Droit international général

Stefan Grundmann (Professor of Transnational Law and Theory at the European University Institute, Florence, and Professor of Private and Business Law at Humboldt-University, Berlin) and Mateusz Grochowshi (Senior Research Fellow at the Max Planck Institute for Comparative and International Private Law, Hamburg, Assistant Professor at the Institute of Law Studies of the Polish Academy of Sciences, Warsaw, and Fellow at the Information Society Project, Yale Law School) edited a book on European Contract Law and the Creation of Norms that has just been published with Intersentia.

The works contained in this volume sketch a broad landscape of sources of modern contract law, with a particular focus on European private law rules. With this the contributions seek to provide a better understanding of the identity of present-day contract law through an analysis of the multitude of social and economic dynamics that shape the normative landscape.

The blurb of the book reads as follows:

The book provides a broad and topical perspective of the sources of modern contract law. It examines the creation of contract law as a multi-pronged occurrence that involves diverse types of normative content and various actors. The book encompasses both a classical perspective on contract law as a state-created edifice and also delves into the setting of contractual rules by non-state actors. In so doing, the volume thoroughly analyses present-day developments to make sense of shifting attitudes towards the overall regulatory paradigm of contract law and those that reshape the classic view of the sources of contract law. The latter concerns, in particular, the digitalisation of markets and growing trends towards granularisation and personalisation of rules.

The book builds on the EU private law perspective as its primary point of reference. At the same time, its reach goes far beyond this domain to include in-depth analysis from the vantage points of general contract theory and comparative analysis. In so doing, it pays particular attention to theoretical foundations of sources of contract law and values that underpin them. By adopting such diversified perspectives, the book attempts to provide for a better understanding of the nature and functions of present-day contract law by capturing the multitude of social and economic dynamics that shape its normative landscape.

The volume gathers a unique and distinguished group of contributors from the EU, USA and Israel. They bring research experience from various areas of private law and contribute with diverse conceptual perspectives.

A summary of contents is available here.

The Chinese University of Hong Kong’ Cross-Border Legal issues Dialogue Seminar Series presents this online seminar by Professor Richard Garnett on 1st April 2022 12.30pm -2pm (Hong Kong time; GMT +8 hours).

The conflict of laws has traditionally drawn a sharp distinction between jurisdiction and applicable law. The conventional approach suggests that a court only reaches the question of the law to be applied to the merits after the tribunal has determined that it has the power to adjudicate the action. Common law systems have however long recognised that a court has a discretion to accept or decline jurisdiction (determine the appropriate forum) and that a relevant factor in this discretion is the applicable law.

The purpose of this presentation is to examine the current status of the applicable law in jurisdiction and forum disputes, noting the trend in countries such as Australia to give the factor substantial weight and significance.

About the speaker:

Richard Garnett is Professor of Private International Law at the University of Melbourne, Australia and a consultant in international disputes at Corrs Chambers Westgarth. Richard regularly advises on cross-border litigation and arbitration matters and has appeared as advocate (barrister) before several tribunals including the High Court of Australia. Richard has written extensively in the fields of conflict of laws, foreign state immunity and international arbitration, with his work cited by leading tribunals around the world, including the International Court of Justice, the European Court of Human Rights, the English Court of Appeal, United States federal district courts, the Singapore Court of Appeal and Australian, Israeli and New Zealand courts. Richard has also served as expert member of the Australian Government delegation to the Hague Conference on Private International Law, to negotiate the 2005 Hague Convention on Choice of Court Agreements and the 2019 Convention on Recognition and Enforcement of Foreign Judgments.

Please register by 5 pm, 31 March 2022 (Hong Kong time; GMT +8 hours) to attend the seminar.

Zubaydah v Foreign And Commonwealth Office & Ors [2022] EWCA Civ 334  discusses the same issue as Rahmatullah and Ali v MOD and FCO which I review here (and in which I later inserted the High Court judgment in current case).

What law is applicable to torts allegedly committed by the UK Security Services against a detainee subjected to “enhanced interrogation techniques” by the US CIA. The essence of the claimant’s claim is that the Services were aware that the claimant was being subjected to extreme mistreatment and torture at secret CIA “black sites” in six different countries, but nevertheless sent numerous questions with a view to the CIA eliciting information from him, expecting and intending (or at any rate not caring) that the claimant would be subject to such mistreatment and torture at interrogation sessions conducted for the purpose of attempting to obtain this information.

The first instance judge had refused to overturn the mosaic of six applicable laws (of the countries involved: Thailand, Poland, the US’ base at Guantanamo Bay, Morocco, Lithuania and Afghanistan) which follows from the standard application of the residual English conflict of laws rules (the EU Rome II Regulation does not apply): these point to lex locus damni. Males LJ to my mind unconvincingly does overturn that general rule, with  some reliance on the Supreme Court in VTB Capital Plc v Nutritek. 

The Court holds [37] that the judge had failed to focus on the tort allegedly committed by the UK Services (with too much emphasis on the treatment of claimant in the six countries, by the CIA); [38] wrongly discounted the reasons advanced by claimant for saying that the factors connecting the tort with the Six Countries were of reduced significance (this includes the fact that the claimant had no control whatever over his location and in all probability no knowledge of it either; and that there was a (jurisdictional) forum shopping element in the transfers to the 6 countries: keeping him away from jurisdictions with less forgiving rules on the practices concerned); and [40] the fact that the actions taken by the Services were undertaken “for the perceived benefit of the UK”, that is to say in the interests of this country’s national security.

The reasonable expectations of claimant play a big role in the analysis: claimant could have expected [41] that the conduct of any country’s security services having to do with him would be governed by the law of the country concerned. As for the Services, they would reasonably have expected that their conduct here would be subject to English law.

Throughout the judgment Males LJ puts great emphasis on what he notes [22] as an overarching aim of the relevant Act, which is ‘the reasonable and legitimate expectations of the parties to a transaction or an occurrence.’ However that is the Law Commission’s view on the raison d’être of conflict of laws full stop. I am not so sure it can serve as a determinative principle in the application of a specific rule of the Act.

I am not saying that the outcome of the case is wrong. Yet the judgment gives the impression of a correction of the judge’s factual balancing act between the different factors, rather than an error of law, and the emphasis on legitimate expectations feels a bit artificial in the circumstances. Add to this that [35] nobody suggested on the facts of this case that one applicable law might apply to the tort of misfeasance in public office and another to the tort of false imprisonment. Both parties proceeded on the basis that the law applicable to the claimant’s claims as a whole was either English law or the law of the Six Countries, and so did the Court of Appeal. This, too, may make the judgment’s authority limited.

Finally Males LJ holds obiter [51 ff] and correctly that it is too early to decide whether the application of the foreign laws, had they been applicable, would have had to be set aside on the basis of ordre public: while some evidence on the law of the 6 countries had been presented, there had not yet been proper discussion of same.

Geert.

See my analysis of an earlier, similar High Court case with different outcome here https://t.co/NRZYDLJjZJ (Rome I does not apply). https://t.co/N3bKc7g3gm

— Geert Van Calster (@GAVClaw) March 16, 2022

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) has just issued an “Information Note – Children deprived of their family environment due to the armed conflict in Ukraine”. Click here for the English version and here for the French version. The HCCH news item is available here.

The Charles De Visscher Center for International and European Law (CeDIE, UCLouvain, Belgium) will host a conference on Surrogacy and Private International Law, on 31 March 2022.

The conference aims at discussing the theoretical and practical debates on surrogacy, by presenting both the rules of domestic law (including a comparative law approach) and the rules of private international law, with an emphasis on the latter. It will also provide for an opportunity to revisit some of the issues related to the ethical and human rights implications of surrogacy.

Speakers will include legal and medical practitioners as well as academics.

Geneviève Schamps (Professeure, UCLouvain), Jehanne Sosson (Professeure, UCLouvain, avocat), Hugues Fulchiron (Professeur, Université Jean Moulin Lyon 3, Juge, Cour de cassation française), Patrick Wautelet (Professeur, ULiège), Petra Hammje (Professeure, Université de Nantes), Michelle Giroux (Professeure, Université d’Ottawa), Geoffrey Willems (Professeur, UCLouvain), Julie Mary (Assistante et doctorante, UCLouvain) , Amélie Panet (Maître de conférences, Université Jean Moulin Lyon 3),Catherine de Bouyalski (Avocate au barreau de Bruxelles), Nicolas Gendrin (Juge, Tribunal de la famille de Namur), Florence Anciaux Henry de Faveaux (Conseiller, Cour d’appel de Mons), Géraldine Mathieu (Maître de conférences, Université de Namur & ULiège), Sylvie Sarolea (Professeure, UCLouvain, avocate), Caroline Mecary (Avocate aux barreaux de Paris & du Québec), Candice Autin (Médecin gynécologue, Responsable du centre de Procréation Médicalement Assistée au CHU Saint-Pierre), Jean-Philippe Cobbaut (Professeur, Université catholique de Lille & UCLouvain) and Jean-Yves Carlier (Professeur, UCLouvain & ULiège, avocat). 

The working language will be French.

The full programme is available here. Online registration is open here.

As announced a few days ago on this blog, a dedicated page has been created in the website of the European Association of Private International Law to collect information about funding or other opportunities offered to refugee scholars and scientists. Some opportunities are available to refugee scholars from any country, others to refugee scholars from Ukraine only, others still to refugee scholars from Ukraine, Russia and Belarus.

The page is constantly updated. The latest update is now on-line.

Those aware of additional funding opportunities (including opportunities for remunerated work to be carried remotely from Ukraine or other places) are invited to get in touch with the Secretary General at secretary.general@eapil.org.

The Center for Law, Economics and Policy Studies (CEDEP) is organising an online course on Choice of Law, International Contracts and the Hague Principles. For more information on this course, click here.

The course will officially begin on Tuesday 22 March 2022, with weekly sessions (a total of 9) to be released on Tuesdays (which may be supplemented with additional lessons in May). The sessions will be in English with Spanish subtitles and will be available throughout the year 2022 on the CEDEP e-learning platform, thus there is no deadline for registration. The registration fee is 90USD – several payment methods are possible (including online). To register click here.

CEDEP has kindly provided in advance the link to the Introductory Session (Choice of Law – 22 March 2022) for Conflictoflaws.net readers, which may be viewed free of charge here: 1. Choice of Law – Introductory Session.

The speakers of the Introductory Session are Luca Castellani (UNCITRAL), Anna Veneziano (UNIDROIT) and Ning Zhao (HCCH) and the topic is UNCITRAL, HCCH, and UNIDROIT Legal Guide to Uniform Instruments in the Area of International Commercial Contracts, with a Focus on Sales. The Legal Guide and other information may be accessed on the Hague Conference website, click here.

The e-learning platform will also make available relevant bibliography, the presentations of the speakers, discounts for a relevant publication and much more. A certificate of participation will be given if a minimum attendance is confirmed.

Below is a list of the speakers per session:

The editors of the Italian Review of International and Comparative Law (IRIC) welcomes papers from scholars and practitioners at all stages of their career for the Volume 1 of 2023.

Papers may cover any topic, under public international law, private law and comparative law, of the issues related to the interaction between the EU legal order and international arbitration, including:
– The influence of EU law on the concept of arbitrability.
– The exclusion of commercial arbitration from the Bruxelles I-bis Regulation.
– The legal consequences of Brexit on international arbitration in Europe.
– The circulation of judgments concerning international arbitration within the EU;
– The future evolution of ISDS in the EU.
– The regulation of international investments between the EU, its Member States and third countries.
– Treaty law issues concerning the validity and the effectiveness of intra-EU bilateral investment treaties (BITs) and the use of public international law by the CJEU.
– The fate of the 1994 Energy Charter Treaty.
– The application of EU law by international arbitrators.
– International investment law before EU Member States domestic courts.
– The enforcement of arbitral decisions concerning intra-EU BITs in EU and third countries.
– EU law as a form of public policy precluding the enforcement of arbitral decisions.
– The potential effects of the CJEU’s decisions concerning international commercial arbitration or ISDS.

Papers containing also a reference to Italy, or the Italian practice will be particularly appreciated.

The selection of papers will be based on the submission of abstracts of max. 1.000 words to iricsubmissions@gmail.com by 1 April 2022. Selected authors will be informed by 30 April 2022.

Final papers will have to be submitted by 15 September 2022 and may have the forms of essays, comments, case notes, recent developments and review essays; each of the latter has a different range of words allowed. Submitted abstracts will have to mention the tentative title of the paper and the form expecred to be used.

Further information available here.

Written by William S. Dodge (Professor, University of California, Davis, School of Law)

Should courts in the United States refuse to recognize and enforcement Chinese court judgments on the ground that China does not provide impartial tribunals or procedures compatible with the requirements of due process of law? Last April, a New York trial court said yes in Shanghai Yongrun Investment Management Co. v. Kashi Galaxy Venture Capital Co., relying on State Department Country Reports as conclusive evidence that Chinese courts lacked judicial independence and suffered from corruption. As Professor Wenliang Zhang and I pointed out on this blog, the implications of this decision were broad. Under the trial court’s reasoning, no Chinese judgment would ever be entitled to recognition in New York or any of the other U.S. states that have adopted Uniform Acts governing foreign judgments. Moreover, U.S. judgments would become unenforceable in China because China enforces foreign judgments based on reciprocity. But on March 10, just three weeks after oral argument, New York’s Appellate Division answered that question no, reversing the trial court’s decision.

As background, it is important to note that the recognition and enforcement of foreign country judgments in the United States is generally governed by state law. Twenty-eight states and the District of Columbia have enacted the 2005 Uniform Foreign-Country Money Judgments Recognition Act. In nine additional states, its predecessor, the 1962 Uniform Foreign Money-Judgments Recognition Act, remains in effect. At the time of the trial court’s decision, the 1962 Uniform Act governed in New York, but it was superseded by the 2005 Uniform Act on June 11, 2021. Both Uniform Acts provide for the nonrecognition of a foreign judgment if “the judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law.”

This systemic lack of due process ground for nonrecognition comes from the U.S. Supreme Court’s 1895 decision in Hilton v. Guyot, issued at a time when lawyers routinely distinguished between civilized and uncivilized nations. It was incorporated in the 1962 Uniform Act at the height of the Cold War, and included in the 2005 Uniform Act without discussion, apparently to maintain continuity with the 1962 Act. Despite its codification for nearly sixty years, fewer than five cases have refused recognition on this ground. The leading case is Bridgeway Corp. v. Citibank, involving a Liberian judgment issued during its civil war, when the judicial system had almost completely broken down.

Shanghai Yongrun involved a business dispute between two Chinese parties, which was submitted to a court in Beijing under a choice-of-forum clause in the parties’ agreement. The defendant was represented by counsel, presented its case, and appealed unsuccessfully. Nevertheless, the New York trial court held that the Chinese judgment was not enforceable because China lacks impartial tribunals and procedures compatible with due process. The court relied “conclusively” on China Country Reports prepared by the State Department identifying problems with judicial independence and corruption in China.

In a brief order, the Appellate Division reversed. It concluded that the trial court should not have dismissed the action based on the Country Reports. These Reports did not constitute “documentary evidence” under New York’s Civil Practice Law and Rules. But more fundamentally, reliance on the Country Reports was inappropriate because they “primarily discuss the lack of judicial independence in proceedings involving politically sensitive matters” and “do not utterly refute plaintiff’s allegation that the civil law system governing this breach of contract business dispute was fair.”

On this, the Appellate Division was clearly correct. The State Department prepares Country Reports to administer provisions of the Foreign Assistance Act denying assistance to countries that consistently engage in gross violations of human rights, not to evaluate judicial systems for other purposes. See 22 U.S.C. §§ 2151n & 2304. The Reports themselves warn that they “they do not state or reach legal conclusions with respect to domestic or international law.” Moreover, if these Reports were used to determine the enforceability of foreign judgments, China would not be the only country affected. An amicus brief that I wrote and fourteen other professors of transnational litigation joined noted that State Department Country Reports expressed similar concerns about judicial independence, corruption, or both with respect to 141 other countries, including Argentina, Brazil, Italy, Japan, Mexico, South Korea, and Spain.

The Appellate Division concluded that “[t]he allegations that defendants had an opportunity to be heard, were represented by counsel, and had a right to appeal in the underlying proceeding in the People’s Republic of China (PRC) sufficiently pleaded that the basic requisites of due process were met.” By focusing on the facts of the specific case, the Appellate Division appears to have taken a case-by-case, rather than a systemic, approach to due process. Such a case-by-case approach is expressly permitted under the 2005 Uniform Act, which adds as a new ground for nonrecognition that “the specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process of law.” Such a case-specific approach avoids the overinclusiveness of denying recognition on systemic grounds when there are no defects in the judgment before the court.

The Appellate Division’s decision in Shanghai Youngrun continues the growing trend that Professor Zhang and I have noted of U.S. decisions recognizing and enforcing Chinese judgments. Just two months before this decision, in Yancheng Shanda Yuanfeng Equity Investment Partnership v. Wan, a U.S. district court in Illinois recognized and enforced a Chinese judgment in another business dispute. The court expressly rejected the New York trial court’s holding in Shanghai Yongrun, noting “the multiple federal cases … where American courts enforced Chinese court judgments and/or acknowledged the adequacy of due process in the Chinese judicial system.” One hopes that this trend will continue.

On Tuesday, April 5, 2022, the Hamburg Max Planck Institute will host its 21th monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CET). Prof. em. Dr. Dr. h.c. mult. Erik Jayme (University of Heidelberg) will speak, in German, about the topic

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.

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

In a judgment of 3 November 2021, the French Supreme Court for private and criminal matters (Cour de cassation) confirmed the evolution of the French law of Sovereign Immunities after a statutory intervention in 2016 and its alignment on the 2004 UN Convention on Jurisdictional Immunities.

A Dutch judgment from 27 September 2000 ordered a public Iraqi company, Rasheed Bank, to pay various amounts to Citibank, an American company. On this ground, Citibank carried out a protective measure on Rasheed Bank’s accounts in France, which was later converted into an attachment procedure after the Dutch judgment was declared enforceable by French courts. The Iraqi company seized French courts to challenge the conversion.

There were two main issues arising in this case:

• Whether Article 19 of the UN Convention on Jurisdictional Immunities required a connection between the assets attached and the claim, in addition to a connection between the goods and the entity against which the claim was brought, and
• Whether the creditor had to prove that the State voluntarily intended to allocate its property to a government non-commercial purpose,

Article 19(c) of the United Nations Convention on Jurisdictional Immunities of States and their Property (2004) provides that post-judgment measures of constraint may only be taken if and to the extent that (…) “it has been established that the property is specifically in use or intended for use by the State for other than government non-commercial purposes and is in the territory of the State of the forum, provided that post-judgment measures of constraint may only be taken against property that has a connection with the entity against which the proceeding was directed”.

In a judgment of 17 October 2019, the Paris Court of Appeal upheld the conversion of the protective measure into an attachment procedure. After recalling the content of Article 19 of the UN Convention on Jurisdictional Immunities, the Court of Appeal ruled that there must be a connection between the assets attached, which must be linked to a private law transaction, and the entity against which the claim was brought. It then ruled that requiring a connection between the assets attached and the claim would be contrary to Article 6(1) of the ECHR and the right of access to justice, as it would disproportionately infringe the creditor’s right to enforce judgments, without pursuing a legitimate purpose.

The Court of Appeal also held that Article 19 of the UN Convention on Jurisdictional Immunities does not require the creditor to demonstrate the State’s will to allocate the attached assets to a commercial purpose. It recalled the principle of unattacheability of State assets and that the burden of proof lies on the creditor, before finding that in light of the circumstances, the assets deposited on the accounts were to be allocated to ends other than government non-commercial purposes: the cash-deposit account was opened at a time where Rasheed Bank presented itself as independent from the Iraqi State and frequently performed commercial transactions, a use that cannot have changed since due to the freezing of Iraqi assets in 1990.

Rasheed Bank challenged this judgment on several grounds.

First, it argued that although Article 19 of the UN Convention on Jurisdictional Immunities does not require a connection between the attached assets and the creditor’s claim to allow the seizure, it does not prohibit it either. According to the Iraqi public company, the Court of Appeal failed to give adequate reasons by ruling that requiring a link between the attached assets and the claim was contrary to Article 6(1) of the ECHR. Rasheed Bank claimed that since the UN Convention of Jurisdictional Immunities reflects customary international law, the Court of Appeal could not rule the requirement of a connection between the attached assets and the claim contrary to Article 6(1) of the ECHR without first verifying whether requiring this connection would be contrary to customary international law. It also sustained that the right to have access to justice of Article 6(1) ECHR may be restricted by a limitation whose purpose is legitimate and which is proportionate to this purpose; according to Rasheed Bank, the Court of Appeal’s reasoning lacks a legal basis as it failed to indicate how requiring a connection between the attached assets and the claim would infringe the creditor’s right to enforce judgments without pursuing a legitimate purpose.

Second, Rasheed Bank argued that by virtue of customary international law, in order to attach specifically used assets or assets used for other than government non-commercial purposes, the creditor must demonstrate the will of the State or of its emanation to allocate the attached assets to a commercial purpose.

The Supreme Court upheld entirely the judgment of the Court of Appeal.

It ruled that customary international law, as codified by Article 19 of the UN Convention on Jurisdictional Immunities, provides that apart from the situations where the State has expressly consented to post-judgment measures of constraint or allocated or earmarked property for the satisfaction of the claim, his property or that of its emanations located on the territory of the forum may only be seized, pursuant to a judgment or an arbitral award, if it is “specifically in use or intended for use by the State for other than government non-commercial purposes” and have “a connection with the entity against which the proceeding was directed”. Hence the Supreme Court found that the Court of Appeal had rightly ruled that the taking of post-judgment enforcement measures does not require a connection between the attached assets and the claim: they must only be connected to the entity against which the measures are carried out.

The Supreme Court also ruled that the Court of Appeal rightly inferred from the circumstances that the assets were not destined to a government non-commercial use, without shifting the burden of proof. It held that the account seized, because it was opened in the course of commercial transactions, was by nature intended to serve  ends other than non-commercial purposes.

The judgment must be viewed in the light of the recent reform of the French law of sovereign immunities.

Until 2016, the French law of immunities was entirely judge made. The leading case was Eurodif, where the Cour de cassation had ruled in 1984 that the scope of the immunity of enforcement of foreign states extended to all assets which did not have a connection with the commercial activity which gave rise to the claim. In other words, a claim arising from the trade of grain by a state could not be satisfied on assets affected to the oil activities of a state.

In 2016, the French Parliament adopted statutory provisions replicating Article 19 of the UN Convention on Jurisdictional Immunities. These provisions are found in the French Code of civil enforcement proceedings (Code des procédures civiles d’exécution), in particular in Art. L. 111-1-2.

This case, however, did not fall within the temporal scope of these statutory provisions. This likely explains why the Court did not simply refer to them (as the Court of Appeal had), but rather applied directly Article 19 as customary international law. While many provisions of the Convention certainly reflect customary international law, whether Article 19 actually does is unclear, but the Cour de cassation has long shown that it has no intention of embarking into any nuanced analysis in this respect.

They key question arising in this case was whether Article 19 necessarily excludes the rule in Eurodif. The argument of the appeal was that Article 19 was silent, and thus neutral in this respect, and that the Court could have kept this long standing requirement. The argument is rejected, and the court rules that the old requirement of a connection between the attached assets and the claim is obsolete.

The Institute for Private International and Comparative Law of the University of Cologne, directed by Heinz-Peter Mansel, is looking to appoint one to two Research Assistant(s) (Wissenschaftliche/r Mitarbeiter/in) on fixed-term contracts for two years, with contract extension possible, based in Cologne. The successful candidate(s) can be appointed full time (39.83 hrs/week) or part-time (19.92 hrs/week), with the latter option allowing for the completion of a PhD thesis. A German State Exam in law with above-average marks is required. Proficiency in Dutch, Italian, Spanish or French an advantage.

Interested candidates are invited to send their application by 25 March 2022.

See here for further information.

On 15 March 2022, Marta Requejo (Référendaire at the CJEU; Professor of Private International Law at the University of La Laguna) will give a conference on the Brussels I bis Regulation at the Research Center for Private International and International Business Law in Paris (‘salle 102’).

The conference will be given in French (Le règlement Bruxelles I bis sous la loupe) at 6 pm online.

Participation is free. Details can be obtained from laurence.tacquard@u-paris2.fr.

The Center regularly holds conference from doctoral students who recently defended their doctorate at Paris I or Paris II University. It also occasionally holds conference from visiting professors at both universities. Podcasts of the latest conferences can be found here.

Deadline extended: Funding opportunities under the justice programme in the area of judicial cooperation in civil and criminal matters (JUST-2022-JCOO).

The deadline for proposal submission to the call for proposals for action grants to promote judicial cooperation in civil and criminal matters has been extended.

The new deadline for submission is the 30 March 2022 – 17:00:00 CET, Brussel’s time.

The total budget available for the call is EUR 5.500.000. The co-financing rate is 90%.

The key priorities for 2022 under this call are to contribute to the effective and coherent application of the EU acquis relating to judicial cooperation in civil and criminal matters, thus strengthening mutual trust.

In particular, the call aims to

1. facilitate and support judicial cooperation in civil and criminal matters
2. promote the rule of law, independence and impartiality of the judiciary, including by supporting the efforts to improve the effectiveness of national justice systems, and the effective enforcement of decisions

The call-related documents, guidance and other instructions are available in the call page within the funding & tender opportunities portal (F&T).

Project activities under this call would in principle include:

1. facilitating cooperation between competent authorities and agencies, legal practitioners and/or service providers (including multi-disciplinary networks at international, national, regional or local levels);
2. mutual learning, identifying and exchange of best practices, development of working methods which may be transferable to other participating countries;
3. analytical activities, including data collection, surveys, research, etc.;
4. exchange and provision of information and development of information tools;
5. capacity building for professionals;
6. dissemination and awareness raising activities;
7. training activities can also be funded under this call, as long as they are of ancillary nature and not the main purpose of the project.

Any further request for information can be addressed to  EC-JUSTICE-CALLS@ec.europa.eu

The Court of Justice delivered yesterday its judgment in case C‑498/20 (BMA), which is about Brussels I bis and Rome II. The judgment is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version) :

« 1) L’article 7, point 2 [Bruxelles I bis] doit être interprété en ce sens que la juridiction du lieu d’établissement d’une société dont les dettes sont devenues irrécouvrables, parce que la société « grand-mère » de cette société a méconnu son devoir de diligence à l’égard des créanciers de celle-ci, est compétente pour connaître d’une action collective en dommages et intérêts relevant de la matière délictuelle ou quasi délictuelle, que le curateur à la faillite de cette société a introduite, dans le cadre de sa mission légale de liquidation de la masse, pour le compte, mais non pas au nom, de l’ensemble des créanciers.

2) La réponse à la première question posée à titre préjudiciel n’est pas différente s’il est tenu compte du fait que, dans l’affaire au principal, une fondation agit pour défendre les intérêts collectifs des créanciers et que l’action introduite à cette fin ne tient pas compte des circonstances individuelles des créanciers.

3) L’article 8, point 2, du règlement no 1215/2012 doit être interprété en ce sens que, si la juridiction saisie de la demande originaire revient sur sa décision de se déclarer compétente pour connaître de cette demande, elle perd, de ce fait, de plein droit, également sa compétence pour connaître des demandes introduites par la partie intervenante.

4) L’article 4 [Rome II] doit être interprété en ce sens que la loi applicable à une obligation de réparation au titre du devoir de diligence de la société « grand-mère » d’une société déclarée en faillite est, en principe, celle du pays où est établie cette dernière, bien que la préexistence d’une convention de financement entre ces deux sociétés, assortie d’une clause d’élection de for, soit une circonstance pouvant établir des liens manifestement plus étroits avec un autre pays, au sens du paragraphe 3 de cet article ».

Source : https://curia.europa.eu/juris/document/document.jsf?text=&docid=255424&pageIndex=0&doclang=fr&mode=req&dir=&occ=first&part=1&cid=686272

AG Pikamae delivered yesterday his opinion in case C‑7/21 (Lkw Walter Internationale Transportorganisation AG), which is on the Service Regulation and Brussels I bis (Slovenian decision delivered in the absence of the defendant and notified in Austria in Slovenian only and with only 8 days to oppose). The opinion is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version) :

« 1) L’article 8, paragraphes 1 et 3, du règlement (CE) nº 1393/2007 […] lu conjointement avec l’article 47 de la charte des droits fondamentaux de l’Union européenne, doit être interprété en ce sens qu’il ne s’oppose pas à une réglementation nationale du droit de l’État de condamnation selon laquelle le délai pour exercer un recours contre une décision matérialisée par un acte judiciaire signifié ou notifié conformément au règlement nº 1393/2007 commence à courir dès la signification ou la notification de l’acte en question et non uniquement lorsque le délai d’une semaine prévu au paragraphe 1 dudit article pour refuser de recevoir cet acte a expiré.

2) L’article 45, paragraphe 1, sous b), et l’article 46 du règlement (UE) nº 1215/2012 […] lus conjointement avec l’article 47 de la charte des droits fondamentaux, doivent être interprétés en ce sens qu’il y a lieu de refuser la reconnaissance et l’exécution d’une décision qui n’a pas été rendue dans le cadre d’une procédure contradictoire lorsqu’un recours contre la décision doit être exercé dans une langue autre que la langue officielle de l’État membre dans lequel le défendeur réside ou, s’il existe plusieurs langues officielles dans cet État membre, autre que la langue officielle ou l’une des langues officielles du lieu où il réside, et que, selon le droit de l’État membre dans lequel la décision a été rendue, le délai non renouvelable pour exercer le recours n’est que de huit jours civils.

3) L’article 18 TFUE doit être interprété en ce sens qu’il ne s’applique pas à une situation dans laquelle le destinataire d’un acte judiciaire a renoncé à exercer son droit de refuser la notification ou la signification dudit acte conformément à l’article 8, paragraphe 1, du règlement no 1393/2007 ».

Source : https://curia.europa.eu/juris/document/document.jsf?text=&docid=255446&pageIndex=0&doclang=fr&mode=req&dir=&occ=first&part=1&cid=686272

The Court of Justice delivered earlier this month (3 March 2022) its judgment in case C‑421/20 (Acacia Srl v BMW AG), which is about Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs and Rome II:

« Article 88(2) and Article 89(1)(d) of [Regulation (EC) No 6/2002] and Article 8(2) [Rome II] must be interpreted as meaning that the Community design courts before which an action for infringement pursuant to Article 82(5) of Regulation No 6/2002 is brought concerning acts of infringement committed or threatened within a single Member State must examine the claims supplementary to that action, seeking the award of damages, the submission of information, documents and accounts and the handing over of the infringing products with a view to their being destroyed, on the basis of the law of the Member State in which the acts allegedly infringing the Community design relied upon are committed or are threatened, which is the same, in the circumstances of an action brought pursuant to that Article 82(5), as the law of the Member State in which those courts are situated ».

Source : https://curia.europa.eu/juris/document/document.jsf?docid=254964&mode=req&pageIndex=3&dir=&occ=first&part=1&text=&doclang=EN&cid=730419

The Court of Justice (Grand Chamber) delivered on 22 February 2022 its judgment in case C‑430/21 (RS), which is about the Rule of Law, the principle of primacy of EU law and the protection of judges from disciplinary proceedings in their application of EU Law:

«  The second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 and Article 4(2) and (3) TEU, with Article 267 TFEU and with the principle of the primacy of EU law, must be interpreted as precluding national rules or a national practice under which the ordinary courts of a Member State have no jurisdiction to examine the compatibility with EU law of national legislation which the constitutional court of that Member State has found to be consistent with a national constitutional provision that requires compliance with the principle of the primacy of EU law.

2. The second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 and Article 4(2) and (3) TEU, with Article 267 TFEU and with the principle of the primacy of EU law, must be interpreted as precluding national rules or a national practice under which a national judge may incur disciplinary liability on the ground that he or she has applied EU law, as interpreted by the Court, thereby departing from case-law of the constitutional court of the Member State concerned that is incompatible with the principle of the primacy of EU law ».

Source : https://curia.europa.eu/juris/document/document.jsf?docid=254384&mode=req&pageIndex=7&dir=&occ=first&part=1&text=&doclang=EN&cid=730419

Kadir Has University Climate Change and Law Laboratory (CCLLAB), continues its series of events on legal aspects of Climate Change. At the sixth session of Climate Change and Law Seminars, Kadir Has University Climate Change and Law Laboratory (CCLLAB) will be honored by the lecture of Prof. Dr. Sam Fankhauser on Trends in Climate Legislation. Event is open to public via Zoom. No formal registration required; we would appreciate however if you confirm your participation by sending an e-mail to ccllab@khas.edu.tr. To find out more about our lab, please visit https://ccllab.khas.edu.tr/

Sam Fankhauser is Professor of Climate Economics and Policy at the University of Oxford, where he is affiliated with the Smith School of Enterprise and the Environment and the School of Geography and the Environment. He is also Research Director of Oxford Net Zero. Before moving to Oxford, Sam was Director of the Grantham Research Institute on Climate Change and the Environment at the London School of Economics, where he remains a Visiting Professor. He has also worked at the European Bank for Reconstruction and Development (EBRD), the World Bank and the Global Environment Facility.

The London Steam-Ship Owners’ Mutual Insurance Association Ltd v The Kingdom of Spain M/T “PRESTIGE” (No. 5) [2022] EWCA Civ 238 is an appeal against The London Steam-Ship Owners’ Mutual Insurance Association Ltd v The Kingdom of Spain [2020] EWHC 1920 which I reported on here.

The issue on this appeal (tag ‘Prestige’ on this blog and ‘Prestige(@GAVClaw)’ on Twitter search will give you plenty of returns) is the very reference of the judge to the CJEU. At Kirchberg the case is known under reference C-700/20 and the hearing was held a few weeks back.

At issue is essentially whether the judge should have made reference to the CJEU at all, hence querying the ‘necessity’ of a reference to the CJEU including in this particular context of Brexit (with the Court of Appeal now longer being able to refer to Luxembourg by the time the case would have reached it).

Phillips LJ holds [47] that the reference was not necessary in light of CJEU authority on that element of necessity and that the judge should not have made it. Yet under the EU rule of law, a Court of Appeal cannot set aside the reference: [56] all the CA can do is ask the judge to reconsider, with [60] a call for fast-tracking in the event the CJEU might  rule before the judge withdraws the reference: if that latter is what he would be minded to do.

An interesting EU institutional law issue.

Geert.

1/2 EU rule of law
LDN Steam-Ship Owners' Mutual Insurance v Spain re Prestige [2022] EWCA Civ 238
Held CJEU referral should not have been made and judge must reconsider his reference to Luxembourghttps://t.co/tIAj7hmU8o
For judgment appealed see https://t.co/LgOFOXsRmo

— Geert Van Calster (@GAVClaw) March 4, 2022