Droit international général

Dooley & Ors v Castle Trust & Management Services Ltd [2022] EWCA Civ 1569  is the successful appeal against Russen HHJ’s first instance judgment which I discussed here – readers best consult that post for context, before reading on. For reasons I explain in that post, judicial relations between the UK and Gibraltar pre-Brexit engaged the Brussels 1968  Convention.

Carr LJ wrote the reasons for overruling the judgment, and the Court of Appeal does find there is jurisdiction in E&W. [35] she reminds us of the evidentiary burden at the jurisdictional stage

For the purpose of the evidential analysis, the standard lies between proof on the balance of probabilities and the mere raising of an issue. On contentious factual issues, the court takes a view on the material available if it can reliably do so; if a reliable assessment is not possible, there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it. The test is context-specific and flexible, and if there is an issue of fact the court must use judicial common sense and pragmatism, making due allowance for the limitations of the material available at an early point in the proceedings.

[41] ff the judge is held to have wrongly treated the relationship between Article 5 (mostly known for forum contractus and forum delicti reasons but also including a trust forum: A5(6) concerning trust-related claims in the courts of the trust’s domicile) and Article 13 (the forum consumptoris). [43] Articles 13 to 15 make up an entirely separate and self-contained section and there is no need or indeed allowance to first check whether Article 5’s conditions apply (including on the conditions for a ‘contract’ to exist), subsequently to check whether A13 ff (including the conditions for a ‘consumer contract’ to exist) apply with a consequence of disapplying A5. Both Opinion AG and judgment in CJEU C-96/00 Gabriel are called upon in solid support.

[48] Jurisdiction under Article 13 is thus a self-standing lex specialis and derogation from the general rule in Article 2. If jurisdiction is not established under Article 13, it may nevertheless arise under Article 5(1). But it is not necessary to establish jurisdiction under Article 5(1) in order to make it out under Article 13.

[49] The Judge’s error on this issue was material, in the light of his conclusion that any claim against Castle would fall within Article 5(6) (and so could not fall within Article 5(1)).

Continuing then on A13, the contentious issue is whether the Judge was wrong to conclude that the pensioners did not have the better of the argument for the purpose of A13:  i) that the proceedings were “proceedings concerning” contracts between the pensioners and Castle for the supply of services; and, if so, ii) that in England and Wales the conclusion of the contracts was preceded by specific invitations addressed to the pensioners.

Re i), [55] the Judge appears to have concluded that there was no contract, by reference to the lack of clarity as to the services to be provided by Castle beyond the contents of the Welcome Letter. On appeal Castle concede that a contract for services did exist between each pensioner and Castle, however that the services to be provided by Castle under each contract were limited to the technical execution of the relevant Deed of Adherence in each case and that therefore the proceedings, which made no complaint about the technical execution of the Deeds, were not “proceedings concerning a contract”.

Carr LJ [57ff] insists that the existence of a trustee-beneficiary relationship does not preclude the co-existence of a contract between the same parties, and, referring to language with strong ‘contract’ echo in the marketing, holds that there was indeed a contract between each of the pensioners and Castle, a relationship that went beyond mere technical execution of the deeds.

[61] ff then deals with ii), with the Court holding there is a good arguable case that each pensioner received (in the State of their domicile) a specific invitation addressed to them, such invitation crystallising at the moment that Management Services sent or handed them an application form. Carr LJ suggest that such an invitation might be sufficient for A13(3) purposes without more: A13 does not contain any express requirement for a connection between the invitation and the trader; the focus is on the existence of a sufficiently strong connection between the contract and the country of domicile of the consumer. However the claimants concede that there was a further requirement, namely that the invitation had to be made on behalf of the trader, here Castle. Arguendo, [66] Carr LJ holds 

there is a plausible evidential basis for the proposition that there was some sufficient connection between MS and Castle, including the possibility that MS was acting for Castle as a “middleman” of the type envisaged in the Schlosser Report (by cross-reference to the Giuliano/Lagarde Report). It is, for example, not in dispute that MS obtained Castle’s application forms and provided them to the pensioners. It appears that MS procured or facilitated production of all the complex documentation and declarations as required by Castle from the pensioners in the build-up to the application forms and transfers themselves.

[68] ff are the proceedings then “proceedings concerning” the contracts in question? The Court holds they are, at a general level for the proceedings are not about mismanagement of the trusts once established, but rather that the pensioners should never have entered the Schemes in the first place, and at a more specific level for the claims to relate to specific issues in the services agreement.

The claims can now proceed to trial where, as I noted before, applicable law will be one of the contested issues.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.9.2.1 and 2.2.9.2.2.

Successful appeal on jurisdiction (jurisdiction now established) under Brussels Convention (that's right: the 1968 Convention)
For the 1st instance judgment see https://t.co/JE8yVUJkO3

Dooley eos v Castle Trust & Management Services [2022] EWCA Civ 1569https://t.co/8uUVpYv0DU

— Geert Van Calster (@GAVClaw) November 30, 2022

Shahla F. Ali, Filip Balcerzak, Adam Mickiewicz, Giorgio Fabio Colombo, and Joshua Karton have edited a collection of essays titled Diversity in International Arbitration – Why it Matters and How to Sustain It, which has recently been published by Edward Elgar.

After decades of focus on harmonization, which for too many represents no more than Western legal dominance and a largely homogeneous arbitration practitioner community, this ground-breaking book explores the increasing attention being paid to the need for greater diversity in the international arbitration ecosystem. It examines diversity in all its forms, investigating how best to develop an international arbitral order that is not just tolerant of diversity, but that sustains and promotes diversity in concert with harmonized practices.

Offering a wide range of viewpoints from a diverse and inclusive group of authors, Diversity in International Arbitration is a comprehensive and insightful resource on a controversial, fast-moving subject. Chapters present arguments from practitioner, academic, institutional and governmental perspectives that identify the underlying issues and address the various ways in which the goal of diversity, whether demographic, legal, cultural, professional, linguistic, or philosophical, can be reached.

This book’s analysis of the contemporary state of diversity in international arbitration will be a crucial read for researchers in the field. Practitioners and policy makers will also find its discussion of best practices and innovative initiatives for enhancing diversity to be invaluable.

More information available here.

This post was written by Felix M. Wilke, University of Bayreuth.

The new EU Sale of Goods Directive 2019/771 and its sibling, the Supply of Digital Content and Digital Services Directive 2019/770, understandably have attracted a lot of attention in the field of substantive private law. By contrast, to my knowledge, their (negative) private international law dimension has not been featured in any prominent way yet. In this post, I want to highlight and contextualize this aspect. Any input, e.g. regarding directives I might have missed or explanations different from the ones I offer, is very much welcome.

When faced with the term “EU Conflict of Laws”, most people will nowadays immediately think of the different regulations in this area: Rome I to III, the Succession Regulation etc. But this is not the whole story. Some of the Union’s provisions with a direct impact on private international law can be found in directives. Beginning with Article 6(2) of the Unfair Terms Directive 93/13/EEC, many of such instruments on the protection of consumers required the Member States to take “the necessary measures to ensure that the consumer does not lose the protection granted [by the respective legal instrument] by virtue of the choice of the law of a non-Member country as the law applicable to the contract if the latter has a close connection with the territory of the Member States”. Other examples are Article 12(2) of the Distance Marketing of Consumer Financial Services Directive 2002/65/EC and Article 22(4) of the Consumer Credit Agreements Directive2008/48/EC.

Moreover, Article 12(2) of the Time Sharing Directive 2008/122/EC sets forth that, under certain conditions, “consumers shall not be deprived of the protection granted by this Directive, as implemented in the Member State of the forum” where the law of a third country is applicable. (While Articles 17–19 of the new Package Travel Directive 2015/2302 have an obvious connection to conflict of laws, they operate differently.)

All these provisions are still in force. National law of the Member States must contain respective rules – and these rules clearly must be conflict-of-law rules, as they have to affect situations in which the law of a third country would otherwise be applicable (mostly because of a choice by the parties).

Things are different for the new Sale of Goods Directive. While Article 7(2) of the old Sale of Goods Directive1999/44/EC was drafted along the lines of the examples just mentioned, any such provision is now missing from the directive repealing it. (The Supply of Digital Content and Digital Services Directive does not introduce a conflict-of-law provision, either.) The same fate befell Article 12(2) of the Distance Contracts Directive 97/7/EC when the Consumer Rights Directive 2011/83/EU repealed it. From this perspective, EU private international law has actually lost two provisions in the last decade or so.

As the EU legislator seems to have changed its stance on this issue between 2008 and 2011, two possible reasons from this period suggest themselves. The first concerns the new approach to harmonisation of substantive private law by directives, the second the emergence of EU regulations on conflict of laws.

The Distance Contracts Directive and the old Sale of Goods Directive were minimum harmonisation directives. The Member States could maintain or introduce provisions if they ensured a higher level of consumer protection. By contrast, both the Consumer Rights Directive and the new Sale of Goods Directive are full harmonisation directives. Unless otherwise provided, Member States may not maintain or introduce divergent provisions, whether less or more stringent.

Yet no clear link of this changed approach to harmonisation with the present conflict-of-law issue is apparent. True, it is now more or less irrelevant which national law of an EU Member State is applicable to a sale of goods to a consumer. The key rules will be the same across the board (also see Recital 10 Sale of Goods Directive). But this is not with what the respective old provisions and the remaining provisions in other directives were and are concerned. They were and are about protecting the consumer from the application of the (disadvantageous) law of a third country.

For anyone interested in EU private international law, the years between 2007 and 2009 have, of course, special significance. In this time frame, the first EU regulations on conflict of laws were passed and became applicable. In particular, Rome I was passed in 2008 and has been applicable to contracts concluded as from 17 December 2009. So, are the rules found in Rome I on consumer contracts and choice of law in general the reason for the lack of conflict-of-law provisions in more recent directives?

As a matter of law, the answer must be negative. This is because the scope of application of Articles 6(2) and 3(4) of the Rome I Regulation on the one hand and of the conflict-of-law rules in the directives on the other hand do not perfectly overlap: The provisions in the directives have not entirely become redundant once Rome I entered into force. For one, Article 6(4) of Rome I excludes certain contracts. For another, even the relatively broad requirement of “directing activities” in Article 6(1)(b) of Rome I only pertains to the Member State in which the consumer is habitually resident. A consumer concluding a contract in another Member State may not be protected even where Article 6 Rome I would encompass a consumer habitually resident in that country. Finally, Article 3(4) Rome I is too narrow to catch all cases subject to the conflict-of-law provisions in directives.

As a matter of policy, however, one can assume that Rome I was a big factor. The Commission’s Proposal for the new Sale of Goods Directive does refer to the protection of consumers under Rome I, although only in the context of compatibility of the draft with EU private international law. (See also Recital 65 Sale of Goods Directive.) When the Commission states that the legislative proposal “does not require any changes to the current framework of EU private international law”, it is not clear whether it took the actual change it proposed to make to EU private international law – eliminating a conflict-of-law provision – into account.

Life is easier without conflict-of-law provisions in directives, to be sure. Nothing to transpose for national legislators, and no reason for courts to even think about special national conflict-of-law rules favouring consumers. Does this offset the detriments to consumers? One can certainly think so. While the exclusion of some consumers from the protection offered by Article 6 Rome I can lead to some strange results, they only affect a very small number of situations. The practical impact of the conflict-of-law provisions in directives does not seem to have been very big, anyway. As far as I can tell, the Court of Justice only had to deal with any of these provisions once: Case C-70/03 (Commission v. Spain) concerns Spain’s too restrictive transposition of Article 6(2) of the Unfair Terms Directive into its national law.

In any case, the death of conflict-of-law provisions in directives should not be silent. Unlike during the legislative process leading to the Consumer Rights Directive and the new Sale of Goods Directive, the EU legislator should openly communicate that – and preferably also why – it considers such provisions unnecessary. And this not only from a scholarly perspective: In the highly complex realm that is EU (substantive) consumer law, a national legislator might simply miss that a conflict-of-law provision transposing one of the old directives has now lost its base.

December is a relatively short month at the Court of Justice. Very little is happening in PIL (much more on other topics such as the independence of judges or data protection). On 8 December 2022, a hearing will take place in relation to case C-638/22 PPU Rzecznik Praw Dziecka e.a., on the suspension of a Hague return decision – and that will be it.

The Sąd Apelacyjny w Warszawie (Poland) has referred to the Court of Justice a question on Regulations 2201/2003 and 2019/1111:

Does Article 11(3) of Council Regulation (EC) No 2201/2003 [the Brussels II bis Regulation], and Article 22, Article 24, Article 27(6) and Article 28(1) and (2) of Council Regulation (EU) No 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility [Brussels II ter], read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, preclude the application of a provision of national law under which, in cases involving the removal of a person subject to parental responsibility or custody conducted under the Convention on the Civil Aspects of International Child Abduction adopted in The Hague on 25 October 1980, the enforcement of an order for the removal of a person subject to parental responsibility or custody is suspended by operation of law where the Prokurator Generalny (Public Prosecutor General), Rzecznik Praw Dziecka (Commissioner for Children’s Rights) or Rzecznik Praw Obywatelskich (Ombudsman) submits a request to that effect to the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw) within a period not exceeding two weeks from the day on which the order becomes final?

In case at hand, the father (applicant) and the mother (defendant) are Polish nationals who have resided and worked for more than ten years in Ireland. Their two children, aged 5 and 11 have both Polish and Irish nationality.

In the summer of 2021, the defendant went on vacation to Poland with her children with the applicant’s consent. In September 2021, she informed him that she had decided to stay with them in Poland permanently. Two month later, the applicant brought before the Polish courts an application under the 1980 Hague Convention for the return of the children. The court of first instance agreed to the request; a subsequent appeal by the defendant was dismissed. However, she failed to comply with the order for the return of the children within the time limit of 7 days. Therefore, on September 29, 2022, the applicant submitted a request to have an enforcement form appended to the return order, with a view to initiating enforcement proceedings. On 30 September 2022, the Rzecznik Praw Dziecka (Children’s Rights Ombudsman) submitted an application for a stay of execution of the return order, based on a provision of the Polish civil procedure code whereby “In cases involving the removal of a person subject to parental responsibility or custody brought under [the 1980 Hague Convention], at the request of the entity referred to in Article 5191(2)2 notified to the court referred to in Article 5182(1) within a period not exceeding two weeks from the date on which the order for the removal of the person subject to parental responsibility or custody becomes final, the enforcement of such order shall be suspended by operation of law”. On October 5, 2022, a similar request was made by the Prokurator Generalny (Attorney General).

The referring court’s application for the urgent procedure was granted. The case will be decided by the third chamber (judge K. Jürimäe reporting; M. Safjan, N. Piçarra, N. Jääskinen, M. Gavalec), supported by AG N. Emiliou.

Written by Stephen G.A. Pitel, Faculty of Law, Western University

The Supreme Court of Canada has released its decision in F v N, 2022 SCC 51 (available here) and the decision offers some important observations about the law on international child abduction. The court held 5-4 that two young children taken by their mother from UAE to Ontario are to be returned to their father in UAE.

The father and mother were engaged in a dispute over custody rights of the children. The court noted that in the removal/return context, it was not deciding the custody issue but rather deciding which court – Ontario or UAE – would decide that issue [para 1]. Because UAE is not a party to the Convention on the Civil Aspects of International Child Abduction, the issue of whether the children should be returned to UAE arose under Ontario legislation (Children’s Law Reform Act, RSO 1990, c C.12), though the court noted similarities between the two regimes [para 52].

The majority decision offers several observations as to the law, and the dissent does not directly disagree with them. First, while consideration of the best interests of the children is paramount, the Ontario legislation, as structured, presumes that their best interests are aligned with their prompt return to their habitual residence [paras 9, 63-64]. As a result the court should not conduct a broad best-interests inquiry [para 65]. Second, while the legislation would allow return to be refused in a case in which the child would thereby suffer serious harm (see s 23), the burden of showing this is “demanding” [para 69]. The analysis must be “highly individualized” and not a general assessment of the society to which the children would be returned [para 72]. Third, there is no absolute rule that serious harm will always be established as a result of separating young children from their primary caregiver [paras 77-78].

The majority finds that the trial judge found no risk of serious harm and that this conclusion is entitled to appellate deference [para 103]. In stark contrast, the dissent finds the trial judge “misapprehended the evidence” and so made “material errors” in assessing the risk of serious harm [paras 142-43]. At one level the dissent’s concern is with the quality of the trial judge’s reasons about the key issues. It notes that in the 482 paragraph decision only 8 paragraphs addressed the application of the serious harm exception to return as applied to these facts [paras 148-49]. It finds that the reasons give rise to a reasoned belief that the trial judge “must have forgotten, ignored or misconceived the evidence” [para 157]. Absent such a misapprehension of the evidence, a particular conclusion by the trial judge is said to be “inexplicable” [para 185].

Moving beyond the dissent’s concerns about the trial judge’s reasons, the dissent concludes that the mother met her burden of establishing a risk of serious harm if the children were returned to UAE [para 147]. This appears to be centrally based on the view that the children would thereby be removed from their primary caregiver [paras 173, 179]. The dissent does not find that any of the other factors in play sufficiently reduce this central concern.

The majority appears motivated not to create precedent for a rule or even “near-rule” that young children should not be separated from their primary caregiver through a return because this would subvert the scheme of the legislation and make Ontario something of a haven for abducting parents [para 78]. The dissent claims its decision would not create such a rule [para 194] but it is open to debate how far along a path towards such a rule it travels.

The decision is also interesting for its discussion of the use of undertakings given by the party seeking return of the children in order to make it easier for the court to agree [paras 98, 129-36]. The court notes that there can be enforcement problems relating to such undertakings and discusses potential solutions to these problems.

Finally, there was some argument that the law of UAE should have played a role in refusing return. The majority is clear: the mother’s “characterization of UAE law as an inherent source of serious harm must be rejected” [para 10]. The trial judge found that in the UAE the best interests of the child would be paramount in a custody determination and that decision was entitled to deference on the appeal [paras 11, 84-92]. The dissent did not engage with this issue.

The HCCH and and the Istanbul Bilgi University, Department of Private International Law, are organising a webinar on the 1996 Hague Child Protection Convention on 6 December 2022, 3 pm-5 pm (GMT +3).

The HCCH 1996 Child Protection Convention has been occupying a crucial spot for the protection of children in today’s globalized world, for more than 25 years. Experts from several countries, including central authority representatives, will discuss the convention, which tries to ensure that children are affected by intrafamilial disputes as little as possible, and will share their experiences as regards its application.

The webinar plan is as follows:

First Session

Moderator: Prof. Dr. Faruk Kerem Giray – Istanbul University Faculty of Law, Private International Law Department

• Introduction: “The HCCH 1996 Child Protection Convention: Main Features, Challenges and Opportunities After 25 Years” – Raquel Salinas Peixoto (on behalf of the Hague Conference on Private International Law)
• “Basic Concepts of the Convention, Role and Function of Central Authorities (GER)” – Christian Höhn – Germany, Central Authority, Federal Office of Justice
• “Basic Concepts of the Convention, Duties and Functions of Central Authorities (SUI)” – Joëlle Schickel-Küng – Switzerland, Central Authority, Co-Head, Private International Law Unit, Federal Office of Justice

Second Session

Moderator: Retired Judge Izzet Do?an

• “The Issue of Jurisdiction and General Experience of the Operation of the Convention” – Lord Justice Andrew MOYLAN – UK, Judge of the Court of Appeal, The Royal Courts of Justice, London
• “The Determination of the Applicable Law According to the HCCH 1996 Child Protection” – Judge Dr. Joanna GUTTZEIT – Germany, Judge of the Family Court, Local Court of Pankow (Richterin am Amtsgericht Pankow), Berlin, Liaison Judge of the International Hague Network of Judges
• “Recognition-Enforcement Pursuant to the Convention, and the Practical Benefits” – Carolina Marín Pedreño – Practitioner, Partner, Dawson Cornwell

I was recently alerted to the publication of Volume 2, Issue 1 of UCC Law Journal 2022, which contains articles on Ghanian law. One article in the journal is focused on our beloved subject of private international law:

S Okorley, The Possible Impact of The 2019 Hague Convention on The Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters on the Grounds of International Competence in Ghana

The 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters is a product of the Judgments Project of the Hague Conference on Private International Law. The Hague Judgment Convention has the advantage of providing business partners with a simple, efficient, and predictable structure with regards to the recognition and enforcement regime; as well as reducing related cost. More specifically, the convention fosters predictability and certainty in international commercial relations by enabling international commercial partners to be precisely informed of the grounds on which the decision of the court of one contracting state will be recognised or enforced in the territory of another contracting state. The Convention offers a wide range of jurisdictional filters for the purposes of recognition and enforcement of judgments from Contracting States. This article discusses the modern and innovative grounds of international competence introduced by the Hague Convention and its potential impact on the grounds of international competence for Ghana if Ghana ratifies the convention. The article recommends the ratification of the 2019 Hague Judgment Convention as it would be of enormous benefit to Ghana whose grounds of international competence when it comes to recognition and enforcement of foreign judgments seems antiquated and confined only to residence, submission and more controversially, the presence of the judgment debtor in the jurisdiction of the foreign court.

The article is freely accessible, or open access. The article is based on the author’s LL.M dissertation that was undertaken at the University of Johannesburg under the supervision of Professor Jan Neels.

LIN Jidong, Wuhan University Institute of International Law

1. Background

The Chinese Supreme People’s Court (hereinafter “SPC“) issued “SPC’s Regulation on Several Matters Concerning the Jurisdiction of Foreign-Related Disputes” (hereinafter “Regulation 2022“),[1] which will enter into force on 1st January 2023. The Regulation focuses on hierarchical jurisdiction in cross-border litigation, although its title does not explicitly say so. According to SPC, the Regulation responds to the new circumstance of open-up after the 18th National Congress of the Communist Party of China. It has great value in protecting the right of parties, both foreign and domestic, making litigation more convenient and improving the quality and efficiency of the trial of foreign-related civil and commercial disputes.

2. Main Content

The Content can be divided into different categories according to the goals of Regulation 2022.

?1?Convenience and Efficiency

One of the most important goals of Regulation 2022 is to improve the efficiency of trial and bring convenience to the parties. To achieve this goal, Regulation 2022 has rearranged the hierarchical jurisdiction. Regulation 2022 generally authorises all the grass-roots courts to hear foreign-related disputes (Art. 1) and limits the jurisdiction of intermediate and higher courts (Art. 2 & Art. 3).

Initially, the hierarchical jurisdiction of foreign-related disputes was regulated by the 2002 SPC’s Regulation on Several Matters Concerning the Jurisdiction of Foreign-Related Litigations (hereinafter “Regulation 2002”).[2] Under Regulation 2002, only a few intermediate courts and grass-root courts were authorised to hear foreign-related disputes. In the past 20 years, the SPC has authorised more and more intermediate courts to hear foreign-related disputes according to the applications of higher courts. Nowadays, most intermediate courts have the jurisdiction to hear foreign-related disputes. But still, only a few grass-roots courts have such jurisdiction.

Such an arrangement has some adverse impacts. Firstly, the parties would have to sue in intermediate courts. Ordinarily, there is only one intermediate court in one city. Such an arrangement means that all the citizens would have to sue in one court instead of suing in their local grass-roots courts. This would inevitably bring inconvenience to the parties. Secondly, the intermediate courts may also overload by a large number of cases, which would decrease the efficiency of trials. In the past 20 years, the number of foreign-related cases has significantly increased. In 2022, the number of cases seized by courts of the first instance has exceeded 17 thousand. Such a circumstance not only increases the pressure on the judges but also decreases the efficiency of trials. It should also be noted that according to Art. 277 of the PRC Civil Procedure Law, different from domestic trials, foreign-related trials would not be subject to the statutory time limit. Thus, parties in foreign-related disputes may have to wait longer to receive judgments.

The Regulation 2022 enables nearly all grass-root courts to hear cross-border disputes, which brings convenience to the parties and reduces the burden of intermediate courts.

?2?Quality and Professionalism

Regulation 2022 also takes measures to ensure and improve the quality and professionalism of foreign-related trials. These efforts stem from the achievement of the judicial system reform, especially the establishment of the judge quota system. The judge quota system re-selects competent judges from the existing judges. Only limited judges who passed the re-selection would be authorised to hear the trial based on their qualification, professionalism, specialisation, and experience. The reform enhanced the overall ability of the judges and increased the percentage of judges with the knowledge base and competence to hear foreign-related disputes.

The efforts to improve the quality and professionalism in Regulation 2022 could be divided into two perspectives. On the one hand, Regulation 2022 reserves the centralised jurisdiction, which originated from Regulation 2002, with some adjustments (Art. 4). On the other hand, Regulation 2022 makes clear that foreign-related disputes should be heard in a specialised tribunal or collegial panel (Art. 5).

a. Centralised Jurisdiction

The centralised jurisdiction centralises jurisdiction of foreign-related disputes #in intermediate courts. Traditionally, centralised jurisdiction would have impact in both hierarchical and territorial aspects. From the hierarchical aspect, the centralised jurisdiction could deprive the grass-roots courts of jurisdiction to hear foreign-related disputes. From the territorial aspect, the centralised jurisdiction allows the appointed intermediate court to hear the dispute across its administrative division. Assume that Province A consists of five cities: City A, B, C, D, and E. If courts in City A were to be appointed to exercise the centralised jurisdiction, then the courts in City A would have jurisdiction over all foreign-related disputes, including those cases which courts in City B, C, D and E should hear.

The centralised jurisdiction could improve the quality of the trials. Firstly, the centralised jurisdiction could ensure that some experienced and better-trained judges would hear the cases. In general, foreign-related disputes are more complex than domestic disputes and thus would pose more challenges to the judges. The courts appointed to exercise centralised jurisdiction usually have better-trained judges and, therefore, would be more competent to hear foreign-related disputes. Furthermore, there may be a huge gap in the quantities of foreign-related disputes among different courts. The centralised jurisdiction would also let those experienced courts hear the disputes and improve the quality of trials. Secondly, the centralised jurisdiction would increase the consistency of the judgements. Courts in PRC are not bound by precedents. The centralised jurisdiction allows the same courts or tribunal to hear similar cases in one region to achieve the consistency of judgements. Thirdly, the centralised jurisdiction would reduce local protectionism. The centralised jurisdiction may prevent local government’s intervention in trial and create a relatively neutral place for the parties by moving the local party out from their home court.

However, the centralised jurisdiction may negatively affect efficiency. Thus, Regulation 2022 tries to strike a balance between professionalism and efficiency. Firstly, centralised jurisdiction is an exception that applies in limited situations instead of being a general rule. Centralised jurisdiction may only be granted if higher courts consider it necessary and acquire SPC’s approval. Secondly, the impact of centralised jurisdiction is limited to the territorial aspect and would no longer prejudice the hierarchical jurisdiction. According to the SPC, there would be only two categories of centralised jurisdiction: the centralised jurisdiction of grass-roots courts and the centralised jurisdiction of intermediate courts. The centralised jurisdiction of grass-roots courts means that one authorised grass-roots court would have jurisdiction over all the first instance foreign-related cases in the region subject to its prior intermediate court’s jurisdiction. The other type of centralised jurisdiction is the centralised jurisdiction of intermediate courts. An authorised intermediate court could hear all the cases in the region subject to its prior high court’s jurisdiction, including trial of first instance and appeal from grass-roots courts.

b. Specialised Tribunal

Regulation 2022 makes clear that the foreign-related dispute should be heard in a specialised tribunal or collegial panel (Art. 5). This provision tries to improve the professionalism of the trial by centralising all the cases into a tribunal or collegial consisting of experienced and specialised judges in the court. In practice, several courts have already established such a tribunal. However, since Regulation 2022 authorises all the grass-roots courts to hear foreign-related disputes, it is necessary to ensure that each court is properly staffed to establish an appropriate division of responsibility of the tribunals.

Such a requirement was also prescribed in previous judicial interpretations. However, those interpretations were not as definite and broad as the present one. For instance, the SPC’s Notice of 2017 on the Clarification of the Hierarchical Jurisdiction of the First Trial of the Foreign-Related Disputes and Several Issues concerning Belongings of Cases has listed several cases be heard by a specialised tribunal or collegial panel.[3] The SPC’s Notice of 2017 on Several Issues concerning Belongings of Judicial Review of Arbitration also prescribed that the judicial review of arbitration should be subject to a specialised tribunal or collegial panel that takes charge of trials of foreign-related disputes.[4] Compared with these previous regulations, the provision in Regulation 2022 is more general and has a broader coverage.

?3?Compatibility between Regulations

Regulation 2022 also establishes some rules to achieve compatibility between different regulations.

Firstly, Regulation 2022 reforms the correspondent rules in foreign-related disputes to be compatible with the newly reformed hierarchical jurisdiction of domestic disputes. The standard of high courts’ jurisdiction to hear the first trial of foreign-related disputes is now the same as their jurisdiction to hear domestic cases. The Regulation also raises the standard of intermediate courts’ jurisdiction to hear the first trial of foreign-related disputes and reduces the difference in this aspect with domestic cases. These would prevent the situation that most domestic cases would be heard in grass-roots courts while foreign-related cases would be heard in intermediate courts, even though the latter’s value is lower.

Secondly, Regulation 2022 has a clear scope of applications. In the past, the scope of application of Regulation 2002 is vague. Regulation 2002 applies to several listed types of foreign-related cases but keeps silent on its application to the other types of foreign-related cases. Regulation 2002 also excludes its application to “trade disputes occurred in border provinces and foreign-related real estate disputes”. However, there was not a uniform understanding of the scope of these two types of cases. In contrast, Regulation 2022 generally applies to all foreign-related disputes with some explicit exclusions, including maritime disputes, foreign-related IP disputes, foreign-related environmental damages disputes and foreign-related environmental public litigation (Art. 6). The maritime disputes would be subject to Maritime Court as a specialised court in China, and its hierarchical jurisdiction would be governed by Maritime Litigation Procedure Law. The hierarchical jurisdiction of the other three types of disputes is subject to their respective judicial interpretation of SPC.

?4?Predictability

Regulation 2022 enhances the predictability of the hierarchical jurisdiction. Before the new Regulation, SPC has made many individual authorisations for centralised jurisdiction of intermediate or grass-roots courts. However, due to the differences in the levels of economic development, the authorisations vary between regions. In some regions, all grass-roots courts maybe competent to hear foreign-related disputes; in other regions, only a few intermediate courts would have jurisdiction. It causes confusion in practice and the parties have to do research on hierarchical jurisdiction in each specific region to ensure they bring the case to the right court.

After the release of Regulation 2022, all the grass-roots courts would generally have jurisdiction to hear foreign-related disputes. The centralised jurisdiction would be limited in territorial aspect and would be publicized in advance, according to paragraph 2, Art. 4 of Regulation 2022. Regulation 2022 will abolish previous regulations and serve as a comprehensive guideline on hierarchical jurisdiction of foreign-related disputes (Art. 9). Regulation 2022 will enhance the predictability of the parties.

3. Conclusion

Chinese hierarchical jurisdiction in foreign-related disputes has been one of the most unclear and confusing matters in practice. Regulation 2022 has made significant progress in hierarchical jurisdiction. It improves the convenience and easy access to justice in foreign-related disputes, and balances other interests including professionalism and predictability. It manifests China’s determination to continue opening up in the current era by providing a more user-friendly judicial environment to parties in the international trade and commerce.

[1] Supreme People’s Court’s Regulation on Several Matters Concerning the Jurisdiction of Foreign-Related Disputes, [2022] Fa Shi No. 18.

[2] Supreme People’s Court’s Regulation on Several Matters Concerning the Jurisdiction of Foreign-Related Litigations, [2002] Fa Shi No. 5.

[3] Supreme People’s Court’s Notice of 2017 on the Clarification of the Hierarchical Jurisdiction of the First Trial of the Foreign-Related Disputes and Several Issues concerning Belongings of Cases, [2017] Fa No. 359, para. 2.

[4] Supreme People’s Court’s Notice of 2017 on Several Issues concerning Belongings of Judicial Review of Arbitration, [2017] Fa No. 152, para. 2.

Conventions & Instruments

On 1 November 2022, the 2000 Protection of Adults Convention entered into force for Greece. The Convention currently has 14 Contracting Parties. More information is available here.

On 11 November 2022, Malta signed the 2000 Protection of Adults Convention, during the first meeting of the Special Commission on the Practical Operation of the Convention. The Convention will enter into force for Malta further to the deposit of its instrument of ratification, in accordance with Article 53 of the Convention. More information is available here.

On 14 November 2022, Botswana deposited its instrument of accession to the 1980 Child Abduction Convention, 1993 Adoption Convention, and 2007 Child Support Convention. With the accession of Botswana, the Child Abduction Convention now has 103 Contracting Parties. It will enter into force for Botswana on 1 February 2023. For the Adoption Convention, with the accession of Botswana it now has 105 Contracting Parties. The Convention will enter into force for Botswana on 1 March 2023. Finally, following the accession of Botswana 45 States and the European Union are bound by the Child Support Convention. It will enter into force for Botswana on 16 November 2023. More information is available here.

Meetings & Events

On 8 November 2022, the HCCH’s Regional Office for Asia and the Pacific hosted the workshop “HCCH Conventions Supporting Transnational Litigation in Civil or Commercial Matters”, in partnership with the Department of Justice of the Government of the Hong Kong SAR. The workshop was held during Hong Kong Legal Week 2022, in celebration of the tenth Anniversary of the Regional Office for Asia and the Pacific. More information is available here.

From 9 to 11 November 2022, the First Meeting of the Special Commission on the Practical Operation of the 2000 Protection of Adults Convention was held in The Hague, attended by over 100 participants, in person and via videoconference, representing Contracting Parties, HCCH Members, and Observers. The meeting resulted in the adoption of over 70 Conclusions & Recommendations, which provide guidance to (prospective) Contracting Parties on a wide range of issues relating to the implementation and practical operation of this Convention. More information is available here.

Vacancies

Applications are now open for the position of Head of Human Resources (part-time, 75% or less). The deadline for the submission of applications is 9 December 2022. More information is available here.

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

The third edition of Talia Einhorn’s textbook on Private International Law in Israel is out, published by Wolters Kluwer.

This third, wholly updated and expanded edition provides a clear, comprehensive statement and analysis of private international law in Israel. Israel’s private international law (PIL) regime is not codified, nor is it clearly traceable to any one legal system. Most Israeli PIL sources are available in Hebrew only. On many legal matters there is neither legislation nor case law. There are, however, legal principles from which the pertinent rules may be deduced. Consequently, this study does not confine itself to the rules already existing in Israeli PIL, but also establishes rules in areas where such are missing. In the process of establishing PIL rules, Israeli courts are often directed by parties to engage in a comparative study as to how such problems are solved elsewhere, especially in the European Union and in its Member States, in particular England, due to the affinity of Israeli law to English law since the British Mandate, and in the United States. Therefore, this study offers comparative insights regarding the possible options open to Israeli courts when establishing or refining Israeli PIL rules.

Subjects covered include: national and international sources of Israeli PIL; principles of establishing the applicable law; characterization, substance and procedure, ordre public; renvoi, block reference, economic conflict-of-law rules; natural and legal persons; contractual and non-contractual obligations; property law, incl. IP, means of transportation, cultural property and trusts; company law, incl. dual-listed companies and corporate groups; cross-border insolvency proceedings; family law – both religious laws and secular, territorial laws, matters of marriage and divorce, handled by Jewish, Muslim and Christian religious tribunals, the recognition of civil marriage celebrated abroad, reputed spouses, same-sex spouses and transgenders, personal effects of marriage, maintenance obligation between spouses, determination of parenthood, child adoption, child maintenance, custody of minors, guardianship/parental authority, and child abduction; international succession law; international civil procedure – incl. jurisdictional immunities; international jurisdiction; detailed analysis of procedure in international litigation in Israel; proof of foreign law; judicial assistance; recognition and enforcement of foreign judgements; and international arbitration.

For more information, see here.

RWE’s case (seeking huge damages for the impact on its assets following the Dutch coal phase-out) under investor-State dispute settlement (ISDS) continues I understand (I would also suggest it is problematic given the ECT’s fork in the road provisions), while Uniper’s will be dropped as part of its bail-out conditions. Yet this post is about yesterday’s first instance Uniper judgment and RWE judgment in the Dutch courts. I use the Uniper judgment for this post, the RWE judgment is not materially different as to its legal analysis.

Of note is first of all that these judgments are by the ‘commercial’ chamber at the Den Haag court, not an ‘environmental’ chamber. This might be relevant for those wishing to present the judgment as one of a maverick band of environmental crusaders.

RWE and UNIPER’s claims are based on ‘A1P1‘ (Article 1 of the First Protocol to the European Convention on Human Rights) and Article 17 of the Charter of Fundamental Rights of the EU, both of which protect the right to property.

[5.6] the court lays out the benchmarks (translation courtesy of DeepL and double-checked by me):

( a) is there “possession” (property)

( b) is there “interference,” that is, deprivation or regulation of the right to property?

If both these conditions are met, then the following requirements are examined:

( c) is the interference “lawful,” that is, provided for by law;

( d) if so, does the infringement have a legitimate objective that serves to promote the “general interest,” and

( e) if so, is there a “fair balance,” that is, a reasonable balance, between the requirements of the general interest and the protection of the fundamental rights of the individual?

The latter “fair balance test” is not satisfied if there is an individual and excessive burden on the person concerned.

[5.9] the State had argued that uncertain future earnings are not caught by A1P1 however the court [5.10] disagrees. The corporations have a long-term guarantee to use of the site, ia via a long-term lease. That the earnings might potentially not qualify as possessions, does not diminish the qualification of the guaranteed economic interest as ‘property’.

Interference, lawfulness and general interest are established each in one para [5.11 ff] , and did not seem to be the focus of much discussion even by the parties.

Fair balance is discussed extensively [5.14] ff. [5.15.3] the court qualifies the measure as regulatory interference and not de facto expropriation (the latter would have triggered guaranteed compensation rights). Even if electricity generation using coal will be phased-out, after the end of the transition period, Uniper will continue to have use of the site and has indeed already assumed such use in announced coal-free business plans.

The court then discusses the foreseeability at length, concluding [5.16.31] that although the Dutch Government frequently expressed support for modern facilities generating electricity using coal, this was always done with the caveat that that method had to be compatible with the Dutch climate commitments. [5.16.35] the ETS permit defence is dismissed.

[5.17.9] the court, having studies the various scientific reports presented to it, holds that there are most definitely alternative uses for the site. That their profitability is uncertain, is simply also a feature of energy markets as a whole.

[5.18] the court holds that the Dutch coal phase-out does have an effect on reduced CO2 emissions (carbon leakage is not accepted as being of much relevance to that conclusion). For the measure to be considered not the least trade-restrictive, the Dutch State is held to have a wide margin of manoeuvre and it is not established that the State gravely erred in opting for a coal phase-out [5.18.7]. The long transition period is held to substantiate enough room for compensation [5.19.6], again with reference to the volatility of market returns as being part and parcel of energy markets full stop.

Like the Dutch judgments eg in Urgenda, this judgment on protection of property rights viz GHG emission reduction policies, is likely to serve as an international benchmark. It can be appealed, of course.

Geert.

Dutch #RWE #UNIPER coal phase-out judgment is here https://t.co/aJWRCE9H6H
Held ia: phase-out and closure compatible with European Convention, A1P1 #ECHR
Court calls closure foreseeable, transition period testifies to proportionality. https://t.co/qwhU9HZ24j

— Geert Van Calster (@GAVClaw) November 30, 2022

Written by Hans van Loon, former Secretary General of the HCCH and Honorary Professor of the University of Edinburgh Law School

As reported in this blog before (see CSDD and PIL: Some Remarks on the Directive Proposal), the European Commission on 23 February 2022 adopted a proposal for a Directive on corporate sustainability due diligence.

Earlier, at its annual meeting in 2021, the European Group for Private International Law (GEDIP) had adopted a Recommendation to the EU Commission concerning the PIL aspects of corporate due diligence and corporate accountability, and this blog reported on this Recommendation too, see GEDIP Recommendation to the European Commission on the private international law aspects of the future EU instrument on corporate due diligence and accountability.

While some of the recommendations proposed by GEDIP last year are reflected in the Draft Directive, the Draft fails to follow up on several crucial recommendations concerning judicial jurisdiction and applicable law. This will detract from its effectiveness.

In particular:

• The Proposal, while extending to third country companies lacks a provision on judicial jurisdiction in respect of such companies;
• The Proposal, while extending a company’s liability to the activities of its subsidiaries and to value chain co-operations carried out by entities “with which the company has a well-established business relationship”, lacks a provision dealing with the limitation of the provision on co-defendants in the Brussels I bis Regulation (Article 8(1)) to those domiciled in the EU;
• The Proposal lacks a provision allowing a victim of a violation of human rights to also invoke, similar to a victim of environmental damage under Article 7 of Regulation 864/2007 (Rome II), the law of the country in which the event giving rise to the damage occurred, and does not prevent companies from invoking a less strict rule of safety or conduct within the meaning of Article 17 of Rome II;
• The provision of the Proposal on the mandatory nature of the provisions of national law transposing the Directive (Article 22 (5)) is insufficient because (i) the words “in cases where the law applicable to actions for damages to this effect is not that of a Member State” are redundant and (ii) allthese provisions of national law transposing the Directive should apply irrespective of the law applicable to companies, contractual obligations or non-contractual obligations.

GEDIP therefore, on the occasion of its meeting in Oslo, 9-11 September 2022 adopted a Recommendation concerning the Proposal for a directive of 23 February 2022 on Corporate Sustainability Due Diligence, following up on its Recommendation to the Commission of 8 October 2021. The text of the Recommendation can be found here.

[This post is cross-posted at the EAPIL blog]

The 16th edition of the Dicey, Morris & Collins on the Conflict of Laws, edited jointly by Lord Collins of Mapesbury (LLD, FBA) and Jonathan Harris KC (Hon.), has been published by Sweet & Maxwell.

Dicey, Morris & Collins on the Conflict of Laws deals with private international law issues. It explains the rules, principles and practice that determine how the law of England & Wales relates to other legal systems. Its commentary, rules and illustrations, with detailed reference to international conventions, legislation and case law, provide a compass for practitioners engaged in cross-border matters.

It is composed of two Volumes and a Companion Volume.

Volume 1 deals with general principles, the effects of withdrawal by the United Kingdom from the European Union, foreign affairs and the conflict of laws, procedural issues relating to international litigation, jurisdiction, recognition and enforcement of foreign judgments and arbitration. Volume 2 is about specific areas of law, such as family law, property law, succession and trusts, corporations and insolvency and the law of obligations.

Finally, a Companion Volume considers in greater detail the transitional issues arising from the United Kingdom’s withdrawal from the European Union and the relevant EU legislation in a number of key areas. It analyses the relevant transitional provision in the Withdrawal Agreement concluded between the United Kingdom and the European Union, as well as domestic legislation on transitional issues. It analyses the relevant EU law in areas likely to remain relevant for the foreseeable future, including in relation to lis pendens and the recognition and enforcement of judgments from EU Member States. It considers the relevant family legislation in the Brussels II bis and Maintenance Regulations. The Companion Volume also includes detailed coverage of relevant provisions of the recast Insolvency Regulation.

Further information available here.

This book by Nazia Yaqub is an addition to the Hart series, in which several books on international child abduction have been published. The author investigates Islamic law, discussing where relevant the history and the different schools, and the specific legal rules of the selected States that have not acceded to the Hague Child Abduction Convention (1980), as well as Morocco, which has acceded. She also examines whether the ratification of the Hague Child Abduction Convention by more States with Islamic legal systems would offer an improvement to the protection of children’s rights. The author analyses the child’s right to have their best interests taken as a primary consideration, the child’s right to be given the opportunity to be heard, and the child’s right to non-discrimination. The analysis places not only Islamic law under scrutiny but also the Hague Convention.

Besides using policy documents and international literature, she has also interviewed persons who were involved in child abductions.

The difficult discussion about the best interests of the child, including the issues that arise in this regard under the Hague Child Abduction Convention and the law in the Islamic States is presented in a nuanced way, keeping to the central theme of children’s rights. The detailed and rigorous analysis explores Islamic law, utilises case studies garnered from the empirical research and the Hague Convention. The book also sets out various models of child participation and shows how this right is only partially respected in Islamic law States and by the Hague Convention. It is argued that a child-centred approach requires separate representation for children.

The book also discusses non-discrimination, considering not only children’s rights but also other human rights instruments, especially concerning the rights of women (and girls). The author does not only consider discrimination to which children are subjected but also discrimination of mothers that directly influence children. This leads to an interesting and important analysis regarding the cultural nature of children’s rights and the reality of the relation nature of children’s rights with their mother/primary carer. Considerable thought is given to the ground for refusal in Article 20 of the Hague Child Abduction Convention. What also emerges through the analysis is the changing gendered dimension of parental abductions and the problematic issue of abduction by primary carers.

Nazia Yaqub is a lecturer in law at Leeds Beckett University, UK.

Oct 2022   |   9781509939114   |   304pp   |   Hbk   |    RRP: £85 / $115

Discount Price: £68 / $92

Order online at www.bloomsbury.com  – use the code GLR AP3UK for UK orders and GLR AP3US for US orders to get 20% off!

The Experts’ Group on the Parentage/Surrogacy Project of the Hage Conference on Private International Law (HCCH) has issued its Final Report on The feasibility of one or more private international law instruments on legal parentage  on 1 November 2022.

The conclusions of the report are as follows:

The Group agreed on the desirability of, and urgent need for, further work by the HCCH in the form of a binding PIL instrument on legal parentage in general (a Convention) and a binding PIL instrument on legal parentage established as a result of an ISA specifically (a Protocol).

The conclusions of the Group with respect to the feasibility of some of the key elements of a Convention and a Protocol are set out in boxes throughout (and annexed to) this Report.

The Group concluded on the general feasibility of developing a Convention dealing with the recognition by operation of law of foreign judicial decisions on the establishment and contestation of legal parentage.

The Group also concluded on the general feasibility of rules on recognition by operation of law of legal parentage as a result of an ISA established by judicial decision in a Protocol. Feasibility will depend in particular on how safeguards / standards are addressed.

Owing to the particularly complex and sensitive nature of the topic, the Group noted some key feasibility challenges going forward, which include:

-For a Convention, whether or not to include:
⇒ domestic adoption;
⇒ rules on uniform applicable law for the establishment of legal parentage; and
⇒ rules on public documents.
-For a Protocol, the way to address safeguards / standards.
-For both instruments, scope issues related to legal parentage established as a result of a domestic surrogacy arrangements and / or ART involving a third-party individual (donor) and legal parentage established by domestic adoptions following a surrogacy arrangement.
-Some experts agreed on the feasibility of advancing work on only one instrument, while others did not think that advancing work on one instrument without the other would be feasible.

While different elements to be included in a Convention and / or a Protocol, when taken individually, seemed to be feasible, this assessment might change depending on decisions taken on other elements. For example:

-For some experts, any instrument would only be attractive to States if it also addressed legal parentage established without a judicial decision, given that, in the majority of cases, legal parentage is established by operation of law or following an act. For other experts, this did not seem a key issue and / or those experts questioned the feasibility of agreeing rules on legal parentage without a judicial decision in an instrument.
-Although the Group agreed on the need for safeguards / standards in a possible Protocol, experts had different views as to which safeguards / standards should be included and how they should feature. For many experts, a Protocol would only be feasible if it included uniform safeguards / standards included directly in a Protocol, some of which featuring as conditions for recognition, others as grounds for refusal. For some experts, a Protocol would rather be feasible if it included State-specific safeguards / standards indirectly in a Protocol with a declaration mechanism and grounds for refusal.

The Group finally recommends the establishment of a Working Group to explore the provisions on a possible convention and protocol.

The International Union of Judicial Officers / Union internationale des huissiers de justice (UIHJ) is the highest representative body of judicial officers in the world. On the occasion of its annual Permanent Council, the Union  celebrated its 70th Anniversary in Paris on November 24, 2022, at the Espace Niemeyer.

A full report of the celebration agenda and activities is available here.

The third issue of 2022 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out. In addition to recent case law and other materials, it features four contributions.

Giovanna Adinolfi, States’ Economic Measures to Counter Cyberattacks: Disentangling their (Il)Legitimacy under International Law

The present contribution draws the attention on measures adopted by States to tackle actual or potential cross-border cyberattacks and that may have an impact on international commercial transactions. With a look to the more recent practice, the distinction is proposed between response measures (addressed against those held responsible for cyberoperations that have caused an injury to the target State) and anticipatory or preventive measures (intended to prevent cyberattacks). Against this backdrop, the issue is addressed as to whether both types of measures represent international unlawful acts which find a justification within the international legal order. 

Bruno Barel, Le notificazioni nello spazio giuridico europeo dopo il regolamento (UE) 2020/1784 (Service of Documents in the European Judicial Area after Regulation (EU) 2020/1784)

The second recast of the uniform rules on the service of judicial and extrajudicial documents in civil or commercial matters introduced three innovative elements of particular relevance to the original framework, that dates back to the year 2000 (and which had already been subjected to recasting in 2007). Two of these novel provisions relate to the technological evolution of remote communications, and they consist of the institution of a common IT system for the telematic transmission of acts and documents between national authorities and of the – albeit timid and prudent – opening to direct forms of service by electronic means between individuals, thus surpassing the mediation of authorities. The third – and equally careful – novel provision attempts to reinforce the assistance between the authorities of different Member States aimed at identifying the address of the person to be served. Moreover, the most innovative part of the regulation will be fully operational only in 2025, in expectation of the full development of the decentralised IT system.

Pietro Franzina, Il ruolo degli Incoterms nella determinazione convenzionale del luogo della consegna: note critiche sulla giurisprudenza della Cassazione (The Role of Incoterms in the Determination by Agreement of the Place of Delivery: Critical Notes on the Case Law of the Italian Court of Cassation)

By a recent ruling (Order No 20633 of 28 June 2022), the Italian Supreme Court addressed the issue of the role played by Incoterms in the determination of the place of delivery of the goods for the purposes of Article 7 No 1(b), of Regulation No 1215/2012 of 20 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. As in previous rulings on the same subject, the Supreme Court was reluctant to regard the incorporation of Incoterms into a contract as signalling the parties’ agreement on the place of delivery. Specifically, the Supreme Court dismissed the claim by the Italian seller that the contract in question had been agreed “EXW” its own premises in Italy: the Court acknowledged that the goods had in fact been picked up by a carrier hired by the buyer at the seller’s premises, but found that the parties had failed to agree “clearly” on the place of delivery, as it could not be established that the parties had unequivocally intended to make the seller’s premises the place of delivery of the goods for the purposes of jurisdiction. The paper contends that the approach of the Italian Supreme Court contradicts the principles laid down by the Court of Justice in Car Trim and Electrosteel. The approach is unpersuasive in two respects. First, the Supreme Court regards the parties’ agreement on the place of delivery as a derogation from the “general rule” whereby delivery must be understood to be due, for jurisdictional purposes, at the place of final destination of the goods (whereas, according to the Court of Justice, the latter is just a residual rule, which applies where the parties have failed to agree on the place of delivery). Secondly, the Supreme Court disregards the rules of interpretation adopted by the International Chamber of Commerce to describe the parties’ obligations under the different Incoterms, and follows, instead, its own understanding of the Incoterms concerned: actually, the Supreme Court asserted in the decision reviewed that, “as a rule”, the Incoterm EXW only relates to the allocation of the costs of transport and the transfer of risk, and has no bearing as such on the determination of jurisdiction. 

Michele Grassi, Riconoscimento del rapporto di filiazione omogenitoriale e liberta` di circolazione all’interno dell’Unione europea (Recognition of Same-Sex Parentage and Freedom of Movement within the European Union)

This paper aims to provide a critical analysis of the judgment rendered by the Court of Justice of the European Union in the Pancharevo case, where the Court was confronted with the sensitive issue of same-sex parenthood and its recognition in the context of free movement rights within the Union. The investigation focuses on the functional approach adopted by the Court of Justice in the application of the mutual recognition principle, and its possible implications on the recognition of same-sex parenthood for wider purposes, not directly linked to the exercise of free movement rights.

The UNCITRAL Model Law on International Commercial Arbitration – A Commentary, authored by Gilles Cuniberti, has just been published by Edward Elgar, part of the Elgar Commentaries in Private International Law series.

This Commentary provides rich and detailed analysis both of the provisions of the UNCITRAL Model Law on International Commercial Arbitration (the Model Law), and of its implementation, including a comparative account of the operation of the Model Law in the numerous jurisdictions which have adopted it throughout the world.

Key features: comparative and thorough analysis of the provisions of the Model Law; consideration of the interpretations of the Model Law adopted by courts, with references to numerous cases from common law jurisdictions (Singapore, Hong Kong, India, Australia, New Zealand, Canada), Germany and Austria, central Europe (Poland, Hungary, Bulgaria), Spain, South Korea and Egypt; insight into variations in the statutory implementation of the Model Law in various jurisdictions across Europe, Asia, the Middle East and Latin and North America, with the most common amendments identified and highlighted; discussion on whether the amendments adopted in Model Law jurisdictions should be persuasive in other Model Law jurisdictions.

Exploring how the Model Law is applied and interpreted in multiple jurisdictions, this practical and exhaustive commentary will be an essential resource for arbitrators and commercial litigators and will also appeal to scholars in the fields of arbitration, international dispute resolution, and international commercial law.

Further information can be found here.

The author of this post is Cristina González Beilfuss (University of Barcelona).

The MPA case (Case C-501/20), decided by the CJEU on 1 August 2022, deals, at first sight, with a fairly unusual divorce scenario. The Spanish wife and the Portuguese husband are two members of the contract staff of the European Union working in the latter’s delegation in Togo. Leaving this aspect aside, the case, however, turns out to be quite ordinary. As highlighted by Advocate General Szpunar in his opinion, the situation of European citizens posted to a third State for work reasons is fairly commonplace.

EU expats might have an expectation to be able to divorce in the European Union, particularly, when their connection with the third State in question is tenuous. This seems to be the case here. The spouses were formerly based in Guinea – Bissau; whether they were already employed by the EU at that stage cannot be ascertained by reading the judgment or the Advocate General’s Opinion, but can be safely assumed. In any case, their degree of integration in either Guinea Bissau or Togo seems to be relative. The couple chose to get married in the Spanish Embassy in Guinea-Bissau and the Spanish wife came to Spain to give birth to their two children in 2007 and 2015. It therefore might have seemed only natural to her to file the divorce petition in Spain.

The divorce claim was, in fact, quite standard; she sought the dissolution of the marriage, a decision on the custody of the two children of the marriage and the award of maintenance for the children, including the use of the family home in Togo. But apparently the husband refused to accept that the marriage was over, which is why the divorce became contentious. This was most unfortunate because empirical research has shown that habitual residence is very often not examined unless it is a contested matter, as happened in this case. The court of first instance declined hearing the case. The decision was appealed, because the wife wanted to divorce. The Court of Appeal in Barcelona subsequently made a request for a preliminary ruling on a number of issues.

As regards the dissolution of the marriage, which is the aspect dealt with in this entry, the most significant question referred to the CJEU was the interpretation of the rule formerly contained in Article 6 of Regulation 2201/2003. Many commentators have found this rule confusing, particularly in connection with Article 7 (residual jurisdiction). A clarification by the CJEU is therefore most welcome.

The CJEU chose to interpret the rule literally. A spouse who is habitually resident in a Member State or who is a national Member State can only be sued in another Member State in accordance with the rules of jurisdiction contained in the Regulation. This entails that in an expat situation only the courts in the Member State of the defendant’s nationality (i.e. in the case at hand the courts in Portugal) can have recourse to domestic residual jurisdiction rules. The courts in the Member State of the plaintiff’s nationality have to decline hearing the case. This is what the requesting Court, the Court of Appeal in Barcelona, has done in a decision rendered on the 21 October 2022.

The purpose of this post is not to question the interpretation of the CJEU nor the decision of the Spanish Court. The main problem is, in my view, that the rule as such does not make sense. In the context of marriage dissolution in the strict sense, i.e. in connection with the continuation of the matrimonial bond, there is, in my view, no justification for protecting the defendant, i.e. the spouse that does not want the divorce and making life difficult for the spouse who wants to dissolve the marriage. The rule is moreover only workable if the divorce is contentious and one can distinguish between a defendant and a plaintiff. Would the Spanish court have been able to resort to its domestic rules of jurisdiction had the spouses decided to jointly request the divorce?

 And what are the consequences of the rule? If the Spanish wife wants to divorce in the EU, she has to go to Portugal. Whether Portuguese courts have jurisdiction is, however, uncertain. Article 62 of the Portuguese Código de proceso civil grants international jurisdiction to Portuguese courts when the action may be brought before a Portuguese court under the rules of territorial jurisdiction. Such rules allocate jurisdiction to the courts of the habitual residence or domicile of the plaintiff. The Portuguese courts also have jurisdiction if the fact that gave rise to the cause of action in the lawsuit or any facts leading to the cause of action have taken place in Portugal. Since the Spanish wife never had an habitual residence or domicile in Portugal and there is no factual connection to Portugal, the only possibility left would be to argue that Article 62(c) of the Código de proceso civil, containing a forum necessitatis, applies. The rule seems to be more open ended than the European forum necessitatis as available under the Maintenance, the Succession, the Matrimonial Property and the Registered Partnership Regulations. It grants jurisdiction to the Portuguese courts when effect cannot be given to the invoked right other than through an action filed in Portuguese territory or the claimant has appreciable difficulty in commencing an action abroad, as long as there is a relevant connecting element, either personal or physical, between the subject matter of the dispute and the Portuguese legal order.

A forum necessitatis is, in principle, only available exceptionally if the proceedings in question cannot reasonably be brought or conducted or would be impossible in the third State in question. This has been examined by the Court of Appeal of Barcelona in relation to the maintenance claim ancillary to the divorce petition. Following the guidance given by the CJEU in the MPA decision, the court undertook a detailed analysis of the procedural conditions in Togo and their consequences on the individual case and reached the conclusion that there is no evidence that access to court would not be possible or extraordinarily difficult in Togo.

If the Portuguese courts reached the same conclusion and the Portuguese forum necessitatis was also found to be inapplicable, the Spanish wife would have to seek divorce in Togo. And assuming that they accepted to hear the case, would the courts in Togo dissolve the marriage?  In accordance with Article 714 of the Code des personnes et familles of Togo, the courts in Togo would, in the absence of a common nationality of the spouses, apply the law of their common domicile i.e. the law of Togo. Under the law of Togo divorce is available either on the basis of mutual consent (which is not the case here) or in the absence thereof, on the ground of fault. The Spanish wife would have to plead and prove that marital life had become intolerable as a result of infidelity, excesses, abuse or insults attributable to her husband; that the family life and the safety of children are seriously compromised by notorious misconduct, moral or material abandonment of the home or the sentencing of one of the spouses to a firm sentence exceeding four years of imprisonment. Other grounds are impotence or definitive medical sterility or a refusal to consummate the marriage. Failing that the required separation period would be of at least five years. A stark contrast to the situation under Spanish law which takes the position that nobody should be forced to stay in a marriage he or she no longer wants and accepts divorce on unilateral demand! And to the situation under Portuguese law where divorce can be requested after a de facto separation of only one year!

A forum patriae thus appears to be necessary in order to guarantee access to divorce, not to court. Given the development of EU citizenship which the CJEU has repeatedly stated is destined to be the fundamental status of nationals of the Member States, it is outdated to provide a forum patriae only if spouses hold the nationality of the same Member State, and to treat the situation of an expat couple of EU citizens in the same manner as that of a couple where only one spouse is an EU citizen and even more so as the situation of a couple of an EU citizen and a third State national who happens to be a national of the third State in question.

The implications of EU citizenship in connection with access to European courts were not analysed in the MPA case, simply because the argument was not raised. In his Opinion on Case C‑603/20 PPU, which the CJEU did not follow, Advocate General Rantos derived from Article 20 of the TFUE a right to have parental responsibility examined by a court of a Member State, if the child is an EU citizen (paras 76 and 77). The idea should be further explored in connection with marriage dissolution.

The 2006 Commission Proposal for the amendment of Regulation 2201/2003, which was withdrawn included a provision stipulating that, where neither of the spouses is habitually resident in the territory of a Member State and the spouses do not have the common nationality of a Member State, the courts of a Member State should be competent by virtue of the fact that: (a) the spouses had their common previous habitual residence in the territory of that Member State for at least three years; or (b) one of the spouses had the nationality of that Member State (Article 7 of the Proposal). Life would have been easier for the Spanish wife had this proposal been adopted. In the end, she has been lucky though, because the husband has returned to the EU! Otherwise she would continue being trapped in a marriage that she no longer wants.

The CJEU last week held in C-358/21 Tilman v Unilever, the context of which I reviewed here. Krzysztof Pacula has initial analysis here and also refers to the application of the consent for choice of court issues in Ebury Partners.

One of the parties’ (Unilever’s) GTCs  are contained on a website, and their existence is ‘flagged’ in the written main contrac, without there bring a tickable box that click-wraps the agreement. Does that suffice to bind the parties as to the GTC’s choice of court (in favour of the English courts)? Note the courts were seized pre-Brexit; the UK’s Lugano troubles are not engaged.

The CJEU answers exactly along the lines I suggested in my earlier post: no impeding of commercial practice; need for the contracting party relying on the clause to have drawn the attention to the clause; need for that clause to be durably consultable and storable; finally it is the national court’s task to verify  the formation of consent in these factual circumstances. That there is no box that can be ‘ticked’ is not conclusive [52].

All in all a welcome support for commercial choice of court.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.10.

For my earlier review of the issues see https://t.co/OKcx31TlsB https://t.co/b9KWaSzaKB

— Geert Van Calster (@GAVClaw) November 24, 2022