the issues are too complex to be held at the current stage and orders there should be a hearing on the substantive issues.

That promises to be an interesting hearing.

Geert.

Claimant (Pakistan province) contends ICC tribunal lacked jurisdiction because the contract containing #arbitration agreement was void ia for allegedly procured by corruption Also alleges procedural irregularity.
Application for summary judgment deferred, further argument needed. https://t.co/7moLzoLF3T

— Geert Van Calster (@GAVClaw) April 21, 2020

Tiago Andreotti is the author of Dispute Resolution in Transnational Securities Transactions, a monograph published by Hart.

The Blurb reads:

This book explores the transnational legal infrastructure for dispute resolution in transnational securities transactions. It discusses the role of law and dispute resolution in securities transactions, the types of disputes arising from them, and the institutional and legal aspects of dispute resolution, both generally and regarding aggregate litigation. It illustrates different dispute resolution systems and aggregate litigation methods, and examines the legal issues of dispute resolution arising from transnational securities transactions. In addition, the book proposes two systems of dispute resolution for transnational securities transactions depending on the type of dispute: collective redress through arbitration and a network of alternative dispute resolution systems.

More information can be found here.

Thanks to the entering into force of the Dutch Collective Redress of Mass Damages Act (Wet afwikkeling massaschade in collectieve actie, WAMCA) on 1 January 2020, there has been an increase in prospective litigation against Volkswagen in the Netherlands and other countries in Europe involving the Volkswagen emissions scandal (also known as Dieselgate). We have previously reported on this law here and also on ongoing litigation against Volkswagen here (CJEU) and here (UK).

One of the institutes / organisations taking advantage of this opportunity is the Diesel Emissions Justice Foundation (DEJF), which was founded in the Netherlands, and which is seeking to be the exclusive representative in a collective redress action against Volkswagen. The DEJF is currently acting in the Netherlands, Belgium and France and has recently extended its activities to the rest of Europe provided that certain conditions are fulfilled (e.g. customers have not yet been compensated – one cannot be compensated twice and has to choose one representative – see more information here).

As indicated on its website, on 13 Mar 2020, DEJF summoned Volkswagen et al. to appear before Amsterdam District Court under new WAMCA proceedings. DEJF requested to be appointed as the Exclusive Representative Organisation (“Lead Plaintiff”). A summary in English is available here and the full text in Dutch is available here. See a summary of the progress here.

Undoubtedly, the ongoing litigation in other parts of the world and its final outcome will have an impact on this action. We will keep you informed.

Edoardo Rossi has published (in Italian) a book on the Sharing Economic in EU Private International Law (“” (“Sharing Economy in EU Private International Law”). The author has kindly provided us with an abstract:

In the current economic and social context new and controversial sharing practices, offering anyone the opportunity to search for or make available goods or services on the market regardless of the professional or amateur nature of the persons involved, have emerged. These practices, very heterogeneous and concerning the most different areas of daily life, such as mobility, housing, business activities, communications, work, culture, communication, education and finance, have been linked  to the notion of “sharing economy”, which brings them together by virtue of temporary access to goods or services, facilitated by the large-scale intervention of digital platforms, through which requests and offers are coordinated online in order to share goods or services.

The legitimacy of schemes linked to these new economic models has been challenged in a number of aspects, including low quality of services, safety of consumers, authorisation and licensing, taxes and compliance with competition rules. The inadequacy of the existing rules to deal with the provision of services through the sharing economy models has consequently emerged.

In spite of these critical profiles, the legal relations established through sharing economy platforms are constantly increasing around the world, implying the emergence of elements of transnationality, from which derives the recourse to the rules of private international law, in order to determine the applicable law and the judge competent to rule on any disputes.

The monograph thus attempts to analyse some of the most important private international law issues, such as the inadequacy of the party autonomy in regulating the phenomenon, especially with reference to the general terms and conditions of contract unilaterally drawn up by platform operators, which state that the latter is totally unrelated to the legal relations between users, often in conflict with the minimum level of consumer protection guaranteed by EU law and by the national legislations. Critical profiles have also been identified in the online conclusion of contracts that bind the parties involved in sharing economy legal relations, in ascertaining the effectiveness of consent on the choice of forum and choice of law clauses, in cases of potential related actions and in the location of the “domicile” of the platform operators.

For further information see here.

The summary is available here.

On 6 April 2020, the High Court of England and Wales handed down its judgment in the VW NOx Emissions Group Litigation. Besides many points of interest for owners of VW cars, it contains a new and rather unexpected development of EU private international law. In effect, the judgment significantly increases the role of administrative rulings in civil cross-border cases.

The German Federal Motor Vehicle Authority (Kraftfahrzeugbundesamt) had written letters in 2015 regarding “defeat software”, by which VW vehicles recognised when they were being tested for compliance with emissions standards and consequently lowered performance. The letters were addressed to VW and demanded the removal of the software.

Although these administrative measures have prima facie no connection to the private law dispute pending before the High Court, Waksman J considered that he was bound by them (margin Nos 303-418). His main argument was by reference to the Framework Directive, which harmonises car type-approval in the EU (margin No 379). The German Federal Motor Vehicle Authority is the competent authority under the Directive for VW.

A critical point is that the letters did not contain any approval, but merely demanded the removal of certain software. Moreover, any determination that the software was illegal would be a matter of fact, and would not affect any order itself. It remains therefore questionable whether a court would be bound by this statement. Indeed, even German courts continue to disagree as to the statements’ effect in civil litigation.

Waksman J nevertheless thought to be bound by the letters for the following reasons (margin No 377):

No other approval authority [than the German authority] could make such an order [to remove the defeat software]. It would be very odd if Member States other than that in which the measures were ordered were not bound, so that authorities in those other Member States were left to decide what to do about it. This negates the objective of total harmonisation set out in Article 1 of the Framework Directive. It would enable a manufacturer in private proceedings in another Member State to argue that it was not in fact bound to take the measures ordered by the relevant approval authority because that authority got it wrong. But the manufacturer could only be prevented from making that argument if the order of the relevant approval authority was in fact binding throughout the EU.

In Waksman J’s view, the question regarding which orders are binding fell to be determined under local law which, in the case before him, was German law (margin No 380). As such, the orders were to be final and subject to appeal (id.). Their challenge would also be governed by German law according to the “local remedies rule” (margin No 383).

To buttress his position, Waksman J pointed to the duty of sincere cooperation under Article 4(3) of the Treaty on European Union (margin no 384). This would oblige the UK to follow this principle and grant mutual recognition to decisions under the harmonised approval regime until the end of the transition period, which is set to expire on 31 December 2020 (margin no 386). In his view, the duty of sincere cooperation implies a “principle of deference”, which would inhibit courts from second-guess the findings of another Member State’s authorities (margin nos 387-388). If it were open to courts to challenge the statements of the competent authority, this would run contrary the principle of full effectiveness (effet utile) of EU law (margin No 389).

Waksman J further drew an analogy with EU competition law (margin Nos 397-409), under which regulatory decisions by the Commission are binding on courts in civil proceedings (see Art 16(1) Regulation 1/2003). The fact that the letters in question were issued by a national authority and not by the Commission did not matter, because the German authority would have exclusive jurisdiction under the harmonised Framework (margin No 397).

Finally, Waksman J pointed out that, even if his analysis of EU law were incorrect, he would still be bound by the German authority’s findings under conflict-of-laws principles. The reason he gave for this view is extremely terse (margin No 419):

… even if the KBA decision did not bind directly as a matter of EU law, then, either as a matter of EU conflicts principles, or as a matter of English law, the question of its binding effect here must be decided by reference to German law being the local law of the KBA.

The judgment is a bold and audacious leap forward. The CJEU has so far ruled that courts must take administrative decisions from other Member States into account (see CJEU, Land Oberösterreich v Čez). Furthermore, the Court has decided that courts cannot ignore legal situations created in other Member States  (see CJEU, Garcia Avello). But it has not considered fact-findings in administrative decisions to be binding in cross-border civil litigation. The position under competition law is different, as there is no provision comparable to Article 16(1) of Regulation 1/2003 in the Framework Directive for car type approvals.

There are strong reasons to give administrative rulings a more prominent role in civil law proceedings (see Lehmann, Regulation, Global Governance and Private International Law: Squaring the Triangle). The judgment goes very far in recognising administrative fact-findings as conclusive for private disputes. This raises a number of questions, Which findings are binding – only those that are relevant for the order, or also others? What if the authority had found that VW had not installed “defeat” software; would that also be binding on a foreign court? What happens if the administrative decision is withdrawn or annulled in court?

Irrespective of these doubts, one must welcome the High Court’s decision. If it were followed across the EU, contradictory rulings on civil liability for the violation of regulatory law could largely be avoided. In this sense, the judgment could help deeper harmonisation in the Single Market. It forcefully demonstrates that British courts still can make a signification contribution to European law despite Brexit.

— Many thanks to Marion Ho-Dac and Amy Held for their contributions to this post.

Advocate-General Szpunar in his Opinion in C-73/19 Belgische Staat v Movic BV et al refers in footnote to the comment made by Yours Truly (much humbled) on p.38 of the Handbook, that the seminal Eurocontrol and Steenbergen judgments on the concept of ‘civil and commercial’ in the Brussels regime, each posit dual criteria for the concept but only ever have one of their two legs applied. The Opinion in general testifies to the complex picture that emerges in case-law on the issue.

The issue is a knock-out point under Brussels Ia and the majority of EU private international law instruments. If the case is not civil and commercial, European PIL does not apply and residual national law takes over. Despite or perhaps because of this core relevance, the debate on the concept is far from settled. I reported on it as recently as a few weeks back (Øe AG in C-189/19 Supreme Site; and a little before that C-421/18 Dinant Bar v maître JN,) and I expressed a need for serious chewing over following different strands of focus among the CJEU’s chambers (my post on C-579/17 Buak).

The case at issue concerns enforcement of Belgium’s unfair trading act, not as in C‑167/00 Henkel by a consumer group but rather by the public authorities of the Member State.

Movic BV of The Netherlands and the others defendants practices ticket touting: resale of tickets for leisure events. Belgium in recent years has been cracking down on the phenomenon and in conflict terms, has expressed an eagerness to qualify big chunks of e-commerce laws as lois de police. One assumes this explains the reluctance of the defendants to be hauled in front of a Belgian judge.

At 12: what the Belgian authorities are seeking, is

first, findings of infringement in respect of conduct constituting, inter alia, unfair commercial practices, secondly, an order for the cessation of such infringement, thirdly, an order for publicity measures to be taken at the expense of the defendants; fourthly, the imposition of a penalty payment in a fixed sum, due in respect of each and every infringement which may be found to have taken place after service of the judgment, and fifthly, permission for the fact of such infringement to be certified simply by means of a report drawn up by a sworn official of one of the authorities in question.

At 16: arguments against the issue being of a civil and commercial nature, are

first, unlike any other person, the Belgian authorities are not required to demonstrate that they have an interest of their own in bringing proceedings of the kind illustrated by the main proceedings, secondly, their powers of investigation are not available to legal persons governed by private law, and thirdly, they also have enforcement powers which are not available to such persons.

As for the issue of lack of requirement of showing interest:

The first authority signalled is C‑551/15 Pula Parking: acting in the public interest does not equate acting in the exercise of State authority. Per the same case and per Fahnenbrock, and Kuhn, neither, the AG points out, does origin of authority in Statute, equate acta iure imperii. The fact that a power was introduced by a law is not, in itself, decisive in order to conclude that the State acted in the exercise of State authority (at 32). Neither does it follow from C-271/00 Baten that that the mere fact of exercising a power which the legislature has specifically conferred on a public authority automatically involves the exercise of public powers (at 34).

The AG then more specifically discusses the issue of lack of requirement to show interest to establish standing. Here there are plenty of similarities with the consumer organisations at issue in Henkel (37 ff). The exemption does not mean that the entity enjoys a prerogative under which it has powers altering the civil or commercial nature of its legal relationship with the private law entities, or the subject matter of the proceedings in which a cessation action is brought.  Similarly, it has no such powers as regards the procedural framework within which the proceedings arising out of those relationships are heard, which is identical whatever the status of the parties to the proceedings may be.

Further, with respect to the powers of investigation:  here the AG reads C‑49/12 Sunico as meaning that to exclude proceedings from the scope of ‘civil and commercial matters’, (at 53)

it is not sufficient to identify national provisions which, in abstracto, authorise a public authority to gather evidence through the use of its public powers and to use such evidence in legal proceedings. Equally, it is not sufficient to find that that evidence has in fact been used in the proceedings. In order to exclude the proceedings from the scope of that expression, it must also be determined, in concreto, whether, by virtue of having used that evidence, the public authority is not in the same position as a person governed by private law in analogous proceedings.

(In the case at issue there are no such indications). This reading of Sunico makes the exemption exercise very much a factual one – which is not in itself unusual in the context of the case-law on ‘civil and commercial’. One hopes the Court itself will give clear guidance on how Sunico must be read.

The AG also zooms in on the request for penalty payments. Here, the core reference is C‑406/09 Realchemie. At 72 (after having analysed the issue): a procedure in which such payment is sought, falls within the scope of ‘civil and commercial matters’ where,

‘first, the purpose of the penalty payment is to ensure the effectiveness of the judicial decision given in the proceedings, which fall within the scope of that expression, and secondly, the penalty payment is a normal measure of civil procedure which is also available to private individuals, or which is imposed without exercising special powers that go beyond those arising from the rules of general law applicable to relationships between private individuals.’

(With both these boxes ticked in casu). This I believe is most sound.

Within the same context, the last argument refers to the need or not to instruct a bailiff to certify the existence (and frequency) of continued infringement: the relevant Belgian authorities can suffice with an oath by a civil servant. This is in fact not a point signalled by the referring court however the Belgian Government at hearing seemingly sought insurance cover as it were, effectively seeking sanction of its use of a civil servant statement in lieu of what ordinary parties would have to do, which is to instruct a bailiff. This, the AG suggest (at 75), does amount to exercise of public authority, but only then for that part of the claim (the penalty payment( against the Dutch defendants): weapons which an ordinary person could not avail themselves of (I would refer to C-271/00 Steenbergen here).

All in all the case illustrates the relatively narrow room for abstract pondering of the issue of ‘civil and commercial’. The Opinion is highly factual, and admirably on point viz the extensive CJEU authority. The need for highly factual considerations sits uneasily with the Regulation’s expressed DNA of predictability. However this squares with the CJEU case-law on same. And it bodes interestingly when we will start applying the corresponding Hague Judgments Convention provisions…

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Heading 2, Heading 2.2.

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

A. Stein: The 2019 Hague Judgments Convention – All’s Well that Ends Well?

The Hague Convention on the Recognition and Enforcement of Foreign Judgments, which was concluded in July 2019, holds the potential of facilitating the resolution of cross-border conflicts by enabling, accelerating and reducing the cost of the recognition and enforcement of judgments abroad although a number of areas have been excluded from scope. As the academic discussion on the merits of this instrument unfolds and the EU considers the benefits of ratification, this contribution by the EU’s lead negotiator at the Diplomatic Conference presents an overview of the general architecture of the Convention and sheds some light on the individual issues that gave rise to the most intense discussion at the Diplomatic Conference.

C. North: The 2019 HCCH Judgments Convention: A Common Law Perspective

The recent conclusion of the long-awaited 2019 HCCH Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (the “Judgments Convention”) provides an opportunity for States to reconsider existing regimes for the recognition and enforcement of foreign judgments under national law. This paper considers the potential benefits of the Judgments Convention from a common law perspective. It does so by considering the existing regime for recognition and enforcement at common law, and providing an overview of the objectives, structure and a number of key provisions of the Judgments Convention. It then highlights some of the potential benefits of the Convention for certain common law (and other) jurisdictions.

P.-A. Brand: Recognition and enforcement of decisions in administrative law matters

Whereas for civil and commercial matters there are extensive rules of international and European civil procedural law on mutual legal assistance and in particular on the recognition and enforcement of civil court decisions, there is no similar number of regulations on legal assistance and for the international enforcement of administrative court decisions. The same applies to the recognition of foreign administrative acts. This article deals with the existing rules, in particular with regard to decisions in administrative matters, and concludes that the current system of enforcement assistance in the enforcement of administrative decisions should be adapted to the existing systems of recognition and enforcement of judgments in civil and commercial matters.

B. Hess: About missing legal knowledge of German lawyers and courts

This article addresses a decision rendered by the Landgericht Düsseldorf in which the court declined to enforce, under the Brussels Ibis Regulation, a provisional measure issued by a Greek court. Erroneously, in its decision the Landgericht held that applications for refusal of enforcement of foreign decisions (article 49 Brussels Ibis Regulation) are to be lodged with the Landgericht itself. Since the party lodged its application with the Landgericht on the last day of

the time limit, the Oberlandesgericht Düsseldorf eventually held that the application was untimely as it was not lodged with the Oberlandesgericht, instead. The Oberlandesgericht refused to restore the status quo ante because the information about the competent court had been manifestly erroneous, whereas the lawyer is expected to be familiar with articles 49 (2) and 75 lit b) of the Brussels Ibis Regulation. This article argues that jurisdiction over applications for refusal of enforcement is not easily apparent from the European and German legal provisions and that the legal literature addresses the issue inconsistently. This results in a certain degree of uncertainty as concerns jurisdiction over such applications, making it difficult to establish cases of possibly manifestly incorrect applications.

C.F. Nordmeier: Abuse of a power of attorney granted by a spouse – The exclusion of matrimonial property regimes, the place of occurrence of the damage under Brussels Ibis and the escape clause of art. 4 (3) Rome II

The article deals with the abuse of power of attorney by spouses on the basis of a decision of the Higher Regional Court of Nuremberg. The spouses were both German citizens, the last common habitual residence was in France. After the failure of the marriage, the wife had transferred money from a German bank account of the husband under abusive use of a power of attorney granted to her. The husband sues for repayment. Such an action does not fall within the scope of the exception of matrimonial property regimes under art. 1 (2) (a) Brussels Ibis Regulation. For the purpose of determining the place where the damage occurred (Art. 7 No. 2 Brussels Ibis Regulation), a distinction can be made between cases of manipulation and cases of error. In the event of manipulation, the bank account will give jurisdiction under Art. 7 No. 2 Brussels Ibis Regulation. Determining the law applicable by Art. 4 (3) (2) Rome II Regulation, consideration must be given not only to the statute of marriage effect, but also to the statute of power of attorney. Particular restraint in the application of Art. 4 (3) (2) Rome II Regulation is indicated if the legal relationship to which the non-contractual obligation is to be accessory is not determined by conflict-of-law rules unified on European Union level.

P.F. Schlosser: Governing law provision in the main contract – valid also for the arbitration provision therein?

Both rulings are shortsighted by extending the law, chosen by the parties for the main contract, to the arbitration provision therein. The New York Convention had good reasons for favoring, in the absence of a contractual provision specifically directed to the arbitration provision, the law governing the arbitration at the arbitrators’ seat. For that law the interests of the parties are much more predominant than for their substantive agreements.

F. Rieländer: Choice-of-law clauses in pre-formulated fiduciary contracts for holding shares: Consolidation of the test of unfairness regarding choice-of-law clauses under Art. 3(1) Directive 93/13/EEC

In its judgment, C-272/18, the European Court of Justice dealt with three conflict-of-laws issues. Firstly, it held that the contractual issues arising from fiduciary relationships concerning limited partnership interests are included within the scope of the Rome I Regulation. While these contracts are not covered by the exemption set forth in Art. 1(2)(f) Rome I Regulation, the Court, unfortunately, missed an opportunity to lay down well-defined criteria for determining the types of civil law fiduciary relationships which may be considered functionally equivalent to common law trusts for the purposes of Art. 1(2)(h) Rome I Regulation. Secondly, the Court established that Art. 6(4)(a) Rome I Regulation must be given a strict interpretation in light of its wording and purpose in relation to the requirement “to be supplied to the consumer exclusively in a country other than that in which he has his habitual residence”. Accordingly, this exception is applicable only if the consumer needs to leave the country in which he has his habitual residence for the purpose of enjoying the benefits of the services. Thirdly, the Court re-affirmed that choice-of-law clauses in pre-formulated consumer contracts are subject to a test of unfairness under Art. 3(1) Directive 93/13/EEC. Since the material scope of this Directive is held to apply to choice-of-law clauses, such a clause may be considered as unfair if it misleads the consumer as far as the laws applicable to the contract is concerned.

U. Bergquist: Does a European Certificate of Succession have to be valid not only at the point of application to the Land Registry, but also at the point of completion of the registration in the Land Register?

When it comes to the evidentiary effect of European Certificates of Successions, there are different opinions on whether a certified copy of the certificate has to be valid at the time of the completion of a registration in the Land register. The Kammergericht of Berlin recently ruled that a certified copy loses its evidentiary effect in accordance with art. 69 (2) and (5) of the European Succession Regulation (No. 650/2012) after expiry of the (six-month) validity period, even if the applicant has no influence on the duration of the registration procedure. This contribution presents the different arguments and concludes – in accordance with the Kammergericht – that not the date of submission of the application but the date of completion of the registration has to be decisive for the required proof.

D. Looschelders: International and Local Jurisdiction for Claims under Prospectus Liability

The judgment by the Austrian Supreme Court of Justice (Oberster Gerichtshof, OGH) deals with international and local jurisdiction for a claim under prospectus liability. It is mainly concerned with the determination of the place in which the harmful event occurred, as stated in Art. 5(3) of Regulation No 44/2001. Specifying the damage location can pose significant problems due to the fact that prospectus liability compensates pure economic loss. The OGH had stayed the proceedings in order to make a reference to the European Court of Justice (ECJ) for a preliminary ruling on several questions related to this issue. However, the decision by the ECJ left many details unsettled. This article identifies the criteria developed by the OGH in light of the case. The author agrees with the OGH to designate the damage location in this particular case as the injured party’s place of residence. Nevertheless, he points out the difficulties of this approach in cases where not all investment and damage specific circumstances point to the investor’s country of residence.

W. Voß: U.S.-style Judicial Assistance – Discovery of Foreign Evidence from Foreign Respondents for Use in Foreign Proceedings

In the future, German litigants in German court proceedings will have to hand over to the opposing party evidence located on German territory based on American court orders? In general, under German law, the responsibility to gather information and to clarify the facts of the case lies with the party alleging the respective facts, while third parties can only be forced to produce documents in exceptional circumstances.  However, the possibility to obtain judicial assistance under the American Rule 28 U.S.C. § 1782(a) increasingly threatens to circumvent these narrow provisions on document production in transatlantic relations. For judicial assistance this Federal statute provides parties to foreign or international proceedings with access to pre-trial discovery under U.S. law, if the person from whom discovery is sought “resides or is found” in the American court district. Over the years, the statute has been given increasingly broad applicability – a trend that is now being continued by the recent ruling of the Second Circuit Court of Appeals discussed in this article. In this decision, the Court addressed two long-disputed issues: First, it had to decide whether the application of 28 U.S.C. § 1782(a) is limited to a person who actually “resides or is found” in the relevant district or whether the statute could be read more broadly to include all those cases in which a court has personal jurisdiction over a person. Second, the case raised the controversial question of whether 28 U.S.C. § 1782 allows for extraterritorial discovery.

M. Jänterä-Jareborg: Sweden: Non-recognition of child marriages concluded abroad

Combatting child marriages has been on the Swedish legislative agenda since the early 2000s. Sweden’s previously liberal rules on the recognition of foreign marriages have been revisited in law amendments carried out in 2004, 2014 and 2019, each reform adding new restrictions. The 2019 amendment forbids recognition of any marriage concluded abroad as of 1/1/2019 by a person under the age of 18. (Recognition of marriages concluded before 1/1/2019 follows the previously adopted rules.) The marriage is invalid in Sweden directly by force of the new Swedish rules on non-recognition. It is irrelevant whether the parties had any ties to Sweden at the time of the marriage or the lapse of time. The aim is to signal to the world community total dissociation with the harmful practice of child marriages. Exceptionally, however, once both parties are of age, the rule of nonrecognition may be set aside, if called upon for “extraordinary reasons”. No special procedure applies. It is up to each competent authority to decide on the validity of the marriage, independently of any other authority’s previous decision.  While access to this “escape clause” from the rule of non-recognition mitigates the harshness of the system, it makes the outcome unpredictable. As a result, the parties’ relationship may come to qualify as marriage in one context but not in another. Sweden’s Legislative Council advised strongly against the reform, as contrary to the aim of protecting the vulnerable, and in conflict with the European Convention on Human Rights, as well as European Union law. Regrettably, the government and Parliament took no notice of this criticism in substance.

I. Tekdogan-Bahçivanci: Recent Turkish Cases on Recognition and Enforcement of Foreign Family Law Judgements: An Analysis within the Context of the ECHR

In a number of recent cases, the Turkish Supreme Court changed its previous jurisprudence, rediscovered the ECHR in the meaning of private international law and adopted a fundamental-rights oriented approach on the recognition and enforcement of foreign judgements in family matters, i.e. custody and guardianship. This article aims to examine this shift together with the jurisprudence of the European Court of Human Rights, to find a basis for this shift by analysing Turkey’s obligation to comply with the ECHR and to identify one of the problematic issues of Turkish private international law where the same approach should be adopted: namely recognition and/or enforcement of foreign judgements relating to non-marital forms of cohabitation.

Written by Elijah Granet

When a British woman gives birth in a German hospital staffed with British midwives on a contract from the British ministry of defence, what law applies and to what extent? This seemingly simple question took Mrs Justice Foster, in the English and Welsh High Court of Justice, 299 paragraphs to answer in a mammoth judgment released on 24 April: Roberts (a minor) v Soldiers, Sailors, Airmen and Families Association & Ors [2020] EWHC 994 (QB).   In the course of resolving a variety of PIL issues, Mrs Justice Foster held that the German law of limitations should be disapplied as, on the specific facts of the case, contrary to public policy.

The British military has maintained a continuous presence in Germany since the end of the Second World War.   In June 2000, Mrs Lauren Roberts, the wife of a British soldier serving in Germany and herself a former soldier, gave birth to her son, Harry, in the Allegemeines Krankenhaus in Viersen (‘AKV’), a hospital in North-Rhine Westphalia.

AKV had been contracted to provide healthcare for British military personnel and their dependents by Guy’s & St Thomas’s Hospital NHS Trust in London, which, in turn, had been contracted  by the British Ministry of Defence (‘MoD’) to procure healthcare services in Germany.  Midwifery care for British personnel and dependents, however, was supplied instead by the Soldiers, Sailors, Airmen and Families Association (‘SSAFA’), a charity.  These British midwives worked under the direction of AKV, taking advantage of the mutual recognition of qualifications under EU law.

Tragically, during the birth, Harry suffered a brain injury which has left him severely disabled.  Mrs Roberts, who brought the action in her son’s name, alleges that negligence on the part of an SSAFA midwife during Harry’s birth caused these injuries. She further alleges that the MoD is vicariously liable for this negligence.  The MoD, in turn, while denying negligence on the midwife’s part, asserts that, regardless, German law  allocated any vicarious liability to AKV.  These allegations have yet to be tried before the court.

Due to unfortunate procedural delays, the case, although begun in 2004, took until 2019 to reach the High Court. This meant that the 2007 Rome II Regulation was inapplicable, and the case instead was governed by English conflicts rules.  The relevant statutory provision was the Private International Law (Miscellaneous Provisions Act).  Section 11 of that Act lays out a general rule of lex loci delicti commissi, but s 12 allows this principle  to be displaced where significant factors connecting a tort or delict to another country mean ‘that it is substantially more appropriate’ to use a law other than that of the location of the tort or delict.  Counsel for Mrs Roberts argued that the s 12 exception should apply, given that inter alia Mrs Roberts was only in Germany at the behest of the Crown, had no familial or personal connections to Germany, moved back to England in 2003, and were being treated by English-trained midwives who were regulated by British professional bodies.

The authoritative  text on English conflicts rules, Dicey, Morris & Collins on the Conflict of Laws (15th ed), provides that at para 35-148 that the threshold for invoking s 12 is very high, and that the section is only rarely invoked successfully.  This is reinforced by inter alia  the decision of the English and Welsh Court of Appeal, per Lord Justice Longmore, in Fiona Trust and Holding Corp & Ors v Skarga & Ors [2012] EWCA Civ 275.   Mrs Justice Foster (at para 132) ruled (at paras 132–144) that this threshold was not met.  Her Ladyship placed great significance on the fact that the midwives were required to learn basic German, follow the directions of German obstetricians, operate according to the rules of the German healthcare system, and provide care to military personnel who were living in Germany.  Thus, German law was applicable.

English jurisprudence addresses questions of foreign law as matters  of objective fact to be determined through expert evidence.  This can prove, as it did in this case, to an extremely complex task.  For the purposes of this article, it is sufficient to note that Mrs Justice Foster ultimately found (after extensive discusssion at paras 192–280) that, in light of various decisions of the German Bundesgerichtshof (Federal Court of Justice) on the application of both the old and new versions of §852 of the Bürgerliches Gesetzbuch (German Civil Code), the relevant limitation period of  three years commenced in 2003, meaning that the claim issued in 2004 was within time.

More relevantly for PIL scholars, Her Ladyship also ruled that, in the alternative, any applicable German limitation period was to be disapplied.  In English law, the disapplication of foreign limitation periods is governed by the appropriately-named Foreign Limitation Periods Act 1984.  While the general rule is that foreign limitation periods displace English limitations, Section 2(2) allows for the disapplication of foreign limitation periods where their application would ‘conflict with public policy to the extent that its application would cause undue hardship’ to a party.  This is, once again, a deliberately high threshold which is rarely applied; the authoritative English text on limitation, McGee on Limitation Periods (8th ed), provides (at para 25-027) that ‘[j]udges should be very slow indeed to substitute their views for the views of a foreign legislature’.   Similarly, Mr Justice Wilkie, in KXL v Murphy [2016] EWHC 3102 (QB), para 45, warned that the entire system of private international law could collapse if public policy was too readily invoked, and the public policy test should only succeed where the foreign provision caused undue hardship which would be ‘contrary to a fundamental principle of justice’.

After surveying the case law, Mrs Justice Foster concluded, at paras 181–184, that undue hardship must be a ‘detriment of real significance’, whose existence (or lack thereof) must be determined through a careful and holistic evaluation of the particular facts of any given situation.  Thus, the question was not if the German limitation period per se caused undue hardship (and indeed, Mrs Justice Foster held at para 182 that it did not), but rather if the application of an otherwise unobjectionable provision to the unique factual matrix of the case would create undue hardship.  Thus, Mrs Justice Foster ruled (at paras 185–6) that, if (contrary to her findings) the German limitation period commenced in 2001, this would be a disproportionate hardship given the disadvantages Mrs Roberts had as a primigravida unfamiliar with obstetrics who had given birth in a foreign country where she did not speak the language. Furthermore, the highly complex organisational structure of medical care, between the SSAFA, the MoD, and AKV would mean that it would be unjust and disproportionate for the relevant ‘knowledge’  for the purposes of the §852 limitation period to have been said to commence in 2001.

This case demonstrates the complexities which arise when applying abstract rules of private international law to the realities of human affairs.  Although the (by comparative standards) wide discretion accorded to judges in English law has its critics, in this case, the ability to disapply foreign law where it might lead to an unjust result was able to ensure that the Roberts family, for whom one must have the greatest sympathy, were able to proceed with their claim.  It is hard to disagree with Mrs Justice Foster’s conclusion that, on the facts, it would be a disproportionate hardship on the family. Both the case-law and texts are clear that this discretion should be applied only rarely, given that its overuse would be to the detriment of the principles of legal certainty and English conflicts rules, Roberts demonstrates that the common law preference for flexibility can, if used wisely, avert serious injustice in those rare circumstances where the general rules are insufficient.

The author of this post is Eduardo Álvarez-Armas, Brunel University London and Université Catholique de Louvain.

As announced in this blog, Anne Peters, Sabine Gless, Chris Thomale, and Marc-Philippe Weller have recently published an interesting and topical paper entitled Business and Human Rights: Making the Legally Binding Instrument Work in Public, Private and Criminal Law.

The paper, a must-read for anyone interested in the Business & Human Rights field, is an enlightening assessment of several issues and recent developments in the area, and very valuable in its transversal approach to its themes, from the standpoint of several different branches of law.

However, the point the paper makes on the determination of the law applicable to torts arising from human rights violations before EU Member-State courts is open for discussion.

In this respect, the position sustained in the paper basically interprets Articles 4(1) and (3) of the Rome II Regulation in a manner that “replicates”, in respect of torts stemming out of a violation of human rights, what has been legislatively enacted in respect of environmental torts in Article 7 of the same Regulation: the enshrinement of the theory of ubiquity (with differences/different rationale with respect to Article 7(2) of the Brussels I bis Regulation, but still the theory of ubiquity, nevertheless), assorted with victim’s choice.

The following are some difficulties encountered by the said interpretative proposal.

If Articles 4(1) and (3) could be interpreted the way suggested in the paper, what would be the effet utile of Article 7 then? Surely, the arguments put forward in respect of the interpretation of Articles 4(1) and (3) as regards human-rights violations also cover environmental torts, and therefore, there would have been no need to enact Article 7 to begin with (a provision which was very controversial during the Rome II legislative process).

As Article 4(3) is an escape clause, Articles 4(1) and (3) are not placed in an alternative/elective position, but are exclusive from each other. If Article 4(3) applies, then Article 4(1) does not (see notably Recital 18 of the Rome II Regulation). Human-rights-violation victims may try to plead Article 4(3) (a closer connection to another legal system) as a “getaway” from Article 4(1) if they believe that their circumstances allow them to do so. However, they cannot plead that they have a choice as such in choice-of-law terms between Articles 4(1) and (3). Having a free choice of applicable law in one´s hands (as environmental victims do in Article 7) is not the same as having to contend and prove a manifestly closer connection, as Article 4(3) would require.

The points put forward on legal arbitrage and race to the bottom in Prof. Weller’s blog reply to my first brief comment are sensible, and they sustain conceiving human-rights violations in supply chains as “complex torts” (“délits complexes”, “distantdeliktze”) where the action/omission takes place in the parent company’s headquarters and the result materializes in the “host country”. Therefore, as suggested, they may potentially sustain attempting to resort to Article 4(3) to plead for the closer connection to the law of the headquarters of the parent company (provided that evidence allows for it), but they do not seem to sustain an “ubiquity + choice by the victim” construction.

Indeed, I largely share Prof. Weller’s arguments on legal arbitrage and race to the bottom in respect of environmental torts (as a preview of an English monograph coming in 2021 in Hart’s Studies in Private International Law, see E. Álvarez Armas, “Contentieux du droit international privé pour responsabilité environnementale devant le juge européen : la détermination du droit applicable comme outil de gouvernance globale environnementale”, Annales de Droit de Louvain, Vol. 77-1/2017, pp. 63-87; and E. Álvarez Armas, “Daños al medioambiente y Derecho Internacional Privado Europeo: ¿Quid de la determinación de la ley aplicable como herramienta de gobernanza global medioambiental?”, Anuario Español de Derecho Internacional Privado, t. XVIII/2018, pp. 193–225). However, the core difference is that Art. 7, as it stands nowadays, structurally allows for these ideas, while Articles 4(1) and (3) do not.

If the rationale of Article 4 of the Rome II Regulation was the protection of victims, then, as Articles 4(1) and (3) are general provisions, nothing would hinder any other victim of torts not specifically covered by “special” provisions(Articles 5 and following) from benefiting from the same construction. This would significantly hinder the foreseeability of the applicable law.

However, the policy rationale of Article 4, as the main provision in the Regulation, is not the protection of victims, but “a reasonable balance between the interests of the person claimed to be liable and the person who has sustained damage” and “the foreseeability of court decisions”, as explained by Recital 16 of the Rome II Regulation. More specifically:

[a] connection with the country where the direct damage occurred (lex loci damni) strikes a fair balance between the interests of the person claimed to be liable and the person sustaining the damage, and also reflects the modern approach to civil liability and the development of systems of strict liability.

These ideas can be tracked back to the explanatory memorandum to the Rome II Proposal, where the EU Commission repeatedly refers to “foreseeability” and “certainty” in the determination of the applicable law, explicitly rejects the theory of ubiquity as a potential general solution to be enshrined in the Regulation’s main rule (p. 11 – penultimate paragraph) and concludes (pp. 11-12) that

[t]he rule also reflects the need to strike a reasonable balance between the various interests at stake. The Commission has not adopted the principle of favouring the victim as a basic rule, which would give the victim the option of choosing the law most favourable to him. It considers that this solution would go beyond the victim’s legitimate expectations and would reintroduce uncertainty in the law, contrary to the general objective of the proposed Regulation. The solution in Article [4] is therefore a compromise between the two extreme solutions of applying the law of the place where the event giving rise to the damage occurs and giving the victim the option.

Precisely, as an exception, the explicit ratio legis of Article 7 Rome II (per Recital 25) is not to protect, but even to favour the victim (favor laesi) by allowing her the prerogative of choosing the applicable law.

Overall, the arguments put forward in the paper may sustain de lege ferenda that an Art. 7 bis be added to Rome II, enshrining the theory of ubiquity and victim’s choice in respect of torts arising from the violation of human rights. However, the current text of the Regulation does not seem to comfort the paper´s interpretative proposal.

Anatol Dutta and Wolfgang Wurmnest edited a book on European Private International Law and its ramifications with treaties signed by EU-Member States with third countries. The publication focuses on inheritance matters, i.e. Regulation (EU) No 650/2012 on matters of succession.

The national reports prepared feature Austria, Belgium, Croatia, The Czech Republic, Finland, Sweden, France, Germany and Italy from the EU. Reports from Bosnia and Herzegovina, Serbia, North Macedonia and Montenegro, Iran, Switzerland and Turkey, cover some non-EU jurisdictions. The third and last part of the publication features articles from the editors: Prof. Dutta approaches the issue from the perspective of the European Union, whereas Prof. Wurmnest offers a Comparative Report and Policy Perspectives.

The compilation of treaties listed in the Annex, presented in English translation, is undoubtedly giving added value to the book.

The work done by editors and authors, and the future plans of the endeavor, namely to cover wider aspects of European Private International Law, deserves our gratitude for providing us with very interesting material in the field.

More information on the publication is available here.

In Strategic Technologies v Procurement Bureau of the Republic of China Ministry of National Defence [2020] EWHC 362 (QB), Carr J i.a. set aside a November 2016 order by Supperstone J granting a certificate under Article 53 Brussels Ia.

Justice Carr adopts the routine approach of former English case-law calling the Brussels regime the ‘Judgments Regulation’. The certificate was issued  in relation to a default judgment issued in 2009 by Claimant, Strategic Technologies against Defendant, the Ministry of National Defence (“the MND”) of the Republic of China (“ROC”), also and better known as Taiwan.

Carr J is right when at 134 ff she rejects the route taken by claimants (and adopted by Supperstone J) that the principle in CJEU C-192/92 Owens Bank v Bracco (that the Brussels Convention does not apply to proceedings for the enforcement of judgments given in civil and commercial matters in non-contracting states) has no application where, as here, the judgment of a non-contracting state (ie Cayman) has become a judgment of a Member State (ie the United Kingdom).

She refers to the clear language in formerly A25 Brussels Convention, now Article 2 Brussels Ia, that for a ruling to be a judgment it must be given by a court or a tribunal of a Member State. Adoption of a judgment by another State is not covered. She notes the CJEU referred to this definition in its Owens Bank v Bracco ruling. She also notes that the St. Vincent judgment in Owens v Bracco had in fact also been registered in England by the time that the House of Lords referred the matter to the CJEU.

Other issues in the judgment are less relevant to the blog. Do note that Taiwan does not call upon sovereign immunity: at 3: ‘The MND is an arm of the government of the ROC. Although it is by its own law a state, the ROC has an unusual status in international, and English, law: although it has all the generally recognised characteristics of statehood, and is often treated as a country, it is not recognised as a state by the United Kingdom and there are no formal diplomatic relations between the two. For the purpose of these proceedings only, and without making any wider concession, the MND does not rely on the State Immunity Act 1978.’ Clearly this case was not considered by Taiwan to be a case to force the recognition issue.

Geert.

The sixth edition of Derecho de los Negocios Internacionales, a treatise on international business law authored by José Carlos Fernández Rozas, Rafael Arenas García and Pedro Alberto De Miguel Asensio, was published in March 2020 by the Spanish publisher Iustel.

The new edition is arranged into the following sections: Regulating Cross-Border Business Activities; Intellectual Property, Unfair Competition and Antitrust; Company Law; International Commercial Contracts; Sale of Goods and Transport; Means of Payment, Guarantees and Financing; Distribution Contracts, Transfer of Technology and E-Commerce; Insolvency Proceedings and International Commercial Arbitration.

See here for more information, and here to access the extended table of contents.

Brexit and its legal consequences was the topic of an earlier post in this blog, suggesting the United Kingdom should join the Lugano Convention. The British government has now taken the first step in this direction.18

On 8 April 2020, the UK deposited an application to accede to the Lugano Convention with the Swiss Federal Council as the depositary of the Convention (Article 69(2) Lugano Convention). In accordance with Article 72(2) of the Lugano Convention, the information was transmitted to the Contracting Parties. Enclosed as Annex A was the information required under Article 72(1) of the Convention, amounting to 41 pages. The necessary French translation (Article 70(2) Lugano Convention) is still missing.

Switzerland requested to convene a meeting of the Standing Committee in accordance with Article 4(2) of Protocol 2 to the Convention. The Signatories of the Convention (the EU, Denmark, Iceland, Norway and Switzerland) now have to decide whether to grant the application. According to Article 72(3) Lugano Convention, they shall endeavour to give their consent at the latest within one year.

Already on 30 January 2020, the Swiss Federal Council informed the Signatories of a document it had received titled Annex to the Note Verbale on the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community. The objective of this Annex is to secure the UK’s continued treatment as a party to the Lugano Convention during the transition period, which runs from 1 February 2020 to at least 31 December 2020, subject to a further extension for up to one or two years.

The Annex to the Note Verbale first sets out some principles of the Withdrawal Agreement concluded between the EU and the UK. In particular, it recalls that the “Withdrawal Agreement encompasses international agreements concluded by the Union” (point 4 Annex). In relation to the EU and Euratom, the UK is bound by these international agreements during the transition period (Art 129(1) Withdrawal Agreement). Furthermore, the Withdrawal Agreement provides that the EU notifies parties to international agreements that the UK is treated by the Union as a Member State for the purposes of these international agreements (point 5 Annex).

After recalling these principles, the Annex to the Note Verbale adds the following sentence (point 6 Annex):

It is understood that the principles set out in this Annex also extend to international instruments and arrangements without legally binding force entered into by the Union or Euratom and to international agreements referred to in point 4 above which are provisionally applied.

The Swiss Federal Council has asked the Signatories to consent to the Note Verbale, which the EU has already done. If the other Signatories agree as well, the Lugano Convention could remain binding on all parties during the transition period. Unfortunately, the outcome of the process is unknown, which creates unnecessary uncertainty.

The UK’s application to accede to the Lugano Convention is the strongest indication yet that the UK wishes to continue participating in judicial cooperation in Europe. There are important voices against the UK’s accession to the Convention. Without it, though, those seeking legal protection will encounter obstacles in the enforcement of British judgments on the European continent, and vice versa. It therefore seems better the UK’s request would be granted.