Droit international général

Cross-Border Litigation in Central Europe – EU Private International Law Before National Court, is the tile of a collection of essays, edited  by Csongor István Nagy and just published by Kluwer.

Cross-Border Litigation in Central Europe, an indispensable reference book, provides a detailed understanding of the process of seeking justice in cross-border disputes in Central Europe. It is the first of its kind to offer a comprehensive and analytical overview of the judicial practice in the region and to make this case law accessible in English.

The book provides a critical insight into the case law of ten Central European States relating to various fields of EU private international law (general civil and commercial, insolvency, family and succession matters).

The contributions were written by Dora Zgrabljic Rotar, Tena Hosko, Katazyna Bogdzevic, Pavle Flere, Lucia Gandzalova, Justyna Gumula-Kedracka, Monika Jagielska, Elena Judova, Inga Kacevska, Wojciech Klyta, Vadim Mantrov, Gabor Palasti, Magdalena Sobas, Janos Szekely, Dace Trupovniece, Jiri Valdhans, Emod Veress, and Lucie Zavadilova.

Meanwhile, a paper issued from the research on which the book builds has appeared on SSRN. It is authored by Csongor Nagy and is titled EU Choice-Of-Law Rules before Hungarian Courts: Contractual and Non-Contractual Obligations.

The abstract reads as follows:

This article is based on the Hungarian strand of the multiyear CEPIL project carried out with the generous support of the European Commission Directorate General Justice and Consumers. One of the leading considerations behind the CEPIL project was that the value of private international law unification can be preserved only if EU private international law instruments are applied correctly and uniformly, hence, the European endeavours in the field should not and cannot stop at statutory unification but need to embrace the judicial practice and make sure that besides the vertical communication between the CJEU and national courts, there is also a horizontal communication between national courts, authorities and the legal community in general. The purpose of this publication is to contribute to this horizontal communication between Member State courts by providing an analytical insight into the Hungarian case-law on the Rome I and the Rome II Regulations.

Additional information on the edited book, including the table of contents, is available here.

Lydia Lundstedt has prior review of the judgment in CJEU C-399/21 IRnova AB v FLIR Systems AB (who had been business partners in the past) here. Swedish courts are clearly busy referring the private international law elements of patent cases to the CJEU.

Of particular note is that a 3 judge chamber would seem to have ruled out reflexive effect as casually as if it were swatting a fly.

On 13 December 2019, IRnova brought an action before the Patent and Market Court seeking, inter alia, a declaration that it had a better right to the inventions covered by international patent applications, subsequently supplemented by European, US and Chinese patent applications deposited by FLIR in 2015 and 2016, and by US patents granted to FLIR on the basis of those latter applications. In support of that action, IRnova had stated, in essence, that those inventions had been made by one of its employees, meaning that that employee had to be regarded as their inventor or, at the very least, as their co-inventor. IRnova therefore argued that, as the inventor’s employer and thus successor in title, it had to be regarded as the owner of the inventions. However, FLIR, without having acquired those inventions or otherwise being entitled to do so, deposited the applications in its own name.

The court had dismissed jurisdiction viz the Chinese and US patent applications, and the US patents, on the ground, in essence, that it regarded the action concerning the determination of the inventor as being linked to the registration and validity of the patents, and it applied A24(4) BIa reflexively. The Appeals Court referred the issue on reflexive effect to the CJEU, in the following terms:

‘Is an action seeking a declaration of better entitlement to an invention, based on a claim of inventorship or co-inventorship according to national patent applications and patents registered in a non-Member State, covered by exclusive jurisdiction for the purposes of Article 24(4) of [the Brussels Ia Regulation]?’

however the CJEU reformulated [22-24] the case as not concerning reflexive effect at all, rather, enquiring about the scope of the A24(4) gateway.

The Court first of all [25] ff makes a point of confirming its broad reading of the ‘international’ element required to trigger European private international law, referring to CJEU Owusu.

It then [35] would seem to rule out reflexivity in a very matter of factly way (and as Lydia also noted, without AG Opinion):

as has already been pointed out in paragraph 26 of the present judgment, the patent applications at issue in the main proceedings were deposited and the patents concerned were granted not in a Member State, but in third countries, namely the United States and China. As Article 24(4) of the Brussels Ia Regulation does not envisage that situation, however, that provision cannot be regarded as applicable to the main proceedings.

This may have already answered a core question in  BSH Hausgeräte v Aktiebolaget Electrolux .

[36] ff it refers ia to CJEU Hanssen and to the exceptional nature of A24 [39]. It holds that [42]

the main proceedings relate not to the existence of the deposit of a patent application or the grant of a patent, the validity or lapse of a patent, or indeed an alleged right of priority by reason of an earlier deposit, but to whether FLIR must be regarded as being the proprietor of the right to the inventions concerned or to a portion of them.

[47] it refers ia to the fact that fact that

an examination of the claims of the patent or patent application at issue may have to be carried out in the light of the substantive patent law of the country in which that application was deposited or that patent was granted [however it ] does not require the application of the rule of exclusive jurisdiction laid down in Article 24(4) of the Brussels Ia Regulation

Much relevant and surprisingly succinct on the reflexivity issue.

Geert.

EU Private International Law, 3rd ed. 2021, 2.208 and 2.548.

On 9 September 2022, the Max Planck Institute for Procedural Law Luxembourg hosted a conference on the Brussels Ibis Reform, in collaboration with the KU Leuven and the EAPIL.

The Brussels Ibis Regulation is certainly the fundamental reference-instrument of cross-border judicial cooperation in civil matters within the European Union. Since its establishment in 1968, it has been constantly evolving. At present, the European Commission is required to present a report on the application of the Regulation and to propose improvements. Against this background, a Working Group was set up within the network of the European Association of Private International Law (EAPIL) to draft a position paper. The group is led by Burkhard Hess (MPI Luxembourg) and Geert van Calster (KU Leuven). Members of the working group answered a questionnaire, reporting the application and possible shortcomings of the Brussels Ibis Regulation in their respective jurisdictions.

The topics of the conference were based on the 19 reports that were received from 16 working group members and 3 observers. Additional experts presented topics ranging from insolvency proceedings to third state relationships. The aim of the conference is to prepare a position paper. The paper will be presented to the European Commission to advise it on the evaluation process. EAPIL Members are invited to join the Members Consultative Committee (MCC) of the EAPIL Working Group on reforming Brussels Ibis.

After welcome notes by Burkhard Hess (MPI Luxembourg), Andreas Stein (Head of Unit, DG JUST – A1 “Civil Justice”, European Commission European Commission, connected via Video from outside), Gilles Cuniberti (University of Luxemburg/EAPIL) and Geert van Calster (KU Leuven), the first panel, chaired by Marie-Élodie Ancel, Paris, focused on the role and scope of the Brussels Ibis Regulation in European Procedural Law. Dário Moura Vicente, Lisbon, highlighted the Regulation’s indispensable function as a “backbone” of European civil procedural law, reaching far beyond civil and commercial matters into e.g. family law, in order to increase consistency. Room for improvement in this respect was identified, inter alia, for the definition of the substantive scope, in particular in relation to arbitration, the subjective or personal scope, in particular in relation to third state domiciled defendants, and for coordinating the relationships with other instruments such as the GDPR. Following up on the latter aspect, Björn Laukemann, Tübingen, analysed the delineation of the Regulation and the European Insolvency Regulation with a view to annex actions and preventive restructuring proceedings. No imminent need for textual reform was seen for the former, whereas for the latter suggestions for amendments of the Recitals were submitted. Vesna Lazic, Utrecht/The Hague, discussed the controversial judgment of the ECJ in London Steamship that certainly put again on the table the question whether the arbitration exception of the Regulation should be drafted more precisely. Whereas some argued that the large differences in the arbitration laws of the Member States would not allow any unifying approach based on notions of mutual trust, others held that there was some sense in the ECJ’s attempt not to get blocked the Spanish judgments in the UK via arbitration. As to the suggestion of a full-fledged European Arbitration Regulation, one reaction was that this might result in unintended consequences, namely exclusive external competence by the EU on arbitration. Further, the question came up whether in light of the ECJ’s judgment in London Steamship its earlier decision in Liberato should be rectified in the reform. In Liberato, the ECJ held that a violation of the lis pendens rules of the Regulation does not amount to a ground for refusal of recognition whereas in London Steamship the Court held that the lis pendens rules formed part of the fundamental principles of the Regulation to be respected under all circumstances. Speaking of lis pendens, another question in the discussion was whether a backbone instrument like the Brussels Ibis Regulation would or should allow de lege lata transferring certain core elements, such as the rules on lis pendens, to other instruments without any rules on lis pendens, such as the European Insolvency Regulation. The ECJ in Alpine Bau GmbH had rejected the application of Article 29 Brussels Ibis Regulation by way of analogy, as it considered the EIR as a special and distinct instrument of its own kind, so the question was whether analogies from the “backbone” should be encouraged expressly where appropriate in the concrete constellation.

The second panel, chaired by Burkhard Hess, dealt with collective redress. François Mailhé, Picardy, Stefaan Voet, Leuven, and Camelia Toader, Bucharest, discussed intensely the cross-border implications of the new Representative Actions Directive, in particular the potential need for specific heads of jurisdiction, as the Directive was described as subtly seeking to encourage pan-European actions but at the same time leaves a number of options to the Member States. Obviously, this means that provision and allocation of – ideally one-stop – jurisdiction would be of the essence, e.g. by extending the forum connexitatis of Article 8 (1) Brussels Ibis Regulation to connected claimants, possibly even for third state domiciled claimants. However, concerns were formulated that the Brussels Ibis Regulation should not be “politicized” (too strongly). In addition, the importance of other aspects were highlighted such as coordinating and consolidating proceedings, the delineation of settlements and court judgments in respect to court-approved settlements (probably to be characterised as judgments) and the essential role of funding. The overall tendency in the room seemed to be that one should be rather careful with (at least large-scale) legislative interventions at this stage.

The third panel, chaired by Thalia Kruger, Antwerp, focused on third state relations. Chrysoula Michailidou, Athens, discussed potential extensions of heads of jurisdiction for third state domiciled defendants, in particular in respect to jurisdiction based on (movable) property and a forum necessitatis. Alexander Layton, London, focused on the operation of Articles 33 and 34 and reiterated the position that discretion of the court to a certain extent was simply inevitable, also in a distributive system of unified heads of jurisdiction, as it is provided for e.g. in these Articles, in particular by the tool of a prognosis for the chances of recognition of the future third state judgment (“Anerkennungsprognose”) in Article 33(1) lit. a and Article 34(1) lit. b, and by the general standard that the later proceedings in the Member State in question should only be stayed if the Member State court is satisfied that a stay is necessary for the proper administration of justice (Articles 33(1) lit. b and 34(1) lit. c). Further, the question was posed why Articles 33 and 34 would only apply if the proceedings in the Member State court are based on Articles 4, 7, 8 or 9, as opposed to e.g. Articles 6(1) and sections 3, 4 and 5 of Chapter II. The author of these lines observed that relations to third states should be put on a consistent basis including all aforementioned aspects as well as recognition and enforcement of such judgments. Further, need for clarification, e.g. in the respective Recitals, was identified for the question whether there is an implicit obligation of the Member State courts not to recognize third state judgments that violate Articles 24, 25 and the said sections 3, 4 and 5 of Chapter II. This could be framed as a matter of the Member States’ public policy, including fundamental notions of EU law (see ECJ in Eco Swiss on another fundamental notion of EU law as an element of the respective Member State’s public policy). The central point, however, was the suggestion to correct the latest steps in the jurisprudence of the ECJ towards allowing double exequatur, if a Member State’s lex fori provides for judgments upon foreign judgments (see ECJ in H Limited). Options for doing so would be either adjusting the relevant Recitals, 26 and 27 in particular, or the definition of “judgment” or inserting another specific ground for refusal outside the general public policy clause, thereby in essence restating the principle of “no double exequatur” within the mechanics of the Regulation as understood by the ECJ, or limiting the effects of a judgment upon judgments for the purposes of the Brussels system, a method (altering the effects of a judgment under its lex fori) employed by the ECJ in Gothaer Versicherung in respect to other effects of a judgment from a Member State court, or, finally, by introducing an entire set of rules on the recognition and enforcement of third state judgments. In the latter case, all measures would have to be coordinated with the latest and fundamental development within the EU on third state judgments, namely the (prospective) entering into force of the HCCH 2019 Judgments Convention on 1 September 2023. Anyone who is interested in what this Convention could offer should feel warmly invited to participate and discuss, inter alia, the interplay between the Brussels and the Hague systems at the Bonn / HCCH Conference on 9 and 10 June 2023.

The next panel, chaired by Geert van Calster, related to certain points on jurisdiction and pendency to be reformed. Krzystof Pacula, Luxemburg, discussed Articles 7 no. 1 and no. 2 and, inter alia, suggested abstaining from a general reformulation of these heads of jurisdiction but rather opted for concrete measures for improving the text in light of lines of case law that turned out to be problematic. Problems identified were, inter alia, the delineation of the personal scope of Article 7 no. 1 in light of the principle of privity of contracts (“Relativität des Schuldverhältnisses”) and the concurrence of claims under Article 7 no. 1 and no. 2. In this regard, it was discussed whether both of these heads should allow to assume annex competence in regard to each other. Marta Requejo Isidro, Luxemburg, discussed the intricate interplay of Article 29 and 31 and, inter alia, considered increased obligations of the two Member State courts involved to coordinate conclusively the proceedings, for example by inserting certain time limits and, in case only the non-designated court is seized, powers to order the parties to institute proceedings at the designated court within a certain time limit. Otherwise the court seized should decline jurisdiction finally. Victória Harsági, Budapest, discussed the implications of the judgment of the ECJ in Commerzbank in respect to balancing consumer protection with foreseeability when the consumer, after a Lugano Convention State court has been seized with the matter, transferred its domicile to another (Lugano Convention) State, thereby creating the only international element of the case. Burkhard Hess dealt with reforming Article 35 of the Brussels Ibis Regulation after the ECJ in Toto and observed that there was no express hierarchy between measures under that Article and measures by the court of the main proceedings, and the Court did not infer any such hierarchy in its decision. The suggestion, therefore, was to think about introducing express coordination, be it along the lines of Rules 202 et seq. of the 2020 European Model Rules of Civil Procedure, be it along those of Article 6(3) of the 2022 Lisbon Guidelines on Privacy (on these see here and here), be it along those of Article 15 (3) Brussels IIter Regulation. Good reasons for the latter approach were identified, and this led back to the fundamental question to what extent the notion of a coherent “Brussels system” might allow even de lege lata not only to apply concepts from the Brussels Ibis Regulation, the “backbone” of that system, to other instruments by analogy, but also vice versa from the latter instruments to the former.

The last panel started with a submission by Gilles Cuniberti, Luxemburg, to remove Article 43, based on a number of reasons, as the Brussels I Recast aimed at removing “intermediate measures” such as exequatur, which rendered it inconsistent to uphold the intermediate measure foreseen in Article 43 – service of the certificate of Article 53 upon the judgment debtor. This was held to be all the more so, as this measure would primarily protect the debtor, already adjudged to pay, to an unjustifiable degree. Marco Buzzoni, Luxemburg, discussed the adaptation of enforcement titles under Article 54, a provision that was held to be one of the major innovations of the last Recast but turned out to be of little practical relevance. A similar provision had been proposed in the preparatory works for the HCCH 2019 Judgments Convention (February 2017 Draft Convention, Article 9), but was ultimately dropped, as opposed to the 2022 Lisbon Guidelines on Privacy (see its Article 12(2) Sentence 2). Vesna Rijavec, Maribor (unfortunately unable to attend for compelling reasons, but well represented by the chair, Geert van Calster) presented proposals on refining Articles 45(1) lit. c and d, mainly arguing that these should connect to pendency (as had already been proposed by the Heidelberg Report for the Recast of the Brussels I Regulation).

An overall sense of the conference was that no radical revolutions should be expected in the forthcoming Recast, which should be taken as another sign for the overall success of the backbone of the Brussels system, but that there was quite some room for specific and well-reasoned improvements. The conference contributed to preparing these in a truly excellent and inspiring way and in outstanding quality.

The University of Lagos Law Review (“Unilag Law Review”) in its 2022 issue recently published articles on Nigerian law. One of the articles is focused on conflict of laws:

P Oladimeji, “Simplifying the Doctrine of Renvoi under Conflict of Laws”

The doctrine of Renvoi is a topic in Conflict of Laws that posits a stumbling block, more often than anticipated, to students of the academic discourse trying to understand the scope of Conflict of Laws and how the framework of this topic applies in international matters. As such, this paper is an effort by the writer to simplify the tenets of the doctrine of Renvoi, its applicability, and its suppositions as reflected by scholars of English jurisprudence who dealt extensively with the doctrine at the time of its inception in the early 20th century. The paper begins with an introduction to the doctrine of Renvoi and its meaning per Private International Law; and then proceeds to distil the doctrine further by looking at the theories concocted by early scholars of its discourse as to its functionality in law. This paper also looks at the often quoted types of Renvoi and simplifies the difference(s) between these types as much as possible. Following this, the paper analyses the challenges brought to bear by the application of Renvoi in international matters – challenges that have led to rising arguments for and against the application of the doctrine as is.

Thanks to Costanza Honorati and Laura Carpaneto for the tip!

The Practice Guide on the Brussels IIb Regulation (Regulation 2019/1111) has been published on the site of the European Judicial Network in Civil and Commercial Matters (EJN) – scroll to the bottom.

The Guide was written by Boriana Musseva under a contract between the European Commission and Milieu Consulting. It uses the name Brussels IIb (presumably the Commission’s preferred nomenclature) even though some authors also use Brussels IIter. The Guide is still being translated in the other EU languages and will then also be published with the other information that the Commission provides on the European Judicial Atlas.

Here is the direct link to the Practice Guide for the application of the Brussels IIb Regulation.

A volume titled “Cross-Border Litigation in Central Europe: EU Private International Law Before National Courts” and edited by Csongor István Nagy (University of Szeged, Hungary & Center for Social Sciences, Budapest) has recently been published by Kluwer. It was and authored by Katazyna Bogdzevic, Pavle Flere, Lucia Gandzalova, Justyna Gumula-Kedracka, Tena Hosko, Monika Jagielska, Elena Judova, Inga Kacevska, Wojciech Klyta, Vadim Mantrov, Csongor István Nagy, Gabor Palasti, Dora Zgrabljic Rotar, Magdalena Sobas, Janos Szekely, Dace Trupovniece, Jiri Valdhans, Emod Veress, Lucie Zavadilova. The book provides a detailed understanding of the process of seeking justice in cross-border disputes in Central Europe and a comprehensive and exhaustive presentation of the case law in 10 Central European Member States (Croatia, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia, and Slovenia). It is the first of its kind to offer a comprehensive and analytical overview of the judicial practice in the region. More information on the book, its content and contributors is available here.

The book is a product of the multi-year EU-funded CEPIL project (“Cross-Border Litigation in Central-Europe: EU Private International Law before National Courts”, 800789 — CEPIL — JUST-AG-2017/JUST-JCOO-AG-2017), which was based on the cooperation of six universities (University of Szeged, Hungary, Masarykova univerzita, Czech Republic, Sveu?ilište u Zagrebu, Croatia, Universitatea Sapientia din municipiul Cluj-Napoca, Romania, Univerzita Mateja Bela v Banskej Bystrici, Slovakia, Uniwersytet ?l?ski, Poland). The CEPIL project inquired whether EU private international law functions optimally in the Central European Member States to secure a Europe of law and justice and whether EU private international law instruments are applied correctly and uniformly. It analyzed whether national courts deal appropriately with disputes having a cross-border element and whether the current legal and institutional architecture is susceptible of securing legal certainty and an effective remedy for cross-border litigants. More information on the project is available here.

The author of this post is Lydia Lundstedt, who is a Senior Lecturer at the Stockholm University.

In IRnova (C-399/21), decided on 8 September 2022, the CJEU clarified the interpretation of Article 24(4) of the Brussels I bis Regulation. The latter provision confers exclusive jurisdiction “in proceedings concerned with the registration or validity of patents, trade marks, designs, or other similar rights required to be deposited or registered” upon “the courts of the Member State in which the deposit or registration has been applied for, has taken place or is under the terms of an instrument of the Union or an international convention deemed to have taken place”.

In its judgment, the Court ruled that Article 24(4) is to be interpreted as not applying to a dispute, in the context of an action based on an alleged status of inventor or co-inventor, concerning the determination of whether a person is entitled to certain inventions referred to in patent applications filed and patents granted in third countries.

I reported on the facts and the question referred here but a brief synopsis follows.

The Swedish company IRnova AB brought proceedings before the Swedish Patent and Market Court against the Swedish company FLIR Systems AB for a declaration that it was entitled to inventions referred to in certain European, US and Chinese patent applications and certain US patents on the ground that its employee was the true inventor (or co-inventor).

The Patent and Market Court dismissed the part of IRnova’s action concerning the patent applications filed in the US and China and the patent granted in the US. Incidentally, the court retained jurisdiction over the European applications which are governed by the lex specialis rules in the Protocol on Jurisdiction and the Recognition of Decisions in respect of the Right to the Grant of a European Patent.

IRnova AB appealed to the Patent and Market Court of Appeal, which asked the CJEU whether Article 24(4) could be applied to these types of entitlement disputes concerning patents registered and applied for in non-Member States.

The CJEU began by slightly reformulating the referring court’s question to refer to applications filed and patents granted in third States as opposed to non-Member States (paras 22-24). Thereafter, the CJEU established that the dispute had international character and therefore fell within the scope of the BIa Regulation (paras 25-31). Referring to its decision Owusu, C-281/02, the CJEU observed that international character may be based on the subject-matter of the dispute (here the patent applications and the patents) being connected to a third State.

Thereafter, the CJEU answered the question whether Article 24(4) applied to a situation such as the one in the Swedish proceedings. First, the CJEU observed that it follows from the wording of Article 24(4) that it concerns the courts of a Member State of registration and therefore the provision was not applicable to patents applied for and registered in third States (paras 32-35).

Second, the CJEU held that entitlement disputes, including those based on inventorship, are not “concerned with the registration or validity of patents” in the meaning of Article 24(4) (paras 36-49). In this regard, the CJEU recalled that the concept was autonomous and that it must not be given a wider interpretation than is required by its objective (paras 38-39).

The CJEU also recalled its case law in Duijnstee, 288/82 , GAT, C-4/03, and Hanssen Beleggingen, C-341/16 where it held that the rule on exclusive jurisdiction in what is now Article 24(4) is justified by the fact that the courts of the Member State where the patents are applied for or registered are best placed to adjudicate upon cases in which the dispute itself concerns the validity or lapse of a patent, the existence of the deposit or registration or an alleged right of priority by reason of an earlier deposit. It recalled further that an action which merely raises the question of who is the owner of a patent or whether a person has been correctly registered as the owner of a trade mark is not covered by that rule of exclusive jurisdiction because such questions are not closely linked in fact and law to the place where the right has been registered (paras 36-41).

The CJEU stated that the dispute in the Swedish proceedings did not concern these questions but only the question concerning the right to the inventions or to a part of them (para 42).

In this regard, the Court observed first that the question of who owns the inventions, which includes the question of who is the inventor, does not concern the application for an intellectual property right or the right as such, but the object of the right. The CJEU referred to its earlier case law on the justification for Article 24(4) and concluded that it was relevant in a case such as the one in the Swedish proceedings where the question relates only to the entitlement to object of the right, i.e. the invention (para 43).

Thereafter, the CJEU noted that the question of who is the inventor, which the CJEU noted was the sole issue in the Swedish proceedings, is a preliminary question and therefore distinct from that of whether a patent application has been filed or a patent granted. In addition, the CJEU stated that the dispute did not concern the validity an application, but seeks only to establish the right to the inventions themselves. The CJEU stated that the fact that a lack of entitlement to an invention may constitute a ground for refusal of the application is therefore not relevant to the jurisdiction to hear disputes concerning inventorship (paras 44-45).

Lastly, the CJEU stated that the preliminary question of who is an inventor is also distinct from that of the validity of the patent and that latter question was not part of the case in the Swedish proceedings.

The CJEU added that even if the national court was required to examine the claims in the patent applications or patents to determine each employee’s contribution to the invention, this examination does not concern the patentability of the invention.

The CJEU further added that infringement actions also require an in-depth assessment of the protection afforded under the law of the protecting country but that it had previously held that such actions were not covered by the rule on exclusive jurisdiction (paras 46-48).

In my opinion, the CJEU comes to a sensible outcome – the parties should not need to pursue duplicative proceedings in every granting third State with risk that inventorship is decided differently in different states.

The question of inventorship is not closely linked in fact to the state where the patent was applied for or granted as the relevant facts will have taken place where the invention was made, which in this case was most likely in Sweden. Although there is proximity in law to the State where the patent was applied for or granted (the CJEU noted that the Swedish court will likely need to apply US and Chinese law), inventorship disputes are mostly factual disputes concerning who actually came up with the inventive idea, and not the legal value of the parties’ contributions.

If IRnova succeeds with its case on the merits, an interesting question is how it will get the judgment enforced. It can use the Swedish judgment in support of a request before the US and Chinese authorities to persuade them to correct the applicant or owner. An interesting question is whether IRnova can request the Swedish court to order FLIR Systems to transfer the patent applications and patents to it.

Lastly, the decision has significant implications so it is surprising that the CJEU did not obtain a written opinion from the Advocate General. Indeed, the CJEU dealt with the question whether Article 24(4) applies to third States in a rather summary fashion.

The question whether Article 24 in general can be given reflexive effect either as a matter of EU law or national law has been hotly debated in the legal doctrine so I would have expected more than a textual argument to support the CJEU’s conclusion.

I mentioned the pending case C-339/22 BSH Hausgeräte v Aktiebolaget Electrolux yesterday at our excellent (if I say so myself) Max Planck Institute – EAPIL – KU Leuven workshop on Brussels Ia reform. Questions referred, are

Is Article 24(4) [BIA] to be interpreted as meaning that the expression ‘proceedings concerned with the registration or validity of patents … irrespective of whether the issue is raised by way of an action or as a defence’ implies that a national court, which, pursuant to Article 4(1) of that regulation, has declared that it has jurisdiction to hear a patent infringement dispute, no longer has jurisdiction to consider the issue of infringement if a defence is raised that alleges that the patent at issue is invalid, or is the provision to be interpreted as meaning that the national court only lacks jurisdiction to hear the defence of invalidity?

Is the answer to Question 1 affected by whether national law contains provisions, similar to those laid down in the second subparagraph of Paragraph 61 of the [Swedish] Patentlagen (Patents Law), which means that, for a defence of invalidity raised in an infringement case to be heard, the defendant must bring a separate action for a declaration of invalidity?

Is Article 24(4) [BIa] to be interpreted as being applicable to a court of a third country, that is to say, in the present case, as also conferring exclusive jurisdiction on a court in Turkey in respect of the part of the European patent which has been validated there?

BSH hold a European patent relating to a vacuum cleaner. The patent has been validated in Austria, Germany, Spain, France, the United Kingdom, Greece, Italy, the Netherlands, Sweden and Turkey. Electrolux of Sweden has subsidiaries in a number of other Member States, such as Germany. A number of disputes have arisen between BSH and companies in the Electrolux group concerning the patent in question. Inter alia, the European patent validated in Germany was invalidated in 2020 by a German court at the request of a subsidiary of Electrolux. That judgment has been appealed.

On 3 February 2020, BSH brought an action against Electrolux before the Patents and Market Court in Sweden and claimed inter alia that Electrolux should be prohibited from using the patented invention in all the abovementioned States and ordered to pay reasonable compensation for the unlawful use. BSH also claimed compensation for the additional damage caused by Electrolux’s alleged patent infringement. Electrolux argue that the Court should dismiss the action in relation to the foreign parts of the patents. In its view the foreign patents are invalid and the Swedish court therefore lacks jurisdiction to hear infringement actions concerning those patents.

End of December 2020 the court agreed, citing A24(4) viz the EU patents (the claim being issued prior to Brexit implementation day, this includes the UK) and ‘an internationally accepted principle of jurisdiction’ (in essence, the Moçambique rule) viz the Turkish patent.

BSH of course appeal.

A asked students in the August resit exams how they think the CJEU should answer. On Q1 I would expect them to cite the need to interpret A24 restrictively, with reference to one or two cases confirming same (there are plenty); and the lack of solution in the Brussels Recast. Contrary to what Electrolux contend, a proposal to allow a court to merely stay the case pending the foreign court’s decision on validity, was never rejected. Such a proposal was never made. BIa merely confirmed CJEU Gat v Luk’s holding that exclusive jurisdiction kicks in regardless of whether the argument of invalidity is introduced as a claim of by way of defence.

On Q2 I would like to seem them argue something to the effect that national CPR must not infringe the effet utile of BIa. (Only) if the effect of the Swedish rules is that it requires the defendant to initiate IPR invalidity claims in all the relevant States, or lose its possibility of an invalidity defence, this would in my view run counter BIa’s intention and scope.

Finally, on the 3rd Q they should engage with the lack of BIa clarification on reflexive effect, other than in the strict confines of A33-34 and its related recitals. Relevant case-law of course includes Ferrexpo and Central Santa Lucia L.C. v. Meliá Hotels International S.A. Interested readers may wish to consult Alexander Layton KC’s most excellent paper on same. Some students may refer to the UPC developments and the jurisdictional consequences in Article 71 BIa (operational 2023?).

Geert.

The Court of Justice delivered yesterday its judgment in case C‑399/21 (IRnova AB v FLIR Systems AB), which is about the scope of application of Article 24 Brussels I bis. The judgment is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version)

“L’article 24, point 4, du règlement (UE) no 1215/2012 du Parlement européen et du Conseil, du 12 décembre 2012, concernant la compétence judiciaire, la reconnaissance et l’exécution des décisions en matière civile et commerciale, doit être interprété en ce sens que : il ne s’applique pas à un litige tendant à déterminer, dans le cadre d’un recours fondé sur la qualité alléguée d’inventeur ou de co-inventeur, si une personne est titulaire du droit sur des inventions visées par des demandes de brevet déposées et par des brevets délivrés dans des pays tiers”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=265068&pageIndex=0&doclang=fr&mode=req&dir=&occ=first&part=1&cid=1837579

The Danish Supreme Court held in a judgment of 31 May 2022 (case 134/2018), that Danish law should be applied for tort liability for assaults committed during the military operation Green Desert in Iraq in 2004.

In the aftermath of the war in Iraq in 2003, Iraq was controlled and administrated by international coalition forces. Danish troops took part in the coalition between 2003 and 2007. In 2004, Danish and British troops collaborated with Iraqi military in a search and arrest operation called “Green Desert”. During the operation, several Iraqis claimed that they were subject to torture. For this maltreatment, 18 Iraqis filed a civil lawsuit against the Danish Defence Authority for tort compensation in Denmark.

In its judgment, the Danish Supreme Court found that it was proven that Iraqis had been subject to assault during operation Green Desert. Whether the Danish Defence Authority could be held liable for the assaults should be decided according to Danish law and the European Convention on Human Rights.

The conclusion to apply Danish law was not elaborated in the judgment. However, the Danish Supreme Court notes that pursuant to section 18 in the Coalition Provisional Authority’s Order 17, third party claims shall be dealt with “in a manner consistent with the Sending State’s laws, regulations and procedures”. Regardless of whether the order could be seen as having status of Iraqi law or not, the Supreme Court held that its status does not matter as it points out Danish law to be applicable. Perhaps, this statement by the Supreme Court can be interpreted as an allowing attitude to the doctrine of renvoi as it seems that a remission to Danish law would be accepted if Iraqi law would have been pointed out by Danish choice of law rules. As the judgment is not at all framed as a private international law matter, such conclusions shall probably be cautiously made.

In substance, the Danish Supreme Court held that the Iraqi plaintiffs were not entitled to compensation according to the Danish Damages Act’s Section 26 on liability for torts as it was not proven that assault was conducted by Danish troops. Nor was it proven that the Danish troops should have known or understood that collaborating Iraqi military personnel would conduct assault to the civilians. Eventually, the Supreme Court held that nor did the European Convention on Human Rights (ECHR) lead to a different result. In this part, the Supreme Court concluded that the alleged assaults were conducted on territory controlled by Iraq. Hence, Denmark lacked public international law jurisdiction, which is a prerequisite for application of the ECHR according to Article 1.

The current issue of Lex & Forum explores the existing status of Private International Law & the Internet, and tries to map out solutions and proposals for the future.

The issue benefits from the privilege of hosting papers of two worldwide leading figures in the area of private international law: Professor Dan Svantesson is sharing his insightful conclusions about the current state of the interplay between Private International Law & the Internet and, also, points at the critical problems that need to be addressed in order to secure a better digital future. In doing so, he sets the tone of the entire issue. At the same time, Professor Symeon Symeonides offers a fascinating account of a much needed international coordination effort. After explaining the current status of addressing internet related personality infringemetns accross different jurisdictions, Prof. Symeonides focuses on the initiative of the Institut de Droit International (IDI), which at its 79th biennial session adopted a critical Resolution on internet related personality infringements and Private International Law. Prof. Symeonides explains vividly how this transnational initiative improves over existing regional approaches and offers great insights on its history, rationale and development.

The papers of Prof. Svantesson and Prof. Symeonides are accompanied by that of Professor Ioannis Deliskostopoulos, University of Athens, who offers an excellent account of how the CJEU has been dealing with the challenge of personality related internet disputes. Trying to address future challenges, a second family of papers focused on blockchain based issues. Dr. Ioannis Revolidis, Lecturer at the University of Malta, contributes a primer on International Jurisdiction and the Blockchain, by exploring the unique characteristics of blockchain based systems and by extending his analysis on the so-called Non Fungible Tokens. Dr. Nikolaos Zaprianos puts the challenge of smart contracts into perspective, offering an excellent account about the limits of automation in contractual relationships, while Dr. Konstantinos Voulgarakis monitors the impact of cryptoassets in capital markets and the ensuing private international law challenges. All the aforementioned papers have been presented during a webinar hosted by Lex&Forum on May 13 2022 (youtube.com/watch?v=84wCNVyWXPA&t=652s, accessed 3.9.2022).

The analysis of the relation between Private International Law & the Internet in the current issue of Lex&Forum is concluded with the Praefatio authored by another leading expert in the area, Prof. Gerald Spindler from the University of Göttingen/Germany. The title of it reads as follows: “The Internet and other emerging technologies within the EU and international legal order – aspects of conflicts of laws and international civil procedure”.

At the same time, the Judge of the Court of Appeal Mr. Ioannis Valmantonis has provided a comment on the decision of the CJEU in Gtflix v DR, while Dr. Apostolos Anthimos contributes his views on two Greek court decisions on the refusal of recognition and enforcement of arbitral awards ordering payment in bitcoin (Court of Appeal Western Central Greece 88/2021 and Court of First Instance of Agrinio, Single Chamber, 193/2018). Lastly, Dr. Evangelos Ziakas contributes a paper on the mosaic approach of the CJEU on internet related personality disputes.

Lex&Forum will return with a new issue, which will be focusing on the relationship of the EU Private International Law acquis with cases including third country elements.

The DynamInt Research Group at Humboldt University (located in the heart of Berlin, close to the Brandenburg Gate) invites international post-docs in the field of European law (broadly understood) to apply for a research stay lasting between 3 and 6 months.

Applications are excepted on a rolling basis (no deadline). Successful candidates will receive a financial allowance and will be provided with a fully equipped working place. It is possible to teach classes while staying at Humboldt University. However, teaching is not mandatory.

Further information is available here.

The Centre for Studies and Research in International Law and International Relations Series at Brill has just issued its 23rd volume, edited by Hannah Buxbaum.

The Centre for Studies and Research in International Law and International Relations of the Hague Academy of International Law is designed to bring together highly qualified young international lawyers from all over the world, to undertake original research on a common general theme which is determined annually by the Curatorium of the Academy. The Centre is sub-divided in an English-speaking and French-speaking section. The research undertaken at the Centre is published in a collective volume containing the reports of the Directors and the best contributions from the participants. In 2019, the Director was Hannah Buxbaum, and her fascinating cross-over topic was „extraterritoriality“.

The blurb reads as follows: „Extraterritoriality is a challenging concept as a matter of international law and policy, raising fundamental questions about the allocation of power among States. It is also a dynamic concept, reflecting and responding to shifts in the global economy, patterns of human behavior, and understandings of state sovereignty.“

Following the Reports of the Directors of Studies, no less than 20 chapters explore the notion and implications of extraterritoriality, either in French or in English language, such as e.g. the first Chapter by Buxbaum herself  on “The Practice(s) of Extraterritoriality” (for an SSRN preprint see here), “(Il)licéités et (dé)mesures de l’extraterritorialité”, several Chapters on historical aspects, “Objects and Subjects of Extraterritorialité”, “Extraterritorialité within the Framework of the EU” and other regional organisations, as well as aspects of extraterritoriality in certain areas of law such as in criminal law, cybersecurity, human rights, environmental law, outer space, data protection etc. “Throughout, the volume recognizes extraterritoriality as an expansive concept used to assess both the actions and the obligations of states within the international arena”, the blurb further explains.

Thus, the volume connects private and public international law perfectly and also includes interdisciplinary input. It thereby represents the spirit of the Hague Academy’s Centre for Studies and Research at its best. Highly recommended!

A similarly promising project is currently ongoing at the Centre: “Climate Change and the Testing of International Law” from 22 August – 9 September 2022.

The third issue of the Journal du droit international for 2022 was released in July. It contains two articles and several case notes relating to private international law issues.

In the first article, Caroline Kleiner (University of Paris Cité) discusses the private international law dimension of the sanctions against Russia (L‘application des « sanctions économiques » adoptées par l’Union européenne contre la Russie à la suite de l’invasion de l’Ukraine : éléments de droit international privé).

The English abstract reads:

The adoption of sanctions by the European Union is the main tool available to EU member states to react politically, legally and economically to Russia’s aggression against Ukraine. On an unprecedented scale, the sanctions initiated in 2014 in EU regulations following the annexation of Crimea and reinforced from 23 February 2022 are very diverse. On the one hand, restrictions of different intensity have been imposed on trade and financial matters. On the other hand, measures to freeze funds and economic resources are aimed at “target” persons and entities. These provisions, which are mandatory throughout the European Union and in respect of any economic activity carried out in whole or in part therein and in respect of any person who is a national of a Member State or who is incorporated under the law of a Member State, are being applied, however, according to a distinct mechanism. Sanctions-rule interfere with contracts as mandatory rules (lois de police), while the application of sanctions-decision is based on the method of recognition.

In the second article, Hélène Gaudemet-Tallon offers some thoughts on the recent draft code of private international law (Quelques réflexions sur le projet de Code français de droit international privé du 31 mars 2022).

The English abstract reads:

On 31 March 2022, a draft French Code of Private International Law was submitted to the Minister of Justice. This text was prepared by a group working under the chairmanship of Jean-Pierre Ancel (honorary president of the first civil chamber of the Court of Cassation). The project goes beyond what was requested in 2018 by Ms. Belloubet, Minister of Justice. Far from being a simple consolidation of the existing law, throughout its 207 articles, it proposes some new solutions and precise several acquired solutions. This article, after recalling the genesis of the project, shows the scope of the field covered, the plan adopted to deal with all issues of private international law, general theory of both conflicts of laws and conflicts of jurisdictions (jurisdiction and recognition and enforcement), special applications, proceedings, provisional measures, etc. However, the draft does not deal with international arbitration or jurisdictional immunities. Particularly interesting because the difficulty was high is the solution adopted to ensure the articulation between the French code and European law or international conventions : the primacy of European and conventional law is generally affirmed; then various articles contain numerous references to a particular European regulation or international convention. Sometimes the project extends the application of a European regulation to issues excluded by a regulation.

Without studying all the provisions of the project, this study draws the attention of the reader to particularly striking innovations : careful adoption of the method of recognition ; rejection of the distinction between available and unavailable rights and obligation for the judge to always apply the conflict rule ; full recognition of all foreign judgments without distinguishing according to their nature ; solutions proposed for divorce by private agreement ; new rules on filiation (rejection of the connection to the national law of the mother), medically assisted procreation with third-party donor, surrogacy, adoption. The important powers granted to the judge and the use of several flexible concepts should also be noticed (for example, procedural loyalty).

This study is intended to describe the project and to assess the importance of its future.

The table of contents of the issue can be accessed here.

The second issue of 2022 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:

Costanza Honorati, Professor at the University Milan-Bicocca, Giovanna Ricciardi, Doctoral candidate at the University Milan-Bicocca, Violenza domestica e protezione cross-border (Domestic Violence and Cross-Border Protection) [in Italian]

Domestic violence has drawn increasing attention both from the lawmaker and legal scholars. Legal means to prevent domestic violence and protect women have been promoted and implemented at the national and supranational levels. This article concentrates on seeking and enforcing civil protection measures in cross-border family conflicts. Protective measures are often sought and taken in the State where the prospective victim (and often also the tortfeasor) is habitually resident. PIL issues are however rarely addressed. Regulation (EU) No 606/2013 on mutual recognition of protection measures in civil matters provides a useful instrument when the need for recognition and enforcement in a different Member State arises at a later stage. Less dealt with is the issue of selecting an appropriate ground for jurisdiction, which is not governed by the mentioned Regulation. The latter issue becomes especially relevant in the very peculiar case of protection measures to be issued in the so-called State of refuge when a mother challenges a situation of domestic violence as a ground for leaving the State of a child’s habitual residence and searches for protection elsewhere. The interplay between domestic violence and abduction cases, a situation quite frequent in practice but rarely addressed in legal literature, is further explored and dealt with.

Ilaria Viarengo, Professor at the University Milan, The Coordination of Jurisdiction and Applicable Law in Proceedings Related to Economic Aspects of Family Law

This article addresses the complex features and problems arising from the combined application of all European and international instruments dealing with divorce and the economic aspects of family law. The need to avoid litigation proceedings in different jurisdictions, entailing the duplication of proceedings and costs and the need to have divorce and all the financial aspects governed by the same law are of central importance from a practical point of view. This article provides an analysis of whether and to what extent these two needs can be satisfied with the combined application of the EU family law regulations at issue. Firstly, it deals with some general issues whose solution could have an impact on the coordination among all these instruments. Consequently, it examines the interplay among rules on jurisdiction and applicable law, including the role of party autonomy in pursuing coordination.

The following comment is also featured:

Curzio Fossati, Doctoral candidate at the University of Insubria, La residenza abituale nei regolamenti europei di diritto internazionale privato della famiglia alla luce della giurisprudenza della Corte di giustizia (Habitual Residence in EU Private International Law Regulations in Family Matters in View of the Case-Law of the Court of Justice) [in Italian]

This article deals with the concept of habitual residence, which is in widespread use in the EU Regulations in the field of family law. Firstly, the article gives an overview of these Regulations, and then it analyses the case-law of the CJEU on the criterion of habitual residence referred to children, deceased persons, and spouses. The contribution examines two fundamental elements of the concept of habitual residence identified both by CJEU and scholars: the objective element, i.e. a sufficiently stable presence of a person in a Member State, and the subjective element, i.e. the intention of the person concerned to establish the permanent or habitual centre of his or her interests in that place. The article also tries to identify the most suitable method of interpretation of the concept of habitual residence and, in particular, it investigates which approach is more desirable between a uniform approach (which fosters a uniform definition of habitual residence in EU law) and a functional one (which implies an interpretation that takes into account the aim of the disposition in which the concept is used). Ultimately, the Author endorses the solution adopted by the CJEU in the IB case, which combines the aforementioned approaches.

Finally, this issue features the following book review by Cristina M. Mariottini, Senior Research Fellow at the Max Planck Institute Luxembourg for Procedural Law: Henry Deeb GABRIEL, Contracts for the Sale of Goods – A Comparison of U.S. and International Law, 3rd ed., Oxford University Press, Oxford, 2022, pp. v-401.

The International Commission on Civil Status (ICCS) will host a conference, jointly organised with the Société de Législation Comparée, under the title Plurilingual Forms – Present and Future of International Cooperation in Civil Status Matters.

The conference will take place in Strasbourg on 21 September 2022.

Speakers (and chairs) include Hans Van Loon (former Secretary General of the Hague Conference on Private International Law), Paul Lagarde (Emeritus Professor at the University Paris I, former secretary general of the ICCS), Patrick Wautelet (University of Liège), Bojana Zadravec (President of the Slovenian Association of Administrative Staff, EVS -European Association of Registars), Olivier Guillod (University of Neuchâtel), Laura Martinez-Mora (Hague Conference on PIL), Nicolas Nord (Secretary General of the ICCS), Anatol Dutta (University of Munich), Camille Reitzer (Deputy Secretary General of the ICCS), Marie Vautravers (European Commission), Guillermo Palao Moreno (University of Valencia), Alexander Schuster (University of Graz), Andreas Bucher (Emeritus Professor at the University of Geneva).

The working languages will be French and English (presentations made in one language will be simultaneously translated into the other).

Further information can be found here.

The conference comes only a few weeks after the Strasbourg Convention of 14 March 2014 on the issue of multilingual extracts from civil status acts came into force internationally (on 1 July 2022), for Germany, Belgium and Switzerland.

Carlos Santaló Goris, Research Fellow at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law and Ph.D. candidate at the University of Luxembourg, offers an analysis of the reform recently approved in Luxembourg concerning the functioning of the information mechanism of the Regulation No 655/2014, establishing a European Account Preservation Order (“EAPO Regulation”). The EAPO Regulation and other EU civil procedural instruments are the object of study in the ongoing EFFORTS project, with the financial support of the European Commission. 

The EAPO Regulation introduced the first European civil interim measure that permits, as its name indicates, the provisional attachment of the debtors’ bank accounts in cross-border civil and commercial claims. Besides the temporary attachment of debtors’ funds, it also contains a special tool to search for the bank accounts containing those funds. This information mechanism is perhaps one of the main appeals of the EAPO. It has even inspired some national legislatures, for instance, the French one, to improve their domestic mechanisms to trace debtors’ assets in civil proceedings. Nonetheless, access to the EAPO’s information mechanism is more limited than access to the EAPO itself. Whereas creditors without a title can apply for an EAPO, they cannot submit a request to search for debtors’ bank accounts. This option is limited to creditors with a title, whether the title is enforceable or not.

Article 14 of the EAPO Regulation sets up the basic structure of the information mechanism. Provided creditors satisfy the necessary prerequisites to ask for the investigation of the debtors’ bank accounts, the court which examines the EAPO application sends a request for information to the Member State where the bank accounts are located. There, an information authority would be in charge of searching for debtors’ bank accounts and giving an answer to the requesting court.

The EAPO Regulation gives the Member States broad discretion in implementing the mechanism to investigate the debtors’ bank accounts. Article 14 only suggests three different methods that the Member States can choose to search the information about the debtors’ bank accounts. The first one consists of asking all the banks in the territory of the requested Member State to disclose whether they have the debtors’ bank accounts (Art. 14(5)(a) EAPO Regulation). According to the second method, the information about the debtors’ bank accounts is retrieved from the registries held by public administrations (Art. 14(5)(b) EAPO Regulation). Finally, according to the third method, courts may “oblige the debtor to disclose with which bank or banks in its territory he holds one or more accounts” (Art. 14(5)(c) EAPO Regulation).  The request to disclose the information is “accompanied by an in personam order by the court prohibiting the withdrawal or transfer” by the debtor “of funds held in his account or accounts up to the amount to be preserved by the Preservation Order” (Art. 14(5)(c) EAPO Regulation). This list of methods is not exhaustive, and the Member States are allowed to opt for any other method as long as it is “effective and efficient” and “not disproportionately costly or time-consuming” (Art. 14(5)(d) EAPO Regulation).

At the Luxembourgish domestic level, the EAPO information mechanism represented a major innovation. The Luxembourgish civil procedural system lacks an equivalent national tool to investigate debtors’ bank accounts. Therefore, the EAPO’s mechanism became (and still is) the only tool to trace debtors’ bank accounts during a civil procedure in Luxembourg. When a creditor requests a national provisional attachment order (saisie-arrêt), but ignores in which bank the debtors’ accounts are located, the attachment order must be sent to all the banks where those accounts may be held. The more banks the saisie-arrêt is sent to, the higher the chances of freezing the debtors’ funds. Such “fishing expeditions’ are costly. The saisie-arrêt is served to the banks through a bailiff (huissier). The more banks the saisie-arrêt is sent to, the higher the fee that the bailiff will charge.

Luxembourg appointed its national financial authority, the Commission de Surveillance du Secteur Financier (“CSSF”), as its national information authority for the EAPO information mechanism. In contrast to the costly “fishing expeditions” of the saisie-arrêt, the CSSF does not charge any fees for obtaining information about the debtors’ bank accounts.

The CSSF searches for the bank accounts by requesting that all the banks or branches of foreign banks operating in Luxembourg disclose if they hold the debtors’ accounts (Art. 14(5)(a) EAPO Regulation). Until September 2022, this request was sent by regular mail to all those entities. Banks were given 20 days to reply to the CSSF. Those 20 days, plus the time it takes to send the request by mail to the banks and receive their answers, explain why it takes at least one month until the CSSF can reply to the court which submitted the original information request.

However, from 1 September 2022, the request for information is sent through an online platform, the Guichet numérique eDesk (Circulaire CSSF 22/819). Banks operating in Luxembourg are required to join this platform. Thanks to this reform, the CSSF will be able to obtain information about the debtors’ bank accounts faster. It also ensures better monitoring of the answers provided by the banks. Overall, this reform enhances the functioning of the EAPO’s information mechanism at the Luxembourgish level and is in line with the EAPO Regulation, which favours the swift transmission of documents (Recital 24 Regulation).

On Tuesday, September 20, 2022, the Hamburg Max Planck Institute will host its 25th monthly virtual workshop Current Research in Private International Law at 11:00 a.m. -12:30 p.m. (CEST). Prof. Hisashi Harata (University of Tokyo) will speak, in English, about the topic

The globalization of enterprise organization as well as activities causes more serious labour issues, environmental issues, human rights issues and so on. The corporate law rules on duties and responsibilities of corporate directors are regarded as a tool for corporate governance and
compliance.
Based on the current position for the lex incorporationis as well as the internal-affairs doctrine, the breach of duties and responsibilities of directors and the shareholder’s standing for derivative action would be ruled by the lex incorporationis, except for the application of overriding mandatory rules of lex fori.
However, the existence of foreign-company regulations in different jurisdictions like California, New York, Hongkong, Netherland etc. might lead us to a theoretical reflection, as they could impose regulations severer than lex incorporationis on directors and there is no room for such regulations of third countries other than lex incorporationis and lex fori to be applied within the conventional framework of P.I.L.
This presentation will shed lights on this theoretical issue, introducing practical case-study analysis on derivative action, and suggest several problematic points to be tackled in further studies.

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.

This post was written by Paul Lorenz Eichmüller, University of Vienna.

Austrian law provides for an international forum necessitatis in Austria if this is necessary to avoid a denial of justice, i.e. if legal action abroad is (objectively) impossible or (subjectively) unreasonable, see § 28(1)2 Jurisdiktionsnorm (Civil Jurisdiction Act). The Austrian Supreme Court has recently issued four decisions (2 Nc 11/22y, 2 Nc 17/22f, 9 Nc 8/22h and 10 Nc 6/22x) in which it stated that bringing a claim for flight compensation in the UK is indeed unreasonable for Austrian claimants. This – admittedly, quite harsh – verdict shows once again Brexit’s negative impact on matters of civil jurisdiction.

Compared to other European countries, the institution of a forum necessitatis takes a rather prominent role in the Austrian provisions on international jurisdiction in civil and commercial matters. If there is no other forum reasonably available to claimants with Austrian (or EU-) nationality or habitual residence/domicile in Austria, they can file an application to the Austrian Supreme Court to establish the jurisdiction of the Austrian courts. This procedure is called the “ordination” of jurisdiction. The cases covered by this provision range from instances where there are in fact no other countries whose courts would hear the claim, to cases where the other available fora are regarded as unreasonable – as determined on a case-by-case basis.

Even though the Supreme Court constantly reiterates that the notion of unreasonableness needs to be interpreted restrictively in order to avoid a general forum actoris in Austria (see RIS-Justiz RS0046322), its interpretation in practice is surprisingly broad. Rather obvious instances of unreasonableness include the non-enforcement of the foreign judgment in Austria; urgent proceedings abroad taking too long; a factual standstill of judicature in the respective country; severe doubts regarding the independence of the courts; or one of the parties being subject to political persecution abroad.

However, also significant additional costs of the foreign proceedings compared to litigation in Austria can constitute a ground for (subjective) unreasonableness; this includes the lack of legal aid; the lack of reimbursement of legal costs by the winner of the proceedings; or unusually high deposits as security for costs. In contrast, a less favourable position in the substantive law that is applied abroad is normally insufficient to justify an ordination of an Austrian forum necessitatis (RIS-Justiz RS0117751).

In relation to member states of the Brussels Ibis Regulation or the 2007 Lugano Convention, the ordination of a forum necessitatis will generally be impossible, as bringing a claim in these countries is not considered impossible or unreasonable (RIS-Justiz RS0112108). Since the end of the transitional period, the UK is no longer part of either of these instruments and thus subject to the general reasonableness test of the Austrian Supreme Court.

Unlike the Brussels Ibis Regulation, the domestic Austrian rules on international jurisdiction do not include a general jurisdictional head at the place of performance. The corresponding provision in § 88 JN is limited only to cases in which the place of performance was explicitly agreed upon in the contract and can be proven by a document signed by the respondent. The practical relevance of this head of jurisdiction is therefore negligible.

When it comes to flights operated by an airline based in a third country, there is thus neither a place of general jurisdiction nor any court with specific jurisdiction in Austria. If – like in one of the Supreme Court decisions (2 Nc 17/22f) – the airline has assets in Austria, the claimant can at least base the (exorbitant) jurisdiction of Austrian courts on the location of the airline’s assets (§ 99 JN). In all other cases of flight cancellation or delays (without assets of the airline in Austria), travellers living in Austria – even if they departed from an airport in Austria – would thus have to bring a claim at the airline’s seat in a third country. However, the decision of the third country will not necessarily be enforced in Austria. This is where the ordination of an Austrian forum necessitatis comes into play: No enforcement means that the judgment would be worthless, so the proceedings abroad are considered unreasonable for the claimant.

In all four of the recent decisions, Austrian claimants sought flight compensation from an airline based in the UK. However, after the UK left the EU, the reasonableness of an action against the airline at its seat in England also depends on the chances of the English judgment being recognised in Austria. While there is in fact an Austro-British treaty on the mutual recognition and enforcement of judicial decisions in civil and commercial matters from 1961, this treaty only guarantees the recognition of the decisions by “superior courts” (Art II(1)). In England, that would only be decisions by the High Court, the Court of Appeal or the Supreme Court (Art I(2)(a)). Due to the low amount of money usually in dispute in a flight compensation case, it will regularly be impossible to reach one of these courts. Thus, the recognition of a potential English judgment would fail, and this is the reason why an Austrian forum necessitatis was provided by the Supreme Court. Brexit has led to a step back into the 1980’s – when these issues were last discussed (RIS-Justiz RS0002320).

Due to an increasing number of ordination cases regarding flight compensation, the Austrian legislator has reacted and recently § 101a JN , providing for jurisdiction of the courts at the place of departure or arrival in all matters relating to the EU Flight Compensation Regulation. It is thus unlikely that situations like the ones decided will occur again.

Yet, these decisions continue to be of interest, for they show one thing very clearly: while Austria is in the fortunate situation to have a bilateral treaty with the UK that provides for the recognition of some (high-profile and high-value) decisions, it is far from covering everything. Particularly claims of lower value that will not reach the superior courts will not be enforced in Austria. With its forum necessitatis, Austria has found a way to minimise the negative jurisdictional side effects of Brexit for its citizens and residents, but Brexit still continues to pose us with problems we had considered solved a long time ago.

by JProf. Dr. Katharina Kaesling, LL.M. (College of Europe)

Proposals for conference presentations and short presentations at the fourth conference for young German-speaking scholars in private international law (“IPR-Nachwuchstagung”) in February 2023 can be submitted until 12th September 2022.

The organisers are welcoming all contributions by young scholars that deal with the theme of the conference “Deference to the foreign – empty phrase or guiding principle of private international law”. The call for papers and further information can be found on the conference website.

Although the conference will mainly be held in German, English proposals and presentations are also most welcome.