Droit international général

As announced on this blog, the Journal of Private International Law-Singapore Management University Virtual Conference on Conflicts of Jurisdiction will be held online on 23 to 24 June 2022 (6.00 pm to 10.20 pm Singapore time, 11.00 am to 3.20 pm British Summer Time on each day). The event is supported by the Hague Conference on Private International Law (HCCH).

The conference is intended to support the ongoing work of the HCCH on Jurisdiction.

The speakers are leading private international law scholars and experts, many of whom are directly involved in the ongoing negotiations at the HCCH.

Attendance at the conference is complimentary for academics, government and international organisation officials, Journal of Private International Law Advisory Board members and students. Registration is required.

More information on the conference and the link to register can be found here.

The CJEU a little while back held in C‑498/20 ZK v BMA on the applicable law for the Dutch ‘Peeters Gatzen’ suit, for which I reviewed the AG Opinion here. The suit is  a tortious suit brought by a liquidator. In Nk v BNP Paribas the CJEU held at the jurisdictional level it is covered by Brussels Ia, not by the Insolvency Regulation.

A first issue of note, which I discuss at some length in my earlier post, is whether the liability is carved-out from Rome II as a result of the lex societatis provision. The CJEU confirms the AG’s contextual analysis, without repeating his general criterion, emphasises the need for restrictive interpretation, and specifically for the duty of care holds that liability resulting from a duty of care of a corporation’s bodies and the outside world, is covered by Rome II. This is important for business and human rights litigation, too: [55]

Pour ce qui concerne spécifiquement le manquement au devoir de diligence en cause au principal, il convient de distinguer selon qu’il s’agit du devoir spécifique de diligence découlant de la relation entre l’organe et la société, qui ne relève pas du champ d’application matériel du règlement Rome II, ou du devoir général de diligence  erga omnes, qui en relève. Il appartient à la seule juridiction de renvoi de l’apprécier.

The referring judge will have to decide whether the case engages the duty of care vis-a-vis the wider community (including the collectivity of creditors) however it would seem most likely that it does. If it does, locus damni is held, confirming the AG view, to be The Netherlands if the referring judge finds that the insolvent corporation’s seat is based there. The financial damage with the creditors is indirect only and does not establish jurisdiction.

[44] Should a judge decide that they do not have jurisdiction over the main claim, they also and necessarily have to relinquish jurisdiction over the warranty /guarantee claim against a third party under A8(2) BIa. CJEU Sovag is referred to in support.

Geert.

#CJEU this morning in ZK v BMA on jurisdiction and applicable law for the Peeters Gatzen #insolvency suit.

See my review of the Opinion AG here https://t.co/9eVzlPMQPX
Judgment herehttps://t.co/jtJJXerEld

— Geert Van Calster (@GAVClaw) March 10, 2022

Pal v Damen & Anor [2022] EWHC 4697 (QB) is another application (compare Clarke v Kalecinski) of Brussels Ia’s consumer section to cosmetic surgery contracts. Respectfully, the analysis is a botched job.

Claims are both in contract and in tort, as is usual in this type of litigation. Jurisdiction on the basis of the consumer title against the Belgium-based surgeon is undisputed, as is the lack of jurisdiction under Article 7(2)’s tort gateway against the clinic where the surgery was performed, locus damni (direct damage, CJEU Marinari) and locus delicti commissi both being in Belgium. The core question is whether there is a contract between surgeon and /or the clinic and the patient, and whether this is a consumer contract.

The second question needs to be determined first. The clinic essentially provides the hardware for the surgeon, but also ensures patient flow via its website http://www.wellnesskliniek.com which without a doubt meets with the  CJEU Pammer /Alpenhof criteria and therefore ‘directs its activities’ towards the UK. Its general terms and conditions, of which it is somewhat disputed that claimant ticked the relevant box, state ia that the clinic ‘is not party to the treatment agreement between the physician and the patient.’ 

The  expert evidence [25] ff centres around Belgian law. Expert for one of the defendants is their Belgian counsel, and Cook M dismisses his report [55] as not meeting relevant CPR requirements on expert evidence. On the basis of the remaining evidence, the judge finds [59]

the Claimant has established a good arguable case for the existence of a contract for medical treatment and /or medical services between her and the Surgeon and accordingly this Court has jurisdiction over that claim. The Claimant has failed to establish a good arguable case for the existence of a contract for medical treatment and /or medical services against the Clinic and accordingly the Court does not have jurisdiction over that claim.

With respect, the direction of analysis is entirely wrong. The first line of enquiry should have been whether there is a consumer contract with either or both of the Belgian parties, and if there is with one, whether the other party could have been caught in its jurisdictional slipstream. Á la Bonnie Lackey but then in the opposite direction: in Bonnie Lackey the question was whether persons in the immediate orbit of the undisputed ‘consumer’-claimant, may also sue under the consumer title. In current case, the question would be whether those in the immediate vicinity of the business-defendant, may be sued under the consumer title. The existence of a consumer contract is entirely an EU law question, not a Belgian law one.

Next, if the decision were taken that at least one of the parties is not caught by the consumer title, the existence of a ‘contract’ (for the provision of ‘services’) under Article 7(1) would be triggered, as would the forum contractus under Article 7(1)a, with an analysis of where the services were or should have been provided. This, too, is an analysis that requires EU law and EU law alone. [There is no trace in the judgment of a choice of court and /or law which for the former per A25 Brussels Ia may require Belgian law, with renvoi, a lex fori prorogati but even then only for the material ‘consent’ issue].

Belgian law does not come into this analysis at all, unless, potentially and most unlikely, one argues that the A7(1) analysis requires the conflicts method, should a contract for medical services not be caught by Article 7(1)’s ‘provision of services’: in that case, Rome I’s decision tree would be required to determine lex contractus and place of performance. Even then however it is not at all certain that Belgian law would be the outcome of Rome I’s matrix.

Geert.

EU Private International Law, 3rd ed. 2021, 2.222 ff, 2.385 ff.

Consumer contract re plastic surgery, jurisdiction
Whether contract exists with BE surgeon alone or also his clinic
Odd descent into BE substantive law
'Expert' reports largely held inadmissible
On the blog soon

Pal v Damen & Anor [2022] EWHC 4697 (QB) https://t.co/GgFEsYZrYP

— Geert Van Calster (@GAVClaw) May 5, 2022

Strategic lawsuits against public participation, commonly known as ‘SLAPPs’, are a particular form of harassment used primarily against journalists and human rights defenders to prevent or penalise speaking up on issues of public interest.

The term was coined by Professors George W. Pring and Penelope Canan in their book SLAPPs: Getting Sued for Speaking Out (Temple University Press, 1996).

The phenomenon is now well known everywhere, but anti-SLAPP legislation has so far only been enacted in a few countries, such as Australia or Canada. In the Europe Union, action was not officially taken until the assassination of Maltese journalist Daphne Caruana Galizia in 2017, who was famous in and outside Malta due to her regular reporting of misconduct by Maltese politicians and politically exposed persons. When she was murdered, more than 40 lawsuits (most for pretended libel) had been filed in Maltese courts; some of them are still pending against her heirs and her family.

The Council of Europe has acknowledged as well the need for a Recommendation on Combating SLAPPs, and is currently working on it (the picture on the right belongs actually to the website of Dunja Mijatović, the Commissioner for Human Rights).

Since February 2018, European MEPs have been calling on the EU Commission to promote anti-SLAPP EU legislation giving investigative journalists and media groups the power to request a rapid dismiss of vexatious lawsuits.

Several EP Resolutions are worth being mentioned in this regard: Resolution of 28 March 2019 on the situation of the rule of law and the fight against corruption in the EU, specifically in Malta and Slovakia (P8_TA(2019)0328); Resolution of 25 November 2020 on strengthening media freedom: the protection of journalists in Europe, hate speech, disinformation and the role of platforms (P9_TA(2020)0320); Resolution of 11 November 2021 on Strengthening democracy and media freedom and pluralism in the EU: the undue use of actions under civil and criminal law to silence journalists, NonGovernmental Organisations (NGOs) and civil society (P9_TA(2021)0451). In all three, the EP condemned the use of SLAPPs to silence or intimidate investigative journalists and other actors, and called on the Commission to present a proposal to prevent them.

Parliament’s move did not fall on deaf ears. The growing number of physical, legal and online threats to and attacks on journalists and other media professionals over the past years was reflected in the Commissions’ 2020 and 2021 Rule of Law Reports.

In September 2021, the Commission presented a Recommendation on ensuring the protection, safety and empowerment of journalists and other media professionals in the European Union.

More important from the regulatory perspective (not in terms of scope, however) is the adoption, on 27 April 2022, of a proposal on a Directive covering SLAPPs in civil matters with cross-border implications. In addition, on the same day the Commission approved a complementary Recommendation to encourage Member States to align their rules with the Directive also for domestic cases and in all proceedings, that is, not only civil matters; it also calls on Member States to take a range of other measures, such as training and awareness raising, to fight against SLAPPs. Both texts, which show a broad political ambition, can be accessed here.

The proposed Directive will have to be negotiated and adopted by the European Parliament and the Council before it can become EU law.

By contrast, the Commission Recommendation is described in the official press release as ‘directly applicable’: in the understanding of the Commission, ‘Member States will need to report on implementation to the Commission 18 months after adoption of the Recommendation’. It should be noted that recommendations are not binding acts (a different thing is that the subject of a recommendation is expected to oblige the suggestions made). Moreover, regarding this particular Recommendation the guideline in the sense of aligning national law with the Directive in domestic cases and for all types of proceedings is impossible to comply with until the Directive as such is enacted.

In this post I only intend to present the general features of the proposal and to highlight three of its rules. A couple of comments will be added as quick reactions to which more learned readers may in turn respond.

General Features of the Proposed Directive

The proposal is based on Article 81(2)(f) TFEU.

1. The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.
2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring …

(f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States.

Resistance on the side of the Council to this legal base will not come as a surprise (by the way: it may be claimed as well that the Commission is acting outside of clear competences regarding the Recommendation: the principle of conferred competences also applies to non-binding activities of the Union).

To the best of my knowledge, the point was not addressed in any of the meetings of the Expert Group against SLAPP. The only reference to Article 81 TFUE seems to be by way of an answer from the Commission to an expert who asked ‘whether the solutions envisaged will introduce procedural schemes that are new and difficult to enact in different Member States’ in the 6th (and final meeting) of the Expert Group. The Commission replied that ‘the legal basis is linked to article 81 of TFEU which deals with civil matters having cross-border implications but as the Directive is not too prescriptive, Member States will be able to implement the provisions in a way which is consistent with their national systems’.

The proposed Directive aims at enabling judges to swiftly dismiss manifestly unfounded lawsuits against natural and legal persons (not only journalists and human rights defenders, but also academics or researchers) on account of their engagement in public participation. It also requests from the Member States that they establish several procedural safeguards and remedies, such as compensation for damages, and dissuasive penalties for launching abusive lawsuits.

The text consists of 39 recitals and 23 articles divided into six chapters. Recitals 1 to 19 provide in-depth explanations of the SLAPP phenomenon and of related notions in plain and accessible language. Recitals 20 to 34 (actually, recitals 14 and 15 too) define the cross-border setting for the purpose of the Directive, and describe the specific procedural tools and remedies at the service of defendants in SLAPP cases. Recitals 35 and 36 deal with the relationship between the proposed Directive and other EU law acts (none on private international law). Numbers 37, 38 and 39 refer to Denmark and Ireland.

Chapter I (article 1 to 4) is labelled ‘General provisions’. Chapter II (articles 5 to 8) comprises so-called common rules on procedural safeguards. Chapter III (articles 9 to 13) addresses the early dismissal of manifestly unfounded court proceedings. Chapter IV (articles 14 to 16) focuses on remedies against abusive court proceedings. Chapter V (articles 17 and 18) include two rules on protection against third-country judgments. Chapter VI is devoted to the typical final provisions.

Most of the rules of the proposed Directive are purely procedural. In this regard, the proposal appears at first sight as a direct intrusion into the procedural autonomy of the Member States. In fact, if the outcome of the negotiations is similar to the draft, Member States will enjoy most of the times a large marge of manoeuvre when transposing the Directive; actually, it is to be expected that they will be able to claim that existing rules in the domestic systems comply already with (some of) its mandates. Indeed, such rules are normally conceived for domestic litigation; however, courts in the Member States do not usually follow different procedural tracks depending on whether the dispute is purely domestic or has cross-border implications. National procedural provisions created with cross-border litigation in mind are the exception. Interestingly, should new rules be created to accommodate the Directive’s terms, they may get extended to domestic procedures as a consequence of the accompanying Recommendation.

Articles 17 and 18 – Protection Against Proceedings Outside the Union

Article 17, ‘Grounds for refusal of recognition and enforcement of a third-country judgment’, and Article 18, ‘Jurisdiction for actions against third-country judgments’, may deserve a different assessment, i.e., Member States are likely to need enacting new rules to transpose these provisions. Pursuant to Article 17

Member States shall ensure that the recognition and enforcement of a third-country judgment in court proceedings on account of public participation by natural or legal person domiciled in a Member State is refused as manifestly contrary to public policy (ordre public) if those proceedings would have been considered manifestly unfounded or abusive if they had been brought before the courts or tribunals of the Member State where recognition or enforcement is sought and those courts or tribunals would have applied their own law.

The Directive imposes not only the public policy exception as a ground for non-recognition or enforcement of a third State decision independently of whether the Member State affected is a party to a bilateral or multilateral convention: it establishes as well the conditions for its application. Although with an open-ended clause, the Directive also defines what ‘abusive’ litigation is under Article 3(3), thus limiting the freedom of the Member States to give contents to the public policy exception.

According to Article 18,

Member States shall ensure that, where abusive court proceedings on account of engagement in public participation have been brought in a court or tribunal of a third country against a natural or legal person domiciled in a Member State, that person may seek, in the courts or tribunals of the place where he is domiciled, compensation of the damages and the costs incurred in connection with the proceedings before the court or tribunal of the third country, irrespective of the domicile of the claimant in the proceedings in the third country.

The ground for jurisdiction is a forum actoris based on domicile. Many Member States have given up fora privileging the claimant except in cases of asymmetry of the parties to the litigation, capable of creating procedural imbalances between them. It is submitted that on many SLAPP occasions this will be the case, therefore the head of jurisdiction, albeit exorbitant at first sight, will be justified. However, it should be considered that publishers houses and journals are sometimes involved in these disputes supporting or sharing the side of the journalist or human rights defender. Be it as it may, and more relevant: with the current wording, the forum actoris will work also against defendants domiciled in a Member State, if they have filed a claim with a third State. Article 19 – a compatibility clause regarding the Lugano Convention- does not change this outcome; actually, it creates a (further) situation where the Convention and the Brussels Ibis Regulation will apply differently.

Article 4 – An Enlarged Definition of Cross-border Implications

The Directive includes among other a definition of ‘matters with cross-border implications’, whereby a matter is considered to have such implications unless both parties are domiciled in the same Member State as the court seised. In that case – that is to say, when both parties are domiciled in the Member State of the court seised-, the situation is still cross-border for the purposes of the Directive and the transposing legislation if

(a) the act of public participation concerning a matter of public interest against which court proceedings are initiated is relevant to more than one Member State, or

(b) the claimant or associated entities have initiated concurrent or previous court proceedings against the same or associated defendants in another Member State.

The requirements under (a) will be easy to be met in the era of the internet. As for (b), it describes a situation of lis pendens or of related actions in the sense of the Brussels Ibis Regulation, although only for the purposes of applying the Directive, i.e., without (in principle) any consequence on the rules of Articles 29 to 34 of the Regulation. A ‘without prejudice’ recital would nevertheless be advisable.

Moreover, it is submitted that neither (a) nor (b) should be limited to the involvement of Member States, and that such limitation works against the very aim of the Directive. Moreover, for reasons of consistency relating to Article 18, it would make sense to define ‘cross-border implications’ as including acts of public participation relevant to the Member State of the court seized and third States, as well as the situation of parallel or related litigation in a Member State and a third State. Of course, such extension is likely to increase the doubts as regards the basis of the EU legislative initiative. As an alternative, it can be suggested to the Member States that they adopt national rules similar to the EU ones, to be applied to the situations described above.

— Final note: an open-access paper on strategic litigation (SLAPP and beyond) authored by Prof. B. Hess, MPI Luxembourg, member of the MSI-SLP Committee of Experts on Strategic Lawsuits against Public Participation (Council of Europe), will be published in the days to come. An update will follow.

(This post is provided by Zeyu Huang & Wenhui Chi. Mr. Huang practises law as a Shenzhen-based associate at Hui Zhong Law Firm. He holds LLB (Renmin U.), LLM & PhD (Macau U.). Ms. Chi is now working as a legal counsel at the Shenzhen Court of International Arbitration (SCIA) and the South China International Arbitration Center (Hong Kong) (SCIAHK). She holds BA (PKU), LLM & JD (PKU School of Transnational Law). The authors may be contacted at huangzeyu@huizhonglaw.com or chiwenhui@scia.com.cn.)

 

The People’s Republic of China (hereinafter “China” or “PRC”) deposited its instrument of ratification for the United Nations Convention on Contracts for the International Sale of Goods (hereinafter “CISG”) on 11 December 1986. Since its entry into force in 1988, it is beyond doubt that CISG applies to the territory of Mainland China albeit with some reservations and/or declarations (e.g. Article 96). However, businesspeople, courts, practitioners and scholars are split, uncertain and inconsistent over the issue whether the CISG should extend to Hong Kong and Macau after their returns respectively in 1997 and 1999. [1]

 

This issue stemed from the unclear intentions of China when it submitted the diplomatic notes to the United Nations, which purported to inform the Secretary-General of the status of Hong Kong and Macau in relation to deposited treaties. [2] However, China did not mention CISG in the Diplomatic Notes at all. As a result, whether China had expressed its intention of extending or excluding CISG to Hong Kong and Macau has been subject to inconsistent interpretations and enquires conducted by different non-Hong Kong fora. [3]

 

To solve this problem, China, after seeking the views of Hong Kong SAR Government, determined to actively remove the uncertainty by depositing a declaration of extension of the territorial application of CISG to Hong Kong on 5 May 2022. [4] On and after 1 December 2022, CISG will apply to both Hong Kong and Mainland China. It should be noted that the declaration that China is not bound by Article 1(1)(b) CISG does not apply to Hong Kong. Nevertheless, it remains to be seen whether the Macau SAR government will follow suit on this matter, requesting the Central Government to extend the application of CISG to Macau.

 

Extension of International Treatises Ratified by China to Hong Kong and Macau

 

The issue of whether international treaties ratified by China ‘automatically’ applies to the territory of the Hong Kong and Macau SARs was once hotly debated in the investor-State arbitration cases of Tza Yap Shum v. Peru [5] and Sanum v. Laos-I [6]. Contrary to international tribunals and the Court of Appeal of Singapore’s confirmative and liberal stances, Chinese government and commentators said no. [7] They all insist that China has made its intentions clear in the Diplomatic Notes that the treaty to which China is or will become a party applies to Hong Kong and Macau only after China has decided so and carried out separately the formalities for such application. [8] Moreover, the extension of territorial application to Hong Kong and Macau must be in line with the “One Country, Two Systems” policy and the Basic Laws of Hong Kong and Macau. [9] Accordingly, the PRC Central People’s Government in Beijing has the final say over whether the international treaty to which China is or will be a party applies to Hong Kong and Macau after consulting with the two SARs’ governments.

 

The same problem stays with the applicability of CISG in the Hong Kong and Macau SARs. On the one hand, no mention of CISG in the Diplomatic Notes submitted by China, at least on the side of Hong Kong, demonstrates China’s true intentions in public international law that the CISG shall not apply in the SAR. [10] In this view embraced by some French and US courts, China’s Diplomatic Notes not mentioning CISG qualify as Article 93(1) CISG reservation indicating that CISG does not apply to Hong Kong and Macau. [11] On the other hand, some other foreign courts considered the Diplomatic Notes did not constitute an Article 93(1) CISG reservation and therefore the default rule in Article 93(4) applies, saying that CISG ‘automatically’ applies to all territorial unites of China. [12] This interpretive approach is similar to the confirmative and liberal approach adopted by the tribunals in Tza Yap Shum v. Peru and Sanum v. Laos-I on the issue whether Chinese investment treaty absent in the Diplomatic Notes extends to territory of the Hong Kong and Macau SARs. However, such approach was often criticized as contrary to China’s expressed intentions. [13]

 

What Does It Mean for Hong Kong?

 

Legally speaking, the act of China’s depositing the declaration of extension of CISG to Hong Kong has three implications.

 

Firstly, and most obviously, on and after 1 December 2022 it would be correct for any foreign court or international tribunal to hold that CISG applies to Hong Kong. This will wipe out the “confusion and conflict as to whether or not China’s diplomatic notes for Hong Kong and Macao, deposited in 1997 and 1999 respectively, are sufficient to exclude the application of the CISG” to Hong Kong and Macau under Article 93 CISG. [14] Indeed, they are sufficient; but China has now decided to reverse its previous intention.

 

Secondly, China has impliedly confirmed that the Diplomatic Notes qualify as Article 93(1) CISG reservation, which means CISG would not automatically apply to territorial units of China such as Hong Kong and Macau unless China has determined so. In other words, China’s Central People’s Government has the final say on whether a Chinese international treaty applies to Hong Kong and Macau or not.

 

Thirdly, any construction of the Diplomatic Notes by foreign courts or arbitral tribunals which leads to the ‘automatic’ application of CISG or other international treaties (including Chinese investment agreements) to Hong Kong and Macau would be incorrect and in disregard of China’s true intentions expressed in the Diplomatic Notes. This will possibly prevent foreign courts or investment arbitration tribunals from easily reaching the decision that CISG or Chinese international investment agreement ‘automatically’ applies to Hong Kong and Macau. It also means Hong Kong might need seek the views of Central People’s Government on whether or not to extend Chinese international investment agreement to the Hong Kong SAR, especially in cases where the Hong Kong investors intend to rely on these international instruments to safeguard their rights and interests in investments made overseas.

 

In parallel with the ongoing Reform and Opening-up within and beyond China, China’s accession to CISG has fundamentally shaped the legislative and judicial landscape of codifying Chinese contract law. It is believed that the Ordinance [15] implementing the CISG in Hong Kong would for sure reshape the legislative and judicial landscape of Hong Kong law. [16]

 

Conclusion: Shall Macau Follow Suit?

 

The answer is of course yes. As another major player in the Belt and Road Initiative (BRI) and Greater Bay Area (GBA) in China, Macau is now confronted with the same “confusion and conflict” issue once faced by Hong Kong before 5 May 2022. As mentioned earlier, such “confusion and conflict” as to whether the Diplomatic Notes are sufficient to exclude the application of CISG and other international treaties not mentioned therein to Hong Kong and Macau has been removed. China impliedly reiterated itself through this act of extending CISG to Hong Kong that the Diplomatic Notes are sufficient to do so.

 

Hence, whether CISG or Chinese investment treaty extends to Macau is likewise subject to the final decision of China’s Central People’s Government. Despite divergent opinions and interpretations, Chinese government’s stance has been consistent – CISG or Chinese international investment agreement outside the Diplomatic Notes does not ‘automatically’ applies to Hong Kong and Macau, and such extension needs the Central People’s Government’s final approval. Therefore, according to Article 138(1) of the Macau Basic Law, Macau should follow up on future consultations with the Central People’s Government in Beijing to decide whether the CISG (and Chinese investment treaty) should apply to the Macau SAR, and if so, how they should apply. It is foreseeable that China would probably also deposit another separate instrument of extending the application of CISG to Macau. By then, perhaps we can see the dawn of unifying the sales law as key part of inter-regional private laws within the PRC. 

 

——

Endnotes

[1] See the Department of Justice of Hong Kong, Consultation Paper titled “Proposed Application of The United Nations Convention on Contracts for the International Sale of Goods to the Hong Kong Special Administrative Region” (hereinafter “Consultation Paper”), Consultation Period expired by 30 December 2020, paras. 3.33-3.44. It is available at https://www.gov.hk/en/residents/government/publication/consultation/docs/2020/CISG.pdf.

[2] See United Nations, ‘Multilateral Treaties Deposited with the Secretary-General’ (hereinafter “Diplomatic Notes”), China: Notes 2 and 3, which informed the Secretary-General of the status of Hong Kong and Macau in relation to treaties deposited with the Secretary-General. The diplomatic notes laid out the deposited treaties that would respectively apply to Hong Kong and Macau.

[3] See Consultation Paper, supra note 1, paras. 3.38-3.39.

[4] For Press Release, see https://unis.unvienna.org/unis/en/pressrels/2022/unisl327.html.

[5] See Tza Yap Shum v. Peru, ICSID Case No. ARB/07/6, Award, 7 July 2011, where a Hong Kong resident having Chinese nationality relied upon the Peru-China BIT 1994 to bring the ICSID arbitration against Peru.

[6] See Sanum Investments Ltd. v. Lao People’s Democratic Republic, PCA Case No. 2013-13, Decision on Jurisdiction of 13 December 2013, where a Macau-based company invoked the China-Laos BIT 1993 to initiate the UNCITRAL ad hoc arbitration administered by PCA against Laos.

[7] See e.g., PRC Ministry of Foreign Affairs, ‘Foreign Ministry Spokesperson Hua Chunying’s Regular Press Conference on October 21, 2016’, available at https://www.mfa.gov.cn/ce/cegv//eng/fyrth/t1407743.htm; An Chen, ‘Queries to the Recent ICSID Decision on Jurisdiction Upon the Case of Tza Yap Shum v. Republic of Peru: Should China-Peru BIT 1994 Be Applied to Hong Kong SAR under the “One Country, Two Systems” Policy?’ (2009) 10 Journal of World Investment & Trade 829, at 832-844.

[8] See Diplomatic Notes, supra note 2.

[9] See Article 153 of the Hong Kong Basic Law and Article 138 of the Macau Basic Law.

[10] See Consultation Paper, supra note 1, paras. 3.42 (“While it is not disputed that in Hong Kong at least, the CISG should not apply ….”).

[11] See ibid, at para. 3.38. The Consultation Paper cited the following cases: Telecommunications Products Case, Cour de Cassation, Case No. 04-117726, 2 April 2008 (France); Innotex Precision Ltd v Horei Image Products, 679 F. Supp. 2d 1356 (2009) (US); America’s Collectibles Network Inc. v Timlly (HK) Ltd., 746 F. Supp. 2d 914 (2010) (US); Wuhan Yinfeng Data Network Co. Ltd. v Xu Ming (19 March 2003), Hubei High People’s Court (China).

[12] See ibid, at para. 3.39. The Consultation Paper cited the following cases: CNA Int’l Inc. v Guangdong Kelon Electronical Holdings et al. Case No. 05 C 5734 (2008) (US); Electrocraft Arkansas, Inc. v Super Electric Motors Ltd. (2009) 4:09 CV 00318 SWW (US).

[13] See Consultation Paper, supra note 1, para. 3.42. See also Mahdev Mohan & Siraj Shaik Aziz, ‘Construing A Treaty Against States Parties’ Expressed Intentions: Sanum Investments Ltd v Government of the Lao People’s Democratic Republic’ (2018) 30 Singapore Academy of Law Journal 384.

[14] See Consultation Paper, supra note 1, para. 3.42.

[15] https://www.elegislation.gov.hk/hk/cap641!en.

[16] For comparison between the CISG and Hong Kong law, see Consultation Paper, supra note 1, para. 2.8.

Invitation by Pietro Franzina

On 29 April 2022, Germany filed an application against Italy before the International Court of Justice. Germany complains that Italy is allowing its courts to entertain claims for compensation for prejudice resulting from war crimes and crimes against humanity perpetrated between 1943 and 1945 by the Third Reich’s forces in Italy.

Recalling the ruling given by the International Court of Justice itself in 2012, in the case of the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Germany contends that the conduct of Italian authorities amounts to a violation of jurisdictional immunity of Germany as a sovereign State (for a more detailed account of the case, see this post on the EAPIL blog).

A webinar in English, organised by the University of Ferrara and the Catholic University of Milan, will take place on 11 May 2022, between 10.30 am and 12.30 pm, via GoogleMeet, to discuss the various issues surrounding the case.

The speakers include Giorgia Berrino (University of Modena and Reggio Emilia), Serena Forlati (University of Ferrara), Pietro Franzina (Catholic University of the Sacred Geart, Milan), Karin Oellers-Frahm (Max Planck Institute for Comparative Public Law  and International Law, Heidelberg), Riccardo Pavoni (University of Siena), and Pierfrancesco Rossi (LUISS Guido Carli, Rome).

Attendance is free. See here for further details.

On 13 May 2022 the Faculty of Law of the Universidad Autónoma de Madrid will host a conference on the protection of transnational data transfers and the limits of the General Data Protection Regulation (Protección de las transmisiones de datos transfronterizas: los límites del RGPD).

The speakers include: Elena Rodríguez Pineau (Universidad Autónoma de Madrid), Elisa Torralba Mendiola (Universidad Autónoma de Madrid), Diana Sancho (University of Westminster), Gloria González Fuster (Vrije Universiteit Brussel), Pedro A. de Miguel Asensio (Universidad Complutense de Madrid), José I. Paredes Pérez (Universidad Autónoma de Madrid), Alexia Pato (Universitat de Girona), Mayte Echezarreta Ferrer (Universidad de Málaga), Clara I. Cordero Álvarez (Universidad Complutense de Madrid), Alfonso Ortega Giménez (Universidad Miguel Hernández de Elche), Carmen Parra Rodríguez (Universidad Abat Oliba CEU), Luis Lima-Pinheiro (Universidade de Lisboa), Eduardo Álvarez-Armas (Brunel University London).

The conference, in Spanish, can be attended either in person or remotely. Registration ends on 10 May 2022. See here for further details, and here for the full program.

The second issue of the Lloyd’s Maritime and Commercial Law Quarterly for 2022 was just published. It features the following case notes, articles and book review on private international law:

David Capper, Proving Dissipation in Freezing Orders

J Atmaz Al-Sibaie, Foreign Claims and Foreign Laws

P Devonshire, Clearing the Decks: The Siskina in the Privy Council

M Paterson, Finally laying The Siskina to rest? and expanding the court’s power to grant freezing injunctions

M Teo, Foreign Act of State: Comity or Certainty

A Dickinson, W(h)ither Unjust Enrichment? Border Disputes in the Conflict of Laws (Again)

C Proctor, Book Review on INTERNATIONAL NEGOTIABLE INSTRUMENTS. Benjamin Geva, Osgoode Hall Law School, York University, Toronto, and Sagi Peari, UWA Law School, University of Western Australia. ISBN 978-0-19-882868-6. Oxford University Press, Oxford (2020) xxxi and 252 pp., plus I p. Appendix and 12 pp. Index. Hardback £110.

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on 12 May 2022 at 1:00 pm (Mexico City time – CDT), 8:00 pm (Europe, CEST time). The purpose of this webinar is to showcase the book entitled Private International Law: Practical Cases Resolved and Explained, and will be presented by professors David Carrizo Aguado, María del Carmen Chéliz Inglés and Lucas Andrés Pérez Martín in Spanish.

Link: https://us02web.zoom.us/j/88944671902?pwd=SHdQSGVFOGZHWjl4TDdJTmJ6bUc1dz09

Meeting ID: 889 4467 1902

Password: BMAAMEDIP

Participation is free of charge.

This event will also be streamed live: https://www.facebook.com/AmedipMX

The Private International Law Festival will take place on 16 and 17 May 2022 in Edinburgh.

The topics that will dealt with include: private international law and sustainable development; decolonising law and private international law; private international law in Scotland; forum conveniens annual lecture; private international law and sustainable migration governance; interdisciplinary latam perspectives; a book launch; new horizon for private international law.

This event is free, in person only and open to all but registration is required. To secure your place, please register through Eventbrite here.

Further information is available here.

As reported in a recent post, Germany has on 29 April 2022 instituted proceedings against Italy before the International Court of Justice in relation with the fact that Italy is allowing civil claims to be brought against Germany in connection with violations of international humanitarian law committed by the German Reich between 1943 and 1945, in breach of Germany’s jurisdictional immunity as a sovereign State.

A webinar in English, organised by the Department of Law of the University of Ferrara and the Institute of International Studies of the Catholic University of Milan, will take place on 11 May 2022, between 10.30 am and 12.30 pm, via GoogleMeet, to discuss the issues surrounding both the German application and the Italian decree-law of 30 April 2022, whereby the Italian Government addressed at least part of the concerns underlying the initiative of Germany.

The discussion will also revolve around the views that the two States are expected to put forward during the public hearings that are scheduled to take place on 9 and 10 May regarding the request made by Germany for the indication of provisional measures.

The following, among others, will speak at the webinar: Giorgia Berrino (University of Modena and Reggio Emilia), Serena Forlati (University of Ferrara), Karin Oellers-Frahm (Max Planck Institute for Comparative Public Law  and International Law, Heidelberg), Riccardo Pavoni (University of Siena), and Pierfrancesco Rossi (LUISS Guido Carli, Rome).

Attendance is free. See here for further details.

On Tuesday, May 10, 2022, the Hamburg Max Planck Institute will host its 22nd monthly virtual workshop Current Research in Private International Law at 17:00-18:30 CEST. Kermit Roosevelt (University of Pennsylvania) will speak, in English, about the topic

“The Third Restatement of Conflict of Laws: Origins and Aspirations“.

During the middle of the twentieth century, American judges and law professors reacted against the territorialist rigidity of the First Restatement of Conflict of Laws, ushering in the chaos of the choice-of-law revolution. The Second Restatement, completed in 1971, won wide acceptance by courts but found less favor with law professors and has not brought order to the field. In 2014, the American Law Institute decided to try again, beginning work on the Third Restatement. What lessons can be learned from the history of American choice of law, and how can those lessons inform the drafting of a new Restatement? Kermit Roosevelt, the Reporter for the Third Restatement, will offer an overview of the current draft that seeks to situate it within the history of American choice of law and suggest the reasons that it takes the form it does.

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.

As announced on this blog, the VIII Congress of Private International Law of the University Carlos III of Madrid will take place in dual mode on 12 and 13 May 2022.

It will be devoted to Regulation (EU) 2019/1111 on jurisdiction, recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction.

Under the direction of Juliana Rodríguez Rodrigo, the speakers include: Esperanza Castellanos Ruiz, Javier Carrascosa González, Beatriz Campuzano Díaz, Nuria Marchal Escalona, Giacomo Biagioni, Elena Rodríguez Pineau, Celia Caamiña Domínguez, Mónica Herranz, Ilaria Pretelli, Teresa Peramato Martín, Alfonso-Luis Calvo Caravaca.

The Congress programme and information to attend it are available here.

The Early Bird Registration for the 80th Biennial Conference of the International Law Association in Lisbon (19–23 June 2022) will close on 13th May 2022.

The programme includes sessions of the ILA Committees and Study Groups and a set of parallel panels where the main issues affecting the current status of International Law will be discussed. Information on the programme is available here. Kindly register as soon as possible to secure your place. Online registration is available here.

On behalf of the European Commission (DG JUST), Milieu Consulting is conducting a study on the application of Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I bis Regulation). The aim of the study is to provide solid evidence and analysis of legal and practical issues to assist the European Commission in preparing a report on the application of the Brussels I bis Regulation. To this end, the study will analyse the application of the Brussels I bis Regulation in the Member States and identify the main legal difficulties and practical challenges encountered in practice.

As part of this study, Milieu Consulting is conducting a stakeholder consultation, which includes a series of targeted surveys with key stakeholder individuals and organisations involved in or confronted with the application of the Brussels I bis Regulation. In particular, Milieu developed a technical survey that targets legal practitioners (i.e., judges; lawyers; notaries; bailiffs), academia (i.e., scholars in private international law and relevant sectors, such as consumer protection or business and human rights), and national authorities (i.e., ministries of justice, ministries in charge with consumer protection, ministries of economy) in each Member State. Stakeholders’ views are an important source of information for gaining a concrete understanding of the difficulties in applying rules on jurisdiction, as well as the recognition and enforcement of judgments, in cross-border civil and commercial cases in the EU.

The survey is available here. For more information on the study, please refer to the accreditation letter here.

On 29 April 2022, Germany instituted proceedings before the International Court of Justice against Italy for allegedly failing to respect its jurisdictional immunity as a sovereign State by allowing civil claims to be brought against Germany based on violations of international humanitarian law committed by the German Reich between 1943 and 1945.

The First Jurisdictional Immunities Case (2008-2012)

More than ten years have passed since the International Court of Justice rendered its judgment in the case of the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening). The Court was asked then to determine whether, in civil proceedings against Germany relating to acts committed by the Third Reich during the Second World War (such as deportation and forced labour), the Italian courts were obliged to accord Germany immunity.

In its judgment of 3 February 2012, the Court held that the action of the Italian courts in denying Germany immunity constituted a breach of Italy’s international obligations.

The International Court of Justice explained that, under customary international law as it presently stood, a State was not deprived of immunity by reason of the fact that it was accused of serious violations of international human rights law or the international law of armed conflict.

The New Proceedings

The 2022 proceedings, as stated in the application filed by Germany, arise from the fact that Italian domestic courts, notwithstanding the 2012 judgment, “have entertained a significant number of new claims against Germany in violation of Germany’s sovereign immunity”.

Germany refers in particular to Judgment No. 238/2014 of 22 October 2014 of the Italian Constitutional Court, whereby the latter acknowledged the duty of Italy to comply with the 2012 ruling of the International Court of Justice but subjected that duty to the “fundamental principle of judicial protection of fundamental rights” under Italian constitutional law (the judgment has been the object of numerous comments: among those in English, see the contributions to this book edited by Valentina Volpe, Anne Peters and Stefano Battini, the remarks by Robert Kolb, Paolo Palchetti, Pasquale De Sena and others here, this paper by Marco Longobardo, and this one by Oreste Pollicino, to name a few).

In its application, Germany argues that Judgment No. 238/2014 of the Italian Constitutional Court, “adopted in conscious violation of international law and of Italy’s duty to comply with a judgment of the principal judicial organ of the United Nations, had wide-ranging consequences”. It adds that, since the delivery of the Judgment, “at least 25 new cases have been brought against Germany [before Italian courts]” and that “in at least 15 proceedings, Italian domestic courts … have entertained and decided upon claims against Germany in relation to conduct of the German Reich during World War II” (Giorgia Berrino discusses in this article a recent judgment of the Italian Court of Cassation which illustrates the approach decried by Germany).

Germany asks the International Court of Justice to adjudge and declare that Italy has violated, and continues to violate, its obligation to respect Germany’s sovereign immunity, and its obligation to respect Germany’s sovereign immunity by taking, or threatening to take, measures of constraint against German State-owned properties situated in Italy. Germany further asks the Court to declare that Italy is required to ensure that the existing decisions of its courts and those of other judicial authorities infringing Germany’s right to sovereign immunity cease to have effect, and immediately to take effective steps to ensure that Italian courts no longer entertain civil claims brought against Germany based on violations of international humanitarian law committed by the German Reich between 1943 and 1945.

Additionally, the Court is asked to adjudge that Italy is required to make full reparation for any injury caused through violations of Germany’s right to sovereign immunity, and to offer Germany concrete and effective assurances and guarantees that violations of Germany’s sovereign immunity will not be repeated.

The application of Germany contains a request for the indication of provisional measures. In fact, Germany asks the Court to order Italy to ensure that German properties indicated in the application “are not subjected to a public auction pending a judgment by the Court on the merits” and that “no further measures of constraint are taken by [Italian] courts against German property”.

The Italian Decree-Law of 30 April 2022

On 30 April 2022, i.e., the day after Germany instituted the proceedings before the International Court of Justice, a decree-law was published in the Italian Official Journal which appears to address, at least to some extent, the concerns raised by Germany.

Article 43 of Decree-Law No 36/2022 of 30 April 2022 creates a fund, financed by Italy, for the reparation of the prejudice suffered by the victims of war crimes and crimes against humanity, as a result of the violation of fundamental rights of persons by the the Third Reich’s Army (hereinafter, the Fund).

As stated in Article 43(1) of the decree-law, the purpose of the Fund is to provide reparation for the prejudice suffered for acts perpetrated on the Italian territory or otherwise harming Italian citizens between 1 September 1939 and 8 May 1945.

Article 43(2) stipulates that the Fund is available to those who obtained a final judgment whereby their right to damages has been ascertained and assessed. Such a final judgment must have been given in the framework of proceedings instituted either before the entry into force of the decree-law (i.e., 30 April 2022) or before the 30-day time-limit, starting from the entry into force of the decree, established under Article 43(6). Later requests will be rejected.

According to Article 43(3), “no new enforcement proceedings based on titles awarding damages shall be brought or pursued”. Pending enforcement proceedings, for their part, “shall be discontinued”.

The Italian Minister of Economy and Finance, as indicated in Article 43(4) shall adopt a decree, no later than 180 days following the entry into force of the decree-law, to determine: (a) the procedure for accessing the Fund; (b) the terms and the manner whereby payments will be made to those entitled to benefit from the Fund; (c) such additional provisions as may be necessary for the implementation of the above provisions.

Pursuant to Article 43(5), “any and all rights in connection with claims for damages based on the facts referred to in Article 43(1) shall cease to exist as soon as payment pursuant to the procedures under Article 43(4) is made”.

In short, the decree-law aims to shield Germany from the institution or the continuation of new and pending proceedings (including enforcement proceedings) in connection with acts perpetrated by the German Reich’s forces during the German occupation of Italy. Those entitled to claim damages for the prejudice suffered will be provided satisfaction through the Fund, following a dedicated procedure.

Apparently, this course of action is understood by the Italian Government to be consistent, at once, with the constitutional requirement that the victims of egregious violation of human rights be given access to justice and obtain reparation, and the expectation of Germany that its jurisdictional immunity, as provided for under international customary law, is preserved.

The Impact of the Decree-Law on the Proceedings Instituted by Germany

The implications of the Italian decree-law for the proceedings brought by Germany before the International Court of Justice remain to be seen.

As observed above, Germany asks the Court to adjudge, inter alia, that Italy should make “full reparation for any injury caused through violations of Germany’s right to sovereign immunity”. This is something the decree-law is not concerned with.

Germany also insists that Italy should “offer Germany concrete and effective assurances and guarantees that violations of Germany’s sovereign immunity will not be repeated”. Whether the adoption of a decree-law amounts, as such, to an appropriate insurance can arguably be challenged. Pursuant to Article 77 of the Italian Constitution, decree-laws are temporary measures that the Government may adopt “in case of necessity and urgency”. As soon as a decree-law is adopted, the measure is submitted to the Parliament for transposition into law, with the indication that it shall lose effect from the beginning if it is not transposed into law by Parliament within sixty days of its publication.

The Court of Justice of the EU has recently handed down another judgement interpreting the Succession Regulation. The judgement in VA, ZA v TP (C-645/20) of 7 April 2022 followed the view presented earlier in the opinion of AG Sánchez-Bordona. It concerns duties of the courts of Member States in verification of their jurisdiction resulting from Article 10(1)(a) Succession Regulation.

Background

The background of the case is as follows.

A French national XA died in France leaving wife TP and children from the first marriage. XA used to live in the UK, however shortly before his death has moved to France to be taken care of by one of his children. XA was on owner of a real property located in France. XA’s children have initiated a succession proceeding (namely, applied for an administrator to be appointed) in France indicating that XA was habitually resident there at the time of his death. Such view was shared by the court of the first instance, however the court of the second instance found that XA has not changed his habitual residence and at the time of death it was still located in the UK, and therefore, France lacked jurisdiction in the case.

Preliminary Question

As the case reached the Cour de Cassation, it decided to clarify with the CJEU whether the Succession Regulation requires a court of a Member State to raise of its own motion its jurisdiction under the rule of subsidiary jurisdiction provided for in its Article 10(1)(a) where, having been seised on the basis of the rule of general jurisdiction established in its Article 4, it finds that it has no jurisdiction as the deceased was not habitually resident at the time of death in the forum.

Jurisditional Rules of the Succession Regulation

It might be reminded that jurisdictional rules of the Succession Regulation are of exclusive character, meaning that there is no space left for the residual jurisdiction resulting from domestic laws of Member States (as opposed to, for example, rule provided for in Article 6(1) Brussels I bis Regulation). Recital 30 makes it clear that ‘in relation to the succession of persons not habitually resident in a Member State at the time of death, this Regulation should list exhaustively, in a hierarchical order, the grounds on which such subsidiary jurisdiction may be exercised’. Hence, if the case is covered by the material and temporal scope of the Succession Regulation, a court of a Member State may assume jurisdiction only in accordance with it, irrespective of the nationality or habitual residence of the deceased.

In accordance with Article 4 Succession Regulation courts of the Member State of the deceased’s habitual residence have jurisdiction. If the deceased was habitually resident outside of the EU, then pursuant to Article 10 jurisdiction is based in other factors. The jurisdiction is based on nationality or previous habitual residence and location of assets (Article 10(1)(a) or (b)) or location of assets only (Article 10(2) Succession Regulation). In this last case, where the only link with the forum is the location of assets, the jurisdiction covers not ‘succession as a whole’, meaning all assets irrespective of their location, but is limited to the assets located within the forum only.

It might also be added that the Succession Regulation provides for certain mechanisms (in Articles 5-9) allowing for the transfer of jurisdiction from the Member State having jurisdiction pursuant to Article 4 or Article 10 to the Member State, whose law was chosen by the deceased as applicable.

Reasoning of the Court of Justice

As nicely underlined by the AG when juxtaposing Article 4 and Article 10

each caters for a different factual situation: either the deceased was last habitually resident in a Member State of the European Union (the assumption informing Article 4) or he or she wasn’t (the assumption informing Article 10)’ [para. 47 opinion].

Sharing this view, the Court of Justice, explained that:

there is no hierarchical relationship between the forum established in Article 4 of Regulation No 650/2012 and the forum established in Article 10 thereof (…) Likewise, the fact that the jurisdiction provided for in Article 10 of that regulation is described as ‘subsidiary’ does not mean that that provision is less binding than Article 4 of that regulation, relating to general jurisdiction [para. 33].

As a result, it concluded that a court of a Member State must raise of its own motion its jurisdiction under the rule of subsidiary jurisdiction where, having been seised on the basis of the rule of general jurisdiction, it finds that it has no jurisdiction under that latter provision.

Other comments of the Court of Justice also merit attention. For example, it admits that the application of Article 10 might lead to the frustration of the so desired ius and forum, but it must be made clear that the Succession Regulation neither requires nor guarantees this coincidence.

It also made clear that Member States which do not apply the Succession Regulation, namely Ireland, Denmark and the UK (before Brexit) should be treated as third states when applying this regulation.

Conclusion

The Court of Justice rightly concluded that jurisdictional rules of both Article 4 and Article 10 of the Succession Regulation should be applied ex officio. To that end, AG has proposed what seems to be a very reasonable solution not only when it comes to the application of the Succession Regulation, but any jurisdictional or conflict of law rule, namely that the court is not obliged

to look actively for a factual basis on which to rule on its jurisdiction in a particular dispute, but they do compel it to find, by reference exclusively to the uncontested facts, a basis for its jurisdiction which may be different from that invoked by the applicant [para. 87 opinion].

This book presents a new explanation as to the conflict-of-law rule in the field of intellectual property. In addition, it also provides new insights into the history of the conflict-of-laws, aliens law and their relationship.

The book focusses on the difficult question whether the Berne Convention (on copyright) and the Paris Convention (on industrial property) contain a conflict-of-law rule. Opinions differ widely on this matter today. However, in the past, for the nineteenth-century authors of these treaties, it was perfectly self-evident that these treaties contain a conflict-of-law rule, namely in the ‘principle of national treatment’ as it is called. How is that possible? These are the fundamental questions at the heart of this book: does the principle of national treatment in the Berne Convention (article 5(1)) and the Paris Convention (Article 2(1)) contain a conflict-of-law rule? And if so, why do we no longer understand this conflict-of-law rule today?

The study reveals a ground-breaking new explanation why the principle of national treatment in these treaties contains a conflict-of-law rule: the lex loci protectionis.

Key to understanding is a paradigm shift. The principle of national treatment was developed as a doctrine-of-statute solution addressing a doctrine-of-statute problem. In that way of thinking, it is self-evident that the principle of national treatment contains a conflict-of-law rule. However, today we have started to think differently, i.e. within the paradigm of Von Savigny. This causes a problem: we look at an old, statutist solution through Savignian glasses, and as a result the conflict-of-law rule in the principle of national treatment is out of the picture. Meanwhile, we are not even aware that we are looking through Savignian glasses and that these glasses narrow our field of vision – and as a result, this conflict-of-law rule is beyond our reach. The explanation in this book results in a comprehensive and consistent interpretation of the respective provisions in these treaties, and it explains why we no longer understand this conflict-of-law rule today (see especially paragraph 5.1.2).

The search for this new explanation has, in addition, generated several new insights into the history of the conflict of laws in general (see especially paragraph 5.2.3), aliens law, and the relationship between these two fields of law.

Finally, the book is also detailed and authoritative explanation of the intersection of the conflicts of law and intellectual property law, providing a full and detailed analysis of the current state of affairs of the intersection of these fields of law. It also deals with less common themes such as material reciprocity (Chapter 6).

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

Elgar, 2022; see Elgar website.

Krzysztof Pacula reported end of March on CJEU C-723/20 Galapagos Bidco v DE and justifiably highlighted the Brexit issue. The case concerns a move of COMI – centre of main interest within the context of the Insolvency Regulation 2015/848 and it is on the element of impromptu move that my post will focus.

Galapagos SA is a Luxembourg holding company whose centre of administration (‘effective place of management‘ according to the former directors) was moved in June 2019, at least so contend previous directors, to England. At the end of August 2019, they apply to the High Court in England and Wales to have insolvency proceedings opened.

Echos of the tussle are here and of course also in Galapagos Bidco SARL v Kebekus & ors [2021] EWHC 68 (Ch). The day after the move of centre of administration, the former directors were replaced with one other, who moved centre of administration to Dusseldorf and issued relevant market regulation statements to that effect. This move was subsequently recognised  by the Courts at Dusseldorf as having established COMI there. The High Court action in London was never withdrawn and would seem to have been dormant since.

Applicant in the proceedings is Galapagos BIDCO Sarl, a creditor of Galapagos SA. It is I understand (but I am happy to be corrected by those in the know) Luxembourg based. As Krzysztof reports, it contests that the German move has effected move of COMI which it argues lies in England (although I fail to see how its reasoning should not also apply to the earlier instant move from presumably Luxembourg to England).

The question that arises is whether, in the determination of the centre of a debtor company’s main interests, specific requirements must be imposed to prevent abusive conduct. Specifically, in the light of the Regulation’s stated aim of preventing forum shopping, whether ‘on a regular basis’ in the second sentence of the first subparagraph of Article 3(1) Insolvency Regulation 2015, presupposes an adequate degree of permanence and is not present if the establishment of a centre of administration is pursued at the same time as a request to have insolvency proceedings opened. Respondents in the appeal, which include the insolvency administrator (trustee) contend that the requirement of administration ‘on a regular basis’ is fulfilled if the administration is permanent.

The CJEU unfortunately fails to answer that question, choosing to reply instead with a hierarchical answer which encourages race to court: [36]

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 is lodged, but before that court has delivered a decision on that request, and that, consequently, where a request is lodged subsequently for the same purpose before a court of another Member State, that court cannot, in principle, declare that it has jurisdiction to open such proceedings until the first court has delivered its decision and declined jurisdiction.

However in the case at issue, the Withdrawal Agreement has the effect that if the High Court has not, as it would seem, taken its decision on the opening of proceedings prior to the end of Brexit Implementation Day 1 January 2021 (CET), the German courts need no longer apply that consequence of mutual trust and are at liberty to determine the existence of COMI.

The CJEU ends by suggesting Q1 no longer needs answering. Yet I think it does. Perhaps not so much for the case at issue (which explains why the judicially economical CJEU does not offer a reply). The German courts, as Zacaroli J notes in his decision [14], held in October 2019 that COMI for GAS has successfully moved to Germany as from 25 August 2019, the day the capital market and bondholders were informed that the centre of administration had been moved to Düsseldorf. Yet the file does not suggest that COMI prior to the attempted move, existed in Germany: it was established there following the new director’s decision. In accordance with the Regulation’s presumptions, it would have previously existed in Luxembourg. The element of ‘on a regular basis’ therefore still matters. Is the CJEU suggesting that a mere information of the capital markets suffices to move COMI?

Geert.

EU Private International Law, 3rd ed. 2021, Heading 5.6.1.

 

The author of this post is Jachin Van Doninck, Lecturer in civil procedure, private international law and ADR at the Vrije Universiteit Brussel.

At the final conference of the Judgtrust project in The Hague, some ten days ago, two decisions of the ECJ on the Brussels I bis Regulation took flak from more than one speaker: Wikingerhof and Toto.

Both of these decisions have already received their fair share of attention in these columns: here (by the late Peter Mankowski, including links to the other contributions dedicated to the same judgment) and here.

The writing of a recently published casenote on the Wikingerhof judgment has nonetheless left me wondering whether the criticism directed at said judgment isn’t missing the mark.

As a reminder, through Wikingerhof, the ECJ attempted to clarify its earlier Brogsitter ruling on delineating matters relating to contract and matters relating to tort for the purpose of applying the heads of jurisdiction under art. 7 point 1 and 7 point 2 of the Brussels I bis Regulation respectively.

Where Brogsitter could be interpreted as considering it sufficient for a claim made in tort under national law to be contractual for the purpose of Brussels I where the conduct complained of may be considered a breach of the terms of the contract (ECJ, para 29, my emphasis), the ECJ held in Wikingerhof that where it does not appear indispensable to examine the content of the contract in order to assess whether the conduct is lawful or unlawful, the cause of the action is a matter relating to tort within the meaning of art. 7.2 Brussels I Recast (ECJ, at para 33, again with my emphasis).

In retrospect it always seemed unlikely that the ECJ would have accepted a full and complete absorption of the forum delicti by the forum contractus in cases of concurrent causes of action, i.e. when a contracting party invokes the infringement of a general legal obligation under competition law as was the case in Wikingerhof. Through Wikingerhof, the ECJ restores the balance between forum contractus and forum delicti in the case of concurrent obligations by setting out a clear criterion, namely whether the contract is the yardstick for review (forum contractus) or merely the subject of review (forum delicti). No surprise either in seeing the potential fora being multiplied then: that has been the steady flow of the ECJ case law on art. 7.2 since the Bier-stance was adopted more than 40 years ago (E. Farnoux, ‘Delendum est Forum Delicti? Towards the jurisdictional protection of the alleged victim in cross-border torts’ in B. Hess, K. Lenaerts en V. Richard (red.), The 50th anniversary of the European law of civil procedure, Baden-Baden: Nomos 2020, (259) p. 263 et seq.).

But most interesting, and least appreciated in my opinion, is the Court’s method in reaching that result. It shouldn’t have come as a surprise though. Less than a year before, in its VKI v. TVP judgment, the ECJ had been asked whether article 1(2)(f) of the Rome I Regulation should be interpreted as excluding from the scope of that regulation contractual obligations based on a trust agreement for the purposes of administering shares in a limited partnership. Was this a corporate matter beyond the reach of Rome I?

In addressing the issue, the ECJ, following its advocate-general Saugmandsgaard Øe, focused on the cause of action of the proceedings:

The action for an injunction brought by the VKI concerns the unfairness and therefore the validity of certain terms of the trust agreements at issue. Therefore, the questions arising from the case in the main proceedings fall within the field of lex contractus and therefore of the Rome I Regulation (ECJ, at para 37).

When asked whether Brussels I Recast provides a forum delicti when the plaintiff seeks an injunction against the use of contractual terms because they are allegedly based on an abuse of a dominant position by the defendant, the ECJ and its advocate-general Saugmandsgaard Øe adopted that same reasoning.

The test again lies in the cause of action:

In particular, as the Advocate General observed in point 90 of his Opinion, the court hearing the action must decide whether a claim between contracting parties is connected to matters relating to a contract, within the meaning of point 1 of Article 7 of Regulation No 1215/2012, or to matters relating to tort or delict, within the meaning of point 2 of Article 7 of that regulation, by reference to the obligation, whether contractual or a matter relating to tort, delict or quasi-delict, which constitutes the cause of action (ECJ, at para 31).

Asked to interpret sources of European private international law, the ECJ’s answer has time and again revolved around the word ‘autonomous’. Through Wikingerhof, the ECJ has now demonstrated that such autonomous interpretation of EU instruments is no mere recipe for haphazard case by case reasoning but also involves an exercise in qualification, thereby addressing the following question: which law imposes itself through the subject matter of the claim and the legally relevant facts underlying it, i.e. the case of action? That approach warrants more credit than is currently being granted.