Droit international général

SIDIBlog – the blog of the Italian Society of International Law and European Union Law – has issued a call for contributions to an on-line debate on EU Regulation No 848/2015 on insolvency proceedings (recast).

[From the blog] – The EU Regulation No 848/2015 of the European Parliament and of the Council of 20 May 2015 brings about the revision of the EC Regulation No 1346/2000 in matters of insolvency proceedings: while not departing from the structure of the pre-existing Regulation, the new instrument aims at improving the application of uniform rules under several aspects. With the following post of Professor Stefania Bariatti, and other ones that will be published in the coming weeks, the SIDIBlog intends to start a debate on the novelties contained in the new Insolvency Regulation, trusting to host further contributions of Italian and foreign scholars and practitioners, willing to discuss the issues raised by the new instrument. Prospective contributors can submit their posts at sidiblog2013@gmail.com.

Contributions may be submitted in English, French, Spanish or Italian. The papers received will appear in the next issue of the on-line journal Quaderni di SIDIBlog.

Trevor C. Hartley, Anti-suit Injunctions in Support of Arbitration: West Tankers Still Afloat, in International and Comparative Law Quarterly, 2015, p. 965 ss.

[Abstract] – In its eagerly awaited judgment in Gazprom, the CJEU declined to follow the Opinion of Advocate General Wathelet that West Tankers is no longer good law. The West Tankers case decided that the courts of one Member State are precluded from granting antisuit injunctions directed at proceedings in the courts of another Member State, even if the proceedings in which the injunction is granted fall outside the scope of the Brussels Regulation by reason of the fact that they are concerned with arbitration. The Gazprom case confirms that West Tankers is still good law.

Ulteriori informazioni sul fascicolo 4/2015 della rivista sono disponibili qui.

SIDIBlog – the blog of the Italian Society of International Law and European Union Law – has issued a call for contributions to an on-line debate on EU Regulation No 848/2015 on insolvency proceedings (recast).

[From the blog] – The EU Regulation No 848/2015 of the European Parliament and of the Council of 20 May 2015 brings about the revision of the EC Regulation No 1346/2000 in matters of insolvency proceedings: while not departing from the structure of the pre-existing Regulation, the new instrument aims at improving the application of uniform rules under several aspects. With the following post of Professor Stefania Bariatti, and other ones that will be published in the coming weeks, the SIDIBlog intends to start a debate on the novelties contained in the new Insolvency Regulation, trusting to host further contributions of Italian and foreign scholars and practitioners, willing to discuss the issues raised by the new instrument. Prospective contributors can submit their posts at sidiblog2013@gmail.com.

Contributions may be submitted in English, French, Spanish or Italian. The papers received will appear in the next issue of the on-line journal Quaderni di SIDIBlog.

The following announcement has been kindly provided by Béligh Elbalti, Assistant Professor, Graduate School of Law, Kyoto University.
On December 19, 2015, a one-day international symposium on the theme of private international law in Asian countries will be held at Doshisha University, Kyoto (Japan). The symposium is organized by The Research Center of International Transaction and Law (RECITAL), Doshisha University (Professor Naoshi Takasugi, Director of RECITAL) with the support of the Ministries of Justice and Foreign Affairs of Japan and coordinated by Professor Yuko Nishitani (Kyoto University). The symposium presents an opportunity to gather distinguished experts in the field of Private International Law from many countries (especially Asian countries) as well as representatives from the Hague Conference on Private International Law. The ultimate purpose of the symposium is to discuss private international law issues from an Asian perspective and to share knowledge as well as experience with the aim of building a set of “Asian Principles of Private International Law”. The program of the symposium is as follows:

Morning Session
Title: “Private International Law from a Comparative Perspective”
Time: 9:30 – 12:00
Venue: Doshisha University, Imadegawa Campus, “Ryoshin-Kan” Building, 1st floor room 107

9:30 – 9:40
Naoshi Takasugi (Professor, Doshisha University, Japan)
“Opening Speech: Towards the Asian Principles of Private International Law (APPIL)”

9:40 – 10:10
Kanaphon Chanhom (Professor, Chulalongkorn University, Thailand)
“Private International Law in Thailand: Focusing on Jurisdiction”

10:10 – 10:40
Yu Un Oppusunggu (Professor, University of Indonesia)
“Introduction to Private International Law in Indonesia”

10:40 – 11:10
Gérald Goldstein (Professor, Montreal University)
“Highlights of Quebec Private International Law Rules and Case Law”

11:10 – 11:40
Discussion

Afternoon Session:
Title: “Cross-Border Business Transactions and the Hague Conference in Asia”
Time: 13:30 – 17:30
Venue: Doshisha University, Imadegawa Campus, “Ryoshin-Kan” Building, 1st floor room 107
Chair: Naoshi Takasugi (Director of RECITAL; Professor, Doshisha University)

13:30-13:35
Koji Murata (President, Doshisha University)
“Welcome Speech”

13:35-13:45
Muneki Uchino (Councilor, Ministry of Justice, Civil Affairs Bureau)
“Opening Speech”

Part 1 – Hague Principles: Soft Law of PIL

13:45-14:15
Yuko Nishitani (Professor, Kyoto University)
“Hague Principles and Party Autonomy in International Contracts”

14:15-14:45
Anselmo Reyes (Representative of HAPRO; Professor, Hong Kong University)
“Hague Principles from a Practical Viewpoint in Asia”

14:45-15:20
Discussion

(Coffee Break)

Part 2 – Foreign Judgment Project: Past, Present and Future

15:30-16:00
Marta Pertegás (First Secretary, Hague Conference on Private International Law)
“Development of the Hague Judgments Project”

16:00-16:30
Keisuke Takeshita (Professor, Hitotsubashi University)
“The Hague Choice of Court Convention and Dispute Resolution in Asia”

16:30-16:50
Masato Dogauchi (Professor, Waseda University)
“Comments”

16:50-17:30
Discussion

Participation to this event is free of charge. However, all those who are interested in taking part of this event are cordially required to contact beforehand via email Professor Naoshi Takasugi (ntakasug@mail.doshisha.ac.jp) and indicate their name, affiliation and email address. All presentations are in English.

Access:
(http://www.doshisha.ac.jp/en/information/campus/imadegawa/imadegawa.html#)
By Subway: from “Kyoto Station”, take Karasuma line to Kokusai-Kaikan and get off at “Imadegawa Station” (10 mn). (Exit #1 of Subway Imadegawa Station is directly connected to the symposium venue, Ryoshinkan, Doshisha University).

Evidence in Contemporary Civil Procedure. Fundamental Issues in a Comparative Perspective, a cura di C.H. van Rhee e Alan Uzelac, 2015, Intersentia, ISBN 9781780683386, pp. 364, Euro 79.

[Abstract] – Since the start of the new millennium, many contemporary jurisdictions have been revisiting the fundamental principles of their civil procedures. Even the core areas of the civil process are not left untouched, including the way in which evidence is introduced, collected and presented in court. One generator of the reforms in the field of evidence-taking in recent decades has been slow and inefficient litigation. Both in Europe and globally, reaching a balance between the demands of factual accuracy and the need to adjudicate disputes in a swift, cost-effective and efficient way is still one of the key challenges. The second reason that many countries are reforming their law of evidence is related to cultural and technological changes in modern societies. As the balance between, on the one side, traditional human rights such as the right to privacy and due process is shifting towards, on the other side, the modern need for security, efficiency and quick access to justice, the perception of what is admissible or not in the context of evidence-taking is changing as well. In the same sense, the fast pace of modern life commands different practices of fact-finding, accompanied by new methods of selection of evidence that are appropriate for this purpose. Last but not least, the overwhelming penetration of new technologies into all spheres of public and private life has the capacity to dramatically change the methods of the collection and presentation of evidence.

L’indice completo può essere consultato qui. Ulteriori informazioni a questo indirizzo.

The report of the fifth meeting of the Working Group established by the Council on General Affairs and Policy of the Hague Conference on Private International Law to prepare proposals in connection with “a future instrument relating to recognition and enforcement of judgments, including jurisdictional filters” is now available through the Conference’s website (see here for an account of the previous meeting).

The Working Group proceeded on the basis that the Convention should: (a) be a complementary convention to the Hague Choice of Court Convention of 30 June 2005, currently in force for the EU and Mexico; (b) provide for recognition and enforcement of judgments from other contracting States that meet the requirements set out in a list of bases for recognition and enforcement; (c) set out the only grounds on which recognition and enforcement of such judgments may be refused; and (d) not prevent recognition and enforcement of judgments in a contracting State under national law or under other treaties, subject to one provision relating to exclusive bases for recognition and enforcement (covering matters in the fields of intellectual property rights and immovable property).

The proposed draft text of the Convention prepared by the Working Group is annexed to the report.

The Working Group recommended to the Council on General Affairs and Policy (which is expected to meet in March 2016) that the proposed draft text be submitted for consideration to a Special Commission “to be held, if possible, in June 2016″.

It also recommended that matters relating to direct jurisdiction (including exorbitant grounds and lis pendens) be considered by the Experts’ Group in charge of the Judgments Project “with a view to preparing an additional instrument”. In the Working Group’s view, the Experts’ Group “should meet soon after the Special Commission has drawn up a draft Convention”.

The report of the fifth meeting of the Working Group established by the Council on General Affairs and Policy of the Hague Conference on Private International Law to prepare proposals in connection with “a future instrument relating to recognition and enforcement of judgments, including jurisdictional filters” is now available through the Conference’s website (see here for an account of the previous meeting).

The Working Group proceeded on the basis that the Convention should: (a) be a complementary convention to the Hague Choice of Court Convention of 30 June 2005, currently in force for the EU and Mexico; (b) provide for recognition and enforcement of judgments from other contracting States that meet the requirements set out in a list of bases for recognition and enforcement; (c) set out the only grounds on which recognition and enforcement of such judgments may be refused; and (d) not prevent recognition and enforcement of judgments in a contracting State under national law or under other treaties, subject to one provision relating to exclusive bases for recognition and enforcement (covering matters in the fields of intellectual property rights and immovable property).

The proposed draft text of the Convention prepared by the Working Group is annexed to the report.

The Working Group recommended to the Council on General Affairs and Policy (which is expected to meet in March 2016) that the proposed draft text be submitted for consideration to a Special Commission “to be held, if possible, in June 2016”.

It also recommended that matters relating to direct jurisdiction (including exorbitant grounds and lis pendens) be considered by the Experts’ Group in charge of the Judgments Project “with a view to preparing an additional instrument”. In the Working Group’s view, the Experts’ Group “should meet soon after the Special Commission has drawn up a draft Convention”.

Il fascicolo 11/2015 de La nuova giurisprudenza civile commentata riporta il testo di una sentenza, depositata il 9 aprile 2015, con cui la Corte d’Appello di Venezia ha negato l’efficacia in Italia di un provvedimento marocchino che ha dichiarato lo scioglimento del matrimonio contratto fra due cittadini marocchini per l’intervenuto ripudio della moglie da parte del marito.

La pronuncia è accompagnata da un commento di Omar Vanin.

[Dall’abstract fornito dall’autore del commento] – La sentenza veneziana afferma la non riconoscibilità del provvedimento marocchino per inosservanza del principio del contraddittorio, ai sensi dell’art. 64, lett. b) e c), della legge 31 maggio 1995 n. 218, di riforma del sistema italiano di diritto internazionale . La motivazione dapprima delinea per sommi capi la disciplina del ripudio nella shari’a, per poi richiamare la giurisprudenza più recente pronunciatasi sulla questione. Infine, è argomentato il carattere fondamentale e inderogabile del principio del contraddittorio nell’ordinamento italiano, concludendo che il provvedimento straniero che non si conforma nei fatti a tale principio non può trovare ingresso nell’ordinamento interno. La nota alla sentenza descrive la disciplina del ripudio nel particolare contesto del diritto marocchino, anche alla luce delle novelle che hanno interessato l’istituto negli ultimi decenni. Viene poi osservato come il carattere negoziale o meno dell’istituto muta le modalità di eventuale ingresso nell’ordinamento interno dello status personale da esso determinato. Il commento si sofferma sulle soluzioni individuate dalla dottrina e giurisprudenza italiana, nonché dalla giurisprudenza francese. Le ultime battute sono invece dedicate ad una lettura della questione alla luce dell’art. 8 della Convenzione europea dei diritti dell’uomo, sul iritto al rispetto della vita personale e familiare, e della relativa giurisprudenza della Corte di Strasburgo.

Corte d’Appello di Venezia, 9 aprile 2015, in Nuova giurisprudenza civile commentata, 2015, parte I, p. 1029 ss., con nota di Omar Vanin, Ripudio islamico, principio del contraddittorio e ordine pubblico italiano.

In a judgment of 6 October 2015 (Case C-489/14, A v. B), the European Court of Justice (ECJ) clarified the interpretation of Article 19(1) and (3) of Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels IIa).

The provisions concerned deal with parallel proceedings. In particular, pursuant to Article 19(1), where proceedings relating to divorce, personal separation and matrimonial annulment, or to parental responsibility, are brought before courts of different Member States and concern the same parties (or the same child), the court second seised shall, of its own motion, stay its proceedings until the jurisdiction of the court first seised is established. Corresponding provisions may be found in Article 27 of the Brussels I Regulation (now Article 29 of the Brussels Ia Regulation) and in Article 21 of the Brussels Convention.

The rule on lis pendens set forth in Article 19 of the Brussels IIa Regulation must be read in conjunction with Article 16 of the same Regulation, which establishes that a court shall be deemed to be seised when the document instituting the proceedings is lodged with the court or, if it has to be served before being lodged, when it is received by the authority responsible for the service, provided that the applicant has not subsequently failed to take the steps he was required to take, respectively, to have the document lodged with the court or served on the respondent.

The dispute in the main proceedings concerned a couple of French nationals habitually resident in the United Kingdom. They were the parents of three minor children. In March 2011, the husband commenced separation proceedings in France; a couple of months later, the wife applied for child support in the UK and filed a petition for divorce, which was dismissed pursuant to Article 19 of the Brussels IIa Regulation. On 15 December 2011, the French court issued a non-conciliation order stating that the issues concerning the children had to be decided in the UK, but retained jurisdiction to adopt certain interim measures. According to the French Civil Code, if divorce proceedings have not been instituted within 30 months of the issuing of the non-conciliation order, all of the provisions of the order are null and void. In the case at hand, the order’s provisions would have expired at midnight of 16 June 2014.

On 13 June 2014, the wife filed a fresh divorce petition in the UK attempting to ensure that it took effect only from the time the French order had expired. On 17 June 2014 the husband brought in turn divorce proceedings in France. This occurred early in the morning, at a time of day when, due to the time differene, it was impossible to bring an action before a United Kingdom court. The husband claimed that the wife’s petition had to be dismissed, as the jurisdiction of the French courts had been established in the terms of Articles 16 and 19 of the Brussels IIa Regulation.

The English court asked the ECJ whether Article 19(1) and (3) of the Brussels IIa Regulation should be interpreted as meaning that, in a situation in which the proceedings before the court first seised in the first Member State expired after the second court in the second Member State was seised, the jurisdiction of the court first seised must be regarded as not being established.

In its judgment, the ECJ begins by identifying the requirements that need to be met for a situation of lis pendens to be established. It first clarifies that this mechanism – aimed at preventing parallel proceedings and avoiding conflicts between decisions within Member States – is “based on the chronological order in which the courts are seised”, according to Article 16 of the Regulation. In addition, the Court recalls that in matrimonial proceedings, the applications brought before different Member States do not have to feature precisely the same cause of action. Thus, lis pendens may exist “where two courts of different Member States are seised, as in the main case, of judicial separation proceedings in one case and divorce proceedings in the other, or where both are seised of an application for divorce”. In the present case, therefore, the French judge had to be considered as first seised.

However, the ECJ further considers that, for lis pendens to exist, the proceedings have to be pending simultaneously before the courts of different Member States. If one set of proceedings expires, the risk of irreconcilable decisions disappears, and so the situation of lis pendens within the meaning of Article 19 of the Brussels IIa Regulation. In practice, “even if the jurisdiction of the court first seised was established during the first proceedings, the situation of lis pendens no longer exists and, therefore, that jurisdiction is not established”.

Accordingly, in a situation such as the one of the main proceedings, where the proceedings before the French court lapsed as a result of the expiry of legal time-limits, the criteria for lis pendens were no longer fulfilled as from the date of that lapse, “and the jurisdiction of that court must, therefore, be regarded as not being established”.

Quite a lot of attention has been going to a Belgian court ordering Facebook to stop collecting data from non-users through the use of so-called datr cookies.  Applicant is Willem Debeuckelaere, the chairman of the Belgian privacy commission, in his capacity as chairman (not, therefore, as a private individual). Our interest here is of course in the court’s finding that it has jurisdiction to hear the case, and that it can apply Belgian law. The judgment is drafted in Dutch – an English (succinct) summary is available here.

Defendants are three parties: Facebook Inc, domiciled in California; Facebook Belgium BVBA, domiciled in Brussels; and Facebook Ireland Ltd., domiciled in Dublin. Facebook Belgium essentially is FB’s public affairs office in the EU. FB Ireland delivers FB services to the EU market.

Directive 95/46 and the Brussels I Recast Regulation operate in a parallel universe. The former dictates jurisdiction and applicable law at the level of the relationship between data protection authorities (DPAs), and data processors (the FBs, Googles etc. of this world). The latter concerns the relation between private individuals and both authorities and processors alike. That parallelism explains, for instance, why Mr Schrems is pursuing the Irish DPA in the Irish Courts, and additionally, FB in the Austrian courts.

Current litigation against FB lies squarely in the context of Directive 95/46. This need not have been the case: Mr Debeuckelaere, aforementioned, could have sued in his personal capacity. If he is not a FB customer, at the least vis-a-vis FB Ireland, this could have easily established jurisdiction on the basis of Article 7(2)’s jurisdiction for tort (here: invasion of privacy): with Belgium as the locus damni. Jurisdiction against FB Inc can not so be established in the basis of Article 7(2) (it does not apply to defendants based outside the EU). If the chairman qq natural person is a FB customer, jurisdiction for the Belgian courts may be based on the consumer contracts provisions of Regulation 1215/2012 – however that would have defeated the purpose of addressing FB’s policy vis-a-vis non-users, which I understand is what datr cookies are about.

Instead, the decision was taken (whether informed or not) to sue purely on the basis of the data protection Directive. This of course requires application of the jurisdictional trigger clarified in Google Spain. German precedent prior to the Google Spain judgment, did not look promising (Schleswig-Holstein v Facebook).

At the least, the Belgian court’s application of the Google Spain test, is debatable: as I note in the previous post,

Article 4(1)(a) of Directive 95/46 does not require the processing of personal data in question to be carried out ‘by’ the establishment concerned itself, but only that it be carried out ‘in the context of the activities’ of the establishment (at 52): that is the case if the latter is intended to promote and sell, in that Member State, advertising space offered by the search engine which serves to make the service offered by that engine profitable (at 55). The very display of personal data on a search results page constitutes processing of such data. Since that display of results is accompanied, on the same page, by the display of advertising linked to the search terms, it is clear that the processing of personal data in question is carried out in the context of the commercial and advertising activity of the controller’s establishment on the territory of a Member State, in this instance Spanish territory (at 57).

Google Spain’s task was providing support to the Google group’s advertising activity which is separate from its search engine service. Per the formula recalled above, this sufficed to trigger jurisdiction for the Spanish DPA. Google Spain is tasked to promote and sell, in that Member State, advertising space offered by the search engine which serves to make the service offered by that engine profitable. The Belgian court withholds jurisdiction on the basis of Facebook Belgium’s activities being ‘inseparably linked’ (at p.15) to Facebook’s activities. With respect, I do not think this was the intention of the CJEU in Google Spain. At the very least, the court’s finding undermines the one stop principle of the data protection Directive, for Belgium’s position viz the EU Institutions means that almost all data processors have some form of public interest representation in Belgium, often indeed taking the form of a BVBA or a VZW (the latter meaning a not for profit association).

The court further justifies (p.16) its jurisdiction on the basis of the measures being provisionary. Provisionary measures fall outside the jurisdictional matrix of the Brussels I (Recast), provided they are indeed provisionary, and provided there is a link between the territory concerned and the provisional measures imposed. How exactly such jurisdiction can be withheld vis-a-vis Facebook Ireland and Facebook Inc, is not clarified by the court.

The court does limit the provisionary measures territorially: FB is only ordered to stop using datr cookies tracking data of non-FB users ‘vis-a-vis internetusers on Belgian territory’, lest these be informed of same.

I mentioned above that the data protection Directive and the Brussels I recast can be quite clearly distinguished at the level of jurisdiction. However findings of courts or public authorities on the basis of either of them, do still face the hurdle of enforcement. That is no different in this case. Recognition and enforcement of the judgment vis-a-vis FB Inc will have to follow a rather complex route, and it is not inconceivable that the US (in particular, the State of California) will refuse recognition on the basis of perceived extraterritorial jurisdictional claims (see here for a pondering of the issues). Even vis-a-vis Facebook Ireland, however, one can imagine enforcement difficulties. Even if these provisionary measures are covered by the Brussels I Recast (which may not be the case given the public character of plaintiff), such measures issued by courts which lack jurisdiction as to the substance of the matter, are not covered by the enforcement Title of the Regulation.

All in all, plenty to be discussed in appeal.

Geert.

On 11 November 2015, the ECJ rendered its judgment in the case of Tecom Mican SL (case C-223/14). The ruling clarifies the interpretation of Regulation No 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (the Service Regulation), and, more specifically, the interpretation of Article 16 (“Extrajudicial documents may be transmitted for service in another Member State in accordance with the provisions of this Regulation”).

The dispute in the main proceedings concerned an agency agreement between a German and a Spanish company. The Spanish agent asked a Spanish judicial officer to effect service of a letter of demand on the German principal, through the competent German authority, seeking payment of a goodwill indemnity and of unpaid commission, or, in the alternative, disclosure of the principal’s accounts. The letter stated that the same demand had already been addressed to the German company in a previous letter of demand certified for official purposes by a Spanish notary.

The judicial officer refused to grant the application on the basis that no legal proceedings had been brought requiring the judicial assistance sought to be granted. The Spanish company then brought proceedings in Spain for review of that refusal.

The seised court, however, decided to stay proceedings and to refer some questions to the ECJ for a preliminary ruling, regarding both the meaning of the expression “extrajudicial document” and the rules governing the service of such a document from one Member State to another.

In its judgment, the ECJ begins by noting that, for the purposes of the Service Regulation, the expression “extrajudicial document”, as already stated in Roda Golf, must be treated as an autonomous concept of EU law. It must be given a broad definition and cannot be limited to documents that are connected to legal proceedings alone. The Court reiterates that the concept, as suggested in the latter judgment, may include documents drawn up by notaries, but concedes that it cannot be inferred from those findings alone whether, in the absence of legal proceedings, the concept in question includes only documents drawn up or certified by a public authority or official, or whether it also encompasses private documents.

Relying, in particular, on the preparatory work leading to the adoption of the Regulation (including the explanatory report of the Convention on the service in the Member States of the European Union of judicial and extrajudicial documents in civil or commercial matters, which never entered into force), the Court concludes that the concept of an “extrajudicial document”, within the meaning of Article 16 of the Service Regulation, must be interpreted as encompassing “both documents drawn up or certified by a public authority or official and private documents of which the formal transmission to an addressee residing abroad is necessary for the purposes of exercising, proving or safeguarding a right or a claim in civil or commercial law”.

The ECJ goes on to address the issue of whether, under the Service Regulation, service of an extrajudicial document can be effected pursuant to the detailed rules laid down by that Regulation even where an earlier service has already been effected through another means of transmission.

The Court examines, in the first place, the case in which the earlier service has been effected under rules not provided for in the Service Regulation. In that regard, the ECJ notes that the wording of Article 1(1) of the Regulation makes clear that that Regulation is applicable “where a[n] … extrajudicial document has to be transmitted from one Member State to another for service there”. As the Court itself asserted in Alder, this means that the Regulation provides for only two situations in which the service of a document falls outside its scope: where the permanent or habitual residence of the addressee is unknown and where that person has appointed an authorised representative in the Member State of the forum.

Since it is common ground that the Regulation does not provide for any other exception, the Court concludes that, in the case considered, the cross-border service of an extrajudicial document pursuant to the means of transmission of the Service Regulation remains possible.

Secondly, as regards the consequences related to the case in which an applicant effects an earlier service pursuant to the detailed rules laid down by Regulation No 1393/2007, the Court notes that the Regulation lays down various means of transmission applicable to the service of extrajudicial documents exhaustively.

The Regulation states in Article 2 that the service of judicial documents is, in principle, to be effected between the transmitting agencies and the receiving agencies designated by the Member States. However, it also provides, in Section 2, for other means of transmission, such as service by diplomatic or consular agents or service by postal services.

As the Court already observed in Plumex, the Service Regulation does not establish a hierarchy between the various means of transmission that it put in place. Besides, in order to ensure an expedient cross-border transmission of the relevant documents, the Regulation neither entrusts the transmitting or receiving agencies, nor the diplomatic or consular agents, the judicial officers, officials or other competent persons of the Member State addressed with the task of determining whether the reasons for which an applicant may wish to effect service of a document through the means of transmission laid down are appropriate or relevant.

Consequently, in the Court’s view, service of an extrajudicial document pursuant to one of the means laid down by Regulation No 1393/2007 remains valid, even where an earlier transmission of that document has already been effected by a means other than those laid down therein.

The last question addressed by the ECJ is whether Article 16 of Regulation No 1393/2007 must be interpreted as meaning that it is necessary to ascertain, on a case-by-case basis, whether the service of an extrajudicial document has cross-border implications and is necessary for the proper functioning of the internal market.

The Court observes that the Service Regulation falls precisely within the area of judicial cooperation in civil matters that have cross-border implications, and that, pursuant to Article 1(1), it applies where a document has to be transmitted “from one Member State to another” for service there.

As a result, since the cross-border implications of the transmission of a document constitute an objective condition for the applicability of the Regulation, “those implications must be considered, without exception, to be necessarily satisfied where the service of such a document falls within the scope of that Regulation”, and must therefore be effected in accordance with the system established by the Regulation itself.

As regards the proper functioning of the internal market, it is common ground that that element constitutes the primary objective of the system of service laid down by the Regulation. Thus, in so far as all the means of transmission of judicial and extrajudicial documents envisaged therein have been put in place expressly in order to obtain that objective, it is reasonable to consider that, once the conditions for the application of those means of transmission are satisfied, the service of such documents necessarily contributes to the proper functioning of the internal market.

In the end, where the conditions of Article 16 are satisfied, it is not necessary to ascertain, on a case-by-case basis, whether the service of an extrajudicial document has cross-border implications and is necessary for the proper functioning of the internal market.

On 11 November 2015, the ECJ rendered its judgment in the case of Tecom Mican SL (case C-223/14). The ruling clarifies the interpretation of Regulation No 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (the Service Regulation), and, more specifically, the interpretation of Article 16 (“Extrajudicial documents may be transmitted for service in another Member State in accordance with the provisions of this Regulation”).

The dispute in the main proceedings concerned an agency agreement between a German and a Spanish company. The Spanish agent asked a Spanish judicial officer to effect service of a letter of demand on the German principal, through the competent German authority, seeking payment of a goodwill indemnity and of unpaid commission, or, in the alternative, disclosure of the principal’s accounts. The letter stated that the same demand had already been addressed to the German company in a previous letter of demand certified for official purposes by a Spanish notary.

The judicial officer refused to grant the application on the basis that no legal proceedings had been brought requiring the judicial assistance sought to be granted. The Spanish company then brought proceedings in Spain for review of that refusal.

The seised court, however, decided to stay proceedings and to refer some questions to the ECJ for a preliminary ruling, regarding both the meaning of the expression “extrajudicial document” and the rules governing the service of such a document from one Member State to another.

In its judgment, the ECJ begins by noting that, for the purposes of the Service Regulation, the expression “extrajudicial document”, as already stated in Roda Golf, must be treated as an autonomous concept of EU law. It must be given a broad definition and cannot be limited to documents that are connected to legal proceedings alone. The Court reiterates that the concept, as suggested in the latter judgment, may include documents drawn up by notaries, but concedes that it cannot be inferred from those findings alone whether, in the absence of legal proceedings, the concept in question includes only documents drawn up or certified by a public authority or official, or whether it also encompasses private documents.

Relying, in particular, on the preparatory work leading to the adoption of the Regulation (including the explanatory report of the Convention on the service in the Member States of the European Union of judicial and extrajudicial documents in civil or commercial matters, which never entered into force), the Court concludes that the concept of an “extrajudicial document”, within the meaning of Article 16 of the Service Regulation, must be interpreted as encompassing “both documents drawn up or certified by a public authority or official and private documents of which the formal transmission to an addressee residing abroad is necessary for the purposes of exercising, proving or safeguarding a right or a claim in civil or commercial law”.

The ECJ goes on to address the issue of whether, under the Service Regulation, service of an extrajudicial document can be effected pursuant to the detailed rules laid down by that Regulation even where an earlier service has already been effected through another means of transmission.

The Court examines, in the first place, the case in which the earlier service has been effected under rules not provided for in the Service Regulation. In that regard, the ECJ notes that the wording of Article 1(1) of the Regulation makes clear that that Regulation is applicable “where a[n] … extrajudicial document has to be transmitted from one Member State to another for service there”. As the Court itself asserted in Alder, this means that the Regulation provides for only two situations in which the service of a document falls outside its scope: where the permanent or habitual residence of the addressee is unknown and where that person has appointed an authorised representative in the Member State of the forum.

Since it is common ground that the Regulation does not provide for any other exception, the Court concludes that, in the case considered, the cross-border service of an extrajudicial document pursuant to the means of transmission of the Service Regulation remains possible.

Secondly, as regards the consequences related to the case in which an applicant effects an earlier service pursuant to the detailed rules laid down by Regulation No 1393/2007, the Court notes that the Regulation lays down various means of transmission applicable to the service of extrajudicial documents exhaustively.

The Regulation states in Article 2 that the service of judicial documents is, in principle, to be effected between the transmitting agencies and the receiving agencies designated by the Member States. However, it also provides, in Section 2, for other means of transmission, such as service by diplomatic or consular agents or service by postal services.

As the Court already observed in Plumex, the Service Regulation does not establish a hierarchy between the various means of transmission that it put in place. Besides, in order to ensure an expedient cross-border transmission of the relevant documents, the Regulation neither entrusts the transmitting or receiving agencies, nor the diplomatic or consular agents, the judicial officers, officials or other competent persons of the Member State addressed with the task of determining whether the reasons for which an applicant may wish to effect service of a document through the means of transmission laid down are appropriate or relevant.

Consequently, in the Court’s view, service of an extrajudicial document pursuant to one of the means laid down by Regulation No 1393/2007 remains valid, even where an earlier transmission of that document has already been effected by a means other than those laid down therein.

The last question addressed by the ECJ is whether Article 16 of Regulation No 1393/2007 must be interpreted as meaning that it is necessary to ascertain, on a case-by-case basis, whether the service of an extrajudicial document has cross-border implications and is necessary for the proper functioning of the internal market.

The Court observes that the Service Regulation falls precisely within the area of judicial cooperation in civil matters that have cross-border implications, and that, pursuant to Article 1(1), it applies where a document has to be transmitted “from one Member State to another” for service there.

As a result, since the cross-border implications of the transmission of a document constitute an objective condition for the applicability of the Regulation, “those implications must be considered, without exception, to be necessarily satisfied where the service of such a document falls within the scope of that Regulation”, and must therefore be effected in accordance with the system established by the Regulation itself.

As regards the proper functioning of the internal market, it is common ground that that element constitutes the primary objective of the system of service laid down by the Regulation. Thus, in so far as all the means of transmission of judicial and extrajudicial documents envisaged therein have been put in place expressly in order to obtain that objective, it is reasonable to consider that, once the conditions for the application of those means of transmission are satisfied, the service of such documents necessarily contributes to the proper functioning of the internal market.

In the end, where the conditions of Article 16 are satisfied, it is not necessary to ascertain, on a case-by-case basis, whether the service of an extrajudicial document has cross-border implications and is necessary for the proper functioning of the internal market.

Kommentar zur EU-Erbrechtsverordnung, a cura di Astrid Deixler-Hübner e Martin Schauer, MANZ’sche Verlags- und Universitätsbuchhandlung GmbH, 2015, ISBN: 9783214075156, pp. XXVI+738, 148 Euro.

The adoption of the Regulation No 650/2012 and of the Implementing Regulation No 1329/2014 are a major step towards facilitating cross-border successions. They have had an impact on intergenerational wealth planning, on the Austrian ‘probate procedure’ (Verlassenschaftsverfahren) and on disputes concerning the inheritance and the compulsory portion. The new law is characterised by the habitual residence as the central connecting factor in applicable law and international jurisdiction, by the principle of a single global estate and by a limited choice of law concerning legal succession upon death. A major concern was not only the focus on the regulation a such, but to also consider the regulatory environment of the national law, which also includes the adjustment provisions established in the Act on the Amendment of Succession Law of 2015 (ErbRÄG 2015). The editors, Professor Astrid Deixler-Hübner, head of the Institute for European and Austrian Civil Procedure Law at the Johannes Kepler University in Linz and Professor Martin Schauer, deputy head of the Institute for Civil Law at the University of Vienna, and the authors, being academics or practitioners, are leading experts in the field of succession law.

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— Astrid Deixler-Hübner and Martin Schauer (eds), Kommentar zur EU-Erbrechtsverordnung, MANZ’sche Verlags- und Universitätsbuchhandlung GmbH, 2015, ISBN: 9783214075156, pp. XXVI+738, 148 Euros.

The adoption of the Regulation No 650/2012 and of the Implementing Regulation No 1329/2014 are a major step towards facilitating cross-border successions. They have had an impact on intergenerational wealth planning, on the Austrian ‘probate procedure’ (Verlassenschaftsverfahren) and on disputes concerning the inheritance and the compulsory portion. The new law is characterised by the habitual residence as the central connecting factor in applicable law and international jurisdiction, by the principle of a single global estate and by a limited choice of law concerning legal succession upon death.

A major concern was not only the focus on the regulation a such, but to also consider the regulatory environment of the national law, which also includes the adjustment provisions established in the Act on the Amendment of Succession Law of 2015 (ErbRÄG 2015).

The editors, Professor Astrid Deixler-Hübner, head of the Institute for European and Austrian Civil Procedure Law at the Johannes Kepler University in Linz and Professor Martin Schauer, deputy head of the Institute for Civil Law at the University of Vienna, and the authors, being academics or practitioners, are leading experts in the field of succession law.

For further information, see here.

Mukarrum Ahmed, a barrister at Lincoln’s Inn and a doctoral researcher at the Centre for Private International Law (University of Aberdeen), has just published a working paper on “Recovering Damages for the Tort/Delict of Inducing Breach of a Choice of Court Agreement against a Claimant’s Legal Advisers: The English Court of Appeal Adjudicates on Whether England is the Place Where the Economic Loss Occurred under Article 5(3) of the Brussels I Regulation?” The insightful article is the fourth paper in the Working Paper Series of the Aberdeen Centre for Private International Law.

The author has kindly provided us with the following abstract:

“This paper examines the recent significant ruling of the Court of Appeal on jurisdiction to adjudicate upon a claim for damages for the tort/delict of inducing breach of an English exclusive choice of court agreement against a claimant’s legal advisers. The determination of the issue of jurisdiction hinges on whether England is the place where the economic loss occurred pursuant to Article 5(3) of the Brussels I Regulation. It will be argued that the CJEU authorities on allocation of jurisdiction in tort/delict claims lend support to the conclusion that Germany was the place where the ‘harmful event’ occurred and the damage was also suffered in Germany. Therefore, it is submitted that the decision of the Court of Appeal was correct according to established EU private international law rules of allocation of jurisdiction. A more pragmatic approach to the jurisdictional issue premised on the private law rights and obligations of the parties to the choice of court agreement may end up compromising these principles by according dubious jurisdictional precedence to the place where the indirect consequences of the economic loss occur. Moreover, if it were held that the English courts possess jurisdiction over the matter then the legality and legitimacy of the damages remedy in light of the principle of effectiveness of EU law (effet utile) and the principle of mutual trust would be implicated which may have necessitated a reassessment of Longmore LJ’s controversial decision in Starlight Shipping Co v Allianz Marine & Aviation Versicherungs AG (The Alexandros T) [2014] EWCA Civ 1010.”

The full content is now available on the Centre’s website (please see here).

In Case C-483/13 KA Finanz AG, the CJEU is asked to clarify the ‘corporate exception’ to the Rome Convention and subsequent Regulation on the law applicable to contractual obligations. The two main questions ask whether the ‘company law’ excepted area includes (a) reorganisations such as mergers and divisions, and (b) in connection with reorganisations, the creditor protection provision in Article 15 of Directive 78/855 concerning mergers of public limited liability companies, and of its successor, Directive 2011/35. I have a little more on the background in previous posting. The Opinion itself has a complete overview of the issues at stake.

I suggested in my previous posting that lest the complete file posted with the Court give more detail, quite a few of the preliminary questions might be considered inadmissible due to a lack of specification in the factual circumstances.

Bot AG, who opined yesterday (at the time of posting, the English version of the Opinion was not yet available), has considerably slimmed down the list of questions eligible for answer, due to the (non-) application ratione temporis of secondary EU law at issue: this includes the Rome I Regulation. However he also, more puzzlingly, skates around the question concerning the application of the corporate exception of the 1980 Rome Convention, despite the judgment which is being appealed with the referring court, having made that exception the corner piece of its conflicts analysis. In particular, it considered that the consequences of a merger are part of the corporate status of the company concerned and that the transfer of assets within the context of a merger consequently need to be assessed viz-a-viz the company’s lex societatis: Austrian law, and not, as suggested by claimants, German law as the lex contractus relevant to the assets concerned (bonds issued by the corporate predecessor of the new corporation).

The AG focuses his analysis entirely on the specific qualification of the contract at issue (conclusion: sui generis), and on Directive 2005/56. In paras 47-48, he suggests that contractual obligations of the bank’s predecessor, per Directive 2005/56, are transferred to the corporate successor, including the lex contractus of those agreements. One can build an assumption around those paras, that the AG suggests a narrow interpretation of the corporate exception to the Rome Convention, etc. However it is quite unusual for one to have to second-guess an AG’s Opinion. Judicial economy is usually the signature of the CJEU itself, not its Advocate Generals.

I am now quite curious what the CJEU will make of it all.

Geert.

Barely one month after the publication of the third volume of the MPI collection of Studies another volume has been released, edited by Prof. Loïc Cadiet (Université Paris I, IAPL), and Prof. Burkhard Hess and Marta Requejo Isidro (MPI).

The book is one of the outcomes of first Post-doctoral Summer School in procedural law, which was held in July 2014 at the Max Planck Institute Luxembourg under the auspices of the International Association of Procedural Law and the Max Planck Institute itself. It reflects both the philosophy of the School and the contents of its first edition. As stated in the Foreword, “modern procedural law is characterized by its opening to comparative and international perspectives”, and “the opening of procedural science also requires a new approach of research which has to be based on comparative methodology”. The common will of the IAPL and the Max Planck Institute for Procedural Law to support modern research in procedural law, backing particularly young researchers, led to the School one year ago, and achieves another goal with this volume.

The book collects most of the papers which were presented by the students in July 2014, after having been reworked in the light of the discussions of last summer and the advice of the attending professors. Many different areas of procedural law, ranging from regulatory approaches to procedural law, to comparative procedural law, arbitration and ADR, as well as the Europeanisation of civil procedure, are addressed. In this way the treatise demonstrates the current trends of scientific research in procedural law and the specific approach of an incoming generation of researchers.

The contributions of the professors to the School are also to be found in the book. They constitute a kind of homage to an academic work or an author considered as a milestone in the development of procedural and comparative procedural law. In this way also former generations of proceduralists joined the meeting of the different generations: thus the title of the book.

As one of the editors I would like to thank all the authors, and to encourage other young researchers to apply to the next edition of the IAPL-MPI Summer School, July next year.

Table of Contents

PROF. DR. LOÏC CADIET, Inaugural Lecture: Towards a New Model of Judicial Cooperation in the European; Legislative Perspectives; ROBERT MAGNUS, Time for a Meeting of the Generations – Is there a Need for a Uniform Recognition and Enforcement Regulation?;  ELS VANDENSANDE, Some Initial Steps towards a European Debate on Procedural Rulemaking;  ALESSANDRO FABBI, New “Sources” of Civil Procedure Law: First Notes for a Study;  MARCO GRADI, The Right of Access to Information and Evidence and the Duty of Truthful Disclosure of Parties in Comparative Perspective; PIETRO ORTOLANI, The Recast Brussels I Regulation and Arbitration; EWELINA KAJKOWSKA, Enforceability of Multi-Step Dispute Resolution Clauses. An Overview of Selected European Jurisdictions; NATALIA ALENKINA, Interaction Between Litigation Procedures of State and Non State Courts: the Case of Aksakal Courts in Kyrgyzstan; MARTA OTERO CRESPO, The Collective Redress Phenomenon in the European Context: the Spanish case;  ZHIXUN CAO, On the Non-liquet Status of Factual Allegation in China;  STEFANOS K. KARAMEROS, Legal Presumption as a Legislative Tool in National and European Legislation; BEATRICE ARMELI, The Service of Summons in Accordance with EU Law and the Case of the Defendant not Entering an Appearance in Light of the Fundamental Right to a Fair Hearing ; GIULIA VALLAR,  Protocols as Means of Coordination of Insolvency Proceedings of Cross-Border Banking Groups; FRANÇOIS MAILHÉ, International Competence As a  Cooperation Tool: Jurisdiction, Sovereignty and Justice within the European Union

PROF. DR. REMO CAPONI, A Masterpiece at a Glance. Piero Calamandrei, Introduzione allo Studio Sistematico dei Provvedimenti Cautelari; PROF. DR. DR. H.C. PETER GOTTWALD, Rolf Stürner, Die Aufklärungspflicht der Parteien des Zivilprozesses; PROF. DR. DR. H.C. BURKHARD HESS, Der Prozess als Rechtslage – James Goldschmidt 1925 Proceedings As a Sequence of Judicial Situations – A Critique of the Procedural Doctrine;  PROF. DR. EDUARDO OTEIZA, Linn Hammergren. Envisioning Reform. Improving Judicial Performance in Latin America; PROF. DR. MARTA REQUEJO ISIDRO, Francisco Beceña González; PROF. DR. DRES. H.C. ROLF STÜRNER, Einführung in die Rechtsvergleichung – Konrad Zweigert und Hein Kötz 3. Auflage 1996. Comparative Civil Procedure and Comparative Legal Thought .

For further information click here.

The Privy Council does not all that often (well, that is actually relative: 47 times already in 2015; that’s not a bad working load for a supreme court) rear its judiciary head. In National Housing Trust it did viz the powers of an arbitrator in respect of an aborted joint-venture in Jamaica. (For particulars of the case, see here). The case concerns the jurisdiction to make, and legitimacy of a supplementary award by an arbitrator, of compound interest.

Arbitration leads to a myriad of applicable law to be decided: one has to ascertain

lex arbitri (the law of the arbitration agreement: ie the law applicable to parties’ agreement to make recourse to arbitration);

the curial law or the ‘law of the seat’ (the procedural law which will guide the arbitration proceedings; despite the latin curia not commonly referred to as lex curia);

and the ‘proper law’, the law that governs the actual contract (lex contractus), of which the arbitration agreement forms a part.

In National Housing Trust, the Privy Council held that first and foremost, the issue of compound interest (indeed the powers of the arbitrator as a whole) is subject to agreement between the parties. Failing such agreement, it is the law of the seat of arbitration which determines the arbitrator’s powers.

Many ADR clauses are boilerplate and last-minute. National Housing Trust once again shows that adding such midnight clauses without much consideration, may come back to haunt parties.

Geert.

Il 2 dicembre 2015 si terrà presso il Savoia Regency Hotel di Bologna un incontro dedicato a Il riconoscimento delle sentenze straniere, questioni di ordine pubblico, organizzato dall’ILMA – International Law Meeting Association. 

Interverrà Alessandra Zanobetti (Univ. Bologna).

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The following announcement has been kindly provided by Dr. Susanne L. Gössl, LL.M., University of Bonn:

“As a group of doctoral and post-doctoral students with a keen interest in private international law (PIL), we are trying to improve the exchange between young scholars in this field. To further this aim, we have undertaken to organize a conference for all German-speaking young scholars (i.e. doctoral and post-doctoral students) with an interest in private international law.

PIL is understood broadly, including international jurisdiction and procedure, ADR, uniform and comparative law, as long as there is a connection to cross-border relationships.

The conference – which we hope to develop into a recurring event – will take place at the University of Bonn on 6 and 7 April 2017. It will be dedicated to the topic

Politics and Private International Law

– German title: Politik und Internationales Privatrecht –

Choice-of-law rules established in continental Europe have since Savigny traditionally been regarded as ‘neutral’ as they only coordinate the law applicable in substance. However, the second half of the last century was marked by a realisation that choice-of-law rules may themselves promote or prevent certain substantial results. In the US, this has led to a partial abolishment of the classic understanding of the conflict of laws, and to its replacement by an analysis of the particular governmental interests concerned. Other legal systems have also seen traditional choice-of-law rules changed or limited by governmental or other political interests. The conference is dedicated to discussing the different aspects of this interplay between private international law and politics as well as their merits and demerits.

We welcome contributions which focus on classic political elements of private international law, such as lois de police, ordre public or substantial provisions within choice-of-law systems, but also comparisons to methodical alternatives to PIL or contributions discussing more subtle political influences on seemingly neutral choice-of-law rules. Examples range from the ever increasing influence of the European Union over national or international political agendas to questions of ‘regulatory competition’ (which may be relevant in establishing a national forum for litigation or arbitration) or other regulatory issues (such as the regulation of the allegedly international internet). By the same token, international family law and questions of succession are constantly increasing in relevance, the current growth of international migration making it a particularly important field for governmental regulation.

We are glad to announce that Professor Dagmar Coester-Waltjen (University of Göttingen) has accepted our invitation to inaugurate our conference on 6 April 2017. The afternoon will be dedicated to academic discourse and discussion and conclude with a dinner. The conference will continue on 7 April. We plan to publish all papers presented in a conference volume.

We intend to accommodate 6 to 10 papers in the conference programme, each of which will be presented for half an hour, with some additional room for discussion. We will publish a Call for Papers in early 2016 but invite everyone interested to note down the conference date already and consider their potential contributions to the conference topic (in German language).

For further information please visit https://www.jura.uni-bonn.de/institut-fuer-deutsches-europaeisches-und-internationales-familienrecht/ipr-tagung/.

Questions may be directed at Dr. Susanne L. Gössl, LL.M. (sgoessl(at)uni-bonn.de).”