Droit international général

The CJEU held yesterday in Grand Chamber in C-251/20 GtflixTV – for the facts see my initial flag of the case here. I reviewed the Opinion of Hogan AG here. The AG need not have bothered for the Court entirely ignores the Opinion.

The AG had predicted, as had I, that the CJEU would not heed his calls (joining those of plenty of AGs before him) that the Article 7(2) CJEU Bier introduced distinction between Handlungsort and Erfolgort be abandoned or at least curtailed. The CJEU however also dismisses his suggestion that the case at issue, which involves defamation of competitors over the internet, does not engage the Bolagsupplysningen case-law (infringement of personality rights over the internet) but rather Tibor Trans on acts of unfair competition.

I do not see quite clearly in the Grand Chamber’s mention [28] that Gtlix did not request inaccessibility of the information in France: for Gtflix did request retraction.

Instead of qualifying locus damni jurisdiction, the CJEU squarely confirms its faith in the Mosaic consequences of Article 7(2) locus damni jurisdiction. Each court in whose district damage has occurred, will continue to have locus damni jurisdiction even if the claimant requests rectification of the information and the removal of the content placed online in the Handlungsort or centre of interests jurisdiction. Locus damni jurisdiction in my view extends only to the damage occurring in that district (for Article 7(2) determines territorial, not just national jurisdiction), albeit in current, internet related case the CJEU [38] would seem to speak of ‘national’ jurisdiction, linked to accessibility in the Member State as a whole.

Those courts’ locus damni jurisdiction is subject to the sole condition that the harmful content must be accessible or have been accessible in that Member State. Per CJEU Pinckney, an additional direction of activities to that Member State is not required (the recent High Court approach in Mahmudov on which I shall blog shortly, is at odds with that approach nota bene).

Grand Chamber judgments must not only be expected in cases where earlier authority is radically changed or qualified. It can also occur in cases where the CJEU wishes to reconfirm a point earlier made but stubbornly resisted in scholarship and lukewarmly embraced in national court practice.

Geert.

#CJEU Gtflix. Insulting comments viz competitor do fall within A7(2) Brussels Ia forum delicti. Aggrieved claimant may sue for damages in every jurisdiction where the publication was accessible. Court confirms Mozaik jurisdiction https://t.co/dhz5AlGJ9A https://t.co/GOwADA02Wu

— Geert Van Calster (@GAVClaw) December 21, 2021

John F. Coyle from the University of North Carolina has published on SSRN an article titled The Mystery of the Missing Choice-of-Law Clause.

The abstract reads as follows:

There is widespread agreement among experienced contract drafters that every commercial contract should contain a choice-of-law clause. Among their many virtues, choice-of-law clauses facilitate settlement and reduce litigation costs. While most modern contracts contain these provisions, some do not. In many instances, the absence of these clauses may be attributed to outdated forms, careless drafting, inattentive lawyers, or some combination of the three. In a few instances, however, it appears that sophisticated contract drafters purposely omit choice-of-law clauses from their agreements. If these clauses add value to a contract—and there is near-universal agreement that they do—then this decision raises a perplexing question. Why would any experienced contract drafter ever consciously choose not to write a choice-of-law clause into an agreement?
This Article seeks to answer this question with respect to one type of agreement where choice-of-law clauses are routinely omitted—insurance contracts. All of the available evidence suggests that most insurance contracts lack choice-of-law clauses. This is surprising because insurance companies are the epitome of the sophisticated contract drafter. To unravel the mystery of why so many insurance contracts do not contain choice-of-law clauses, the Article draws upon more than thirty interviews and email exchanges with industry experts. It argues that the absence of these provisions is attributable to a complex amalgam of legislative and regulatory hostility, judicial skepticism, standard forms, and strategic maneuvering on the part of insurers. The Article argues further that manuscript policies—which are negotiated between insurers and policyholders—sometimes lack choice-of-law clauses due to a perceived first-mover disadvantage and the absence of any body of truly neutral insurance law within the United States.
Solving the mystery of the missing choice-of-law clause in insurance contracts unlocks three important insights. First, it informs the efforts of state legislators and insurance commissioners called upon regulate the terms of insurance policies. Second, it suggests that insurance companies should adopt a differentiated approach to drafting choice-of-law clauses that accounts for the relative favorability of the law in the policyholder’s state. Third, and most importantly for contract scholars, solving the mystery sheds light on the nature of the contract production process, the drafting acumen of insurance companies, and the stickiness of absent contract terms.

This Tuesday the Court of Justice delivered its judgment in the case Gtflix Tv, C-251/20, where it has been asked to interpret Article 7(2) of the Brussels I bis Regulation in the context of an online publication allegedly disparaging a legal person and an action for compensation brought by that person before the court of a Member State in the territory of which that content was accessible.

The preliminary question referred to the Court read as follows:

“Must Article 7(2) of [the Brussels I bis Regulation] be interpreted as meaning that a person who, considering  that his or her rights have been infringed by the dissemination of derogatory comments on the internet, brings proceedings not only for the rectification of information and the removal of content but also for compensation for the resulting non-material and material damage, may claim, before the courts of each Member State in the territory of which content published online is or was accessible, compensation for the damage caused in the territory of that Member State, in accordance with the judgment in eDate Advertising (paragraphs 51 and 52), or whether, pursuant to the judgment in [Bolagsupplysningen and Ilsjan] (paragraph 48), that person must make the application for compensation before the court with jurisdiction to order rectification of the information and removal of the derogatory comments?”

In essence, the referring court sought to establish whether the mosaic approach stood up to the test of time (also) in the contexts such as the one described in the preliminary question.

The Court answered in the affirmative.

A person who brings proceedings not only for the rectification of information and the removal of content but also for compensation for the resulting non-material and material damage, may claim, before the courts of each Member State in the territory of which content published online is or was accessible, compensation for the damage caused in the territory of that Member State, despite the fact that – as the Court seems to stress it in its answer – these courts would not have jurisdiction to rule on the rectification or removal of content.

The judgments is available here (in French, so far), with a press release in English.

This post was contributed by Olivera Boskovic, who is a Professor at the Université de Paris.

The situation of victims of environmental damages or human rights violations caused in non-EU countries by subsidiaries or subcontractors of companies established in the EU (but the issue can be extended to companies merely operating in the EU) trying to bring actions before the courts of EU Member States is well known. The Shell case, in which victims of serious environmental damage in Nigeria sued the Dutch parent company and its Nigerian subsidiary before the Dutch court, is quite emblematic in this respect. (The last decision in this case has been issued on 29th of January 2021 by the Hague Court of Appeal. See Shell Nigeria liable for oil spills in Nigeria). The need to modify certain rules of private international law in order to address these actions in a satisfactory manner has been debated for some time now. The purpose of this post is to provide an update and examine the current state of the debate. Difficult questions may arise both concerning jurisdiction and concerning the determination of applicable law.

Jurisdiction

Jurisdiction, first of all, remains problematic although the situation has somewhat improved in recent years. From a European perspective, as the law stands today, a first fundamental distinction is between cases in which the defendant is domiciled in an EU Member State and those in which the defendant is domiciled in a third country.

Where the action is brought against a defendant domiciled in an EU Member State (i.e, in our context, actions brought directly against the parent company or the ordering company), jurisdiction is based on the Brussels Ia Regulation. This regulation always allows a defendant to be sued in the court of his domicile, so that jurisdiction should not be a problem in this case. (For example, in the Shell case the jurisdiction of the Dutch court to hear the action against the Dutch company did not pose any problem). Instead, the obstacles are of a substantive nature and relate to the difficulty of holding companies liable for the actions of their subsidiaries or subcontractors.

The situation is more problematic when the defendant is domiciled outside the EU, (i.e. in our context when the action is brought against subsidiaries or subcontractors who are direct perpetrators of the damage or simply against companies domiciled outside the EU). These actions are excluded from the scope of the Brussels Ia Regulation. They are subject to the national laws of the Member States, and the rules may therefore differ considerably from one country to another. Generally speaking, it is quite difficult to establish the jurisdiction of a Member State court in this type of case. One can therefore consider that there is a problem of access to justice, in so far as the rules of jurisdiction do not take account of economic links, or even the economic unity of groups of companies. Nevertheless, there are avenues available and in particular two worth mentioning: the co-defendants’ rule and the forum necessitatis (or jurisdiction based on the risk of denial of justice) Indeed, several Member States have rules based on one or other of these mechanisms, or even both. As a reminder, the co-defendants’ rule makes it possible, when an action is brought against several defendants, one of whom is domiciled in the forum State and the other outside the EU, to sue all the defendants before the court of the domicile of the one domiciled in the forum State, provided of course that the claims are related. The forum necessitatis, on the other hand, allows the court of the forum to be seized when no foreign court can be seized by the claimant, who therefore risks a denial of justice. More than the issues raised by the application of each of these rules what is noteworthy is the lack of unification at the European level. As regards the forum necessitatis, its introduction into the Brussels I Regulation was proposed in 2010 and again recently in 2020, but without success. As for the co-defendants rule (involving a defendant domiciled outside the EU), its introduction in the Regulation has never been proposed.

New Grounds of Jurisdiction in the Brussels Ibis Regulation

Nevertheless, it appears that the introduction of these two rules into the Regulation would be a real improvement. Of course, this opinion is not shared by all writers. There are divergent views among scholars. Some are hostile to the introduction of the forum necessitatis. (see Ch. Tomale, On the EP draft report on corporate due diligence) They consider there is no need for such a rule, especially at a time when the Supreme court of the United States is moving in the opposite direction and has adopted a very strict position. However, contrary to what can sometimes be read, the idea is not to allow member state courts to hear cases with no connection whatsoever to the EU. A minimum link with the legal order of the court seized is required by all proposals (see the GEDIP proposal concerning the private international law aspects of the future European instrument on corporate due diligence and corporate accountability, October 2021; draft treaty on business and human rights, August 2020; Sofia guidelines for international civil litigation for human rights violation, 2012 adopted by the ILA). Of course, the question is then whether this minimum link should be defined by the rule or left for the court to decide. Taking into account the diversity of situations that may occur, it is preferable to leave the definition of the minimum link to the courts. This seems to be the approach adopted by recent initiatives. On the contrary, other scholars consider that situations where a real risk of denial of justice can be characterised are the only situations in which European courts should rule on this type of dispute. The concern that home state courts should not consider that it is always better for them to decide this type of case and that they should assert jurisdiction only when it is really necessary because the host state courts cannot handle the litigation in a satisfactory way has been voiced by many commentators during debates. Even the Court of Appeal in the famous Vedanta case decided in the UK commented that ‘there must come a time when access to justice in this type of case will not be achieved by exporting cases, but by the availability of local lawyers, experts, and sufficient funding to enable the cases to be tried locally”. Scholars who hold this position are implicitly hostile to the co-defendants rule. These differences raise the question of relations between these two grounds of jurisdiction and whether one should be preferred. In the opinion of the present writer the answer is no. These rules are complementary. (The opinion according to which the forum necessitates rule is a second-best solution and an activity-based rule could be imagined is also worth mentioning. This question was discussed during the interesting webinar on “The recommendation of GEDIP concerning the private international aspects of the future EU instrument on corporate due diligence and corporate accountability” organised by the Italian Interest group on Private international law on December 10 2021 featuring as speakers H. Van Loon and Giulia Vallar.)

Therefore, the minimum solution would be to introduce into the Brussels Ia Regulation the forum necessitatis which allows victims to bring an action in front of the court of a EU Member State, irrespective of the existence of a co-defendant domiciled in an EU Member State, but on condition that they can show that it is impossible to bring the case before another court. The rule is devised as an exceptional rule. If the European legislator wanted to go further, (it is the present writer’s opinion that this is desirable), they should introduce, in addition, the co-defendants rule, which makes it easier to bring an action, without the need to show the impossibility of seizing another court, but provided that a European defendant is also involved in the proceedings and that the claims are related. This approach has been adopted by several recent initiatives. The latest version (August 2020) of the draft binding treaty on business and human rights negotiated within the UN framework contains both rules. The same is true of the GEDIP recommendation to the European Commission. Considering the fact that England has often been described as a magnet forum for this type of litigation, it is interesting to note that in all these proposals, contrary to the English system, the two grounds of jurisdiction (presence of a forum-based co-defendant and the risk of denial of justice) are two separate grounds of jurisdiction. This indeed seems to be a better solution. Another difference lies in the fact that the English system takes into account the risk of substantial denial of justice whereas the forum necessitatis focuses on the impossibility to seize another court. However, the two systems might be closer than they seem at first sight. The impossibility to seize another court can be characterized if the claimant can not “reasonably” seize another court. This is an open door for consideration of a risk of substantial denial of justice. In a nutshell, it appears that the attractivity of the English forum does not lie in rules on jurisdiction.

Parallel Litigation

Another important question relating to jurisdiction is the question of parallel proceedings. The Mariana Dam case recently brought in front of the English courts shed light upon this question. In the aftermath of the worst environmental disaster in the history of Brazil, an action was brought in the UK against the Anglo-Australian mining multinational BHP. It was initially rejected, but has been reopened in July 2021 under exceptional appeals legislations (CPR 52.30) in order to “avoid real injustice”. The way lis pendens and the related actions exceptions are treated is very important. In addition to the problem of parallel litigation brought by victims both in the host and in the home country, It is vital to make sure that they are not transformed into weapons by potential defendants seeking declarations of non-liability in non-member States and then invoking the lis pendens or related actions exception. However, one may consider that the tools that already exist in the Bia regulation are satisfactory and that no legislative reform is needed on this point. Although relying on the conditions of recognition and the concept of “good administration of justice” can seem a bit vague, it is submitted that a certain degree of judicial discretion is inevitable.

Applicable Law

After jurisdiction, the second question concerns the determination of the law applicable to these actions. As the law stands today, a difficulty arises from the fact that choice of law rules often designate the law of the place of the damage, which in these cases is frequently the law of a country outside the EU with a less developed legal system. In reality, to understand the current situation, a twofold distinction must be made, firstly according to whether or not the defendant is domiciled in the EU, and secondly according to whether it is a question of environmental damage or a human rights violation. With regard to actions against defendants domiciled outside the EU, (i.e. in current litigation, actions against subsidiaries and subcontractors), they will always be governed by the law of the place where the damage occurred, which corresponds to the law of their activity. (It is important to note that this does not necessarily mean impunity for these defendants. For example, in the Shell case the Dutch court held the Nigerian subsidiary liable by virtue of Nigerian law). On the other hand, with regard to actions against parent companies or ordering companies established in the EU, as the law stands today, a distinction must be made between cases involving environmental damage and cases involving a violation of human rights. The former are covered by Article 7 of the Rome II Regulation, which allows the claimant to choose between the law of the place of the event giving rise to the damage and the law of the place where the damage occurred. The latter are covered by Article 4, which designates exclusively the law of the place of the damage. This last rule, in our context, is problematic. This problem is at the origin of the proposal by the European Parliament’s Committee on Legal Affairs to insert an Article 6a on “Actions for breach of human rights in commercial matters” which would have allowed the victim to choose between several laws.

The first question that arose upon publication of the proposal was: do we need a new choice of law rule? Some scholars consider that we do not and that it is sufficient to classify the rules of the future European instrument as overriding mandatory provisions (see. the post of G. Rühl here). However, a different view is possible. It is the opinion of the present writer that a choice of law rule would indeed be useful. Indeed, by definition, only a limited number of provisions can be characterised as overriding mandatory provisions. The rules on limitation, for example, will not be considered as such. However, they can be quite decisive in litigation. The action may be dismissed because, for example, the law of the place of the damage, which is a law of a non-EU country, contains a very short limitation period. Therefore, a choice of law rule would protect the victims more than the overriding mandatory rules method and consequently contribute to the public interest objective of making companies more responsible. In any event, the two methods can be combined. The adoption of a new choice of law rule for human right abuses, would not make the overriding mandatory rules approach irrelevant. This is also the position of the GEDIP. In its recommendation it combines the two approaches.

Extending the Scope of Article 7 Rome II

Going back to the European Parliament’s Committee on Legal Affairs’ proposal, although it is the opinion of the present writer that a special choice of law rule is indeed desirable, the provision as proposed was not immune from criticism (See. O. Boskovic, « La loi applicable aux « actions pour violations des droits de l’homme en matière commerciale », Recueil Dalloz 11 fév. 2021, p. 252). Firstly, having two provisions, one applicable to environmental damage and the other applicable to human rights violations would cause very difficult boundary problems (bearing in mind, for example, that according to some estimates one third of human rights violations involve environmental offences). Secondly, the connecting factors used in the proposed article 6a raised many questions. For this reason, it appears more appropriate to have a single choice of law rule for human rights violations and for environmental damage. Article 7 should therefore be rewritten to include human rights violations. The victim would then be able to choose between the law of the place of the damage and the law of the place where the event giving rise to the damage occurred, which would increase their chances of success. (This is also the position of the GEDIP proposal. However, one should note that the scope of the GEDIP proposal is wider and applies, just like the future European instrument, not only to human rights and environmental damages but also to good governance. The precise definition of this last concept is difficult and the desirability of having the same rule is debatable. This very interesting question was discussed during the above-mentioned webinar organised by the Italian interest group on private international law.) However, this idea then gives rise to another question: How should the “event giving rise to the damage” be interpreted in this context? Obviously, for the text to achieve its objective, it must be accepted that the event giving rise to the damage can, at least if the factual circumstances are appropriate, be located at the place where the decisions were or were not taken, i.e. at the domicile of the parent company (a recital could be inserted to encourage such an interpretation) (I have developed these ideas in O. Boskovic, « La loi applicable aux « actions pour violations des droits de l’homme en matière commerciale », Recueil Dalloz 11 fév. 2021, p. 252.). The Hague Tribunal in the Shell case ruled along these lines in its decision issued on May 26th 2021, which has already been characterised as historical. It is interesting to note that a similar question arose in the Arica v. Boliden case decided by the Swedish courts in 2019. In this case under Swedish choice of law rules, applicable rationae temporis, the lex loci delicti commissi applied. In determining the locus delicti commissi, the court held that the center of gravity should be found and that ‘This center may be established with regard to where the qualitatively important elements have their focus rather than according to quantitative criteria’. Therefore, in this case concerning the export of toxic waste from Sweden to Chile, contrary to the first instance decision, the court of appeal held that the event giving rise to the damage was localized in Sweden. It is certain that agreeing on an adequate choice of law rule is not enough. The localization of the connecting factors is of paramount importance. (A similar question arose in the Nestlé v. Doe case. The Supreme Court explained that, because the ATS does not apply extraterritorially, in order for the court to have jurisdiction “plaintiffs must establish that conduct relevant to the statute’s focus occurred in the United States”. This was not the case because the only relevant alleged domestic conduct by the defendants consisted of general corporate activity-like decisionmaking- which  is insufficient to establish domestic application of the ATS. Contrary to the emerging trend in the EU, the Supreme Court of the US has shown continuous caution on this matter, apparently considering that it is not a matter for judicial lawmaking)

Revising Article 17 Rome II

Another important question concerns situations where poor performance of contractual obligations causes damage to third parties. The Kik case in Germany or Begun v. Maran case in the UK come to mind. A very important step in the fight for corporate accountability would be to facilitate actions brought by these third parties The aim is to ensure that the ethical and environmental clauses contained in international contracts do not remain a dead letter. Indeed, as the Court of Appeal observed in Begun v. Maran, often all protagonists know that theses clauses will be totally ignored. A revision of Article 17 of the Rome II Regulation could thus be envisaged in the form of the addition of a sentence: “Account shall also be taken of the ethical clauses contained in the contracts whose breach has caused the damage.” (on this problem see our forthcoming article « Contrats internationaux et protection de l’environnement », in actes du colloque du 15 juin 2021, Le droit économique, levier de la transition écologique ?)

Finally, it appears that the possibility of applying more widely foreign overriding mandatory provisions would contribute to the pursuit of these global governance goals. A modification of Rome I and Rome II along these lines would be welcome.

As these few remarks show, the debate on private international law aspects of corporate social accountability is far from over.

The University of Antwerp is looking for a doctoral candidate in the domain of International Accountability through the value chain.

The research addresses the question of how entities in the North can be held accountable for human rights infringements that happen in their value chain, often in the South. It examines recent and pending legislation on value chain due diligence in selected countries and/or regional organisations. The research can be approached from the perspective of human rights law, public international law or private international law, including private law mechanisms (either in tort or in contract law).

The deadline for applications is 14 February 2022 and the start date is 15 September 2022. For more information, see the full vacancy text.

The jugdment on C-251/20, Gtflix, will be published on Tuesday 21. The request for a preliminary reference of the French Cour de Cassation, focused on Article 7(2) of the Brussels I bis Regulation, had triggered a long opinion by M. Hogan (the Irish Advocate General at that point in time). Although he favoured the characterization of the act at stake as a form of malicious falsehood – thus falling under the scope of unfair competition rules-  and indicated expressly that “the present case is not the right one for the Court to take a position on whether or not the mosaic approach should be maintained” (point 95), the actual relevance of the case lies precisely there. He himself devoted his opinion to it, providing the Grand Chamber (K. Lenaerts, L. Bay Larsen, A. Arabadjiev, A. Prechal, I. Jarukaitis, N. Jääskinen, T. von Danwitz, L.S. Rossi, A. Kumin, N. Wahl, and M. Safjan as reporting judge) with arguments and counterarguments. It would be disappointing if the Court does not take a stance.

Eagerly waiting.

Quick reminder:

The question was:

‘Must Article 7(2) of Regulation (EU) No 1215/2012 be interpreted as meaning that a person who, considering  that his or her rights have been infringed by the dissemination of derogatory comments on the internet, brings proceedings not only for the rectification of information and the removal of content but also for compensation for the resulting non-material and material damage, may claim, before the courts of each Member State in the territory of which content published online is or was accessible, compensation for the damage caused in the territory of that Member State, in accordance with the judgment in eDate Advertising (paragraphs 51 and 52), or whether, pursuant to the judgment in Svensk Handel (paragraph 48), that person must make the application for compensation before the court with jurisdiction to order rectification of the information and removal of the derogatory comments?’

Advocate General Hogan proposed the following answer:

“Article 7(2) of Regulation No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that a claimant who relies on an act of unfair competition consisting in the dissemination of disparaging statements on the internet and who seeks both the rectification of the data and the deletion of certain content and compensation for the non-material and economic damage resulting therefrom, may bring an action or claim before the courts of each Member State in the territory of which content published online is or was accessible, for compensation only for the damage caused in the territory of that Member State. In order, however, for those courts to have the requisite jurisdiction it is necessary that the claimant can demonstrate that it has an appreciable number of consumers in that jurisdiction who are likely to have access to and have understood the publication in question.”

After the Coman judgment of 2018, the Grand Chamber of the Court of Justice of the European Union (CJEU) has again rendered a judgment in the field of free movement of citizens that is of importance for private international law. Like in Coman, the judgment in V.M.A. of 14 December 2021 concerned a non-traditional family of which the members sought to make use of their right to free movement in the EU under the Treaty on the Functioning of the European Union (TFEU) and Directive 2004/38. The  Charter of Fundamental Rights of the EU (Charter) was also pertinent, particularly its Article 7 on respect for private and family life, Article 9 on the right to marry and the right to found a family,  Article 24 on the rights of the child, and Article 45 on freedom of movement and of residence.

While Coman concerned the definition of “spouse” under Article 2 of the Directive, in V.M.A. the CJEU addressed the definition of  “direct descendants” in the same provision.

Two women, V.M.A., a Bulgarian national, and K.D.K., a national of the United Kingdom, were married and lived in Spain. A daughter, S.D.K.A., was born in Spain. Her Spanish birth certificate indicated V.M.A. as “mother A” and K.D.K. as “mother”. V.M.A. applied to the Sofia municipality for a birth certificate for S.D.K.A. in order to obtain a Bulgarian identity document for her. She submitted a legalised and certified translation into Bulgarian of the extract from the civil register of Barcelona.

The Sofia municipality refused this application, due to the lack of information on S.D.K.A.’s biological mother and because the reference to two mothers was contrary to Bulgarian public policy.

The Administrative Court of the City of Sofia, to which V.M.A. appealed the municipality’s decision, posed four questions to the CJEU. It sought to know whether Articles 20 and 21 of the TFEU and Articles 7, 24 and 45 of the Charter oblige Bulgaria to recognise the Spanish birth certificate despite its mentioning two mothers and despite the fact that it was unclear who the biological mother of the child was. It also questioned EU Member States’ discretion regarding rules for the establishment of parentage. A further relevant point was Brexit and the fact that the child would not be able to get EU citizenship through the other mother, who is a UK citizen.

The Grand Chamber ruled as follows:

Article 4(2) TEU, Articles 20 and 21 TFEU and Articles 7, 24 and 45 of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 4(3) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, must be interpreted as meaning that, in the case of a child, being a minor, who is a Union citizen and whose birth certificate, issued by the competent authorities of the host Member State, designates as that child’s parents two persons of the same sex, the Member State of which that child is a national is obliged (i) to issue to that child an identity card or a passport without requiring a birth certificate to be drawn up beforehand by its national authorities, and (ii) to recognise, as is any other Member State, the document from the host Member State that permits that child to exercise, with each of those two persons, the child’s right to move and reside freely within the territory of the Member States.

The CJEU thus obliges Bulgaria, through EU law, to recognise the Spanish birth certificate. The CJEU is not concerned with the issue of a  birth certificate in Bulgaria, but rather with the identity document (the requirements under national law for the identity document cannot be used to refuse to issue such identity document – see para 45).

The parentage established lawfully in Spain has the result that the  parents of a Union citizen who is a minor and of whom they are the primary carers, be recognised by all Member States as having the right to accompany that child when her right to move and reside freely within the territory of the Member States is being exercised (para 48)

The CJEU refers to the identity document as the document that permits free movement. This wording seems, on a first reading, to be broader than the ruling in Coman, where the CJEU ruled on the recognition of the same-sex marriage only for purposes of the right to residence. However, in para 57 the Court seems to include the Coman limitation: Such an obligation does not require the Member State of which the child concerned is a national to provide, in its national law, for the parenthood of persons of the same sex, or to recognise, for purposes other than the exercise of the rights which that child derives from EU law, the parent-child relationship between that child and the persons mentioned on the birth certificate drawn up by the authorities of the host Member State as being the child’s parents.

But I’m sure much debate will follow about the extent of the obligation to recognise. As readers might be aware, the European Commission earlier this year set up an Expert Group on the Recognition of Parentage between Member States.

 

 

 

Written by Stephen G.A. Pitel, Western University

Many Canadian and some other conflicts scholars will know that the Uniform Law Conference of Canada (ULCC) has drafted (in 1994) model legislation putting the taking of jurisdiction and staying of proceedings on a statutory footing. This statute, known as the Court Jurisdiction and Proceedings Transfer Act (CJPTA), has subsequently been adopted and brought into force in 4 of Canada’s 13 provinces and territories (British Columbia, Saskatchewan, Nova Scotia, Yukon).

The ULCC has now released a revised version of the CJPTA. It is available here and background information is available here.

The most notable changes, each explained at some length in the commentaries, are as follows: 1. New provisions on exclusive and non-exclusive forum selection clauses in the staying of proceedings (s. 11); 2. A new section on subject matter competence dealing with the foreign immovable property rules (s. 12.2); 3. Use of the phrase “clearly more appropriate” for a stay of proceedings based on forum non conveniens (s. 11); 4. Territorial competence in respect of necessary parties (s. 3(d.1)); 5. Clarification of the meaning of the presumptive connection based on carrying on business in the forum (s. 10(h)).

Disclosure: I was a member of the Working Group for the revised statute. Solely in a personal capacity, I can offer three observations on the revisions. First, s. 12.2 is an attempt to largely (though not perfectly) codify the common law’s Mocambique rule regarding jurisdiction over foreign immovable property (classified as subject matter competence under the CJPTA). Some may find this interesting as there are not many available codifications of this complex rule. Second, the role given to exclusive forum selection clauses reflects the fact that under Canadian common law these are not treated as absolutely binding and instead are subject to a “strong cause” test before they can be disregarded (see ss. 11(3) and (4)). Section 11(5), however, allows a consumer or employer to treat such a clause as non-exclusive rather than exclusive (but also rather than disregarding it altogether). Third, there is a provision for taking jurisdiction (called territorial competence in the CJPTA) over a defendant who is a “necessary party” (s. 3(d.1)). Canadian common law has largely rejected “necessary or proper party” as an acceptable basis on which to exercise jurisdiction, but this flows from the undue breath of what can constitute a “proper party”. The statutory provision uses a very narrow meaning of “necessary party”.

It will now fall to the provinces and territories that have enacted the CJPTA to determine how to act on the changes. It will also be interesting to see if the revised and updated version generates any interest in the provinces and territories that have not so enacted.

All best wishes of the season.

This post has been prepared by He Qisheng, Professor of International Law, Peking University Law School, and Chairman at the Peking University International Economical Law Institute, has published the 7th Survey on Chinese Practice in Private International Law.

 

This survey contains materials reflecting the practice of Chinese private international law in 2020. First, regarding changes in the statutory framework of private international law in China, three legislative acts, one administrative regulation on the Unreliable Entity List and ten judicial interpretations of the Supreme People’s Court were adopted or amended in 2020 on a wide range of matters, including conflict of laws, punitive damages, international civil procedure, etc. Second, 11 typical cases involving Chinse courts’ jurisdiction are selected to highlight the development in Chinese private international law, involving standard essential patents, abuse of market dominance, declaration of non-infringement of patent, asymmetric choice of court agreement and other matters. Third, nine cases on choice of law questions relating, in particular, to habitual residence, rights in rem, matrimonial property regimes and ascertainment of foreign law, are examined. Fourth, five cases involving anti-suit injunction or anti-enforcement injunction are reported and one introduced in detail. Fifth, the first occasion for on international judicial assistance of extracting DNA, as well as three representative cases on the recognition and enforcement of foreign judgments, are discussed. The Statistics of international judicial assistance cases in China is first released in this survey. Finally, this survey also covers five recent decisions illustrating Chinese courts’ pro-arbitration attitude towards the uncertainty brought about by contractual clauses referring to both litigation and arbitration.

Here are the links to the article:

·         Standard link (you may share this link anywhere):
https://academic.oup.com/chinesejil/advance-article-abstract/doi/10.1093/chinesejil/jmab031/6449363

·         Free-access link (see below for how you may use this link):
https://academic.oup.com/chinesejil/advance-article/doi/10.1093/chinesejil/jmab031/6449363?guestAccessKey=4f7f76a9-41f4-4c46-9366-ea0198ab74ca

Table of Contents

1. Introduction
2. Overview

II.A. Report on the Work of the SPC in 2020

II.B. Laws and the SPC’s interpretation

II.C. Provisions on punitive damages

III. Jurisdiction

III.A. Intellectual property

III.A.i. Jurisdiction over the standard essential patent disputes

III.A.ii. Jurisdiction over the disputes of abuse of market dominance

III.A.iii. Jurisdiction over the giving of declaratory judgment in patent disputes

III.B. Choice of court agreement

III.C.i. An asymmetric choice of court agreement

III.C.ii. Choice of court agreement and hierarchical jurisdiction of the Chinese court system

III.C. Other choices in contracts

1. Choice of law

IV.A. Habitual residence

IV.B. Proprietary rights

IV.C. Matrimonial assets

IV.D. Ascertainment of foreign law

1. International judicial assistance

V.A. Statistics of judicial assistance in civil or commercial matters

V.B. Taking of evidence for foreign courts

1. Action preservation and anti-suit Injunction  

VII. Recognition and enforcement of foreign judgments

VIII. International arbitration

VIII.A. Agreements with jurisdiction and arbitration clauses

VIII.B. Construction on “judgment upon the award”

Aldricus – Tak bisa dipungkiri, kebhidupan kita saat ini cukup bergantung pada HP. Tak heran jika gadget yang satu ini tidak bisa dipisahkan dalam segala aktifitas kita sehari-hari. Karena itulah penting untuk memberikan perlindungan pada HP kesayanganmu. Di sini, yang kalian butuhkan adalah asuransi HP.

Apa Itu Asuransi HP?

Asuransi ini (asuransi smartphone) merupakan asuransi yang akan memberi ganti rugi dan perlindungan produk elektronik yang dibeli dengan harga tertentu, baik jika ponselmu hilang ataupun rusak. Jika HPmu hilang atau rusak, pihak asuransi akan memberi ganti rugi. Biasanya, kalian akan mendapatkan penawaran asuransi ini Ketika membeli HP baru. Namun, kalian juga bisa mendapatkannya dari perusahaan asuransi seperti PasarPolis.

Kenapa Butuh Asuransi ini?

Dengan asuransi smartphone, kalian dapat melindungi HP kesayangan dari berbagai kemungkinan resiko. Selain itu, kalian juga dapat menghemat waktu dari semua proses transaksi, status, aplikasi, sampai pengecekan online dengan sistem terintegrasi.

Pihak asuransi ini akan memberi data lengkap tentang polis & cara klaim yang simple. Dengan begitu, mobilitas kalian tak akan terganggu apabila harus mengurus klaim. Bahkan, kalian juga dapat memperoleh referensi dari produk asuransi & pembelian lewat toko online.

Perlindungan Layar HP

Asuransi smartphone menawarkan berbagai macam perlindungan. Salah satunya adalah perlindungan layar HP. Seperti kita semua tahu, berbagai model HP saat ini menggunakan layar sentuh. Artinya, layar HP menjadi salah satu bagian terpenting yang harus dilindungi dari resiko retak dan pacah. Itulah kenapa kalian memerlukan asuransi smartphone yang memberi perlindungan pada layar HP.

Efek Negatif Layar HP Retak

Layar HP yang retak/pecah bisa menimbulkan efek negative. Salah satunya adalah jari mudah terluka, lebih lagi kalau kalian suka main game di HP. Selain itu, retak atau pecahnya layar HP juga meningkatkan resiko penyakit mata. Satu lagi, layar HP yang retak/pecah juga membuat pancara radiasi membesar.

Untuk menghindari berbagai efek negative itu, kalian memerlukan asuransi HP. Selain memberikan perlindungan pada layar, asuransi smartphone juga bisa meliputi pemulihan data berharga, penggantian unit baru, dan menghemat pengeluaran.

The post Asuransi HP untuk Melindungi Smartphone Kesayanganmu appeared first on Aldri Blog.

Last week, the Supreme Court of the United States agreed to hear a case concerning Hague Convention on the Civil Aspects of International Child Abduction. Amy Howe has an excellent summary of the case on her blog, Howe on the Court.

Under the convention, children who are wrongfully taken from the country where they live must be returned to that country, so that custody disputes can be resolved there. The convention makes an exception for cases in which there is a “grave risk” that returning the child would expose him or her to physical or psychological harm.

In Golan v. Saada, a U.S. citizen married an Italian citizen in 2015; they had a child, born in Milan, in 2016. The husband was allegedly abusive toward the wife throughout the marriage, but he did not directly abuse their son. In 2018, the wife took the child to the United States and did not return, remaining in a domestic-violence shelter in New York. The husband went to federal court there, trying to compel the child’s return to Italy.

The U.S. Court of Appeals for the 2nd Circuit ruled that, when a district court concludes that a child’s return would pose a grave risk of harm, the district court must consider measures that would reduce that risk. This holding clashes with the holdings of other courts of appeals, which do not mandate the consideration of such measures, particularly in cases involving domestic violence. The case then went back to the district court, which ordered the child’s return to Italy with a variety of protective measures in place – for example, mandatory therapy and parenting classes. The Supreme Court agreed to decide whether courts are required to consider all measures that might reduce the grave risk of harm if the child were to return home.

The case will be argued in the Spring and decided before June 2022; the docket and publicly available filings can be accessed here.

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

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

Regular updates are also available via the Project’s website, and  LinkedIn and Facebook pages.

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

Do actions for recovery of sums unduly paid by way of unjust enrichment fall within exclusive jurisdiction under Article 22(5) of the Brussels I Regulation and, if not, do they fall within alternative jurisdiction set out in Article 5(3) in respect of “quasi-delicts”?

This is the twofold question that a Croatian court addressed to the Court of Justice in the case HRVATSKE ŠUME, C-242/20.

Last week, on 9th December, the Court handed down its judgment in this case.

Gilles Cuniberti and Geert van Calster reported and commented on the judgment. I am happy to refer to their contributions. As the judgment has already made object of their interesting analysis, the present post aims solely to complement the initial post about the Opinion presented by AG Saugmandsgaard Øe in the case at hand and the observations made there.

 

A brief reminder of the Opinion and its findings

Back in September, AG Saugmandsgaard Øe presented his Opinion in this case. At the request of the Court, he did only elaborate on the second part of the question presented above – and, technically speaking, the first preliminary question – pertaining to the interpretation of Article 3(5) of the Brussels I Regulation (point 20 of the Opinion).

In essence, he argued that an action for unjust enrichment is not a “matter relating to a contract” in the sense of Article 5(1), save where it is closely connected with a preexisting (or alleged to exist) contractual relationship (points 44-52). Nor it is a “matter relating to tort, delict or quasi-delict” within the meaning of Article 5(3) of the Regulation (point 79).

 

The judgment of the Court On the exclusive jurisdiction

The Court starts its analysis with first part of the question presented in the introduction of the this post – and again, technically speaking, the second preliminary question – on the interpretation of Article 22(5) on the exclusive jurisdiction.

The Court reads this question in the context of a particularity of the case that is brought up by the referring court in its request for a preliminary ruling: an action for recovery of sums unduly paid by way of unjust enrichment falls within the scope of exclusive jurisdiction set out in Article 22(5) where that action concerns an amount levied in the enforcement proceedings and is brought before a court because it is not possible anymore, given the lapse of time (since the date of enforcement), to seek recovery of the levied amount in the same enforcement proceedings? (paragraph 26).

The reasoning of the Court relies heavily on the autonomous character of the action in question with regards to the enforcement proceedings (paragraph 31) and on the predictability argument (paragraphs 30 and 34).

This reasoning leads the Court to conclude that, despite the aforementioned particularity of the case, the action for recovery of sums unduly paid does not fall within the scope of Article 22(5) of the Brussels I Regulation (paragraph 37).

 

On the alternative jurisdiction for contracts/torts

After that, the Court, logically, proceeds to the interpretation of Article 5(3) in order to clarify whether the action in question falls within the scope of that provision.

In short, it considers that due to the lack of the “harmful event” in the meaning of Article 5(3) , an action for recovery of sums unduly paid by way of unjust enrichment cannot fall within the scope of that provision (paragraph 55).

It also clarifies that the unjust enrichment does not, generally speaking, result from the act voluntarily undertaken by the party enriched at the expense of another. Thus, in principle it does not fall within the scope of Article 5(1), as a “matter relating to a contract” (paragraph 45). However, echoing the Opinion delivered by AG Saugmandsgaard Øe, the Cour considers that action “closely linked” to a contract would fall within the ambit of that provision (paragraphs 47 and 48).

 

Already second time’s a charm ?

In the initial post on the Opinion, I speculated that the solution proposed by AG Saugmandsgaard Øe may have brought to mind the proposal made by AG Bobek in the context of actio pauliana in his Opinion delivered in the case Feniks, C-337/17. As a reminder, in the latter Opinion, AG Bobek proposed to consider, in essence, that an actio pauliana cannot be seen as a “matter relating to a contract”, nor it is a “matter relating to tort, delict or quasi-delict”. It has to be brought before the court having jurisdiction under the general rule of jurisdiction, according to the principle actor sequitur forum rei.

Let us speculate and take that proposal one step further: while in order to identify the law governing action pauliana it might be necessary to decide whether this action is contractual or non-contractual in nature and thus falls within the scope of the Rome I Regulation or within the scope of the Rome II Regulation, it is not the case for the contract/tort distinction under the rules of jurisdiction set out in Article 5(1) and 5(3) of the Brussels I Regulation.

In the judgment in the case Feniks, C-337/17, the Court did not follow the proposal advanced by AG Bobek (see paragraph 44 of that judgment). Thus, it did not have to face or even to consider the one-step-forward speculative consequence mentioned above.

By contrast, it decided to do exactly that in the present case.

The Court acknowledges that a non-contractual characterization of the unjust enrichment is mandated by the Rome II Regulation (even though it falls within a scope of a special choice-of-law rule of Article 10), but it does not automatically translate to a similar characterization under the rules of jurisdiction of the Brussels I Regulation (paragraph 46).

 

The judgment can be consulted here.

Ilaria Queirolo (University of Genova), Salvatore Patti (University of Rome La Sapienza), Carlos Esplugues Mota (University of Valencia), Boriana Musseva (Sofia University), Dana Rone (Turiba University, Riga), Laura Carpaneto (University of Genova) and Francesca Maoli (University of Genova) have edited Children’s Right to Information in EU Civil Actions, published by the Italian publisher Pacini.

The volume collects the results of the EU co-funded Project Minor’s Right to Information in EU civil actions – Improving children’s right to information in cross-border civil cases – MiRI, European Union Justice Programme 2014-2020, JUST-JCOO-AG-2018-831608. It critically addresses the fundamental right of the child to receive information during the course of civil proceedings affecting him or her, with particular reference to the peculiarities characterizing cross-border proceedings in family matters. In this context, the right to information is coinceived not only as a corollary of the right of the child to be heard during the course of the proceedings, but also in the light of the possible developments as an autonomous procedural right. The volume rationalizes the main criticalities emerging from the current practice in several EU Member States and offers a set of Guidelines, aimed at improving the situation of children involved in cross-border family proceedings, in order to enhance and protect their fundamental rights.

The contributors include Roberta Bendinelli, Leontine Bruijnen, Laura Carpaneto, Carlos Esplugues Mota, Samuel Fulli-Lemaire, Maria González Marimón, Sara Lembrechts, Francesca Maoli, Boriana Musseva, Vasil Pandov, Francesco Pesce, Ilaria Queirolo, Pablo Quinzá Redondo, Geraldo Rocha Ribeiro, Dana Rone, Tine Van Hof, Daja Wenke.

The book is fully accessible here.

In its Judgment BT v Seguros Catalana Occidente, EB, Case C-708/20, rendered on 9 December 2021, the Court of Justice of the European Union interpreted Article 13 Brussels Ibis Regulation. Amongst other things, the provision at hand takes into consideration direct actions of the injured party against the insurer domiciled in a Member State. Two main scenarios are taken into account. Either the injured party starts proceedings against the insured, and the insurer joins proceedings at a second moment, or the damaged party brings a direct action against the insurer. In this last case, the court having jurisdiction over the insurer shall have jurisdiction over the insured as well (that is, the contractually weaker party).

 

In Seguros Catalana Occidente, the damaged party, domiciled in the UK, spent some time at a holiday accommodation in Spain, and was there injured due to a fall on the patio. The insurance company of the immovable property was Spanish, and the insured/owner of the premises where the accident occurred, and who previously entered into an accommodation contract allowing the stay of the injured party, was domiciled in Ireland. By making use of its own forum actoris under Article 13(2) Brussels Ibis Regulation, the injured party started proceedings against the insurance company before British courts. British courts were also seised by the injured party for an action in damages against the insured party/owner of the property, who contested jurisdiction arguing that Article 13(3) Brussels Ibis was not applicable as a claim for damages arising from alleged negligence in the provision of a holiday accommodation would not constitute an ‘insurance claim’ (para. 18).

 

Whereas the nature of the injured person’s direct action against the insurer under national law is irrelevant for the purposes of qualifying an action as falling within the notion of ‘insurance matters’ (as already noted in C-463/06), the CJEU accedes to the interpretation that a claim against an insured for damages arising from alleged negligence in the provision of holiday accommodation does not fall within the scope of Article 13(3) Brussels Ibis Regulation, rather it being a matter of tort. For the section on insurance matters to be applicable, ‘the action before the court must necessarily raise a question relating to rights and obligations arising out of an insurance relationship between the parties to that action’ (para. 30). In other words, ‘a claim brought by the injured person against the policyholder … cannot be considered to be an insurance claim merely because that claim and the claim made directly against the insurer have their origin in the same facts or there is a dispute between the insurer and the injured person relating to the validity or effect of the insurance policy’ (para. 31).

 

In the CJEU’s eye, allowing the injured party to bring an action unrelated to insurance matters against the insured on the basis of Article 13(3) Brussels Ibis would circumvent the rules of that regulation concerning jurisdiction in matters of tort and lead to the effect that damaged parties could start proceedings against insurers before their own forum actoris under Article 13(2) ‘in order, subsequently, to bring an action against the insured, as a third party to those proceedings, on the basis of Article 13(3)’ (para. 36).

On 25 November 2021, the Court of Justice handed out its judgement in IB (C-289/20), in which it followed the earlier Opinion of AG Sánchez-Bordona. The preliminary question referred to the Court in this case concerned the jurisdictional rules of Article 3(1)(a) of the Brussels II bis Regulation and was aimed at clarifying whether a spouse might have his or her ‘habitual residence’ in more than one country, which could result in courts of both Member States having jurisdiction in proceedings relating to matrimonial matters. This post was published previously on EU Law Live.

Background

The background to the case concerns the applicant IB, who wanted to institute divorce proceedings at forum actoris pursuant to the sixth indent of Article 3(1)(a) of the Brussels II bis Regulation, having strong ties to two countries, Ireland due to family and social interests and France due to professional and patrimonial interests.

CJEU’s Analysis

Referring to Mikołajczyk (C-294/15), the Court of Justice recalled that Article 3 of the Brussels II bis Regulation provides for very generous grounds of jurisdiction, which are alternative, but exclusive. The rules of the fifth and sixth indents of Article 3(1)(a) were designed considering interests of the spouse who, after the breakdown of the marriage, decides to move back to his or her home country nad wants to institute proceeding there (paragraph 35). The concept of ‘habitual residence’ is not defined in the Brussels II bis Regulation; however, it is consistently used in a singular form. The use of the adjective ‘habitual’ suggests that on the one hand the residence should have a stable and regular character and on the other the transfer of habitual residence to another country should reflect the willingness of remaining there with the intention of establishing there the stable center of one’s life interests. The assimilation of the habitual residence of a person, in this case a spouse, to the permanent or habitual centre of his or her interests does not militate in favour of accepting that a number of residences may simultaneously have such a character (paragraphs 40-44).

The objective of Article (3)(1)(a) of the Brussels II bis Regulation is to reconcile legal certainty with the reality of the mobility of persons within the EU. Assuming that one might have multiple habitual residences would definitely undermine this legal certainty and predictability as to which court might hear the case. It would also create a risk that the concept of ‘habitual residence’ would be equated with simple residence. Additionally, such interpretation of the concept of habitual residence under the Brussels II bis Regulation would have repercussions for other EU instruments, namely the Maintenance Regulation and the Matrimonial Property Regulation, which provide for jurisdictional basis dependent on the jurisdiction in matrimonial matters (paragraph 48).

CJEU’s Conclusion

As a result, a person might have only one habitual residence within the meaning of Article 3(1)(a) of the Brussels II bis Regulation (paragraph 51). Having concluded the above, the Court of Justice clarified the meaning of the concept of ‘habitual residence’. Its judgements concerning habitual residence of a child, in HR (C-512/17) for example, were used as a starting point. Then the Court underlined the specificities of the situation of an adult, namely the will of returning to the home country after the marriage breakdown, as well as the more diverse nature of the environment, which is composed of different activities and diversified interests – professional, sociocultural, patrimonial, and familial (paragraph 56). Habitual residence is characterized by two elements, namely the willingness of fixing one’s center of interests in a given place and the presence of sufficiently stable character (paragraph 57). The Court of Justice thus seemed to suggest that IB might have indeed changed his place of habitual residence (paragraphs 59-61) but noted that it is for the referring court to ascertain.

Overall, the judgement is not a surprising one, as it stands in line with previous jurisprudence of Court of Justice, for example in EE (C-80/19), when it states that the habitual residence of the deceased must be established in a single Member State (paragraph 40).

The Journal of Private International Law and the Singapore Management University will hold a virtual conference on 23 to 24 June 2022. The theme of the conference is Conflicts of Jurisdiction. The conference is designed to assist with the ongoing work of the Hague Conference on Private International Law (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. Registration to attend the conference will open nearer the time.

The biennial Journal of Private International Law Conference has been delayed until 2023 in order to enable it to take place in person at the Singapore Management University. This conference will be based on a call for papers. We will announce further details in due course.

 

Conference on Conflicts of Jurisdiction

23-24 June 2022

Organised by the Journal of Private International Law and the Singapore Management University

(SGT=Singapore Time; BST=British Summer Time)

 

Day 1

Session 1 Thursday 23 June 2022 – The Common Law Approaches to Conflicts of Jurisdiction

Chair: Professor Jonathan Harris (QC) (King’s College London)

Time Speaker Topic 18.00-18.05 SGT

11.00-11.05 BST Professor Jonathan Harris (QC) (King’s College London) Welcome by Chair 18.05-18.10 SGT

11.05-11.10 BST Dean of Yong Pung How School of Law, Singapore Management University Opening comments 18.10-18.35 SGT

11.10-11.35 BST Professor Campbell McLachlan QC (Victoria University, New Zealand) Overview of some key issues in relation to conflicts of jurisdiction 18.35-19.00 SGT

11.35-12.00 BST Dr Ardavan Arzandeh (National University of Singapore) The Scottish, English and Singapore approach of forum non conveniens in conflicts of jurisdiction cases 19.00-19.25 SGT

12.00-12.25 BST Professor Ronald Brand (University of Pittsburgh) The US approach to forum non conveniens in conflicts of jurisdiction cases 19.25-19.50 SGT

12.25-12.50 BST Professor Mary Keyes (Griffith University) The Australian approach to forum non conveniens in conflicts of jurisdiction cases 19.50-20.05 SGT

12.50-13.05 BST Q&A 20.05-20.20 SGT

13.05-13.20 BST Break

 

Session 2 Thursday 23 June 2022 – Civilian Approaches to Conflicts of Jurisdiction

Chair: Professor Kei Takeshita (Hitotsubashi University and Chair of the HCCH Working Group on Jurisdiction)

Time Speaker Topic 20.20-20.25 SGT

13.20-13.25 BST Professor Kei Takeshita (Hitotsubashi University and Chair of the HCCH Working Group on Jurisdiction) Welcome by Chair 20.25-20.50 SGT

13.25-13.50 BST Professor Tanja Domej (University of Zurich) The EU and Lugano Convention approaches to conflicts of jurisdiction for internal cases (ie within the EU or between Contracting States to the Lugano Convention) 20.50-21.15 SGT

13.50-14.15 BST Professor Geert Van Calster (KU Leuven) The EU approach to conflicts of jurisdiction with non-EU and Lugano States (Articles 33 and 34 of Brussels Ia Regulation)

  21.15-21.40 SGT

14.15-14.40 BST Professors Nadia De Araujo and Marcelo De Nardi (Brazil) Latin American approaches to conflicts of jurisdiction in international cases

  21.40-22.05 SGT

14.40-15.05 BST Professor Zheng (Sophia) Tang (University of Wuhan and Newcastle University) Chinese and some other civilian approaches in Asia to conflicts of jurisdiction

  22.05-22.20 SGT

15.05-15.20 BST Q&A

 

Day 2

Session 3 Friday 24 June 2022 – Work at the Hague Conference on Private International Law on Conflicts of Jurisdiction

Chair: Professor Paul Beaumont (University of Stirling) 

Time Speaker Topic 18.00-18.05 SGT

11.00-11.05 BST Professor Paul Beaumont (University of Stirling) Welcome by Chair 18.05-18.30 SGT

11.05-11.30 BST Professor Fausto Pocar (University of Milan) The work on the Judgments Project in the Hague in the 1990s culminating in the interim text of 2001 18.30-18.55 SGT

11.30-11.55 BST Professor David McClean (University of Sheffield) Lessons from family law notably the provisions on conflicts of jurisdiction including transfers of jurisdiction in the Child Protection Convention 1996 18.55-19.20 SGT

11.55-12.20 BST Dr João Ribeiro-Bidaoui (First Secretary, HCCH) The revived Jurisdiction Project in the Hague – from Experts’ Group to Working Group – possible solutions on conflicts of jurisdiction 19.20-19.45 SGT

12.20-12.45 BST Professor Matthias Lehmann (University of Vienna) Challenges and opportunities for a new binding global instrument on conflicts of jurisdiction 19.45-20.00 SGT

12.45-13.00 BST Q&A 20.00-20.15 SGT

13.00-13.15 BST Break

 

Session 4 Friday 24 June 2022 – Work at the Hague Conference on Private International Law on Conflicts of Jurisdiction (continued)

Chair: Dr Adeline Chong (Singapore Management University)

Time Speaker Topic 20.15-20.20 SGT

13.15-13.20 BST Dr Adeline Chong (Singapore Management University) Welcome by Chair 20.20-20.45 SGT

13.20-13.45 BST Professor Trevor Hartley (London School of Economics) Balancing forum non conveniens and lis pendens (same parties and same subject matter) in a new global instrument on conflicts of jurisdiction 20.45-21.10 SGT

13.45-14.10 BST Professor Yeo Tiong Min (Singapore Management University) Dealing with related actions in a new global instrument on conflicts of jurisdiction 21.10-21.35 SGT

14.10-14.35 BST Professor Franco Ferrari (NYU) Conflicts between courts and arbitration in international cases and how to resolve them in a new global instrument on conflicts of jurisdiction 21.35-22.00 SGT

14.35-15.00 BST Justice Anselmo Reyes (Singapore International Commercial Court and Doshisha University) International commercial courts’ approaches to conflicts of jurisdiction and how they fit with a new global instrument on conflicts of jurisdiction 22.00-22.15 SGT

15.00-15.15 BST Q&A 22.15-22.20 SGT

15.15-15.20 BST Professor Jonathan Harris, Professor Paul Beaumont, Dr Adeline Chong Closing remarks

 

 

Guest post by Willem Theus, PhD Researcher (KULeuven, cotutelle with UCLouvain)

The history of private international law (or ‘conflict of laws’) is incomplete. Private international law textbooks have always referred to the essentials of the history of our discipline.[1] However, these essentials are often solely based on the history of conflict of laws in the West and on the works of western authors such as Huber, Von Savigny and Story. It is undoubtedly true that these authors played an important role and that the  “modern” conflict of laws finds it origin in 19thcentury Europe, when the split between private and public international law occurred.[2] This is however only one part of history.

Conflict of laws systems have been around much longer and are definitely not uniquely western. They were already present in the very first civilizations, with some rules of that ancient history still resembling our present-day rules.[3]Conflict of laws is “the body of law that aims to resolve claims involving foreign elements”.[4] A state or international border is therefore not required to have a conflict of laws system,[5] only different jurisdictions and laws (i.e. legal pluralism[6]) are. A distinction could therefore be made between “external” (i.e. crossing an international State border) conflict of laws or private international law and “internal” conflict of laws (i.e. within one State).[7] Both the historical research and the contemporary study of our field should arguably reflect much more on precolonial and/or non-western conflict of laws systems and on the unique linkage between the national (or “internal”) and international (or “external”) spheres. This is especially so given that “external” conflict of laws rules seem to sometimes guide “internal” conflict of laws cases.[8] I offer one historical example to highlight the new perspectives that such a widening of scope could offer.

In a not so distant and colonial past, there were multiple “internationalized” or mixed courts in various regions and nations. The last such mixed court only closed its doors in 1980.[9] In general, mixed courts were local courts that employed a mixed (read mostly Western) bench, bar and legal system to deal with legal conflicts that had a mixed or “foreign” element, i.e. conflicts not exclusively related to one local or foreign resident population.[10] Those exclusively local or intra-foreigner  -of the same nationality-  legal conflicts were often dealt with by various local or consular courts. The mixed or “foreign” element was however often widely interpreted and therefore quickly kicked in, leading to overlapping jurisdictions in many instances and therefore to a conflict of laws system.

An example of such a set-up is the Tangier International Zone (1923-1956), a treaty-based multinational run zone, which remained under the Sovereignty of the Sultan of Morocco. It had various multinational institutions with local involvement. In the Zone, five different legal systems co-existed, each with their own courts. These were the American Consular Court, the Special Tribunal of the State Bank of Morocco, the Moroccan Sharia courts, the Moroccan Rabbinical courts and the Mixed Court. The latter dealt with all cases that had a “foreign” element (except American as they went to the aforementioned American Consular Court).[11] Both “internal” and “external” conflict of law systems in fact overlap here. Indeed the Mixed Court and the two Moroccan courts were “local” courts with the judges being formally appointed by the Sultan, whereas the American Consular Court was in essence an ad hoc American court in Tangier. The Special Tribunal was some sort of early investment protection court with very limited jurisdiction.

Naturally, in such a set-up conflict of laws cases were frequent, as illustrated by the Toledano-case which came before the Mixed Court. In 1949 a dispute between the heirs of the large inheritance of a Tangerine Jew, Isaac Toledano, broke out. The key question concerned the nationality of Isaac – and as such the questions of jurisdiction and applicable law. During his lifetime Isaac had become a Spanish citizen by naturalization, yet he had seemingly always lived in Morocco. Had he somehow lost his Moroccan citizenship? If so, the mixed courts would have jurisdiction and Spanish law would apply, leading his inheritance to be divided under all his children, including his married daughters. If not, the rabbinical courts of Tangier and rabbinical law would apply, leading to his inheritance to only go to his sons and unmarried daughters. On appeal the court overturned the judgment of first instance that held that he had retained his Moroccan nationality. He was deemed to be Spanish and therefore Spanish law was to be applied.[12]

Such jurisdictional caselaw is only a part of this conflict of laws treasure trove. The caselaw of the mixed courts seemingly encompasses all types of conflict of laws questions and many other legal questions. I have to say seemingly, as the caselaw of the mixed courts has in recent times barely been studied and their archives (if known at all) are scattered throughout the globe. A closer look could undoubtedly open up new perspectives to conflict of laws, and some of these mixed courts’ experiences and case-law could perhaps help to guide ever-recurring questions of personal status matters regarding foreigners. The Emirate of Abu Dhabi has for example reintroduced special personal status provisions for non-Muslim foreigners as reported on conflictoflaws recently. The courts also offer new perspectives for public international law as certain mixed courts acted as “true” international courts when interpreting their treaties. An example is the Court of Appeal of Mixed Court of Tangier going against the International Court of Justice in 1954 when it held that it alone had the authority to provide authoritative interpretations of the Zone’s constitutive treaties.[13] The Mixed Courts could even open new perspectives to EU-law as many early key EU lawyers and judges have ties to certain Mixed Courts.[14] Much work is therefore still to be done. This piece is a call to arms for just that.

[1] Hatzimihail, N.E. (2021) Preclassical Conflict of Laws. Cambridge University Press 51-52.

[2] For an overview of this period see: Banu, R.  (2018). Nineteenth Century Perspectives on Private International Law. Oxford University Press

[3] Yntema, Hessel E. (1953). The Historic Bases of Private International Law. The American Journal of Comparative Law, vol. 2, no. 3, 301.  Yntema refers to the following text found in a Fayoum Papyri: “Contracts between Greeks-who had established colonies in Egypt (red.)-and Egyptians, if in Greek form, should be tried before the chrematists, the Greek courts; if in Egyptian form, before the laocrites, the native courts, in accordance with the laws of the country.”

[4] Okoli, C.S.A. (2020). Private International Law in Nigeria. Hart, 3.

[5] Okoli, Op.cit., 3-7; Yntema. Op.cit., 299

[6] For a good overview of the different meanings of this term see: Benda-Beckmann, B. & Turner, B. (2018). Legal Pluralism, Social Theory, and the State. Journal of Legal Pluralism and Unofficial Law, 50(3), 255–274

[7] This distinction is not new and is used in legislation. See for example: Non-application of This Regulation to Internal Conflicts of Laws. (2016). In A. Calvo Caravaca, A. Davì, & H. Mansel (Eds.), The EU Succession Regulation: A Commentary (pp. 521-529). Cambridge University Press.

[8] Okoli Op.cit, 3.

[9] Pacific Manuscripts Bureau,  Collection MS 1145: Judgements of the Joint Court of the New Hebrides. Retrieved from <https://asiapacific.anu.edu.au/pambu/catalogue/index.php/judgements-of-joint-court-of-new-hebrides> accessed 13 December 2021. It was known as a ‘Joint’ Court and not ‘Mixed’ as there were only two powers involved: France and the UK. Although in French it was still referred to as a Tribunal Mixte. Mixed Courts mostly existed in countries that were not-directly colonized, yet still under heavy Western influence such as Siam, China and Egypt. They were mostly founded due to western distrust for the local legal systems and build forth on the principle of personal jurisdiction (and the connected later principle of extraterritoriality and the connected Capitulations and Unequal Treaties).

[10] Erpelding, M. (2020). Mixed Courts of the Colonial Era. In Hélène Ruiz Fabri (ed), Max Planck Encyclopedia of International Procedural Law. Oxford University Press.

[11] Erpelding, M & Rherrousse, F. (2019) The Mixed Court of Tangier. In Héne Ruiz Fabri (ed), Max Planck Encyclopedia of International Procedural Law. Oxford University Press, paras 22-24.

[12] de Radigues de Chenneviere, C. (5 April 1949). ‘Procès Toledano’. Tangier, P 452/717, AF-12-A-3 (Diplomatic Archives of the Kingdom of Belgium)

[13] Grawitz, M. (1955). Arrêt du 13 août 1954. Annuaire français de droit international, 1(1), 324–328

[14] Erpelding, M. (2020). International law and the European Court of Justice: the Politics of Avoiding History, Journal of the History of International Law, 22(2-3), 446-471.

The European Commission (EC) set out an initiative Recognition of parenthood between Member States. As underlined by the EC, the initiative aims to ensure that parenthood, as established in one EU country, is recognised across the EU, so that children maintain their rights in cross-border situations, in particular when their families travel or move within the EU. Currently, in certain circumstances they might see the parenthood not recognised, which in turn might result in adverse consequences for the child (for example, obstacles in obtaining a passport or an identity card).

These problems might be easily illustrated by the background of the case, which resulted in a very recent judgement of the Court of Justice in Stolichna obshtina, rayon “Pancharevo” (C-490/20). See posts on this blog on the attitude of administrative authorities of some Member States, on the example of Bulgaria and AG Kokott’s opinion as to its implications in EU law, especially the Charter of Fundamental Rights of the EU – respectively – here and here.

Inception Impact Assessment

As reminded in the inception impact assessment published in Spring 2021, there is currently no instrument on the recognition of parenthood at the international level. The Hague Conference on Private International Law (HCCH) is engaged in exploring the possibilities of tackling this issue (information about these works might be found at HCCH website here). In the EU, each Member State applies its own law on the recognition of civil status records/judgements on parenthood handed down in another Member State. On the one hand, under EU treaties, substantive family law falls within the competence of Member States. Their substantive rules on the establishment and recognition of parenthood differ. On the other hand, the EU has competence to adopt measures concerning family law with cross-border implications pursuant to Article 81(3) TFEU. These measures can include the adoption of common conflict rules and the adoption of common procedures for the recognition of judgments issued in other Member States. The EC plans to present a proposal of the regulation by the third quarter of 2022.

Public Consultation

The EC has also lunched a public consultation. The outcome of the consultation was recently published (and is available here). Although collected answers are not necessary representative for the whole EU (interestingly, out of 389 answers 112 come from Slovakia), they indicate that indeed there are instances where parenthood was not recognised as between Member State.

(…) the cases mainly involved a child born out of surrogacy (37% or 116 responses), followed by a child born out of assisted reproductive technology (ART) (23% or 73 responses) and second parent adoption by the partner of the biological parent (21% or 65 responses). Other cases in which parenthood was not recognised included parenthood established by operation of law (14% or 45 responses) and adoption by two parents (10% or 30 responses). Adoption by one single parent and establishment of parenthood over an adult were not recognised according to 6% (or 18 responses) and 3% (or 8 responses) respectively.

As specified by respondents, the primary reason for not recognising parenthoods established in another Member State is that the recognition of parenthood is contrary to the national law of the Member State [or rather a public policy of that Member State? – AWB] where recognition is sought (72% or 184 responses) (…)

Expert Group

The Expert Group was set up to advise EC on the preparation of this new legislative initiative. The Group has met already on several occasions. As  minutes of these meeting reveal (see here for details), the Group was discussing, inter alia, the very notion of “recognition” with respect to parenthood, which often is confirmed by an administrative document, for example the birth certificate.

(…) existing Union instruments address the circulation of authentic instruments under three possible forms: acceptance, only enforcement and recognition and enforcement, and that by definition enforcement is not applicable to the status of persons. The group considered that acceptance may refer only to the evidentiary effects of the facts recorded in the document but not to the existence of a legal relationship, such that only recognition would be relevant for the purposes of the planned regulation on parenthood. 

It was thus agreed that the term ‘recognition’ should be used in the proposal as it refers not only to the factual elements but also to the legal effects of the authentic instrument. 

Enhanced Cooperation?

It might be added that adoption of a regulation under Article 81(3) TFEU requires unanimity. As a result, so far regulations aimed at unifying international family law were adopted within enhanced cooperation, due to lack of such unanimity (for example, the Divorce Regulation). The side effect is that these regulations are applied only in participating Member States, which undermines the unification efforts of the EU. Hence, there is a risk that non-participating Member States could be the ones, in which the problem of non-recognition of parenthood established in another Member State is more pressing than in other ones.