Droit international général

On Tuesday, November 1, 2022, the Hamburg Max Planck Institute will host its 27th monthly virtual workshop Current Research in Private International Law at 5:00 p.m. – 6:30 p.m. (CET). Symeon C. Symeonides (Willamette University College of Law) will speak, in English, about the topic

Conflicts of laws arising from infringement of personality rights have always been difficult, if only because they implicate conflicting societal values, such as freedom of speech and access to information, on the one hand, and protection of reputation and privacy, on the other hand. The ubiquity of the internet has dramatically increased the frequency and intensity of these conflicts. The speaker will present a proposed international model law that aspires to facilitate the resolution of these conflicts in a practical, efficient, and balanced way.

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

The University of Milan, on behalf of the DIGinLaw consortium (also comprising Josip Juraj Strossmayer, the University of Osijek, the University of Aberdeen, and the University of Zagreb – University Computing Centre (SRCE)), is organising an International Conference on ‘Law in the Age of Modern Technologies’, hosted in Milan on 10 February 2023.

Digitalization strongly affects society, science, and the transfer of knowledge. While taking advantage of modern technologies, the DIGinLaw Project aims to raise awareness of digital demands in higher education and research in law and fosters the creation of digital literacy and digital competence that is needed in the law labour market. The Project aims to create an open and inclusive society of legal knowledge and to open access to the scientific areas dealing with the effects of digitalization on law and legal education.

The Conference is the culmination of scientific research on the digitalization of legal education and the digitalization of law. It provides a venue for the presentation and discussion of scientific research focusing on such and related themes. For these purposes, the Organizing Committee is pleased to invite (i) abstract submissions that address specific aspects of the impact of modern technologies on the law, and (ii) abstracts focusing on the digital transformation processes in the legal domain and welcomes the participation of a prosperous community crossing different disciplines beside law, including computer science and legal informatics.

Abstract Submission

Abstracts of 250-500 words (max) should specify the main arguments, the structure of the paper, and the methodology. If the proposal is accepted, authors will be expected to deliver a full paper of no more than 15.000 words (footnotes included) by 28 February 2023. Depending on the topics, the selected papers will be published in a peer-reviewed international journal or in a particular volume by an international publisher.

Deadlines

Submission deadline for abstracts: 15 November 2022

Notification of acceptance of abstracts: 25 November 2022

Submission deadline for papers: 28 February 2023

The Conference is organized within the framework of the project ‘Time to Become Digital in Law’ (DIGinLaw), co-funded by Erasmus+ Programme of the European Union. Additional information on the event is available here.

Luís de Lima Pinheiro (University of Lisbon) has posted The Spatial Reach of Injunctions for Privacy and Personal Data Protection on the Internet Revisited on SSRN.

The abstract reads:

This study deals with the spatial reach of injunctions addressed to online intermediaries for removal, blocking or delisting of content for the protection of the right of privacy, including data protection. It complements a previous essay published in Ius Vivum: Kunst – Internationales – Persönlichkeit. Festschrift für Haimo Schack zum 70. Geburtstag, summarizing its conclusions, providing the clarification of some issues and adding further comments.

It is advocated that while the limits set by Public International Law to the jurisdiction of the States must be taken into account, the spatial reach of these injunctions should be mainly determined through a Private International Law approach, based upon a substantive characterization of the issue.

EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU) is an EU-funded Project conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, the University of Heidelberg, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.

The tenth EFFORTS Newsletter has just been released, giving access to up-to-date information about the Project, save-the-dates on forthcoming events, conferences and webinars, and news from the area of international and comparative civil procedural law.

Finally, regular updates are available via the Project website and the Project’s LinkedIn and Facebook pages.

Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union

Społeczna Inicjatywa Narkopolityki – SIN (Civil Society Drug Policy Initiative) is a A Polish association that conducts educational activities on the consequences of drugs use. In 2018 SIN’s Facebook and Instagram accounts were removed as “in violation of Community Standards”.

In May 2019 SIN filed a lawsuit against Facebook (namely, Facebook Ireland Limited seated in Ireland, which later changed its name to Metaplatforms Ireland Limited) demanding inter alia restoration of the removed accounts, as well as granting interim measures in that respect.

The case, which is still pending before Polish courts, has interesting private international law aspects.

In its decision of June 2019 Sąd Okręgowy w Warszawie (Regional Court in Warsaw) granted interim measures by ordering Facebook to restore and stop blocking / removing SIN’ accounts while the case is pending. Facebook appealed the decision. It was upheld by the decision of May 2021.

In the decision on interim measures of June 2019, the Court discussed the existence of its jurisdiction as to the merits of the case. The Court referred to Article 7(2) of the Brussels I bis Regulation and the jurisprudence of the Court of Justice of the EU in eDate case (C-509/09) and explained that

Although the present case does not concern infringement of personal rights by posting infringing content online, but – infringement of personal rights by removing content from the internet, the existance of the jurisdiction of the Polish court based on Article 7(2) is justified by the following reasons.

Both parties have their seats in EU Member States, the claimant conducts its business activity in Poland, thus the center of its interests lies within the jurisdiction of this Court. The widespread availability of content posted online means that this content is also available at the claimant’s center of interest. Moreover, the claimant directs the content to persons residing in Poland, as the content is posted mainly in the Polish language. Therefore, the removal of content uploaded by the claimant with the suggestion that the content is harmful and poses a threat to the safety of users means that the effects of the infringement of the freedom of expression in the form of blocking sites and groups also occurred at the claimant’s place of business and the effects of the infringement of the reputation of the uploader also occurred at the claimant’s place of business.

The above led the Court to the conclusion that it does have jurisdiction to hear SIN’s claim.

In its appeal agains this decision, Facebook raised lack of jurisdiction of Polish courts pursuant to Article 25 of the Brussels I bis Regulation pointing to the existence of a prorogation clause, which covers also claims based on violation of personality rights. In its response to the appeal, SIN submitted that the jurisdiction to grant interim measures exists on the basis of Article 35 of the Brussels I bis Regulation, and therefore, Facebook might not ask for lifting of the interim measures submitting lack of jurisdiction.

In the decision of May 2021 in which the first decision on interim measures was upheld, the Court analysed the existence of jurisdiction as to the merits of the case and as to interim measures. Interestingly, it first cited the provisions on jurisdiction contained in domestic law (namely, Article 11037(2) of the Code of Civil Procedure), to later conclude that  Article 7(2) of the Brussels I bis Regulation “is similar to 11037(2) of the Code of Civil Procedure”. The Court then referred to the jurisprudence of the Court of Justice of the EU, in particular in e-Date case and stated that

(…) Undoubtedly, the infringement of personal rights in the form described by the claimant took place in Poland (…)

Indeed, infringement of personal rights on the Internet is a so-called  multi-state tort, the effects of which arise not only at the place where the server containing the data is located or where the company infringing personal rights is established, but also at the center of the life interests of the recipient of such infringement and of the more broadly, the public who may come into contact with such a violation of personal rights by using the portal in question.

There is no doubt that the public debate on Polish public affairs that takes place on the Internet, despite its virtual character, takes place on the territory of Poland. Therefore, it should be considered that the consequences of infringement of personal rights also take place in Poland.

When it comes to jurisdiction to grant interim measures the Court confirmed that it does exist, referring only to domestic law (Article 1110³(2) of the Code of Civil Procedure), instead of Brussels I bis Regulation.   

In Poland, Article 16(1) of the 2011 Act on Private International Law, provides that the personal rights of a natural person are governed by the law of his / her nationality. Pursuant to Article 16(2) of this Act, natural person whose personal rights were threatened or infringed may claim protection under the law of the state where the event giving rise to a threat or infringement has occurred, or under the law of the state where the consequences of the infringement occurred. In accordance with Article 20, the above mutatis mutandis applies to the protection of the personal rights of legal persons.

Having cited these provisions, the Court very briefly concluded in the decision of June 2019 that

Since the claimant links the effects of the infringement of personal rights to the territory of Poland, the applicable law is Polish law.

Please note that English translation of Polish 2011 Act on PIL is available online in volume XIII of the Yearbook of Private International Law at p. 641.

Facebook refused to accept SIN’s claim which was written in Polish language. Hence, the Court decided on translation of court documents into English and summoned SIN to pay an advanced payment for this translation.

Referring to Service Regulation SIN appealed this decision, arguing that Facebook directs its services to Polish users. There are approximately 16 000 000 Polish users of Facebook. All documents regulating the use of the platform are available in Polish language. After their acceptance they constitute contracts which are concluded by Facebook with its customers. This means that Facebook is party to millions of contracts written in Polish language. As a result, one might not argue that Facebook does not understand this language.

Irrespective of SIN’s arguments an appeal to the decision on advanced payment for translation was dismissed by a decision of March 2022. Hence, SIN had to pay for the translation.

News on SIN’s case are published in Polish and English and may be followed here.

Soleymani v Nifty Gateway LLC [2022] EWCA Civ 1297 is the appeal against [2022] EWHC 773 (Comm) which I reviewed here. That post will give readers the necessary background. The Court of Appeal partially overturned. The judge had issued a stay of English proceedings under s9 Arbitration Act 1996, effectively allowing a US arbitrator to decide the validity of the arbitration agreement. That stay has now been lifted and E&W proceedings on that issue will go ahead.

Of note is that the discussion takes place under retained EU law, with the relevant provisions in ia s15b of the Civil Jurisdiction and Judgments Act 1982 (as amended) mirroring the consumer section of Brussels Ia and Directive 93/13 on unfair terms in consumer contracts, as amended.

A first ground of appeal concerned the core of the Brussels Ia issue: whether the Court had jurisdiction under s. 15B CJJA because the exception for arbitration under Article 1(2)(d) of the Recast Regulation did not apply to the Arbitration Claim. In other words whether the exclusion for arbitration is engaged when a consumer, ordinarily protected by the forum actoris provisions in A17 ff BIa, calls upon that protection to seize a UK court.

The first instance judge held that the principal focus and subject matter of Mr Soleymani’s claim is whether he is legally obliged to arbitrate, hence engaging the arbitration exception. The Court of Appeal agrees for largely the same reasons as the judge, and with Popplewell J [89] indicating no change in his views following CJEU Prestige. The CA’s own finding in [2021] EWCA Civ 1589 The Prestige is recalled:  “the question is whether a principal focus of the proceedings is arbitration, the essential subject matter of the claim concerns arbitration, or the relief sought can be said to be ancillary to the arbitration process, these being alternative ways of expressing the same idea”.

The Court of Appeal’s focus seems to be on avoiding abuse by the consumer, who could circumvent the arbitration exception by bringing his claim within the scope of BIa hence characterising it as a claim to enforce his consumer rights.

I continue to find the alternative more convincing: that the consumer section could be easily circumvented, particularly by non-EU based traders and /or in the event of arbitration outside the EU, simply by inserting an ADR clause in the contract, depriving the consumer of the forum actoris. Claimant’s counsel’s nine reasons [51] in my view have convincing appeal, and not Popplewell J’s suggestion [93] ff that in practice the consumer would be protected anyways, either by the ability to sue in the UK and have the ADR clause declared void under consumer protection law, or by the ability to have any foreign award declared unenforceable under the New York Convention’s ordre public exception. The very case at hand show the real difficulties (and costs) the consumer will be put through if and when the business party to the transaction decides to pursue the arbitration proceedings abroad.

The second ground of appeal was dismissed for it relied on s. 15D(1) being construed as invalidating the arbitration clause, which the Court had already held it did not, however ground 3 was accepted, for reasons formulated by Birss LJ.

Mr Soleymani’s claim consisted of claims for three distinct declarations: (i) a declaration that the arbitration clause was unfair and not binding, (ii) a declaration that the governing law clause was unfair and not binding, and (iii) a declaration that the contract formed in the auction was illegal under the Gambling Act 2005.

The jurisdiction issues under Grounds 1 and 2 of the appeal relate only to the first of these three, the arbitration clause claim. The judge as discussed decided that the Arbitration Claim was within the arbitration exception which now forms part of the CJJA (and had its origin in the Brussels Convention and the later Recast Regulation), and the appeal from that decision was dismissed.

The judge however also decided that the other two claims, that is the Governing Law Claim and the Gambling Act Claim were not clearly within the arbitration exception, yet she stayed the E&W proceedings to give way to the arbitration in New York. Therefore these claims were at least capable of falling within the jurisdiction gateway provided for in s15B(2)(b) CJJA 1982.  Ground 3 argued that the first instance judge erred in staying these proceedings under section 9 of the arbitration Act without determining the fairness question or directing a trial before the English Court on the issues raised by that objection.

That ground was upheld for three reasons [151] ff which all go towards limits to Kompetenz Kompetenz in consumer (and other?) cases.

Firstly, the public importance of decisions vindicating (or not) consumers’ rights. The case Mr Soleymani is seeking to make has implications for  consumers in general in this jurisdiction and it is important that they are considered and ruled upon in public in a court. Therefore it was held the s9(4) issues should be decided at a trial and not left to be decided in the arbitral tribunal.

Further [152] the consumer protection rights under UK law involve domestic concepts which UK court are far better placed to adjudicate upon than a New York arbitrator. Even if it were certain that the New York Tribunal would apply UK law (a late proffered undertaking to do so was made and discussed [155] ff), it engages principles which are the subject matter of our domestic jurisprudence, not simply some general notion of fairness.

Thirdly whether the arbitration agreement does in fact operate unfairly on Mr Soleymani is not suited to summary determination. “If the invalidity argument is good, the very reasons which make it good, namely that it places an unfair burden on Mr Soleymani, weigh against allowing the tribunal to decide the issue under its Kompetenz-Kompetenz jurisdiction. The Judge’s finding that there would be nothing unfair about leaving it to the arbitrator to decide that issue is inconsistent with her recognition that there was a triable issue whether this was an unfair arbitration agreement.”

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.3.2, and 2.2.9.2.

Highly relevant judgment under retained EU law on possibility for consumers to enjoy jurisdictional protection of EU rules to avoid #arbitration outside of the EU
Review of the first instance judgment here https://t.co/G1wCZbigfs
Soleymani v Niftyhttps://t.co/3h8nGbIgGZ

— Geert Van Calster (@GAVClaw) October 6, 2022

Sierd J. Schaafsma (Justice of the Supreme Court of the Netherlands) is the author of Intellectual Property in the Conflict of Laws – The Hidden Conflict-of-law Rule in the Principle of National Treatment, published by Edward Elgar.

The world of intellectual property (patents, trade marks, copyrights, et cetera) is becoming increasingly international. More and more frequently, disputes about intellectual property have an international character. This inevitably raises questions of private international law: which national court is competent to adjudicate an international dispute of this kind? And which national law should be applied to an international case of this kind? Since the 1990s, the first question in particular has attracted attention; in recent years, the focus has shifted to the second question: which national law is applicable? Opinions differ widely on this matter today. The controversy focuses on the question whether the Berne Convention and the Paris Convention, the two most important treaties on intellectual property, contain a rule that designates the applicable law. In other words: do these treaties contain a ‘conflict-of-law rule’ as it is called? This question, which concerns nearly all countries in the world, is nowadays considered to be ‘heftig umstritten’ (fiercely contested) and ‘très difficile’ (very difficult). And that is where we come across something strange: today it may be fiercely contested whether these treaties contain a conflict-of-law rule, but in the past, for the nineteenth-century authors of these treaties, it was perfectly self-evident that these treaties contain a conflict-of-law rule, namely in the ‘principle of national treatment’ as it is called. How is that possible? These are the fundamental questions at the heart of this book: does the principle of national treatment in the Berne Convention and the Paris Convention contain a conflict-of-law rule? And if so, why do we no longer understand this conflict-of-law rule today?

This book is an English translation of Sierd J. Schaafsma’s groundbreaking book, which appeared in Dutch in 2009 (now updated with the most significant case law and legislation).

Further information available here.

The author of this post is Michele Casi, Post-doc, DILHPS Università degli Studi di Milano, and researcher involved in the EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU) project.

The Final Conference of the EFFORTS Project (JUST-JCOO-AG-2019-881802) took place on 30 September 2022 at the Sala Napoleonica of the Università degli Studi di Milano. More than 160 participants attended the Conference, either online and in presence.

Francesca Villata, Coordinator of the Project, opened the conference by outlining the scope, the objectives, and the results of the EFFORTS Project.

The challenges that the EFFORTS Project has aimed at addressing include gaps and divergences in Member States implementing legislation and enforcement procedures, the lack of transparency in the overall system of cross-border enforcement, the lack of (mutual) trust, and the limited use of the EFFORTS Regulations. The objectives of the Project have been tackled by dialoguing with operators, sharing good practices, drafting analytical activities and testing the outcomes, with the help of the Academic Advisory Board, the Stakeholders Cross-Border Committee, the National Working Groups and a Professional Evaluator.

At its core, the Project has produced a wide variety of outputs that:

(i) identify the difficulties users encounter and how the practice is addressing them (seven Reports on national implementing rules, seven Reports on national case-law, seven National Exchange Seminars, one International Exchange Seminar, one Report on practices in comparative and cross-border perspective, and one Report on the digitalization of the enforcement procedures and of cross-border cooperation);

(ii) provide support and guidance (Bilingual Practice Guides for the application of the EFFORTS Regulations in the targeted Member States, complemented by Annexes on national enforcement procedures, for a total of 35 Guides and seven Annexes, seven Policy Recommendations for national legislators and one EU Policy Guidelines); and

(iii) spread awareness, knowledge and trust (see further the Project’s website, the Project LinkedIn and Facebook accounts, the Final Conference, the Final Study (soon available on the website) and the EFFORTS Network).

The presentations of the Final Conference were divided into three panels, respectively chaired by Ilaria Viarengo (Director of the Department of International, Legal, Historical and Political Studies of the Università degli Studi di Milano), Burkhard Hess (Director of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law), and Fausto Pocar, (Emeritus of International Law, Private International Law and European Law at the Università degli Studi di Milano).

During the conference, the speakers discussed a wide variety of topics relating to the cross-border enforcement of claims in civil and commercial matters within the EU, concerning the EFFORTS Regulations – Regulation (EU) No 1215/2012 (Brussels I bis), Regulation (EC) No 805/2004 on the European Enforcement Order (EEO), Regulation (EC) No 1896/2006 on the European Payment Order (EOP), Regulation (EC) 861/2007 on the European Small Claims Procedure (ESCP), and Regulation (EU) 655/2014 on the European Account Preservation Order (EAPO) – such as: the certification of judgments, the effectiveness of the regulations on cross-border enforcement and national implementing rules, the suspension of the enforcement proceedings under the Regulations, the digitalization of cross-border enforcement procedures, cross-border provisional measures and the European Account Preservation Order, policy options for the re-drafting of the EFFORTS Regulations, and many others.

The discussion benefited from the interaction between national legislators, judges, lawyers, academics, in-house counsels, notaries and enforcing agents, showing once again the EFFORTS Project’s practice-driven approach and the interest of various professionals. In fact, to give one example, during the final debate the case of a lawyer working in the field of commercial cross-border transactions was brought up. The case concerned the payment of invoices, and the lawyer would advise his client to proceed in obtaining an Italian decreto ingiuntivo di pagamento rather than using the EOP procedure. According to the discussion, the Italian order for payment would be more convenient considering that the procedure is more familiar to practitioners and could be later certified for enforcement under one of the other EFFORTS Regulations (under Article 53 Brussles I-bis or as an EEO).

This observation meets, at its core, one of the issues that have been discussed amongst the EFFORTS research groups, and has been reflected in the EFFORTS EU Policy Guidelines: i.e. the differentiation among the existing Regulations. In order to expand ‘the role of uniform European procedures in this area of the law‘, it has been observed, ‘domestic orders for payment procedures would need to be excluded from the scope of the BI bis (n.n. Brussels I bis) and EEO Regulations – a solution which would at the same time reduce the difficulties related to the existence of a wide variety of simplified procedures across the different Member States and encourage economic operators to turn themselves to the EPO and the ESCP‘ (page 28 of the Report). This has further confirmed the practice-driven approach that has shaped the EFFORTS Project’s objectives and results during its implementation.

The activities of the conference lasted the entire day and included several presentations as well as formal and informal discussions and Q&A from the participants, showing that the topics presented at the Conference have captured the attention and the interest of the public.

The contents extensively discussed at the Final Conference will be reflected in the upcoming and conclusive deliverables of the Project: the EU and national Policy Recommendations and the Final Study, soon to be published on the Project’s website.

Written by Zilin Hao*

On 15 July 2022, the Supreme Court of New South Wales (“NSW”) recognized and enforced a Chinese judgment issued by the Shanghai Pudong New Area People’s Court 12 years ago in Tianjin Yingtong Materials Co Ltd v Young [2022] NSWSC 943.[1] It ruled that the defendant Katherine Young (“Ms. Y”) pay the plaintiff Tianjin Yingtong Materials Co Ltd (“TYM”) outstanding payment, interest and costs. This marks the second time that the court of NSW in Australia enforces Chinese judgment after Bao v Qu; Tian (No 2) [2020] NSWSC 588.[2]

I. The Fact

On 7 April 2009, the original plaintiff, TYM, sued Shanghai Runteyi Industrial Co., Ltd (“first original defendant”), Shanghai Runheng International Trading Co., Ltd (“second original defendant”) and Ms. Y (named as “Hong Yang” in Chinese Judgment) before Shanghai Pudong New Area People’s Court (“the Chinese Court”). According to the Chinese judgment, TYM had acted as agent for the first original defendant and the second original defendant based on seven Import Agent Agreements signed by three of them. Subsequently, TYM and each original defendant, including Ms. Y entered into a Supplementary Agreement confirming and specifying the guarantee under the seven Import Agent Agreements, pursuant to which Ms. Y was a guarantor in favour of the plaintiff. However, the two original defendants failed to fulfill their liability for repayment as agreed while the Plaintiff has performed the contract obligations.

On 29 March 2010, the Chinese Court rendered a judgment and supported the TYM’s claims that the two original defendants shall pay the debt and overdue fine, Ms. Y shall assume joint and several liability for the payment obligation of the two original defendants. The Chinese judgment came into effect and finality when an appeal was dismissed on 1 June 2010. Due to the lack of sufficient assets of the two original defendants and the disappearance of Ms. Y, the Chinese Court only executed more than 4 million yuan in place for three years, and finally ended the enforcement procedure in 2014. The recovery of the relevant funds has subsequently reached an impasse.[3]

On 9 August 2021, after discovering the defendant’s property clues, TYM filed an application for recognition and enforcement of the Chinese judgment with the Supreme Court of NSW pursuant to Australia’s common law principles. The NSW court upheld the plaintiff’s claim after examining four conditions accordingly of Chinese judgment with: (1) the Chinese court has international jurisdiction where Ms. Y submitted to by arguing or appearing to argue the merits of the case; (2) the Chinese judgment is conclusive and final; (3) the identity of parties in recognition proceeding consisted with Chinese proceeding; (4) the Chinese judgment was for a fixed sum. The plaintiff has established the prima facie enforceability of the Chinese judgment and there are no refusal grounds exist.

The most important issue at the NSW proceeding is the limitation period for enforcement.[4] The plaintiff noted that it has been over 11 years since Chinese judgment came into conclusive and effective, which means it may not be enforced at the same time by Chinese court, if there is enforceable property in China, because the application will exceed the two-year enforcement limitation period stipulated by Chinese law.[5] However, according to section 17 “Judgment” of the Limitation Act 1969 (NSW)[6], the limitation period for action upon a foreign judgment is 12 years from the date on which the judgment becomes enforceable in the place where judgment was given. Therefore, the judge of Supreme Court of NSW held that relevant limitation period has not yet expired. Hence there is no time bar to the current proceeding for enforcement of the Chinese Judgment.[7]

II. Comments

1. Applicable Law to Limitation Period for Enforcement

Limitation period is a controversial issue when classifying whether it is a procedural or substantial matter under private international law, which decides the application of law concerning it. Generally, courts apply lex fori in matter with procedure issues, while choose lex causae by conflict rules dealing with substance issues. States distinguish limitation period as procedure or substantive issue differently, which represented by Germany and Japan who regard the limitation period as a substance issue and stipulates it in their civil codes, not specific legislation. Some common law countries, such as England, Australia and Singapore, made Limitation Acts to deal with the enforcement limitation issue in the domestic legislation.[8]

In China, the limitation of action is stipulated in Civil Code and is deduced as a substance issue.[9] While the statute of limitations for enforcement is a two-year period for creditors to apply to the court for execution based on a successful and legal effective document, which is provided in Civil Procedural Law of China and deemed as a procedure issue. In terms of recognition and enforcement of foreign judgments, conflicts of classification on the legal nature of enforcement limitation period between the State of requested and the State of origin will arise in the first place. When a judgment complies with the law of the requested State regarding the statute of limitations for applying an enforcement, but it has exceeded the limitations period of enforcement under the law of the State of origin, how does the court of requested State ascertain legal rules to decide? In TYM v Ms. Y above, the judge of Supreme Court of NSW applied Australian law to hold that there was no time bar to enforce the Chinese judgment even though the relevant limitation period has expired in China, which illustrates that enforcement limitation period of judgments is a substance issue for Australia.

2. Expiration of Limitation Period and Grounds for Refusal

Except the list of conditions to be used by the court requested or addressed to ascertain whether the judgment is eligible for recognition and enforcement, there are grounds for refusal as well. Under the common law principles for recognizing a foreign judgment in Australia, where the four conditions for recognition and enforcement, referred to Overview part, have been established, the recognition of the foreign judgment can then only be challenged on limited grounds including a) where granting enforcement of the foreign judgment would be contrary to Australian public policy; b) where the foreign judgment was obtained by fraud; c) where the foreign judgment is penal or a judgment for a revenue debt; and d) where enforcement of the decision would amount to a denial of natural justice. However, exceeding the limitation period for an application for enforcement under the law of the original State does not constitutes any of the grounds above for refusal of recognition and enforcement by the court of the requested State. In the case of TYM v Ms. Y, the Australian court did not consider the expiration of enforcement limitation of Chinese judgment under Chinese law as a refusal ground to recognize and enforce it.

3. Expiration of Limitation Period and Lack of Enforceability

There are international standards to recognize and enforce a judgment, such as enforceability, provided by the 2005 Hague Convention on Choice of Court Agreements (“2005 Hague Convention”) and 2019 HCCH Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (“2019 Judgments Convention”, collectively as “Hague Conventions”). Article 8 (3) of the 2005 Hague Convention and article 4 (3) of the 2019 Judgments Convention stipulated in same way that “A judgment shall be recognized only if it has effect in the State of origin, and shall be enforced only if it is enforceable in the State of origin”, which was believed that if the limitation period in the State of origin expires, the judgment will not be entitled to circulation under the Convention.[10] Pursuant to Civil Procedural Law of China, within the limitation period of enforcement, if the judgment creditor submits a request prescribed by law, the court will compel the debtor to perform the obligations undertaken. Otherwise, the court will still accept the applicant for enforcement, at the same time, however, the participant subject to enforcement may raise an objection to the limitation period for enforcement, and if the court finds that the objection is established upon review, it rules not to enforce it.[11] In TYM v Ms. Y, the plaintiff submitted a summon to recognize and enforce the Chinese judgment, which was rendered 11 years ago by Chinese court then, before the court of NSW Australia. Apparently, the limitation period of applying for enforcement of the Chinese judgment concerned in China has expired the maximum 2 years, which means the judgment may not be enforced compulsorily by courts upon application of winning party when the other party raise an objection.

At the same time, Article 14 of the 2005 Hague Convention and Article 13 of 2019 Judgments Convention stipulate that the enforcement procedures are governed by the law of the requested State unless these Conventions provide otherwise.[12] In referring to the procedure for enforcement, Article 13 of 2019 Judgments Convention is intended to include the rules of the law of the requested State that provide a limitation period for enforcement of a judgment unless itself provides otherwise, which is stipulated in Article 4 (3) that enforcement in the requested State depends on the judgment being enforceable in the State of origin.[13] Therefore, a longer period of limitation for enforcement in the requested State will not extend the enforceability of a foreign judgment that is no longer enforceable in the State of origin. Conclusively, a foreign judgment whose limitation period expires under the law of the State of origin will not be enforced by the State of requested under the Hague Conventions. In TYM v Ms. Y, limitation for enforcing the Chinese judgment has expired in China though, the Australian court registered and enforced it, holding that Chinese judgment is not unenforceable because it was still within the 12-year limitation period from the date of the judgment issued according to Australian law.

China and Australia are neither contracting parties to Hague Conventions, it’s reasonable for Australian court to recognize and enforce Chinese judgment even if the limitation period of it has expired, because the court regarded which as a procedural issue and applied lex fori to ascertain it. However, the outcome of TYM v Ms. Y will be negative if the Hague Conventions come into force between China and Australia. Furthermore, there is another problem about reciprocity. The limitation period for enforcement of judgments in China is much shorter that it in Australia, which means the situation is common where an Australian judgment sought to bring enforcement proceedings in China during the period of enforceability of the judgment under the law of Australia but after the limitation period for enforcement under the law of China has expired. Under the principle of reciprocity, Chinese court may enforce Australian judgments according to Article 288 of Civil Procedural Law of China.[14] However, pursuant to Article 545 of Supreme People’s Court Interpretation of Civil Procedural Law of China, the provisions of Article 246 of the Civil Procedure Law shall apply to the period during which a party applies for recognition and enforcement of a legally effective judgment or ruling rendered by a foreign court, which means the period for applying for enforcement of foreign judgments is two years. Therefore, a Chinese court will probably not enforce an Australian judgment when the application expires two-year limitation period and there is an objection from the judgment debtor.

* Ph.D Candidate, Institute of International Law, Wuhan University.

[1] File number: 2021/226856, available at https://www.caselaw.nsw.gov.au/decision/181ff033dcea3902d40b24ea, accessed 10 October 2022.

[2] Jeanne Huang, ‘The first Mainland China monetary judgment enforced in NSW Australia: Bao v Qu; Tian (No 2) [2020] NSWSC 588’ (conflict of laws.net, 20 May 2020); Meng Yu, ‘Court of NSW Australia Recognizes Chinese Judgment for the First Time’ (China Justice Observer, 26 September 2021).

[3] Li Zhang, Shuting Chen, ‘Lao Lai Hides Abroad for More Than a Decade Still Can’t Escape the Law, The Australian court has once again recognized and enforced the Chinese court judgment’ (Legal Insights, 17 September 2022).

[4] The limitation period in this article referred to only relates to the enforcement of a foreign judgment and should not be conceptually confused with the limitation period governing the original substantive right or claim at stake, i.e., the limitation period to bring a legal action on the merits before a court.

[5] Article 246 of Civil Procedural Law of China provides “the period of application for enforcement is two years”.

[6] Available at https://jade.io/article/276236/section/54, accessed 10 October 2022.

[7] Para 42, (n 1).

[8] Guiqiang Liu, ‘Study on the Limitation Period in the Enforcement of Foreign Judgments’ (2020)4 China Journal of Applied Jurisprudence 109.

[9] Yongping Xiao, Principles of Private International Law (2003) Law Press China, p.4.

[10] Permanent Bureau, Limitation period on the Enforcement of Foreign Judgments in the Context of the 2018 Draft Convention, No 11 of May 2019.

[11] Lina Guo, ‘How much is known about implementation period’ (jszx.court.gov.cn, 14 July 2019), available at https://jszx.court.gov.cn/main/ExecuteCase/227653.jhtml, access 10 October 2022.

[12] “The procedure for recognition, declaration of enforceability or registration for enforcement, and the enforcement of the judgment, are governed by the law of the requested State unless this Convention provides otherwise. The court addressed shall act expeditiously.”

[13] Francisco Garcimartín, Geneviève Saumier, ‘Explanatory Report on the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters’ HCCH Permanent Bureau, para 310.

[14] Article 288 of Civil Procedural Law of China provides “If a legally effective judgment or ruling made by a foreign court requires recognition and enforcement by a people’s court of the People’s Republic of China, the party concerned may directly apply for recognition and enforcement to the intermediate people’s court with jurisdiction of the People’s Republic of China. Alternatively, the foreign court may, pursuant to the provisions of an international treaty concluded between or acceded to by the foreign state and the People’s Republic of China, or in accordance with the principle of reciprocity, request the people’s court to recognize and execute the judgment or ruling.”

This post was contributed by Jeremy Heymann, who is Professor of Law at Université Jean Moulin Lyon 3.

On 29 June 2022, the French Court of cassation ruled on the interplay between national exorbitant rules of jurisdiction and those contained in the recast Brussels I Regulation. As is well known, Article 6(2) of the Regulation provides that “any person domiciled in a Member State may, whatever his nationality, avail himself in that Member State of the rules of jurisdiction there in force, and in particular those of which the Member States are to notify the Commission pursuant to point (a) of Article 76(1), in the same way as nationals of that Member State”, against a defendant who is not domiciled in a Member State.

In France, such exorbitant rules of jurisdiction are to be found in Articles 14 and 15 of the French civil Code. Article 14 provides especially that “an alien, even if not residing in France, may be cited before French courts for the performance of obligations contracted by him in France with a French person”. He also “may be brought before the courts of France for obligations contracted by him in a foreign country towards French persons”. Even if the provision seems to be, in its wording, limited to contracts, it has been interpreted by the French courts to cover all claims (with very few exceptions).

In one of the two cases (no 21-10.106), the plaintiff was a Congolese who was employed in the Democratic Republic of Congo by a Congolese company, before he had to flee his country and seek to obtain refugee status in France, alleging that he had been pressured and threatened with death by his superiors in order to force him to take part in granting loans under illegal conditions. Once the refugee status obtained, the plaintiff brought an action in tort before the French courts against his former employer and its parent company.

On the merits of the case, on appeal, the Court of appeal of Paris declared that French courts lacked jurisdiction, on the grounds that the equality of treatment between nationals and refugees, provided for in Article 16 of the 1951 Refugee Convention, refers only to the rules of enjoyment of rights and not to the rules of jurisdiction. It therefore held that such a provision could not lead to the extension of the jurisdiction of a French court to the detriment of that of a foreign court.

The French Court of Cassation rightfully quashed such a ruling, holding that pursuant to Article 6(2) of the recast Brussels I Regulation, a foreigner may avail himself of Article 14 of the French Civil code (i.e. a rule of jurisdiction in force in France and notified as such to the European Commission pursuant to point [a] of Article 76[1]), under the sole condition that he is domiciled in France and the defendant is domiciled outside a Member State of the European Union (para. 12 of the ruling). In so ruling, the Court of cassation criticizes the Parisian Court of appeal for not having ensured the application of Article 14 of the French civil Code in the light of the recast Regulation. According to the Court of cassation, it is indeed up to the courts of the Member States to ensure the legal protection of litigants resulting from the direct effect of European Union Law (para. 10 of the ruling). Therefore, and even if Article 14 of the French civil Code is only intended for French nationals, the legal protection enshrined in Article 6(2) of the recast Brussels I Regulation prevails and makes the application of Article 14 of the French civil Code dependent on the conditions that it sets out. In other words, only the domicile of the plaintiff was relevant in this case, not his nationality.

The ruling of the Court of cassation is more than welcome to remind French courts that even though the plaintiff is a foreigner and the defendant domiciled outside a Member State, the recast Regulation may be applicable and command the application of the said Article 14.

In the other case (no. 21-11.722), the plaintiff was also a Congolese who was employed in the Democratic Republic of Congo by a Congolese company, before he had to flee his country and seek to obtain refugee status in France, alleging that he had been pressured and threatened with death by his superior. Once the refugee status obtained, this plaintiff also brought an action in tort before the French courts against his former employer and its parent company.

Unlike in the previous case, the Court of Appeal of Paris found Article 14 of the French civil Code applicable in this case and thus ruled that French courts had jurisdiction. The grounds of such an application were nonetheless debatable, as the Court relied on the provisions of the 1951 Refugee Convention and held that Article 16(2) of this Convention should be interpreted as establishing equal treatment between a French national and a refugee with regard to Article 14 of the French civil Code.

To uphold the ruling, the French Court of Cassation had to proceed to a substitution of grounds, as the Court of Appeal of Paris did not base its decision on the provisions of the recast Brussels I Regulation. To do so, the Court of Cassation argued once again that the courts of the Member States must ensure the legal protection of litigants resulting from the direct effect of European Union Law (para. 5 of the ruling), before holding that it follows from the combination of Article 6 and 21 of the Recast Brussels I Regulation and Article 14 of the French civil Code that, where neither the domicile of the defendant, nor the place of performance of the work nor the place where the establishment that hired the employee is located is situated in the territory of a Member State, the applicable rules of jurisdiction are the ones that have been notified to the European Commission, among which is Article 14 of the civil Code. The foreigners domiciled in the forum State may therefore avail themselves of the latter provision in the same way as French nationals (para. 9). Hence, as the Court of appeal noted that the plaintiff was domiciled in France and the defendants outside the European Union, and that the former had been hired in the Democratic Republic of Congo where his professional activity took place, the Court of Cassation deduced that, irrespective of his refugee status, the plaintiff could invoke Article 14 of the French civil Code (para. 10).

Although the line of reasoning and deduction of the French Cour de cassation appear to be valid, they remain however questionable. One may indeed wonder whether Article 6 of the recast Brussels I Regulation should find application where Article 21(2) cannot. Even if it is true that Article 20(1), provides that “[i]n matters relating to individual contracts of employment, jurisdiction shall be determined by th[e] Section [dedicated to such contracts], without prejudice to Article 6 […]”, such a reservation was already provided for in the former Brussels I Regulation, when the rule of jurisdiction provided for in Article 21(2) did not exist. The line of reasoning followed by the Court of cassation would have therefore been perfectly consistent with the facts at issue. Under the current recast Brussels I Regulation, one should yet remind that Article 6, par. 1, provides that, in the case where “the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall, subject to […] Article 21(2) […], be determined by the law of that Member State” (emphasis added). Thus, can national courts apply Article 6 of the recast Brussels I Regulation, and French courts apply in particular Article 14 of the French civil Code by way of consequence, when the criteria provided for in Article 21(2) are not met? The Court of Cassation has considered that the answer must be affirmative.

One could nonetheless argue that there may have been room on this matter for a request for a preliminary ruling to the European Court of Justice, in particular with a view to ascertaining the exact scope of Article 21(2) of the recast Regulation, as well as, more generally, the spatial scope of that instrument and the empire claimed by its own rules of jurisdiction.

On Friday, 2 December 2022, at 4 pm, EAPIL will hold an online seminar on the Rome II Regulation.

The seminar will shed light on the Study that was prepared in 2021 by the British Institute of International and Comparative Law (BIICL) in consortium with Civic Consulting to support
the preparation of the report on the application of the Rome II
Regulation.

The speakers will be: Eva Lein (BIICL / University of Lausanne), Constanze Bonzé (BIICL), Xandra Kramer (University of Rotterdam), Martin Ebers (University of Tartu), Marie Louise Kinsler (2 Temple Gardens, London).

More information (including a detailed program and registration
information) will be made public on this blog in November.

On 15 September 2022, the CJEU ruled in Uniqa Versicherungen AG v. VU (Case C‑18/21) that national COVID legislation postponing time limits may affect uniform time limits provided by the European Payment Order Regulation (EOP Regulation).

The case was a request for preliminary ruling from the Austrian Oberster Gerichtshof (Supreme Court). The request concerned a European Order for Payment (EOP) that was issued at the request of an Austrian insurance company, Uniqa Versicherungen AG, against a natural person, VU, resident in Germany. The EOP was served on VU on 4 April 2020, and the statement of opposition was lodged with the Bezirksgericht für Handelssachen Wien (Vienna District Court for Commercial Matters) by a letter posted on 18 May 2020. This meant that the opposition was made after the period of 30 days set by the European Payment Order Regulation (EOP Regulation) lapsed.

According to Article 16(2) EOP Regulation, a statement of opposition has to be lodged by the defendant contesting the claim within 30 days from the moment the party was notified of the EOP being issued against it. At first glance, considering the dates of the service of the EOP on VU and of the letter containing the opposition statement, the opposition was lodged too late. However, during the first period of the COVID-19 pandemic Austria adopted a special law that interrupted time limits in civil cases because of that limitation of activities of the courts and quarantine measures.

The Austrian Law on COVID-19 Paragraph 1(1) provided that all national procedural time limits for civil cases were postponed by five weeks between 22 March and 30 April 2020. The measure applied to all procedural periods that had not yet expired at its entry into force. This was the case for the concerned judgment. In consideration of this legislation, the decision of the first instance court was appealed by VU. The Appeal Court (Handelsgericht Wien) set aside the EOP on the basis of Paragraph 1(1) Austrian Law on COVID-19. Uniqa appealed the decision with the Oberster Gerichtshof (Supreme Court) on a point of law seeking the EOP to be restored.

The Supreme Court stayed national proceedings and made a request to the CJEU seeking to find out whether the national legislation – Austrian Law on COVID-19 – was applicable to the EOP. The court asked if Article 20 and 26 EOP Regulation precluded an interruption of the 30-day time limit for lodging a statement of opposition to a EOP, as provided for in Article 16(2) of that regulation, by Paragraph 1(1) Austrian Law on COVID-19.

The EOP being a single-sided not adversarial procedure until the order is served on the defendant provides for some mechanisms for the debtor to subsequently challenge the EOP and, hence, the initial claim submitted by the creditor. These mechanisms are the opposition (Article 16 EOP Regulation) and the review (Article 20 EOP Regulation).

The opposition is an essential mechanism for the defendant to terminate the EOP procedure and for the right to a fair trial (Uniqa, paragraph 25), but it has to be used within 30 days from the moment the EOP was served on the defendant. This can be done via a standard form (Form F EOP Regulation). One of the results of its lodgings is preventing the EOP from becoming enforceable. However, if an opposition is not lodged in time, the defendant will only be entitled to a review within the situations exhaustively listed in Article 20 EOP Regulation.

Thus, in the framework of the EOP procedure, the opposition is the ‘standard mechanism’ to contest the order (see also paragraph 27 of the Opinion of the Advocate General), while the review is intended to be an exceptional means to supplement the opposition as the way to challenge the EOP (see Recital 25 EOP Regulation and Uniqa paragraph 25).

The CJEU was asked to interpret Article 20 EOP Regulation on several occasions, and in particular paragraphs (1)(b) and (2), and it did so strictly (see Thomas Cook, Case C-245/14; eco cosmetics, Joint Cases C‑119/13 and C‑120/13; Novotech-Zala, Order C-324/12). The Court never agreed to an application by analogy of Article 20 EOP Regulation in order to safeguard the right of defense, and this path was followed also in Uniqa.

In the EOP procedure, the interplay between the provisions of the Regulation and national procedural rules comes up at different levels in the proceedings. As it happened in the Uniqa case, this can create uncertainties at times. The challenge comes from the fact the EOP Regulation establishes the main structure of the procedure and the minimum standards to be observed to guarantee a fair trial for the parties (see Flight Refund, case C-94/14 and Uniqa, paragraph 28), but national procedural rules are called to fill in the gaps where necessary.

For a number of procedural aspects, the Regulation refers expressly to national legislation for supplementing the European procedure rules (e.g. Articles 13 and 14 on service, Article 18(2) and Article 21(1) on enforceability requirements and procedures, Article 25 on court fees). Together with this, for matters that are not expressly dealt with by the Regulation, Article 26 EOP Regulation relies on the applicable national procedural law. For this second situation, based on previous CJEU case-law, such examples include national rules determining the national courts competent to handle the proceedings following an opposition (see Flight Refund), and the mechanism available to raise irregularities of service (see eco cosmetics). Another example is the calculation of the procedural deadlines of the time limits within the EOP procedure. As pointed out in paragraph 38 of the Opinion of the Advocate General Collins, the calculation of the time limit for the lodging of a statement of opposition can differ across the Member States. According to Regulation (EEC, Euratom) No 1182/71 determining the rules applicable to periods, in normal circumstances that have nothing to do with emergencies such as COVID-19 pandemic, procedural time limits may lapse at different moments across Member States. This is because the public holidays are not harmonized across the EU, and public holidays can lead to the prorogation of procedural deadlines until the first useful working day following the holiday. This applies when procedural deadline would fall during a free day. If the 30-day deadline for submission of the opposition mechanism established by Article 16(2) EOP Regulation would fall during a public holiday, the deadline would be extended until the next working day.

The interplay between European and national procedural rules for a number of aspects means that the application of national procedural rules will allow for diverse solutions within the framework of a uniform European procedure. And, these differences are not always immediately visible to the users.

The Court ruled that Articles 16, 20 and 26 EOP Regulation do not preclude the application of national legislation adopted during COVID‑19 pandemic (Austrian Law on COVID-19) which interrupted the procedural periods in civil matters including the 30-day time limit laid down by Article 16(2) for the defendant to lodge a statement of opposition to a EOP.

The uncertainty in the case was related to whether reliance should be made on Article 20(1)(b) or Article 26 EOP Regulation to deal with a statement of opposition filed after the lapse of the 30-day period established by the Regulation.

The CJEU had two options:

• reliance on Article 26 EOP Regulation would involve the application of the national legislation adopted as a consequence of the COVID-19 pandemic to interrupt the procedural periods in civil matters for a determined period of time; consequently, the opposition time frame would have still been applicable, and the defendant would be able to make use of the general mechanism to contest the order. This approach follows the line of interpretation established by the CJEU in earlier judgments (i.e. eco cosmetic, Flight Refund), and maintains an interplay between European and national procedural rules that may result in diverse solutions within the framework of a uniform European procedure. Or,
• the alternative of Article 20(1)(b) EOP Regulation concerning ‘exceptional circumstances’ that would lead to a uniform rule being applicable.

The Court followed on its established practice of relying on Article 26 rather than Article 20 EOP Regulation, but with a different approach than in previous cases.

The judgment reaffirmed the strict interpretation of the ‘extraordinary circumstances’. Additionally, it developed the previous reasoning in relation to the concept of ‘extraordinary circumstances’ by explicating that such circumstances have to ‘correspond to circumstances specific to the individual situation of the defendant concerned’ such as if VU would have been hospitalized because of COVID-19 and that would have prevented him from exercising his right to opposition (paragraph 32). By giving this example, different to previous case law, the Court in Uniqa positively qualifies what would be an ‘extraordinary circumstance’ for the purpose of Article 20. Until Uniqa the CJEU only identified situations which did not qualify as an ‘extraordinary circumstance’ (see Thomas Cook, eco cosmetics, Novotech-Zala). The factual situation in the case was created by a systemic failure of the justice system in Austria due to the pandemic, thus, based on the logic of the Court, the framework provided by Article 20 would not be applicable as it did not concern an ‘individual situation of the defendant’.

Although the application of an uniform rule provided by Article 20 EOP Regulation may appear a desirable approach, in this particular case it would not have been the just solution to adopt. Rightfully so, the court did not prioritise it as it would have led to a discriminatory outcome between parties relying on national procedures and benefiting from a suspension of the procedural time and parties choosing to use a European procedure who would have been sanctioned by the limitation of the activities of the courts during a period of five weeks. The exclusion of the EOP from the effects of Paragraph 1(1) Austrian Law on COVID-19, and the limitation of the available mechanisms for VU to contest the EOP would mean that he would only have the very limited option of the review to deal with the consequences of the order. Additionally, the situations covered by Article 20 EOP Regulation are strictly interpreted (see section on The EOP opposition and review mechanisms). All in all, such interpretation would have resulted in a limitation of VU’s right to access to justice.

Furthermore, Paragraph 1(1) Austrian Law on COVID-19 did not make any distinction between national and cross-border procedures in civil cases (principle of equivalence), nor did compliance with the rule undermined in any way the balance that the EOP Regulation creates between the rights of both parties (principle of effectiveness) during the period of the pandemic addressed by the Austrian law. The guarantees put in place by the EOP Regulation for the defendant remained available, as well as the possibility the Regulation created for the applicant seeking to obtain an order for an uncontested claim. The period of suspension of procedural timeframe was clearly indicated, this was limited to a period of the national emergency, and the difference in lapse of procedural time was not necessarily an unexpected outcome in the EOP procedure given the logic of the Regulation (EEC, Euratom) No 1182/71 determining the rules applicable to periods, although in this case it involved a longer than usual period of time that was related to the COVID-19 pandemic.

The Court of Justice delivered last month (15 September 2022) its judgment in case C‑18/21 (Uniqa Versicherungen AG v VU), which is about the EOP and COVID-19:

“Articles 16, 20 and 26 of Regulation (EC) No 1896/2006 […] must be interpreted as not precluding the application of national legislation, which was adopted when the COVID‑19 pandemic arose and which interrupted the procedural periods in civil matters for approximately five weeks, to the 30-day time limit laid down by Article 16(2) of that regulation for the defendant to lodge a statement of opposition to a European order for payment”.

Source: https://curia.europa.eu/juris/document/document.jsf?docid=265546&mode=req&pageIndex=6&dir=&occ=first&part=1&text=&doclang=EN&cid=1393109

According to Article 7 point 1 of the Brussels I bis Regulation, proceedings in matters relating to a contract may be brought in the courts for the place of performance of the obligation in question.

For the rule to be applied, it needs to be a matter relating to a contract. The issue of whether there was a contractual relation or not arose before Danish courts in a case between a Swedish and a Danish company.

In a judgment of 27 September 2022, the Danish Supreme Court held that the existence of a contract must be made “sufficiently probable”.

The background to the case was that the two companies, both in the real estate sector, had had informal cooperation with each other. In an exchange of e-mails representatives for the companies discussed future businesses. The Danish company meant that the exchange of e-mails constituted contractual obligations for the Swedish company under the Brussels I bis Regulation. As arguments for this understanding, the Danish company meant that there was an agreement on payment for the potential broking of a deal. On the other hand, the Swedish company meant that the parties traditionally had had a “friendly relation”, in which they had helped each other without the payment of any fees.

The Danish Supreme Court held that according to established Danish case law, the legal burden of proof in those matters is that the existence of a contract must be “sufficiently probable” (“tilstrækkeligt sandsynliggjort”). The court held that this burden of proof was met as the e-mails indicated that the Swedish company was willing to pay a broker’s fee if it could establish contact with a buyer of its Swedish property portfolio. Hence, the court concluded that the relation between the companies had a contractual ground and that it was a service agreement in the meaning of the simplification rule in article 7 point 1, lit. (b). As the place of performance for such contracts is in the country where the services are provided, Danish courts should have jurisdiction according to the Supreme Court.

It is notable that the Danish Supreme Court referred to Danish case law instead for CJEU case law for the issue of whether a tacit contractual relationship existed. Older CJEU case law indicated that the issue was to be done according to national law (see e.g. Effer SpA v. Kantner, C-38/81 para 7). However, in its more modern case law, the CJEU has given more detailed instructions for how a tacit contractual relation should be proven. In the CJEU judgment Granarolo, C-196/15, the CJEU held that

[d]emonstration of the existence of a tacit contractual relationship of that kind must be based on a body of consistent evidence, which may include in particular the existence of a long-standing business relationship, the good faith between the parties, the regularity of the transactions and their development over time expressed in terms of quantity and value, any agreements as to prices charged and/or discounts granted, and the correspondence exchanged.

Even if the Danish burden of proof rule seems to be compatible with the Granarolo test, it would have been preferable if the Danish Supreme Court expressly recognized the modern developments of the CJEU by referring to the CJEU case law and applying the criteria set out there.

The second issue of 2022 of the Journal of Private International Law is out. It contains the following articles:

Thalia Kruger, Laura Carpaneto, Francesca Maoli, Sara Lembrechts, Tine Van Hof, Giovanni Sciaccaluga, Current-day international child abduction: does Brussels IIb live up to the challenges?

Regulation 2019/1111 tries to tackle the new challenges arising from societal changes and legal developments in international child abduction. The result is a sophisticated set of rules centred on the child and aimed at enhancing their protection. The Regulation provides for the hearing of the child and for speedy and efficient proceedings. In it the EU acknowledges its role in the protection of human and children’s rights and sets goals towards de-escalating family conflicts. The new EU child abduction regime is at the same time more flexible than its predecessor allowing consideration of the circumstances characterising each single case in the different stages of the child abduction procedure.

Omar Vanin, Assisted suicide from the standpoint of EU private international law

The article discusses the conflict-of-laws issues raised by such compensatory claims as may be brought against health professionals and medical facilities involved in end-of-life procedures. The issues are addressed from the standpoint of EU private international law. The paper highlights the lack of international legal instruments on assisted-suicide procedures. It is argued that the European Convention on Human Rights requires that States provide a clear legal framework concerning those procedures. The author contends that the said obligation has an impact on the interpretation of the relevant conflict-of-laws provisions of the EU.

Shahar Avraham-Giller, The court’s discretionary power to enforce valid jurisdiction clauses: time for a change?

The paper challenges the well-rooted principle in the Anglo-American legal tradition that courts have discretion whether they should enforce a valid jurisdiction clause. The paper highlights the ambiguity and uncertainty that accompany this discretionary power, which raises a serious analytical problem. The paper then analyses two factors that shaped this discretionary power – jurisdictional theories and the general principle of party autonomy in contracts. Based on the analysis, the paper argues that the time has come to end the courts’ discretionary power with respect to the limited context of the enforcement of valid jurisdiction clauses. The proposal relies on a number of foundations: contractual considerations that relate to autonomy and efficiency; jurisdictional and procedural considerations, including the consent of a party to the jurisdiction of the court by general appearance; the increasing power of parties to re-order procedure; the more appropriate expression of the forum’s public interests and institutional considerations through overriding mandatory provisions; and finally the legal position regarding arbitration agreements and the willingness of a common law legal system such as the United Kingdom to accede to the Hague Convention on Choice of Court Agreements.

Thu Thuy Nguyen, Transnational corporations and environmental pollution in Vietnam – realising the potential of private international law in environmental protection

Many transnational corporations have been operating in Vietnam, contributing to economic and social development in this country. However, these actors have caused a number of high-profile environmental incidents in Vietnam through the activities of their local subsidiaries, injuring the local community and destroying the natural ecosystem. This paper discloses the causes of corporate environmental irresponsibility in Vietnam. Additionally, this paper argues that Vietnam’s private international law fails to combat pollution in this country. To promote environmental sustainability, Vietnam should improve ex-ante regulations to prevent and tackle ecological degradation effectively. Additionally, this paper suggests that Vietnam should remedy its national private international law rules to facilitate transnational liability litigation as an ex-post measure to address the harmful conducts against the natural ecosystem of international business.

Daria Levina, Jurisdiction at the place of performance of a contract revisited: a case for the theory of characteristic performance in EU civil procedure

The article revisits jurisdiction in the courts for the place of performance of a contract under Article 7(1) of the Brussels Ia Regulation. It proposes a new framework for understanding jurisdiction in contractual matters by offering a comparative and historical analysis of both the place of performance as a ground for jurisdiction and its conceptual counterpart, the place of performance as a connecting factor in conflict of laws. The analysis reveals that jurisdiction in the courts for the place of performance is largely a repetition of the same problematic patterns previously associated with the place of performance as a connecting factor. The article asserts that the persisting problems with Article 7(1) of the Brussels Ia Regulation are due to the inadequacy of the place of performance as a ground for jurisdiction and advocates for the transition to the theory of characteristic performance in EU civil procedure.

Tobias Bachmeier, Martin Freytag, Discretional elements in the Brussels Ia Regulation

Following continental European traditions, the Brussels Ia Regulation forms a rigid regime of mandatory heads of jurisdiction, generally not providing jurisdictional discretion. Nonetheless, to some limited extent, the Brussels regime includes discretional elements, in particular when it comes to lis pendens (see Articles 30, 33 and 34 of Brussels Ia). Reconsidering the strong scepticism towards forum non conveniens stipulated by the CJEU in its Owusu case, the fundamental question arises whether a substantial form of discretion concerning jurisdictional competence might be (in)compatible with the core principles of the Brussels regime.

Piotr Mostowik, Edyta Figura-Góralczyk, Ordre public and non-enforcement of judgments in intra-EU civil matters: remarks on some recent Polish-German cases

The article discusses the enforcement of foreign judgments within the European Union and the public policy (ordre public) exception. It is mainly focused on some recent judgments of Polish and German courts. On 22nd December 2016 and 23rd of March 2021 rulings in cases of infringement of personality rights were issued by the Court of Appeal in Cracow (ordering an apology and correction). The enforcement of the former ruling was dismissed by the German Supreme Court (Bundesgerichtshof, BGH) (IX ZB 10/18) on 19th July 2018. The non-enforcement was justified by invoking German ordre public and “freedom of opinion” as a constitutional right stipulated in Article 5 of the German Constitution (Grundgesetz). A reference to the CJEU ruling of 17 June 2021 is also presented.
After presenting the issue of ordre public in the context of enforcement of foreign judgments within the EU, the authors evaluate as questionable the argumentation of the BGH in its 2018 judgment. The Polish ruling ordering the defendant to correct and apologise for the false statement was included by the BGH in the category of “opinion” (Meinung) protected by the German Constitution. Enforcement of the judgment of the Polish court in Germany was held to be contrary to this German constitutional right and the enforceability of the Polish judgment was denied as being manifestly contrary to German public policy.
The authors support the functioning of the ordre public clause in intra-EU relations. It is justified inter alia by the large differences in EU legal systems and future possible changes. However, the common standards of the ECHR should be particularly taken into consideration when applying the public policy clause, because they co-shape the EU legal systems.

On Friday, December 2, at 4 pm, the European Association of Private International Law (EAPIL) will hold an Online-Seminar on the Rome II Regulation. The Seminar will shed light on the Study that was prepared in 2021 by the British Institute of International and Comparative Law (BIICL) in consortium with Civic Consulting to support the preparation of the report on the application of the Rome II Regulation.

Speakers will be:

• Eva Lein, BIICL (UK)/University of Lausanne (Switzerland)
• Constanze Bonzé, BIICL (UK)
• Xandra Kramer, University of Rotterdam (Netherlands)
• Martin Ebers, University of Tartu (Estonia)
• Marie Louise Kinsler, 2 Temple Gardens, London (UK)

More information (including a detailed program and registration information) will be made available via this blog in November.

Between 24 and 27 October 2022, an international congress on the impacts of the war in Ukraine will take place at the University of Barcelona, organized by Cristina González Beilfuss and Xabier Fernández Pons.

On the face of the program, it looks as if most of the interventions are devoted to public law-related aspects of the war. There is nevertheless an open call for papers which may be taken up to present a couple of specific private law problems likely (unfortunately) to result from the war.

In a wider perspective, the event may be an occasion to reflect on cross-border cooperation in civil and commercial matters, family and successions included, in relation to Ukraine. I definitely think it worth to explore the landscape as far as the European Union is concerned, not only with a view to a possible accession in the future. This being said, I fear that many of us (scholars of EU Member States) are not in a position to conduct a deep research, lacking the necessary language skills.

Having this in mind, the purpose of this post is to draw the attention of Ukrainian scholars staying in Europe (let’s hope on-going funding programs will not stop) to address the topic, that is, to walk us into the PIL of a country to which the EU is already linked by projects and conventions.

This can perfectly be done through contributions to this blog. In this sense, by way of example I would like to propose two topics that could be briefly addressed.

The first one would delve into the civil cooperation aspects of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Ukraine, of the other part. The original document was signed on March 21 and 27 June 2014; it has been amended several times, the last consolidated version being of 22 November, 2021. It appears that only one provision of the Agreement focuses directly on judicial cooperation on civil matters, namely Article 24 paragraphs 1 and 2 in Title III, ‘Justice, Freedom and Security’:

‘Legal cooperation

1. The Parties agree to further develop judicial cooperation in civil and criminal matters, making full use of the relevant international and bilateral instruments and based on the principles of legal certainty and the right to a fair trial.
2. The Parties agree to facilitate further EU-Ukraine judicial cooperation in civil matters on the basis of the applicable multilateral legal instruments, especially the Conventions of the Hague Conference on Private International Law in the field of international Legal Cooperation and Litigation as well as the Protection of Children.’

Research could be done on the actual scope of the provision, its background, whether it has already crystallized on specific proposals or, simply, on how much judicial cooperation in civil and commercial matters is already covered by Hague conventions.

In addition to this topic, another one of narrower scope is suggested by the case of OKR, C-387/20, a preliminary reference submitted to the Court in 2020 on the Succession Regulation. The second question referred to the Court read

‘Must Article 75, in conjunction with Article 22, of [the Succession Regulation] be interpreted as meaning that, in the case where a bilateral agreement between a Member State and a third country does not govern the choice of law applicable to a case involving succession but indicates the law applicable to that case involving succession, a national of that third country residing in a Member State bound by that bilateral agreement may make a choice of law?

and in particular:

–        must a bilateral agreement with a third country expressly exclude the choice of a specific law and not merely govern the lex successionis using objective connecting factors in order for its provisions to take precedence over Article 22 of [the Succession Regulation]?

–        is the freedom to choose the law governing succession and to make the applicable law uniform by making a choice of law – at least to the extent determined by the EU legislature in Article 22 of [the Succession Regulation] – one of the principles underlying judicial cooperation in civil and commercial matters in the European Union, which may not be infringed even where bilateral agreements with third countries apply which take precedence over [the Succession Regulation]?’

The ’third country’ was the Ukraine; at stake was whether a Polish notary could draw up a notarial will with a clause stipulating that the law applicable to the succession would be Ukrainian law, i.e., the national law of the grantor. The request was declared inadmissible on 21 September 2021 under Article 53(2) of the Rules of Procedure of the Court, after the Court got from the notary an explanation in relation to his duties in the context of the procedure in order to determine whether or not he had, in the present case, the status of a ‘court or tribunal’ within the meaning of Article 267 TFEU. The substantive question remains thus to be answered – and it probably will, for the request is back before the Court, this time sent by the Sąd Okręgowy w Opolu. While Ukrania is, for obvious reasons, not a country presenting observations, nor can scholar Ukranian views of the problem be determinant , it is not without interest to learn how Article 75 of the Succession Regulation is seen from the non-EU signatory countries to the bilateral agreement.

José Angelo Estrella Faria (UNCITRAL) has published his Hague Lectures on the protection of religious cultural property in public international law and private international law (La protection des biens culturels d’intérêt religieux en droit international public et en droit international privé) in the Collected Courses of The Hague Academy of International Law (volume 421). 

The author has kindly provided the following English abstract:

The protection of religious cultural property has three dimensions: physical conservation and preservation of the property (material protection); measures aimed at guaranteeing access to cultural property and maintaining their religious or liturgical function (intangible protection); and finally, protection against dissipation and dispersion (localization and physical attachment). Public law protects these three dimensions through various preventive and repressive measures, which are supplemented by rules of private law governing the conditions of circulation of these goods. The course addresses certain aspects of the legal treatment of cultural property with implications for religious cultural property, both at the international and national level, and the way in which national law takes the specific rules and needs of religious communities into consideration. The course is divided in two chapters: the first focusing on the protection of “religious cultural property” under public international law; the second part dealing with their treatment under private international law. 

After an introduction that discusses the notion of “cultural property” and “religious cultural property”, the first section of chapter I summarizes the evolution of the relevant rules of public international law from the first codifications of the law of war until the development of a framework for the protection of “world heritage”.  The chapter explains the protection of “historical monuments”, “works of art” and other cultural property in the customary law of armed conflict and in the special regime of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.  It then focuses on the special treatment of “places of worship” in the customary law of armed conflict, in international humanitarian law and in international criminal law as reflected in the case law of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court. The second section of chapter I deals with the international framework for the protection of religious cultural property in times of peace.  It begins by discussing the place of religious cultural property in the 1972 UNESCO Convention on Concerning the Protection of the World Cultural and Natural Heritage and the possible tension between obligations to preserve cultural heritage and the worship or liturgical use of religious cultural heritage.  The role of the protection of religious cultural property in bilateral agreements is also considered, notably from the in the practice of concordats of the Holy See.  The section concludes with an analysis of the territorial attachment of religious cultural property within the framework of the 1970 UNESCO Convention on the Means of Prohibiting and of Ownership of Cultural Property, preventing the illicit import, export and transfer and the mechanisms for repatriation following wrongful removal.

The first section of chapter II examines the law applicable to the circulation of religious cultural property in private law and considers, in particular:  limits to the application abroad of mandatory rules concerning religious property and to the extraterritorial effect of export restrictions; the inalienability of cultural property religions; international application of the lex originis and the legal effect of internal rules of religious communities governing the management of their cultural heritage. The course concludes in the second section of chapter II discussing the conditions for a civil restitution or return action, including the right to sue and limitation periods, the law applicable to transfers of ownership and rules on good faith acquisition of religious cultural property. It presents several cases that illustrate the difficulty that religious communities and groups may face to obtain restitution of cultural property removed from places of worship and related premises in violation of rules governing their religious function and use. It also considers the conditions for the return of goods to the country of origin in the event of theft or illicit export and the effect of restitution on the right of ownership under the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects of 19995 and the European Union Directive 2014/60 on the return of cultural objects unlawfully removed from the territory of a Member State.

More details, including the table of contents, can be found here.

Although it has in fact been out for several months now, there are few books more deserving of recognition on this blog than Étienne Farnoux’ impressive work on the substantive considerations that inform the rules on international jurisdiction.

Across the book’s 700+ pages, Farnoux launches a sustained attack on the principe de proximité as the foundation of most rules on international jurisdiction, including, most importantly, the forum delicti. He does so in two steps (as any serious French scholar would do): He first discusses the insufficiencies of the proximity-based status quo before developing an alternative approach to international jurisdiction based on procedural and, more importantly, substantive (i.e. policy) considerations.

In the first part, Farnoux explains how localised connecting factors are regularly manipulated to achieve a certain result, most often to create a forum actoris, a practice particularly prevalent in the case law of the CJEU. His analysis is based on a wide range of judgments – Shevill, Kronhofer, Kolassa, Löber, eDate, Bolagsupplysningen, Wikingerhof, Gtflix Tv, … – but does not fail to acknowledge the occasional nuance, as reflected, i.a., by the recent decisions in Vereniging van Effectenbezitters and Mittelbayerischer Verlag. Farnoux deconstructs the alleged objectives of the the principe de proximité – ease of evidence, foreseeability, and effective administration of justice – and demonstrates their inability to justify the allocation of adjudicative jurisdiction in a growing number of inherently delocalised torts.

In the second part, Farnoux therefore proposes a complete change of perspective for international jurisdiction on torts. Rather than chasing an ever more elusive proximity, two sets of considerations should drive the search for the appropriate connecting factor: la justice procédurale, i.e. the just allocation of procedural advantages between claimant and defendant, and la justice substantielle, i.e. the substantive interests of both parties, and of the potential forum. Based on these considerations, Farnoux develops a set of two propositions: First, he suggests to replace the forum delicti by a forum victimae (or forum actoris contrôlé), which would vest jurisdiction in the domicile of the claimant provided that their claim passes a prima-facie exam of its substantive merit – a proposition that certainly holds a claim to intellectual honesty if compared to the practically similar status quo of the Brussels Ia regime, but comes with its own set of problems, including the challenge of examining the merits of a claim before jurisdiction has been established (admittedly a common exercise in English law, though). Alternatively, he proposes to create a new forum protectionis in tort for structurally weaker parties, a proposition that may have a wider appeal, not least for avoiding to abolish the principle of actor sequitur entirely. In the final part of the book, these proposals are supplemented by some thoughts on how the interests of the prospective fora also influence the rules on international jurisdiction.

All in all, Farnoux masterfully combines a thorough, yet very timely analysis of the existing rules on international jurisdiction for torts through the lens of the principe de proximité with some innovative, well-argued propositions on how the latter could be replaced. The book has deservedly won a series of prizes already and is all but certain to become a staple in the library of any scholar working on international jurisdiction.

The Journal of Private International Law will be holding its 9th Conference at the Singapore Management University from 3 to 5 August 2023.

All those interested in making a presentation at the conference and in producing a final paper to be submitted for publication in the Journal are invited to provide for an abstract that should be up to 500 words in length and should clearly state the name(s) and affiliation(s) of the author(s). Abstracts can fall within any subject matter the Journal deal with and can be offered by people at any stage of their career, including postgraduate students.

Since there will be a mixture of plenary (Friday) and parallel panel sessions (Thursday afternoon and Saturday morning), it is to be indicated on the abstract whether you are willing to present in either or are only willing to do so in one or the other.

Presentation at the conference will depend on whether your abstract is selected by the Editors of the Journal (Jonathan Harris KC, King’s College, and Paul Beaumont FRSE, University of Stirling) and the Conference Organiser (Adeline Chong, Singapore Management University). The subsequent article should be submitted to either of the editors of the Journal before the end of 2023. Publication in the Journal will be subject to the usual system of refereeing by two experts in the field.

Abstract shall be submitted by 16 December 2022 at jpil2023@smu.edu.sg.

More information on the conference and the related registration can be found here.