Droit international général

On 8 July 2022, Pakistan acceded to the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, which will enter into force for Pakistan on 9 March 2023.

Source: https://www.hcch.net/en/news-archive/details/?varevent=865

Mathilde Codazzi, who is a master student at the university Paris II Panthéon-Assas, contributed to this post.

In a judgment of 15 June 2022, the French supreme court for private and criminal matters (Cour de cassation) addressed the issue of jurisdiction for loss suffered as a consequence of fraudulent misappropriation of funds transferred on a bank account.

A French real estate company, Immobilière 3F, ordered several bank transfers from its bank account in Paris maintained by a French bank, Société Générale, to an account seemingly belonging to a French company with which Immobilière 3F already had business relationships. This account was opened in Portugal and maintained by a Portugese bank, Banco Commercial Portugues. The bank details were given to Immobilière 3F by a person who fraudulently appeared as the chief accountant of Immobilière 3F’s French business partner. Immobilière 3F sued both Société Générale and Banco Commercial Portugues before French courts for breach of their professional obligations and compensation of the damage suffered as a result of the wrongful appropriation of the funds. Banco Commercial Portugues challenged the jurisdiction of French courts.

In a judgment of 4 November 2020, the Paris Court of Appeal ruled that French courts did not have jurisdiction on the ground that the damage did not materialize in the place from which the bank transfers were performed or where the loss was suffered, that is, France, where Immobilière 3F is established, but in the place where the unlawful appropriation of the funds occurred, that is, Portugal, where the account wrongfully debited was opened and maintained, i.e. where the wrongful appropriation of the funds occurred.

Immobilière 3F challenged this judgment on two grounds both based on the relevant case-law of the CJEU concerning pure financial damage.

First, it argued that the damage did not materialize itself where the unlawful appropriation of the funds occurred/where the funds were debited from the bank account of Immobilière 3F’s business partner, but where Immobilière 3F was dispossessed of the funds, that is in France, where its account was debited.

Second, it argued that the Court of Appeal, departing from CJEU case-law (Löber, C-304/17), failed to examine whether other specific circumstances of the case could lead to find that the damage actually materialized in France and not in Portugal, in which case French courts would have jurisdiction. According to Immobilière 3F, the following circumstances would be relevant: the plaintiff is established in France, the damage caused by the acts of Banco Commercial Portugues materialized in France, the transfer orders were given in France to a French bank (Société Générale) based on elements shared by an entity established in France.

In a judgment of 15 June 2022, the Cour de cassation overturned entirely the judgment of the Paris Court of Appeal. It cited the relevant case-law of the CJEU regarding Article 7(2) of the Brussels I bis regulation: the courts of the Member State where the plaintiff is domiciled have jurisdiction notably when the damage materializes directly on the plaintiff’s bank account held with a bank established within the jurisdiction of those courts (Kolassa, C-375/13). It went on and reminded that this however cannot be the only relevant connecting factor: the courts of the Member State where the plaintiff is domiciled will only have jurisdiction if other specific circumstances of the case contribute to granting jurisdiction to these courts (Universal Music, C-12/15).

As a result, the judgment of the Paris Court of Appeal ‘lacked legal basis’, i.e. did not give enough reasons in support of its decision: in order to decline jurisdiction of French courts on the ground that the damage materialized in Portugal, it should have first examined if other specific circumstances of the case contributed to granting jurisdiction to French courts. Those circumstances could be, according to the Cour de cassation, that the damage occurred directly on a bank account opened in France, and that the transfer was destined to a French business partner.

The cases on which the Cour de cassation relied in this judgment were all concerned with the loss in value of dematerialised assets, mostly financial instruments. This case is quite different: it is about fraudulent misappropriation of funds from a bank account.

Is the case law of the CJEU on loss of value of financial instruments decisive for the sole reason that a bank account was involved? That is not certain. In a case of misappropriation of funds, the damage is more tangible than that of loss of value of financial instruments. In the present case, the assets did not lose their value, they were taken away.

Report on the

Summer School on the new Foreign Relations Law

MPIL Heidelberg, June 8-10, 2022

by Zixuan Yang and Jakob Olbing*

The MPIL in Heidelberg hosted a three-day Summer School titled “Populism and the New Foreign Relations Law: Between Public International Law, ‘External Public Law’, and Conflict of Laws”, led by Anne Peters (MPI Heidelberg), Karen Knop (University of Toronto and Max Planck Law Fellow), and Ralf Michaels (MPI Hamburg). The Summer School, which brought together 20 young scholars, was also the first step in a large-scale research project that Karen Knop will lead in the coming years as one of the first Max Planck Law Fellows.

The aim of the Summer School was to familiarize the participants with foreign relations law, a field which is known in only a few countries, and to examine its relationship to conflict of laws and international law. Led by the three hosts, the participants engaged in lively discussions on the presented topics, thus bringing together their diverse professional and national backgrounds. The results of the Summer School will not be published as such but will instead fuel and direct the joint research project within the Max Planck Law Fellowship Program. Karen Knop is one of the first five Fellows of the Program and is going to collaborate with Anne Peters, director at the MPI Heidelberg and Ralf Michaels, director at the MPI Hamburg on the project for the next few years.

Foreign Relations Law as a law in between

The Summer School began with the observation that few of the many nations represented identified foreign relations law as a distinct area of law. In Germany, one of the few countries having such a field of law, it is known as Staatsrecht III. From a comparative law perspective, however, it is difficult to define this new field of law in a general way. This also generates questions of whether such a field of law is needed at all or which particular issues it should govern, as the possible area of regulation is to a large extent covered by other areas of law, namely international law, conflict of laws, constitutional law, and administrative law as well as by the field of diplomacy. However, there is a variety of situations that cannot be assigned clearly to any of these established areas of law, thus highlighting the question if they should be assembled in a new field. Why, for instance, is the legality of a demonstration in front of an embassy often subjected to different rules and standards than other demonstrations? May South Korean “comfort women” compel the South Korean government to negotiate with Japan for compensation for their suffering during the war? Why is a claim for compensation for a death caused by the exercise of excessive police force dismissed when the fatal shooting occurred across an international border? Do such cases even fall under a court’s jurisdiction or is it rather a task of diplomacy to find a solution?

These and many other cases clearly show that there is room for a new field of law which should be explored with closer attention. However, the field’s further development should not – as has been the case so far – be left to a few Western countries; rather, the perspectives of other countries should also be included. Precisely this creation of new perspectives was one of the core aims of the Summer School. According to Karen Knop, the still young field of law is in danger of falling victim to populist politics. She understands populism not as an ideology but as a method for the demarcation and devaluation of all things “international” vis-à-vis what is deemed national. This concern was illustrated by the “take back control” slogan of the Brexit campaign, alleging that the EU institutions have little or no democratic legitimacy. The withdrawal from international treaties and organizations is a phenomenon that can, indeed, be observed in many countries. This dynamic should not be encouraged by foreign relations law through its establishment as a substitute for international law.

But are general concerns against international law as undemocratic justified or is the opposite the case? Case studies presented by Anne Peters illustrated how the ratification of international public law treaties – or the withdrawal from such treaties – may or may not be democratically legitimized. Can the executive of a state withdraw from the International Criminal Court without involving the legislative?

Foreign Relation Law as international or domestic law?

On the one hand, one can try to find a solution in public international law, but most treaties or conventions don’t entail provisions on withdrawal. Until Brexit, the sentiment rather was that more and more states will join a treaty or convention, not leave. On the other hand, national law could give an answer, when adopting a foreign relations law perspective. Though, in many countries public international law is, in some way or another, incorporated into the national law, legislatives have little opportunities to influence its content, since most treaties are negotiated between the state’s representatives. Also, judicial review is very limited concerning public international law. When developing foreign relations law, one could and should address these concerns. As Anne Peters put it: one has to normalize foreign relations law, by subjecting it to judicial review, providing stronger democratic legitimation and figuring out if and when a foreign set of facts should be treated different to a domestic, and when not.

Foreign Relations Law as a voice for unheard actors

It was highlighted throughout the three days that especially in smaller less economically strong countries, the recognition of foreign relations law as an independent field of law next to public international law could be very important. It could provide additional funding to a notoriously underfunded field of law. Normally those countries, mostly members of the global south, have only little chance in being heard, for example when treaties are negotiated. This is even more important as public international law has a long and controversial colonial legacy dating back to the history of imperial politics until the mid-20th century. To move from the colonial global north/south hierarchy and reframe foreign relations law, it is important to reflect whether there is a universal model and criteria for foreign relations law on a global level. In this sense, voices from different sides should all contribute to the formation of this new field of law.

Foreign relations law should also give a voice to actors who have never been heard in international law. Taking a historical and comparative perspective it should be a Post-Colonial foreign relations laws, encouraging non-state participants such as indigenous people to have a say. From a post-colonial perspective, it is also necessary to open up foreign relations to indigenous peoples to facilitate other forms of cross-border disputes and cooperation. Karen Knop raised the example of the Arctic Council, in which both states and indigenous peoples of the polar region are represented and participate in sustainable development and environmental protection.

Foreign Relations Law and Private International Law

But how to proceed? How can all these voices come together in a new area of law? Ralf Michaels introduced private international law methodology as an example for how to accommodate the different actors. He illustrated the already existing interdependency between foreign relations law and private international law through a series of cases of the U.S. Supreme Court. This interdependency should be further discussed and can offer new perspectives and has a future potential for both sides.

The traditional methodology of private international law is considered to be apolitical and neutral. However, it can also be influenced by diplomatic or policy considerations when certain public elements are involved. In a cross-border shooting case, Hernandez et al. v. MESA, a Mexican national assumed to have illegally crossed the border was shot to death on Mexican soil by a U.S. Border Patrol Agent who stood on U.S. soil. The claim for compensation was dismissed by the U.S. court. The agent’s duty to protect the border from illegal crossings was an act of foreign relations and therefore is ‘exclusively entrusted to the political branches’ and should be immune from judicial inquiry. Based on the separation of power, the court refrained itself from arbitrating on diplomatic matters. Granting such ‘private’ claims would also have the risk of undermining national security, the court said. There are other tension between national security and private international law. A recent general ban on Sharia and International law in several U.S. States Courts demonstrates populist arguments influence into public policy and against the application or recognition  of foreign laws, values and beliefs.

When it comes to the determination of the content of foreign law, ‘comity’ in foreign relations provide a basis for the forum’s treatment of foreign law. In Animal Science Products, the U.S. Supreme Court ruled that respectful considerations should be given to the foreign government’s submission on its own law, however, the federal court is not bound to accord conclusive effect to it. Furthermore, comity also plays an important role for the court to determine the territorial reach of domestic law in international cases. The Supreme Court’s decision in Empagran concerned an antitrust class-suit alleging the application of the Sherman Act even though the alleged conduct and harm were occurred significantly on foreign territory. Justice Breyer’s statutory interpretation and justification for limiting the scope of U.S. antitrust law in this case was discussed to rethink the nature of the U.S. federal court’s long standing Charming Betsy principle, also known as the presumption against extraterritoriality.

Foreign Relations Law as a Law of opportunities

It might seem an impossible task to accommodate all these interests and participants into a new foreign relations law and at the same time follow a coherent methodology. But a new field of law gives the opportunity to address issues, which long have been left aside or completely ignored despite the factual relevance and to find creative answers. Indigenous people have been interacting with another across borders since borders where put in place. States where entering into treaties all the time, policemen are shooting everywhere and anyone (in the US) and occasionally across a border and after a war, victims are (sometimes) compensated for their losses by the alien. All the cases have a foreign element, so maybe private international law can provide one solution, as it is his task to provide clear answers to international complex cases, and its methods are designed to accommodate international cases. Its aims of uniformity and certainty of results could also benefit foreign relations law. Another solution could be provided within the framework of global constitutionalism, as Anne Peters suggested. Developing a foreign relations law within the global institutions of public international law, such as the United Nations, by means of diplomacy and treaty making to create a uniform body of law.

After three days filled with sessions, discussions, and lively conversations, the participants departed with the strong sense that the foundation for the further development of foreign relations law had been laid together. As a parting gift, the three hosts wished for a further development of the learned and encouraged the participants to publish the newly made findings. Given the many newly made contacts – woven diligently after the long break due to the Covid-19 pandemic – it is merely a question of time that co-authored publications will appear.

* Zixuan Yang and Jakob Olbing are PhD students under Ralf Michaels at the Max Planck Institute for Comparative and International Private Law, Hamburg.

Municipio De Mariana & Ors v BHP Group (UK) Ltd & Anor [2022] EWCA Civ 951 (background to the case here) is the appeal against the stay (and partial strike-out), on forum non conveniens, A33-34 Brussels Ia and case-management grounds ordered by Justice Turner. The Court of Appeal has overturned all three reasons for a stay. Bar appeal with the Supreme Court (which the defendants are likely to seek) the claimants may now bring their claim in the courts of England and Wales.

For the benefit of full disclosure I should add I am instructed for claimants in the case; this post however does not speak for claimants or co-counsel in the case and is merely my academic view on the judgment.

The judgment runs to 107 pages (not excessive given the issues and facts covered). There is little point in me rehashing it all (again, reference to my previous post may be useful). 40 pages are spent describing the applicable law in Brasil and the various proceedings underway there. This is of particular importance seeing as the crux of all three defences advanced is that the proceedings are already underway in Brasil and should not be duplicated by an English procedure.

In the main:

Abuse is dealt with [170] ff, with the key points for reversal listed [179] and the CA’s own analysis detailed thereafter, summarising in [234] ff.

Of particular note here is the rebuke of Justice Turner’s finding of ‘unmanageability’ of proceedings (which the CA as such does not believe will be the case) having dominated his subsequent findings on other elements of abuse, and the use of forum non conveniens criteria for the assessment of abuse.

[182] Consideration should have been made of the question of the availability of full redress in Brazil. To those following business and human rights litigation, this will be a welcome finding. [186] Support for manageability of proceedings not having a place in the abuse assessment (other than [187] if the claimant were to have vexatiously made the proceedings unmanageable himself), was found in Mastercard v Merricks [2020] UKSC 5.

[190] discussion of what Turner J at the abuse level,  saw as complications arising out of the existence of parallel proceedings in Brazil, already indicate the direction the Court took on the forum non and A34 issue: the many differences between the English and the Brazilian proceedings.

The Article 34 Brussels Ia application is discussed [237] ff and is of particular relevance to readers of the blog.

Firstly [256] the Court of Appeal settles for now the Privatbank /Euroeco discussion on ‘expediency’ (see also ia SCOR v Barclays) in favour of the former: What is required to fulfil A34(1)(a)’s condition is that it must be desirable for the two actions to be heard and determined together in order to avoid the risk of irreconcilable judgments, irrespective of whether that is a practical possibility. (Claimants have reserved the right to contest this should the matter go before the Supreme Court).

Further [257] the test of relatedness for the purposes of A34 is held by the CA to be a broad test: [243] per Tesauro AG in C-406/92 The Tatry, whenever the judge seized of the stay request considers that the reasoning adopted by the court hearing the earlier proceedings may concern issues likely to be relevant to its own decision, the cases can be said to be related. This is opposed to the narrow approach in the House of Lords Sarrio SA v Kuwait Investment Office [1991] AC 32: there the HoL held that for there to be a risk of irreconcilable judgments the inquiry is limited to “primary” issues which are those necessary to establish the cause of action, and does not include issues which the court might or might not decide and which would not be essential to its conclusion.

On the condition ‘that the court of the third State will give a judgment capable of recognition‘, at the hearing the question was asked whether a twofold condition exists, namely (i) that a judgment was expected as a matter of fact and (ii) that the expected judgment was one which was capable of recognition and, where applicable, enforcement. The Court [260] supports the view that only the second (ii) condition applies. I do not think that is correct and I am not convinced by the Court’s travaux analysis on this point [266] – I detail this in my forthcoming paper in the JPIL. As for that second condition, the CA holds [269] that ‘the exercise at this stage is a conceptual one, looking at the type of judgment to which the third state pending action may give rise, and evaluating whether it attracts recognition, or where applicable enforceability.’

‘Necessity for the proper administration of justice’ is dealt with [273] ff (although it confusingly includes discussion of more than just this ultimate A33-34 condition), starting with the discussion whether a stay was available or could be justified on a “consolidation” basis (effectively, an allocation of jurisdiction [275], or on a “wait and see” basis [temporary case-management: wait and see whether and to what extent the outcome of the case ex-EU affects the action in the member state]. [277] Underhill LJ takes a holistic approach: Does waiting for the outcome [of the Brazilian proceedings held to be related] give rise to advantages which sufficiently outweigh any disadvantages such that a stay is necessary? [279] The CA takes a broad approach to the issues that might be considered, including issues classic to a forum non conveniens analysis. I believe that is right, with the important caveat that A34 must not effectively be conflated with forum non (which is what the first instance judge had effectively done) (compare Ness).

[282] the Court takes a formalistic (and correct) view on the ‘related proceedings’ and their being ‘pending’:

for the purposes of the article 34 application, the nature and extent of overlap which falls to be considered when addressing whether and to what extent there is a risk of irreconcilable judgments, and in considering whether that risk weighs in favour of a stay being necessary for the proper administration of justice, is limited by reference to that which might be decided in the [pending Brazilian proceedings].

In particular, an advantage eg in winding-up proceedings viz the defendants or related undertakings, which could be obtained down the line from the outcome of the related proceedings, would not be caught by the comparative overlap and the likelihood of relatedness therefore is seriously reduced ([283] contrary to Turner J’s finding that that the list of areas in which potentially
irreconcilable judgments are liable to arise was “almost endless”).

[291] ff the CA makes its own assessment of the ‘proper administration of justice’ requirement given the judge’s core mistakes (particularly, his abuse conflation and the consideration given to future proceedings which are not pending).

[298] The CA holds that the continuation of the claim against BHP Australia (for which later in the judgment it finds that this is not barred on forum non grounds) in and of itself argues against an A34 stay (and that relevant parts of Lord Briggs’ speech in Vedanta do not change that).

Obiter [300] ff it lists other factors against a stay: [302] there is a real possibility that final resolution of the related BRA proceedings,  if they resume at all, is well over a decade away; [303] ‘For there to be a further delay of years, and quite possibly over a decade, before [E&W proceedings] could resume would cause very substantial prejudice to the claimants in obtaining relief, and would be inimical to the efficient administration of justice as a result of all the well-known problems which delay brings to the process’; [304] ff there are many disadvantages to the BRA proceedings including that these will not address the liability of the defendants in the E&W proceedings; [308] the degree of overlap between the proceedings is limited.

The forum non application is highly relevant given the English courts’ preponderant reliance on it, outside the BIa context, following UKSC Brownlie. Of note here is ia [345] the unrealistic prospect of the alternatives being suggested – I will leave the further forum non analysis to blogs less focused on European conflict of laws.

Rejection of a case-management stay is done succinctly, with Underhill LJ noting ia [374] that such stay would be incompatible with A34 and A4 BIa.

All in all I do not agree with each of the Court’s findings on tenets of A34, however in general the Court’s application reflects the correct approach to the Article, which very much makes a stay the exception.

Geert.

See also ‘Dude, where’s my EU court? On the application of Articles 33-34 Brussels Ia’s forum non conveniens- light rules’, Journal of Private International Law, forthcoming 2022.

Delighted to report we have won jurisdiction appeal in Mariana (background https://t.co/SiYFGAJEEM
Court of Appeal finds unanimously that forum non conveniens, A34 Brussels Ia and case-management stay applications all fail
Holds victims of 2015 Fundão Dam disaster may sue in E&W pic.twitter.com/qwZQZk7gwe

— Geert Van Calster (@GAVClaw) July 8, 2022

Alex Mills (University College London) published a working paper on the role of territoriality in Private International Law. This is available in free access on SSRN.

The abstract reads:

Private international law essentially deals with the question of how we should regulate relationships and resolve disputes which have connections with more than one legal system, distinguishing between the institutional aspects of regulation (jurisdiction) and the substantive aspects (applicable law). Traditionally, a decision is made about which legal system (or systems) should govern based on a range of connecting factors. Among these factors, territorial connections have historically had the most significant influence, reflecting an approach to private international law which understands the subject as concerned with the division and allocation of state authority and adopts a ‘spatial’ conception of that authority. Private international law theory and practice has also, however, explored a range of alternatives which might be relied on, including the characteristics or wishes of the parties themselves, as well as other approaches which reject altogether the idea that private international law should focus on allocational questions. This chapter asks why territoriality plays such an important role in private international law, and considers whether it should. The chapter begins with an examination of the role of territoriality in private international law history and theory. It then considers various arguments which might be raised to justify territoriality in private international law, suggesting that they may also justify traditional private international law techniques. The chapter also, however, addresses the question of whether these justifications hold up against the challenges presented to territoriality by modern globalisation, in particular, whether territoriality can provide certainty, coherence, and effective regulatory constraint.

Alex Mills work is forthcoming in a volume on Philosophical Foundations of Private International Law edited by Roxana Banu, Michael Green and Ralf Michaels with Oxford University Press in 2023.

More information on the interdisciplinary project exploring the Philosophical Foundations of Private International Law can be found here.

The University of Antwerp has a vacancy for a PhD researcher in EU private international law, with a particular emphasis on Union citizenship and its interaction with conflict of laws. The university offers a doctoral scholarship for a period of two years. Following a positive evaluation, the scholarship can be renewed once for another two-year period. Interested persons can apply up until 8 August 2022, and the successful candidate will start on 1 October 2022.

The Court of Justice delivered yesterday (7 July 2022) its judgment in case C‑7/21 (LKW WALTER Internationale Transportorganisation AG), which is about the rights of the defence in the Service bis Regulation:

« Article 8(1) of Regulation (EC) No 1393/2007 […], read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding legislation of the Member State of the authority which issued a document to be served, pursuant to which the starting point of the one-week period referred to in Article 8(1) of that regulation, within which the addressee of such a document may refuse to accept it on one of the grounds set out in that provision, is the same as the starting point for the period within which a remedy is to be sought against that document in that Member State”.

Source : https://curia.europa.eu/juris/document/document.jsf?text=&docid=262423&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=252837

As announced in this blog, the Catholic University of the Sacred Heart in Milan plans to invite young scholars to present the outcome of their doctoral research on any topic within the field of private international law, transnational law or the law of international arbitration, at a dedicated seminar that will be held annually in Milan (the MECSI Seminar). Each MECSI Seminar will revolve around one scholar.

Those interested in presenting their doctoral research at the second MECSI Seminar of 2022, scheduled to take place in November 2022, are encouraged to send an e-mail to Pietro Franzina (pietro.franzina@unicatt.it) by 15 July 2022.

Applicants must be aged less than 35 and may come from any country. They must have already discussed their PhD dissertation at the time when the application is submitted (however, no more than two years must have passed since the dissertation was discussed). Applications must include a copy of the dissertation, an abstract of the dissertation in English and a CV of the author in English.

Applications must also include a proposal for the seminar presentation consisting of a title followed by abstract of about 1.500 words. The subject matter of the presentation must relate to, but should not necessarily coincide with, the topic of the thesis: the applicant may choose, for instance, to concentrate on one aspect of his or her research, or discuss developments occurred after the dissertation was discussed.

All documents accompanying the application must be in pdf format. The selection process involves, for those shortlisted, a Zoom interview.

The Catholic University of the Sacred Heart will cover the travel expenses of the selected scholar up to 600 Euros, and will take care of his or her accommodation at one of the guest houses of the University for up to two nights. During their stay in Milan, the selected scholar will also be invited to give a 45 minute lecture in English to the students attending the course of Private International Law on a topic unrelated to their PhD research.

The first view of two recent private international law articles have recently appeared in International and Comparative Law Quarterly.

Ardavan Arzandeh, “Brownlie II and The Service-Out Jurisdiction under English Law”

FS Cairo (Nile Plaza) LLC v Brownlie (Brownlie II) is arguably the United Kingdom’s highest appellate court’s most significant decision this century on a private international law question. The judgment has ended nearly two decades of debate about the meaning of ‘damage’ sustained in England for the purpose of paragraph 3.1(9)(a) of Practice Direction 6B of the Civil Procedure Rules. In a four-to-one majority ruling, the Supreme Court decided that the provision was to be interpreted widely, such that, in a personal injury claim, any significant harm of any kind suffered by a claimant in England could provide a basis for the service of proceedings on a foreign-based defendant. The article is critical of the majority’s decision, as it is liable to create both immediate and long-term problems in the context of the service-out jurisdiction in England. It also examines the court’s pronouncements on the other question before it concerning proof of foreign law.

Richard Garnett, “Determining the Appropriate Forum by the Applicable Law”

The concepts of jurisdiction and applicable law have been traditionally regarded as separate inquiries in private international law: a court only considers the applicable law once it has decided to adjudicate a matter. While such an approach still generally applies in civil law jurisdictions, in common law countries the concepts are increasingly intertwined. This article examines the relationship between jurisdiction and applicable law in two key areas: applications to stay proceedings on the ground of forum non conveniens and to enforce foreign exclusive jurisdiction agreements. While courts generally apply the principle that jurisdiction and applicable law should coincide where possible, there are circumstances where a court may retain jurisdiction despite a foreign governing law or may ‘trust’ a foreign tribunal to apply the law of the forum. This article seeks to establish a framework by which courts may assess the role of the applicable law in forum determinations.

Djakhongir Saidov, “An International Convention on Expert Determination and Dispute Boards?”

This article makes a case for an international convention on expert determination (ED) and Dispute Boards (DBs) that would require its Contracting States to recognise agreements on ED/DBs and enforce ED/DB decisions. Whilst strong, the case for the convention may not be compelling as there are arguments against it. But at least the time has come for the international legal community to start thinking about and debating the need for such an international regime. This article takes the first step towards imagining this international regime by evaluating a number of key issues relating to its scope of application.

The Swedish Labour Court held on 1 June 2022 (interim decision AD 2022 No. 33)  that an industrial action taken in Sweden in sympathy with Ukraine was not lawful as it was not proven that a lawful primary action had taken place in Ukraine according to Ukrainian law on international sympathy actions.

Since Russia invaded Ukraine earlier this year, the Swedish Dockworkers Union has taken industrial action to support Ukraine by refusing to load and unload Russian ships. As the trade union had given notice on a renewed industrial action to support Ukraine in May, the trade union pleaded to the Swedish Labour court that it should declare the industrial action lawful in an interim decision. As there is a collective agreement between the employer and the Swedish Dockworkers Union and consequently a strong mutual peace obligation, industrial actions may only be taken in extraordinary situations. One such extraordinary situation is a sympathy action.

Sympathy actions are lawful even though the collective agreement parties are bound by a collective agreement if the primary action is lawful, and the sympathy action is limited in time. This applies also when the sympathy action is taken in solidarity with someone in another country. In such a situation, the Swedish substantive law assessment is dependent on the content of foreign law even if both parties are Swedish. Another exception are political strikes that trade unions may take to demonstrate a political opinion if it is limited to a short period of time.

In the case, the trade union argued that the planned industrial action was a sympathy action to support Ukrainian and Belarusian trade unions in their industrial actions. According to Swedish labour law, the exception for sympathy actions is applicable also in international situations. The employer objected and stated that there were no lawful primary industrial actions in Ukraine or Belarus. As the Swedish substantive law assessment in this regard is dependent on the content of foreign law, the Labour Court pointed out that the parties had not presented proof of the content of foreign law.

Pursuant to the Swedish procedural code, foreign law is both a matter of fact and a matter of law. It is not subject to the principle of iura novit curia, but the court may use the knowledge it has or research the content of foreign law on its own motion. In the decision, the court seems not to have made any effort to research the content. If it would, it is not self-evident how to assess foreign law or even what law that shall be applied as some of the alleged primary industrial actions were taken in Ukrainian territory occupied by Russia.

After having declared that it was not a sympathy action, the Labour Court held that the planned industrial action was not either a lawful political industrial action as the intended time period of three weeks was too long. Hence, it would have been a disproportionate limitation of the employer’s right to conduct a business.

This Thursday, the Court of Justice handed down its judgment in the case LKW Walter, C-7/21. In this case, the request for a preliminary ruling originates in the proceedings on a litigation malpractice action, between a company established under Austrian law and the lawyers established in that Member State, who represented the said company in the proceedings before Slovenian courts, in which it acted as a defendant.

In essence, the Austrian lawyers who in the context of the proceedings before Slovenian courts failed to timely lodge the reasoned objection against a decision on enforcement on the behalf of their client, now the defendant lawyers within the proceedings initiated by the said client against them, argue that the time limit set by the Slovenian legislator is not compatible with EU law.

By its request, the referring court seeks the interpretation of the Brussels I bis Regulation, of the Regulation No 1393/2007 (‘Service Regulation’) and of the Article 18(1) TFUE (interdiction of discrimination on the grounds of nationality).

Back in March, we reported on the Opinion presented in this case by AG Pikamäe. To avoid unnecessary repetitions, I allow myself to refer our readers to the previous post were more details about the factual background of the case can be found. As the English version of the Opinion is not yet available, I can also refer the readers to the post on EAPIL blog by Marta Requejo Isidro who provided a translation of the proposed answer.

Preliminary question(s)

The referring court asked three questions, with only one of them (second question) being addressed by the Court in its judgment. The answer to the two other questions was considered unnecessary, in the light of the answer to the second question (paragraph 50).

The second preliminary question reads as follows:

“Is Article 8 of [the Service Regulation], read in conjunction with the principles of effectiveness and equivalence, to be interpreted as precluding a national measure which provides that, upon service of the standard form set out in Annex II informing the addressee of his or her right to refuse to accept the document within a period of one week, the period also begins to run in respect of bringing the appeal provided for against the decision on enforcement served at the same time, for which a period of eight days is laid down?”

Court’s answer and its reasoning

To put into context the findings of the Court:

On the one hand, Article 8(1) of the Service Regulation provides that it is possible to refuse to accept the document to be served at the time of service or by returning the document to the receiving agency within one week if it is not written in, or accompanied by a translation into, a language which the addressee understands or the official language of the Member State addressed.

The decision on enforcement, drafted in Slovenian, has been served to the Austrian company. The company did not, however, refuse to accept this decision on the basis of Article 8(1) of the Regulation.

On the other hand, the Slovenian provision contested by the defending lawyers establishes a time limit of eight days within which an objection has to be introduced against a decision on enforcement. According to the interpretation of this provision that the Court relied on (point 42 paragraph of the judgment), this time limit starts to run when the decision on enforcement is served to the defending party.

Thus, the time limit for refusal, provided for in Article 8(1) of the Service Regulation, and the time limit to lodge an opposition against a decision on enforcement, provided for in Slovenian law, start to run the same day and virtually coincide.

As a reminder, in his Opinion, AG Pikamäe took the view that the Service Regulation, read in conjunction with Article 47 of the Charter, does not preclude a provision of a Member State under which the time limit for lodging an objection against a decision embodied in a judicial document served in accordance with Service Regulation begins to run from the time of service of the document in question, and not only after the expiry of the one-week time limit provided for in Article 8(1) for refusing to accept the document (point 56 of the Opinion).

AG Pikamäe argued in his Opinion, in particular, that the Austrian company ‘deliberately waived its crucial right’, conferred on that party by Article 8(1) of the Service Regulation, to refuse the acceptance of document not translated into the language this party understands/the language of the Member State addressed. Thus, in line with the principle of estoppel, that party could not claim that its right of defence has been violated by the sole fact that the time limit to lodge an objection against the decision on enforcement started to run when this decision has been notified to that party (point 55 of the Opinion).

By contrast, the Court came to a different conclusion. It ruled that Article 8(1) of the Service Regulation, read in conjunction with Article 47 of the Charter, has to be interpreted to the effect that it precludes a legislation of a Member State according to which the time limit to refuse the acceptance of an act provided for in Article 8(1) of the Regulation starts to run concurrently to a time limit to lodge an objection against that act, provided for in the said legislation (paragraph 49).

The reasoning of the Court relies mainly on the following arguments.

First, a party served with a document drafted in a language it does not understand/language other than the one of the Member State addressed enjoys the right to make a decision as to whether it refuses to accept that document, within one-week time limit provided for in Article 8(1) of the Service Regulation. If a time limit to contest the decision embodied in this document starts to run simultaneously with the one-week time limit to refuse the acceptance of the document, the party cannot enjoy the full one-week time limit to evaluate whether it desires to accept the document or not (paragraph 42).

Next, and maybe even more interestingly, the Court indicates that, in such situation, the defending party cannot fully enjoy the eight-day time limit provided for under Slovenian law and seems to hint that this outcome is incompatible with Article 47 of the Charter. The Court seems to reason in the following manner : an ‘act’ served to the defendant falls within the scope of application of the Service Regulation [probably due to the fact that it constitutes a ‘document […] transmitted from one Member State to another for service there’ within the meaning of Article 1(1) of the Regulation and/or due to the fact the the ‘document’ is not drafted in the language that the addressee understands/not in the language of the Member State addressed]. The ‘situation’ falls within the ambit of the right to effective judicial protection, enshrined in Article 47 of the Charter, and, in such situations, the Charter requires that the party served with this ‘act’ can use the time limit provided for under national law to its full extent (paragraph 43). [On a side note: it can be a question of debate whether those findings hint that, in similar configurations, it is possible to benchmark national time limits against the requirements stemming from the Charter (implying that such time limits fall within its scope of application, provided that they are applicable to an ‘act’ falling within the scope of application of the Regulation) or those findings just set the ground for the argument presented below.]

Finally, such a scenario, in which two time limits run concurrently, leads to discriminatory treatment of the party served with the document drafted in the language it does not understand, as it cannot enjoy the full time limit set to contest the decision issued against the said party, irrespective of the length of that time limit (‘indépendamment de la durée du délai pour exercer un recours contre cet acte’, paragraph 44; I digress again: it may be a hint that, for the Court, the argument remains valid also where the time limit provided for in national law would be shorter than one-week period provided for in Article 8 of the Service Regulation).

Against this background, the Regulation aims to eliminate such difference in treatment, to the detriment of the party that does not understand the language of the document (paragraph 45). Therefore, the time limit to contest the decision should, in principle, run after the time limit from Article 8(1) of the Service Regulation (paragraph 46).

If not, in practical terms, the concurrence of time limits can potentially incite the party to refuse, by default, the acceptance of the document, without properly considering whether to do so or not; thus, such solution contradicts the objectives of the Regulation (paragraph 47).

The judgment can be consulted here.

I discuss the background to Barings (UK) Ltd & Ors v Galapagos SA [2022] EWHC 1633 (Ch) here. At the end of August 2019 an opening of insolvency proceedings was requested by various Barings companies and Goldman Sachs, in respect of the Respondent, Galapagos S.A. – GSA.

While this request was pending before the English courts, a group of high yield noteholders (including Signal, the main opponent in the English proceedings) procured the replacement of GSA’s English directors with a German director, and the new German director and two creditors brought separate ex parte applications before the Düsseldorf Amtsgericht (District Court) for the opening of insolvency proceedings there. Following the opening of insolvency proceedings by the Düsseldorf court, the English proceedings were stayed. The German proceedings then led to a preliminary reference to the CJEU which resulted in a judgment on 24 March 2022, the judgment I discuss in my previous post.

[12] ff Bacon J summarises the procedural tussle (including the, I believe unreported August 2019 Norris J stay: [2019] EWHC 2355 (Ch)). Justice Norris had stayed the English proceedings believing inter alia that the German courts might dismiss the German proceedings once they had been properly told of the English action.

The dictum in C-723/20 was

Article 3(1) of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings must be interpreted as meaning that the court of a Member State with which a request to open main insolvency proceedings has been lodged retains exclusive jurisdiction to open such proceedings where the centre of the debtor’s main interests is moved to another Member State after that request has been lodged, but before that court has delivered a decision on it. Consequently, in so far as that regulation is still applicable to that request, the court of another Member State with which another request is lodged subsequently for the same purpose cannot, in principle, declare that it has jurisdiction to open main insolvency proceedings until the first court has delivered its decision and declined jurisdiction.

The reference to ‘in so far as that regulation is still applicable’ refers to the Brexit element to the case which surprisingly perhaps was not included in the dictum: COMI presumptions ordinarily serve to protect the first court seized’ privilege to find, or reject, COMI in its jurisdiction however that privilege no longer applies vis-a-vis UK courts post Brexit.

As I note in my earlier review, the CJEU wrongly decided not to answer the German court’s question

Is Article 3(1) of [Regulation 2015/848] to be interpreted as meaning that:

(a)      the courts of the Member State within the territory of which the centre of the debtor’s main interests is situated at the time when the debtor lodges the request to have insolvency proceedings opened retain international jurisdiction to open those proceedings if the debtor moves the centre of its main interests to the territory of another Member State after lodging the request but before the decision opening insolvency proceedings is delivered, and

(b)      such continuing international jurisdiction of the courts of one Member State excludes the jurisdiction of the courts of another Member State in respect of further requests to have the main insolvency proceedings opened received by a court of that other Member State after the debtor has moved its centre of main interests to that other Member State?’

Neither, possibly because the question was not so asked by the referring court, does it entertain the issue of ‘permanency’ required to move COMI to another state (see my previous post for detail).

Applicants in the current case and Bidco say that the effect of the GalapagosCJEU judgment is that GSA’s winding up can and should now proceed in E&W. Signal, however, contends that the English insolvency proceedings should remain stayed or should be dismissed.

Of relevance in that assessment is Article 67(3) (c) withdrawal agreement, which reads

In the United Kingdom, as well as in the Member States in situations involving the United Kingdom, the following provisions shall apply as follows:…

Regulation (EU) 2015/848 of the European Parliament and of the Council shall apply to insolvency proceedings, and actions referred to in Article 6(1) of that Regulation, provided that the main proceedings were opened before the end of the transition period;

The question in my view is not ‘are the German insolvency proceedings to be regarded as the “main proceedings” within the meaning of Article 3 of the Recast EIR?’ which is the course which the judge seems to follow. Rather, whether either the German or the English insolvency proceedings were to be regarded as main proceedings.

In either case, in my view, main proceedings have been opened and the EU EIR continues to apply as acquired EU law.

[21] Signal’s position is that unless and until the German courts have given effect to CJEU Galapagos by setting aside or otherwise the Düsseldorf insolvency proceedings, the German insolvency proceedings remain the “main proceedings” for the purposes of the Recast EIR. Accordingly, under A67(3) WA the Recast EIR remains applicable and the German proceedings have to be recognised by the English court, precluding the making of a winding up order. If that is wrong, and the Recast EIR does not apply, Signal argue that GSA’s COMI is not in England, such that the UK IR (the retained Insolvency Regulation) does not apply, leaving s. 221 of the relevant UK law as the only jurisdictional basis for a winding up order. In addition, whether under the UK IR or s. 221, Signal contends that the circumstances are such that the court should not exercise its discretion to make the order.

The rather important questions are therefore summarised by Bacon J [23] as

i) The first issue is whether the Recast EIR remains applicable to these proceedings, as Signal contends. That in turn depends on whether the German proceedings are to be characterised as “main proceedings” for the purposes of Article 67(3)(c) of the Withdrawal Agreement. – as I note above, that issue is wrongly formulated.

ii) If the German proceedings are not “main proceedings”, such that the Recast EIR no longer governs the question of jurisdiction of the UK courts in the present case, the next question is whether there is jurisdiction to make a winding up order under the UK IR on the basis that GSA’s COMI is in England. – again see my own caveat above.

iii) The final issue is whether the court should exercise its discretion to make a winding up order under either the UK IR if that is applicable, or alternatively under s. 221 of the Insolvency Act 1986.

[48] the judge has the interim conclusion that up to and until 31 December 2020, the combined effect of the pending application before the High Court and the Recast EIR was to prohibit the German courts from declaring jurisdiction to open main insolvency proceedings. After that date, however, they could quite validly do so, if GSA’s COMI was by then situated in German territory.

I am not convinced that a mere request for opening of proceedings equates opening of these proceedings, and I am not convinced that the fall-back finding of COMI in England [83] ff, applying the Swissport ([2020] EWHC 3556 (Ch), unreported) summary of criteria, is solid: it is exactly on this point that the CJEU’s silence on the issue of ‘permanency’ is frustrating.

The judge concludes that a winding up order in respect of GSA be made however I think her analysis is incorrect and I assume permission to appeal must have been sought.

Geert.

English court concludes, not uncontroversially, that it has jurisdiction to wind-up following unclear CJEU Galapagos, discussed here https://t.co/uCmHjGT0tb

Barings (UK) Ltd & Ors v Galapagos SA [2022] EWHC 1633 (Ch)https://t.co/DMIbLfgxMH

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

The Singapore-based Asian Business Law Institute (ABLI) is organising a second joint webinar with the Permanent Bureau of the Hague Conference on Private International Law (HCCH) on 27 July.

Titled Cross-border Commercial Dispute Resolution – HCCH 2005 Choice of Court and 2019 Judgments Conventions, the webinar will take place on Wednesday 27 July between 3 to 6pm (Singapore time), and will comprise two sessions to take a holistic look at the Choice of Court and Judgments Conventions. Attendees have the option of attending one or both sessions.

Invited speakers include Sara Chisholm-Batten (Partner, Michelmores LLP), the Honourable Justice David Goddard (Court of Appeal of New Zealand), Justice Anselmo Reyes (International Judge, Singapore International Commercial Court), Nish Shetty (Partner, Clifford Chance LLP) and Dr Ning Zhao (Senior Legal Officer, HCCH).

For more information or to register, see here. Queries about the webinar can be directed to Catherine of ABLI at info@abli.asia.

The region is a hotbed for international commercial litigation, as readers of the blog will know, and the event is very timely.

Geert.

Stefania Bariatti (University of Milan), Ilaria Viarengo (University of Milan) and Francesca C. Villata (University of Milan) edited a book titled EU Cross-Border Succession Law with Edward Elgar Publishing, part of the Elgar European Law and Practice series.

The book provides an overall assessment of EU cross-border succession law. It consists of seven parts dealing with: the scope of application of the EU Succession Regulation; the determination of the applicable law under the EU Succession Regulation; the determination of the jurisdiction under the EU Succession Regulation; the recognition and enforcement of judgments and other instruments under the EU Succession Regulation; the European certificate of succession; cross-border successions and taxation; the impact of the EU Succession Regulation on the national laws on cross-border succession.

Contributors include Stefania Bariatti, Paul Beaumont, Alegría Borrás, Isidoro Calvo Vidal, Zeno Crespi Reghizzi, Stefano Dominelli, Andrew Godfrey, Elise Goossens, Michael Graham, Jayne Holliday, Peter Kindler, Michael Kränzle, Richard Frimston, Luigi Fumagalli, Carlo Alberto Marcoz, Cristina M. Mariottini, Daniele Muritano, Cyril Nourissat, Raul-Angelo Papotti, David Paulus, Giulio Peroni, Francesco Pesce, Lorenzo Prats Albentosa, Ilaria Queirolo, Anna Reis, Gian Paolo Romano, Giulia Vallar, Sonia Velasco, Ilaria Viarengo, Francesca C. Villata.

For further information, see here.

Due to the summer holiday, July 2022 will be a brief month at the Court in terms of delivery of judgments and opinions and the holding of hearings. Nevertheless, until then we are invited to attend, on Thursday 7th, the hearing in C- 639/21 Geos et Geos International Consulting, a case referred by the Cour de cassation (France), with these questions on the Brussels I bis Regulation:

1. Are Article 4(1) and Article 20(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to be interpreted as meaning that, where it is claimed that a company domiciled in a Member State, and being sued by an employee before the courts of that State, is the joint employer of that employee, who was engaged by another company, that court is not required to assess at the outset whether the employee is jointly employed by those two companies in order to determine whether it has jurisdiction to rule on the claims made against them?
2. Are those articles to be interpreted as meaning that, in such a case, the autonomy of the special rules of jurisdiction over individual contracts of employment does not preclude the application of the general rule that jurisdiction lies with the courts of the Member State in which the defendant is domiciled, set out in Article 4(1) of Regulation No 1215/2012?

The lawsuit at the national level was filed by PB, a former employee of the company Geos International Consulting, established in London, with the conseil de prud’hommes de Montpellier. The core of the matter is the payment of various sums in relation to PB’s dismissal. Alleging a situation of co-employment, PB is seeking to obtain joint and several judgments against the said company and its parent company, Geos, whose head office is located in Puteaux (France). While the conseil de prud’hommes concluded that the French courts had jurisdiction, the Montpellier Court of Appeal arrived at the opposite solution on the basis of Article 21(1) of Regulation No 1215/2012. On appeal, the Court of Cassation is asking about the interpretation of Article 4(1) and Article 20(1) of Regulation No 1215/2012.

The case has been assigned to the 2nd chamber (judges S. Prechal, J. Passer, F. Biltgen, N. Wahl, and L. Arastey Sahún as reporting judge). It will benefit from an opinion by AG N. Emiliou.

On the same day, the decision on C-7/21 LKW WALTER will be handed down. The preliminary reference comes from the Bezirksgericht Bleiburg (Austria). I reported on the questions here, also announcing the opinion by AG P. Pikämae to be published on March 10, 2022.  There is no English translation so far of his proposal to the Court. An interim one could be:

1. Article 8, sections 1 and 3, of Regulation (EC) No. 1393/2007 (…), in relation to article 47 of the Charter of Fundamental Rights of the Union European Union, must be interpreted in the sense that it does not oppose a national regulation of the sentencing State according to which the term to file an appeal against a resolution materialized in a judicial document notified or transferred in accordance with Regulation (CE) n º 1393/2007 begins to run from the notification or transfer of the document in question, and not only after the expiration of the period of one week, provided for in section 1 of said article, to refuse to accept said document.
2. Article 45, section 1, letter b), and article 46 of Regulation (EU) No. 1215/2012 (…), in relation to article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted in the sense that the recognition and enforcement of a decision that has not been issued in the context of an adversarial procedure must be denied, if the appeal against such decision must be drawn up in a language other than the official language of the Member State in which the defendant resides or, if there are several official languages ​​in that Member State, other than the official language or one of the official languages ​​of the place where he resides, and, according to the law of the Member State in which the decision was issued, the non-extendable period for lodging the appeal is only eight calendar days.
3.  Article 18 TFEU must be interpreted as not applying to a situation in which the addressee of a judicial document has waived his right to refuse to accept service of said document in accordance with Article 8, section 1, of Regulation (EC) No. 1393/2007.

The judgment will be delivered by the 4th chamber (judges C. Lycourgos, S. Rodin, J.C. Bonichot, L.S. Rossi, with O. Spineanu-Matei as reporting judge)

On Thursday 14th, the same chamber, this time with judge Rossi reporting, will deliver the judgment on C-572/21, CC. The request comes from the Högsta domstolen (Sweden). It addresses the interpretation of Articles 8 and 61 of the Brussels II bis Regulation:

Does the court of a Member State retain jurisdiction under Article 8(1) of the Brussels II Regulation if the child concerned by the case changes his or her habitual residence during the proceedings from a Member State to a third country which is a party to the 1996 Hague Convention (see Article 61 of the regulation)?

The dispute on the merits concerns a couple – CC and VO-, and its son M, who was born in 2011. CC has had sole custody of M since his birth. M lived in Sweden until October 2019, when he began to attend a boarding school in Russia. Two months later, VO brought an action against CC claiming that he should be awarded sole custody of M. In the alternative, VO requested that he and CC should have joint custody of M and that their son should be permanently resident with him. CC contested the claims. Principally, she claimed on her own behalf that she should continue to have sole custody of M and, in the alternative, that she and VO should have joint custody of the son. In addition, CC claimed that the tingsrätten (District Court, Sweden) should dismiss VO’s action as inadmissible in so far as it concerned custody and residence. In support of the claim that the action was inadmissible, she argued that M was habitually resident in Russia and that the Swedish courts consequently lacked jurisdiction to rule on questions relating to parental responsibility over M. According to CC, M had acquired habitual residence in Russia in October 2019. She claims that, even if he had not acquired habitual residence then, M had, subsequently acquired habitual residence there. VO contested the claim raised by CC that the action was inadmissible. He argued that M was still habitually resident in Sweden and that, in any event, he was habitually resident in Sweden when the action was brought.

Finally, on the same day the Court will publish AG M. Spuznar’s opinion on C-354/21, Registrų centras, on a request sent by the Lietuvos vyriausiasis administracinis teismas (Lithuania) relating to Regulation 650/2012. The facts of the case are summarized here. The question reads:

Must point (l) of Article 1(2) and Article 69(5) of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession be interpreted as not precluding legal rules of the Member State in which the immovable property is situated under which the rights of ownership can be recorded in the Real Property Register on the basis of a European Certificate of Succession only in the case where all of the details necessary for registration are set out in that European Certificate of Succession?

The 5th chamber (judges E. Regan, I. Jarukaitis, D. Gratsias, Z. Csehi, and M. Ilešič reporting) will take care of the interpretation.

On 23 June 2022, the Lisbon Guidelines on Privacy, drawn up by the ILA Committee on the Protection of Privacy in Private International and Procedural Law, were formally endorsed by the International Law Association at the 80th ILA Biennial Conference, hosted in Lisbon (Portugal).

The Committee was established in 2013 further to the proposal of Prof. Dr. Dres. h.c. Burkhard Hess (Director at the Max Planck Institute Luxembourg) to create a forum on the protection of privacy in the context of private international and procedural law. Prof. Dr. Dres. h.c. Burkhard Hess chaired the Committee, and Prof. Dr. Jan von Hein (Albert-Ludwigs-Universität Freiburg) and Dr. Cristina M. Mariottini (Max Planck Institute Luxembourg) were the co-rapporteurs.

In accordance with the mandate conferred by the International Law Association, the Committee – which comprised experts from Australia, Austria, Belgium, Brazil, Croatia, France, Germany, Italy, Japan, the Republic of Korea, Luxembourg, Portugal, Spain, the United Kingdom, and the United States of America – focussed on the promotion of international co-operation and the contribution to predictability on issues of jurisdiction, applicable law, and circulation of judgments in privacy (including defamation) matters, taking into account, i.a., questions of fundamental rights. In this framework, the Committee expanded its analysis also to the questions arising from the interface of privacy with personal data protection.

The Guidelines are premised on two fundamental principles: notably, (i) foreseeability of jurisdiction, and (ii) parallelism between jurisdiction and applicable law. They are accompanied by a detailed Article-by-Article Commentary, which provides a comprehensive analysis of the Guidelines, complemented by examples, including illustrations taken from copious national, regional and supranational jurisprudence.

Overall, the Committee took note of the fact that, in spite of the differences between legal systems, constitutional values play a major role in the legal treatment of privacy. In particular, substantial layers of public law enter into the equation of private enforcement of privacy. This notion and the limits that stem from the impact that such layers of public law forcibly have on claims must be taken into due consideration with respect to the jurisdiction as well as to the law applicable to these claims and bear a remarkable impact on the subsequent eligibility of privacy judgments for circulation.

Against this background, the Committee proceeded to design a system based, in essence and subject to substantiated exceptions, on the foreseeability of jurisdiction and a principled parallelism between jurisdiction and applicable law. The latter approach has the advantage of saving time and costs, but must be balanced against the danger of forum shopping.  In so far, the approach of the Guidelines (Article 7) distinguishes between jurisdiction based on the defendant’s conduct (Article 3) and jurisdiction localized at the defendant’s habitual residence (Article 4). While a defendant’s conduct that is significant for establishing jurisdiction will usually also indicate a sufficiently close connection for choice-of-law purposes, the general jurisdiction at the defendant’s habitual residence is rather neutral in this regard and thus complemented by a specific conflicts rule. Moreover, a necessary degree of flexibility is introduced by providing for party autonomy (Article 9) and an escape clause (Article 8). In order to take into account that personality rights and privacy protection are rooted in constitutional values, Article 11 contains a provision on public policy and overriding mandatory rules.

The Committee was cognizant that, to date, the recognition and enforcement of a foreign judgment on privacy rights is a matter primarily governed by national law.  In response to this status quo, the Guidelines design a system for the recognition and enforcement of foreign privacy judgments that pursues consistency and continuity (esp. Article 12) with the rules on jurisdiction while also taking into account the characteristic objections to and obstacles that in many instances preclude the circulation of judgments that fall in the scope of the Guidelines (Article 13).

The adoption of the Guidelines marks the completion of the Committee’s mandate.

Written by Alyssa S. King and Pamela K. Bookman

International commercial courts—domestic courts, chambers, and divisions dedicated to commercial or international commercial disputes such as the Netherlands Commercial Court and the never-implemented Brussels International Business Court—are the topic of much discussion these days. The NCC is a division of the Dutch courts with Dutch judges. The BIBC proposal, however, envisioned judges who were mostly “part-timers” who may include specialists from outside Belgium. While the BIBC experiment did not pass Parliament, other commercial courts around the world have proliferated, and some hire judges from outside their jurisdictions.

In a new paper forthcoming in the American Journal of International Law, we set out to determine how many members of the Standing International Forum of Commercial Courts hire such “traveling judges,” who they are, why they are hired, and why they serve.

Based on new empirical data and interviews with over 25 judges and court personnel, we find that traveling judges are found on commercially focused courts around the world. We identified nine jurisdictions with such courts, in Hong Kong, Singapore, Dubai, Abu Dhabi, Qatar, Kazakhstan, and the Caribbean (the Cayman Islands and the BVI), and The Gambia. These courts are designed to accommodate foreign litigants and transnational litigation—and inevitably, conflicts of laws.

One may assume that these judges largely resemble arbitrators (as was likely intended for the BIBC). But whereas studies  show arbitrators are mostly white, male lawyers from “developed” countries that may be based in the common law or civil law tradition, traveling judges are even more likely to be white and male, vastly more likely to have prior judicial experience and common-law legal training, and are overwhelmingly from the UK and its former dominion colonies. In the subset of commercially focused courts in our study, just over half of the traveling judges were from England and Wales specifically. Nearly two-thirds had at least one law degree from a UK university.

Below is a chart showing the home jurisdiction of the judges in our study.  This includes traveling judges sitting on the BVI commercial division, Hong Kong Court of Final Appeal, Dubai International Financial Centre (DIFC) Courts, Qatar International Court, Cayman Islands Financial Services Division, Singapore International Commercial Court, Abu Dhabi Global Market (ADGM) Courts, and Astana International Financial Centre (AIFC) Courts as of June 2021.

A look at traveling judges’ backgrounds suggests that traveling judges might be a phenomenon limited to common-law countries, but only half of hiring jurisdictions are in common law states. Almost all hiring jurisdictions, however, are common law jurisdictions. Moreover, almost all are or aspire to be market-dominant small jurisdictions (MDSJ). For example, the DIFC Courts are located in a common law jurisdiction within a non-common-law state that has been identified as a MDSJ.

Traveling judges are a phenomenon rooted not only in the rise of international commercial arbitration, but also in the history of the British colonial judicial service. Today, traveling judges may be said to bring their expertise and knowledge of best practices in international commercial dispute resolution. But traveling judges also offer hiring jurisdictions a method of transplanting well-respected courts, like London’s commercial court, on their shores. In doing so, judges reveal these jurisdictions’ efforts to harness business preferences for English common law into their domestic court systems.  They also provide further opportunities for convergence on global civil procedure norms, or at least common law ones. Many courts have adopted some version of the English Civil Procedure Rules, looking for something international lawyers find familiar and reliable. Judges also report learning from each other’s approaches.

Our article suggests that traveling judges are a nearly entirely common law phenomenon—only a handful of judges were from mixed jurisdictions and only one was a civil law judge. Common law courts may be especially amenable to traveling judges. In contrast to judges in continental civil law systems, common law judges are not career bureaucrats. They come to the judiciary late, usually after having built successful litigation practices. Moreover, the sociologist, and judge, Antoine Garapon observes that common law style-judging can be more personalized, with more room for individual authority rather than that of the office. All these differences are a matter of degree, with exceptions that come readily to mind. Still, as a result, common law judges are more likely have reputations independent of the office they serve. That reputation, in turn, is valuable to hiring governments eager to demonstrate their commercial law bona fides.

These efforts to harness English common law contrast with the efforts to build international commercial courts in the Netherlands or Belgium. The NCC advertises itself as an English-language court built on the foundation of the Dutch judiciary’s strong reputation. As such, it has no need for foreign judges or common law experience. The BIBC likely also would not have relied as heavily on retired English judges, both because its designers envisioned more lay adjudicators (not retired judges) and likely a greater civil law influence. In that sense, its roster of judges might have more closely resembled that of the new international commercial court in Bahrain.

The Dutch, Belgian, and Bahraini examples do share something else in common with the network of courts profiled in Traveling Judges, however. Despite their apparent similarities to arbitration, these courts are domestic courts, and they exist in significantly different political environments. The differences between Dutch and Belgian national politics influenced the NCC’s success in being established and the BIBC’s failure. In Belgium, for instance, the BIBC was maligned as a “caviar court” for foreign companies and the Belgian Parliament ultimately decided against the proposal. As one of us recounts in a related article on arbitration-court hybrids, similar arguments were raised in the Dutch Parliament, but they did not win the day. Several courts in our study, such as those established in the special economic zones in the UAE, did not face such constraints. But they may face others, such as how local courts will recognize and cooperate with a new court operating according to a different legal system and in a different language. The new court in Bahrain overcame local obstacles to its establishment, but it may face yet another set of political constraints and pressures as it proceeds to hear its first cases. Wherever traveling judges travel, local politics will affect both hiring jurisdictions’ ability to achieve their goals and traveling judges’ ability to judge in the way they are accustomed.

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

Austrian civil procedure law contains a provision that requires foreign nationals bringing a claim in Austrian courts to provide security for the legal costs incurred by the defendant in case the claim should not be successful. However, as this would clearly violate the non-discrimination principle of what is today Article 18 of the TFEU, the CJEU considered a similar provision under German Law inapplicable as early as 1997 (C-323/95, Hayes/Kronenberger GmbH). Now that the UK is not a Member State of the EU anymore, Article 18 TFEU can no longer be applied in that respect. After this issue has already arisen in Germany (which has also been discussed on this blog), there has also been another case in Austria – yet, with a different outcome.

Pursuant to § 57 of the Austrian Civil Procedure Code (ACPC), any foreign claimant is required to provide security for the costs in civil proceedings brought before Austrian courts if the defendant asks for the payment of such a security. While these rules have become irrelevant within Europe due to EU law, they hit with full force when defendants from third countries are concerned – at least as long as there is no international treaty prohibiting security deposits for costs.

However, in accordance with the ratio behind this rule – which is to prevent that the defendant wins the case in Austria but, due to a lack of enforceability, cannot even recover their own legal costs – there are further exceptions in which a foreign claimant is not obliged to provide security for costs contained in para 2 of the provision. These are: the claimant’s habitual residence is in Austria, the Austrian (cost) decision is enforceable in the state of the claimant’s habitual residence, or the claimant has (sufficient) immovable property in Austria to cover the costs.

There is no international treaty prescribing that a security deposit may not be required that was applicable in the present case. One might in this regard think e.g., of the Hague Convention on Civil Procedure, which, however, the UK has never signed. For those remembering the previous German decision, the European Convention on Establishment might come to mind. After all, the application of its Article 9 – prohibiting cost deposits from member state nationals – only failed because the rules of the convention only apply to natural and not to legal persons. As the Austrian case concerned a natural person as a claimant, this could have seemed like a solution – however, Austria has only signed, but not ratified said convention and therefore, its application also fails.

Finally, there is also a bilateral Austro-British Convention regarding proceedings in Civil and Commercial Matters from 1931, Article 11 of which prescribes that British citizens resident in Austria “shall not be compelled to give security for costs in any case where a subject of [Austria] would not be so compelled”. As the claimant did not reside in Austria, this convention was inapplicable in the present case as well.

As there is no prohibition on security deposits in international treaties, the issue was whether any of the exceptions of § 57 para 2 ACPC apply. As the other exceptions were clearly not applicable, the only question that remained was whether there is an international treaty providing for the recognition of a possible Austrian cost decision in the UK (the claimant’s habitual residence).

With the UK having left the EU, the core legal acts on the recognition and enforcement of Austrian judgments in the UK, namely the Brussels Ibis Regulation and the Lugano Convention, are no longer applicable. Similarly, the UK government does not consider itself bound by the Brussels Convention anymore (there has been considerable discussion about this matter on this blog). It might therefore seem that there is no legal basis that would guarantee the enforcement of an Austrian cost award in the UK.

However, as rightly identified by the Austrian Supreme Court, the parties had concluded an exclusive choice-of-court agreement in favour of the Austrian courts, which would make a judgment (including its cost award) enforceable by the means of the Hague Choice of Court Convention. While the UK is no longer bound by the Convention by virtue of being an EU Member State, it acceded to the Convention on 28 September 2020 in its own right, providing that the convention would apply without interruption (see here).

As a judgment with a cost award would be enforceable in the UK due to the applicability of the Hague Choice of Court Convention, there was thus no need to demand a security deposit for the costs from the British claimant. While the defendant submitted that there was no precedent in the UK on the application of the convention and that it was therefore unsure whether a cost award would be enforced, the Supreme Court considered that there was no indication that UK courts would breach their obligation under public international law. Thus, no security deposit for costs was required.

After many cases seen so far, the case decided by the Austrian Supreme Court shows once more how Brexit has made international litigation in relation to the UK so much more difficult. While the Hague Choice of Court Convention provided for a solution in the case at hand, this will only apply if there is an exclusive choice of court agreement. In all other cases, British claimants not resident in Austria will have to provide a security deposit if they want to bring a claim in Austrian courts – making cross-border litigation again somewhat more tedious. It remains to be seen whether the Hague Judgments Convention will at a later point in time alleviate this problem, but as neither the UK nor the EU have even signed the convention yet, it is still a long way until we will experience any of its effects.

On 1 July 2022, the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance and the Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations entered into force for the Republic of Ecuador.

Source: https://www.hcch.net/en/news-archive/details/?varevent=864

On 22 June 2022, the Republic of the Philippines ratified the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance, which will enter into force for the Philippines on 1 October 2022.

Source: https://www.hcch.net/en/news-archive/details/?varevent=862

Just a few days have passed since the team of the EAPIL blog welcomed Erik Sinander as a new editor. The time has come, already, for a new welcome post, this time for Martina Mantovani: we are glad to have you onboard, Martina!

Martina, who has authored some guest posts for the blog in the past (see here and here), currently works as a Legal Assistant at the Court of Justice of the European Union and is a PhD Candidate in Private International Law at the University of Paris Panthéon-Assas.

Her first post was out a few minutes ago. It can be found here.