Flux Belges et Lux

Alame & Ors v Shell PLC & Anor [2025] EWHC 1539 (KB) is a milestone in business and human rights /environmental claims litigation, particularly as it pertains to legacy pollution. I reported on earlier developments in the case here, with further links in that post to yet other earlier judgments.

The Alame claim is also known as the Bille and Ogale group claim litigation. It is not to be confused with the ‘Bodo’ claim, in which hearings were concluded at the London courts earlier in June.

Of note is first of all that the judge’s findings are all on preliminary issues (‘PI’) of law. They are not on matters of fact. For instance, and with great importance viz the issue of ‘legacy’ pollution, the judge’s finding [77] that

The experts agree that where trespass is relied on, and as trespass does not require damage to be proved, a new cause of action will arise each day that oil remains on a claimant’s land.

and [180] that

Common law claims for damage caused by oil spills from non-pipeline assets may be brought in negligence, nuisance, Rylands v Fletcher and trespass, in each case depending upon the particular facts.

do not imply that the judge has held that Shell or any of the other defendants have trespassed by not cleaning up the relevant legacy pollution. It simply means that she has found there is such possibility, depending on the facts. Of course the finding is still hugely relevant, seeing also the energy (pun unintended) Shell had invested in fighting such a finding. One of the interesting questions imo for future reference, is how trespass as a promising private law claim to address legacy pollution, functions in the event of divestment by the polluter (such as here: the sale of Shell Nigeria to Renaissance).

The judgment is lengthy but very well structured and Leigh Day, solicitors for claimants, have good summary of the main issues here.

In this post, noblesse oblige, I focus on one specific private international law issue, namely question

PI 5 (1)  Insofar as a party alleges in the context of a claim under section 11 of the OPA that an oil spill was caused by Third Party Interference: What is the applicable law governing the burden and standard of proof?

This is a Rome II question.  [141]

The parties are agreed that the applicable law governing the burden and standard of proof is a matter of English private international law. As to that:

(a) Insofar as the event giving rise to damage occurred on or after 11 January 2009, the choice of law is governed by the Rome II Regulation (“the Regulation”). The parties agree that under Article 22 of the Regulation burden of proof is governed by the law of the claim, here Nigerian law. There is a dispute between them as to what law governs the standard of proof.

(b) Insofar as the event giving rise to damage occurred before 11 January 2009, choice of law is governed by Part III of the Private International Law (Miscellaneous Provisions) Act 1995 (“the 1995 Act”). Both sides agree that, under English choice of law principles, rules of evidence are a matter for the law of the forum, covering both burden and standard of proof: Dicey, Morris and Collins on the Conflict of Laws, 16th Edn. Para 4-034.

[143] explains the relevance:

If the standard of proof is governed by Nigerian law, then both experts agree that the consistent practice of the Nigerian courts is to apply the criminal standard of proof (i.e. beyond reasonable doubt), whether the allegation is made against a party or a nonparty. Under English law, the standard of proof is the civil standard i.e. balance of probabilities.

[144] Therefore the single contentious point for determination under this PI is whether the standard of proof in relation to post-11 January 2009 events, where choice of law is covered by the Regulation, is a matter governed by English law as the law of the forum or by Nigerian law as the law of the claim.

My most recent comment on the issue features in my review of Quilombola v Norsk Hydro at the Dutch courts – yet see also other posts using the tag ‘evidence and procedure’.

The one case on the issue discussed in current judgment is Marshall v MIB [2015] EWHC 3421 (QB) which I review here. Counsel for claimant suggested

that the approach of Dingemans J in Marshall was wrong in principle and should not be followed. She argued that Article 1(3) of the Regulation is concerned with the manner in which matters are proved rather than the standard to which they must be proved, submitting that the degree to which the court must be satisfied of a relevant matter (ie standard of proof) is an indivisible part of the burden of proof and should be regarded as part of the same rule of law under Article 22, applying the law of the claim. Alternatively, if the analysis in Marshall is accepted and standard of proof is to be determined under English common law, she suggested that the court should adopt a flexible approach – referring to the observations of Andrew Smith J in Fiona Trust v Privalov [2010] EWHC 3199 – and apply Nigerian law to both burden and standard of proof where a party raises an allegation of loss caused by [third party interference].

As I flagged in my post on Marshall, I am not convinced by standard of proof following the evidence and procedure carve-out. The precise delineation of burden of proof under Rome II could do with more authority.

I imagine permission to appeal may be sought on a number of issues. Trial on the substance is scheduled for 2027.

Geert.

EU Private International Law, 4th ed, 2024, 4.82 ff.

 

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X v Y ECLI:NL:GHDHA:2025:1020 at the court of Den Haag, acting upon appeal is an interesting ‘residual’ application of the Rome I Regulation 593/2008 and an excellent case to appreciate ordre public.

The parties had married in Iran in 2009. The divorce was established by the courts at The Hague in 2022. Jurisdiction is established under Regulation 2016/1103 (‘Rome IVa) and [5.1], with respect to the dower, under residual Dutch law.

The first instance court held that no lis pendens could be accepted with concurrent divorce proceedings in Iran, due to there not being a recognition Treaty with Iran under which any Iranian finding can be recognised and enforced in The Netherlands. This part of the ruling had not been appealed.

The court also held that the parties’ prenuptial arrangements must be enforced, and that ordre public considerations do not prevent that.

The prenup gave the wife a 50% share in the husband’s estate, unless it was the wife who initiated divorce proceedings; and it included the husband’s dower arrangements, consisting of a (modest) cash payment and additionally 150 Bahar-Azadi gold coins. Payment is indeed by way of dower and not dowry as I had first erroneously reported on X, Bluesky and Linkedin. Thank you Béligh Elbalti for pointing out that a dowry is property or money brought by a bride to her husband or his family at the time of marriage. Islamic law seemingly does not recognise dowry. But it does recognise a dower: property or money provided by a husband for his wife.

The first instance court argued that ordre public must be applied in ad hoc fashion rather than across the board; that the wife had negotiated a pre-nup which canceled out the ordinarily applicable rule that spouses do not share their property, instead each keeping their separate property, both that brought into the marriage and that acquired before it; that therefore if the wife initiated the divorce, she was brought back to the situation as exists had there not been a prenup (and the same situation which applied to the man at any rate); and that the Dutch legal order’s objection to the pressure the man may therefore put on the wife to initiate the divorce, is not of such an intense nature as to offend ordre public. 

As for the dower, the first instance court held that 110 coins be paid immediately and a further 40 when the ex-husband’s financial arrangements so allow: this followed from the application of Iranian law, as clarified by expert report,  that any dower above 110 coins may be postponed to take account of the husband’s financial situation. 

The appeal court looked at the applicable law issue from a more explicit international /European angle than the first instance court.

For the matrimonial property issue (the 50% issue), the court, like the parties, applies the 1978 Hague Convention. Consequently Iranian law applies. Rather than the first instance court’s assessment of ordre public viz the Dutch provisions on same, the appeal court tests it against Article 14 of the Hague Convention, yet it comes to the same conclusion. Like the first instance court it does so with much reference to the standard Iranian practice. [5.10] ff it holds obiter that even if the provision were to offend Dutch ordre public, the impact of that finding would give the wife an inalienable right to 50% of the husband’s share (not reciprocated for the husband) which in turn would offend ordre public for it would go directly against Iranian law’s intention both party autonomy and protection for the wife: viz that latter element the court points out that in accordance with the applicable Dutch law provisions for maintenance, the wife will be looked after, on top of the dower entitlement which the court addresses next, [5.13] ff:

Rome I A1(2)b excludes “obligations arising out of family relationships and relationships deemed by the law applicable to such relationships to have comparable effects, including maintenance obligations” and in (c) it excludes “obligations arising out of matrimonial property regimes, property regimes of relationships deemed by the law applicable to such relationships to have comparable effects to marriage, and wills and succession”.

The dower element of the claim in the case clearly is not covered by Rome I itself. However The Netherlands, like for instance Belgium, applies Rome I ‘even when it does not apply’ – as long the dower can be considered a contract under the relevant Dutch PrivIntLaw provision (not: the Rome I autonomous interpretation) which the court [5.14] holds it is. [5.17] That the cash payments have been made, is not contested.

The husband claims that the wife divorced him by khul, or khula, with relinquishment of the dower. The court [5.21] disagrees. The divorce is subject to Dutch law, which does not have a khul-type procedure. As for the ordre public arguments under Dutch law (which apply here; contrary to the matriomonial property issues where as noted above, the Hague Convention applies) the appeal court confirms the lower court’s findings. A dower is part and parcel of Iranian law. The case at hand does not offend Dutch ordre public with such intensity that payment of the dower must be dismissed.

[5.21] finally the court holds that parties do not consider that the dower payments of the gold coins are covered by Iranian export sanctions.

An interesting case.

Geert.

1/2 Interesting application of Rome I to dowry per Iranian marriageRome applies residually despite exclusion of family property law: Dutch PrivIntLaw revives itNo ordre public objection to payment in fullNo relinquishment by wife seeing as Dutch law, applicable to the divorce,

— Geert Van Calster (@gavclaw.bsky.social) 2025-06-14T07:46:05.099Z

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Thank you Alain Devers for alerting us to the Supreme Court’s decision in follow-up of the CJEU judgment in Case C‑633/22 Real Madrid Club  de Fútbol, AE v EE, Société Éditrice du Monde SA which I discussed here.

On 28 May the Supreme Court held that the court of appeal’s refusal of recognition is annulled, and needs to be reconsidered by a different court of appeal. Its annulment is based squarely on the court of appeal not having properly considered the elements identified by the CJEU. Evidently, the final judgment may still lead to the same result, but will have to be justified differently if that is the route that will be taken.

[33] it notes that the court of appeal had reviewed the substance of the Spanish courts’ findings, in reassessing whether the French journalists and editor had acted with disregard for their professional duties and in reevaluating both the seriousness of their disregard and the impact this had on the aggrieved.

[39] it refers to the court of appeal’s ordre public finding which had not considered the seriousness of the infringement as held by the Spanish courts.

[45] the court of appeal is faulted for not having considered the financial means of the journalist in question, in considering whether the recognition and enforcement would have an impact on free speech: this is one of the criteria the CJEU had held as being relevant.

[51] the same consideration is made viz the newspaper itself.

[57] the court of appeal should have considered, as now instructed by the CJEU, the distinction between the reputation of a legal cq natural person (the former lacking the ‘moral’ element of impacting on the ‘dignity’ of the person).

The CJEU had given very specific instructions to the national judges in cases like these and I am not sure that is the way to go. As Szpunar AG had noted in his Opinion in the case, the relevant CJEU authorities prior to current case hitherto had engaged with procedural law ordre public exceptions, rather than substantive rules such as here fundamental rights. The obvious downside of that route is that national courts may now be tempted nay feel obliged to refer to the CJEU to seek substantive instruction for the ordre public assessment of other rights, too, leading to Kirchberg having to give specific instructions for umpteen scenarios. Not what Brussels Ia intended, me thinks.

Geert.

EU Private International Law, 4th ed, 2024, 2.619 ff.

[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

In Stichting Environment and fundamental rights v Repsol Perú BV et al ECLI:NL:RBDHA:2025:8700, the claim relates to the 15 January 2022 oil leak at La Pampilla, Peru, also known as the Callao Oil Spill.

Defendants are Repsol Perú BV, domiciled at The Hague: this is the anchor defendant and jurisdiction against it is easily established using Article 4 Brussels Ia. The other defendants are Repsol SA Madrid, and Refinería La Pampilla SAA of Callao. Peru.

‘Forum connexitatis’ is the power for a court to exercise jurisdiction over defendants against whom it does not ordinarily have jurisdiction, provided the claims against them are so closely related to (hence ‘connexitatis’) one against a defendant viz whom said court undisputedly has jurisdiction, that the interest of justice requires joint treatment of all claims concerned. The latter defendant is called the ‘anchor defendant’.

In the case at issue, forum connexitatis needs to be tested against the EU rules (Article 8 Brussels Ia) in the case of Repsol SA; and under residual Dutch rules (Article 7(1) CPR, because A8(1) does not apply against non-EU domiciled defendants) in the case of Refiniería La Pampilla SAA.

Current judgment deals with the jurisdictional issues only and does not mention applicable law at all. It is likely claimants make use of Article 7 Rome II’s lex ecologia provisions (compare the Lliuya v RWE judgment just last week) however I cannot be sure.

A first argument of defendants is that under Article IX of the 1992 International Convention on Civil Liability for Oil Pollution Damage  – CLC, the claim must be brought in Peru:

“Where an incident has caused pollution damage in the territory, including the territorial sea or an area referred to in Article II, of one or more Contracting States or preventive measures have been taken to prevent or minimize pollution damage in such territory including the territorial sea or area, actions for compensation may only be brought in the Courts of any such Contracting State or States.”

[4.6] the court acknowledges that prima facie this does look like a knock-out point. However [4.7] it points out that on the other hand, the CLC only regulates the liability of the ship owner and its insurer and how they can be sued. [4.9] the court confirms its reading of text itself, the travaux and the DNA of the CLC as not pertaining to claims against parties other than the ship owner and its insurer. ‘A 2002 judgment by the Italian Supreme Court’ which I suspect is I.O.P.C.F. v. Registro Italiano Navale and others, re the sinking
of m/t “Erika”, Italian Supreme Court 17 October 2002 n. 14769 is distinguished on the ground that that claim involved the affiliated persons listed in A IX CLC.

The court then considers A8(1) BIa viz Repsol SA, and [4.13] points out that the same principles in application of the EU anchor rules, apply equally to the residual Dutch rules.

[4.11] it suggests that the claim against the anchor defendant must have a prospect of success, for A8(1) jurisdiction to be possible. That view is not imo supported by the authorities and the issue is currently sub judice at least as far as follow-on damages claims are concerned, in CJEU C-673/23 Electricity & Water Authority of Government of Bahrain ea v Prismiian ea. I review the Opinion of Kokott AG here.

[4.16] the core reproach viz the defendants is said to concern the inadequacy of the La Pampilla reception facilities, and defendants’ inadequate response to the spill. Repsol BV argues that it is a most remote shareholder and not at all involved in the goings-on in Peru and that even Repsol SA has no direct dealings with the Peruvian operations. [4.17] claimants argues the near exclusive ownership (more than 99%) of Repsol BV in La Pampilla, a shared director and other links show the direct involvement or at the very least a culpable non-involvement: Repsol VB ought to have used its influence to avoid the calamity.

[4.18] however the court rejects the shareholding and other circumstances and demands claimants show “direct involvement” by Repsol BV. That is most definitely a step back viz recent duty of care litigation, including in The Netherlands. The court did not immediately refuse instant permission to appeal hence I suspect (but I am not a Dutch CPR expert) this must be possible – and most definitely should be exercised.

The merits review test is as I argue above, not good law under A8(1) authority and the requirement of ‘direct involvement’ is not in line with recent duty of care practice.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.13.1 (in particular 2.496); Heading 2.2.15.3.2; Chapter 7.

'Global North' business & human rights claim, Peru oil spillDutch court rejects forum connexitatis viz Spanish, Peruvian corps, wth Dutch anchor defendantAccepts jurisdiction viz NL defendant despite 1992 CLC ConventionStichting E&FR v Repsol BV ea deeplink.rechtspraak.nl/uitspraak?id…

— Geert Van Calster (@gavclaw.bsky.social) 2025-05-26T07:17:55.045Z

Tony’s Open Chair have today published my opinion on the impact the European Commission’s ‘Omnibus’ deregulation proposal will have on the applicable law for supply chain liability claims. In short: not a good one.

Richard Gardiner has other updates on the issue here and he is generally a marvel when it comes to sharing all things CS3D.

Geert.

EU Private International Law, 4th ed 2025, Chapter 7.

[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

I have posted before of course on the jurisdictional and applicable law rules for climate claims (see in particular my post on Hugues Falys v Total) and on Article 7 Rome II’s special rule for choice of law in environmental claims. On the latter, use ‘Article 7’ or ‘A7’ in the search box, and see also my paper on A7/ lex ecologia as well as my paper here on climate justice litigation and private international law.

A few days ago I posted my overall assessment of the most recent climate judgment, Lliuya v RWE (more generally known as ‘Peruvian farmer v RWE) and in that post I said I would leave the applicable law analysis for a later post. So here we are.

Frustratingly there is still no sign of the judgment in the original German so like in my earlier post I am working with the unofficial English translation that is circulating. This may have an impact on how some of the court’s reasoning is translated and hence I may perhaps have to soften some of the criticism below once the judgment’s German version is out.

P.26  the court first of all confirms the straightforward jurisdictional basis: Article 4 of the Brussels Ia Regulation, establishing the principal rule that a defendant can and should as of right be sued in their domicile. Note the difference here with Hugues Falys where claimant is suing Total, domiciled at France, in what he presumable argues is a locus damni or locus delicti commissi under Article 7(2) Brussels Ia. The possibility to claim as of right in the defendant’s domicile is not easily dislodged in the European system, as I explain here.

Next up is the applicable law p.32 ff. Here the court’s plan of approach is, with respect, messy.

Overall the court could have sufficed with its primary finding of lex voluntatis. Much of its remaining discussion therefore would be obiter in the common law.

[2.a.aa] it first suggests implied choice of law in that parties invoked in their submissions almost exclusively provisions of German law. It refers to pre-Rome II German authority for its finding that this implies choice of law.

[2.a.bb] p.33 it then confirms this additionally as choice of law under the Rome II Regulation: reference here is made to Article 14(1) Rome II.

[2.a.cc] it confirms the universal character of Rome II but either misunderstands what this implies, or jumbles it with the meaning of ‘international’ under Rome II: for the court here rightly points out that Rome II may lead to the application of a law that is not the law of a Member State (here Peruvian law would be the obvious candidate) but then states “The Regulation therefore also applies in the case of a foreign connection to a non-member state in its material scope of application as the conflict of laws of the member state -…” (emphasis added). That is wrong; the latter (the choice of law being either for an EU or non-EU Member State, ie the conflict of laws not being between two EU laws but between an EU and non-EU law) relates to the ‘international’ element required to trigger Rome II. It is not at all related to the universal character of Rome II.

[2.a.dd] p.33 onwards the court then probably (it really could have formulated its approach here much more clearly) dismissed lex rei sitae as a rule that would bounce German law. It is unclear whether it does this proprio motu or in answer to an argument formulated by REWE (but had it not been established that REWE had agreed to German law?) and /or in German scholarship?

Whatever the trigger, the court’s approach to a role for lex rei sitae is most unclear. p.33 in fine the court refers to “legal claims resulting from an (alleged) violation of (co-)ownership and which – as in this case – are based on the law of the place where the property is located.” I assume this must be a discussion under German conflict of laws prior to Rome II, which it seems classifies nuissance claims as claims in rem, subject to the lex rei sitae. However as the court points out p.34, this qualification is irrelevant as far as Rome II is concerned. Rome II’s concepts need to be applied autonomously and lex rei sitae is not a rule contemplated by it.

Only then does the court address Article 7 Rome II, the tailor-made rule for environmental damage:

The law applicable to a non-contractual obligation arising out of
environmental damage or damage sustained by persons or property as a result of such damage shall be the law determined pursuant to Article 4(1), unless the person seeking compensation for damage chooses to base his or her claim on the law of the country in which the event giving rise to the damage occurred

Midway p.34 the ’emission’ is identified as the ‘event giving rise to the damage’.

The court’s engagement with Article 7 is unclear as to how it seems climate damage in relation to that Article. It has been suggested by some that Article 7 does not see to climate damage as such.

Either the court in current case dismissed that argument out of hand, seeing as it straightforwardly applies Article 7 to what is arguably a climate claim. Or it sees (the threat of) flooding (as opposed to ‘climate change’) as the environmental damage. A matter of course application of Article 7 to climate claims would be supportive of a wide notion of the statutory language “arising out of” environmental damage.

The court once again notes parties’ agreement on the applicable law being German law but then seemingly proprio motu flags the potential for dépeçage, midway through p.34:

However, a distinction must be made because, according to the plaintiff’s submission, the defendant’s conduct (issuing activity) has been ongoing since 1965 and the Rome II Regulation has only been applicable to non-contractual obligations since January 11, 2009 (see Art. 31 Rome II Regulation).

Under applicable German conflicts rules then, between 1 June 1999 and the entry into force of Rome I, German law would have applied as lex fori solutionis (the place of performance; I am not familiar enough with German conflicts rules to understand what performance is talked about here) and prior to 1 June 1999 the German rule it seems was ‘the place of action’ (presumably the locus delicti commissi: here earlier established of Germany as the place of emission) or the locus damni (surely Peru?), with it seems here like now in Rome II, claimant being able to choose.

For this section, availability of the judgment in German would be most welcome.

Importantly, the court’s reading suggest that for continuing torts, it decides (but it does so obiter, surely: see its overall finding of lex voluntatis) dépeçage applies.

As regular readers of the blog may remember, the Dutch Supreme Court has referred to the CJEU on the issue of continued infringement, in the case of competition claims.

The judgment overall has some loose ends on the Article 7 Rome II issue (compare similarly Milieudefensie v Shell) and the expression of the train of thought imo could have been clearer.

As noted, once I have the German version of the judgment, I shall revisit.

Geert.

EU Private International Law, 4th ed. 2023, 4.56 ff.

 

[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

Pietro Franzina has excellent summary of European Commission report COM (2025) 268 and Staff Working Document SWD(2025) 135, both discussing the implementation of Brussels Ia, building inter alia on the Milieu Study on the same topic.

Pietro has done a tour de force in summarising both documents, highlighting the areas where statutory change might be proposed:

scope of application (‘civil and commercial’; ! arbitration; vis attractiva concursus /insolvency);

third country defendants: crucial for business and human rights claims and harmonisation here would be welcome ia in light of the expanded use of EU sustainability instruments with extended territorial scope; I discussed the issue briefly here;

rules on special jurisdiction where ia the A7(1) and (2) distinction is getting opaque but where as Pietro notes little change may be expected;

consumer contracts (with special mention for the imo outdated carve-out for contracts of transport);

exclusive jurisdiction with likely an amendment to be proposed to codify CJEU BSH Hausgeräte; 

potential for clarification of the lis pendens rules;

ditto for collective redress actions and, but with less immediate urgency it would seem, for digital assets.

Of side note is that the Staff Working Document would seem to add little to the actual Report. There is probably an institutional reason, eg SWDs do not require translation into all EU languages, however in general one would expect the SWDs to bring a bit more beef to the analytical bone. Otherwise there seems little point in having one at all.

All in all extensive proposed amendments are not to be expected however that does not mean those that might me, could not be impactful.

Geert.

EU Private International Law, 4th ed 2024, Chapter 2.

Delighted to have been asked by Arie Van Hoe to post on the Lliuya v RWE climate ruling. See the link below to Corporate Finance Lab.

Geert.

Lliuya v RWE. Germany’s historic climate ruling: A pyrrhic loss for claimants?

In Litasco SA v Banque El Amana SA [2025] EWHC 312 (Comm) Hutton DJ engaged (on an application for summary judgment) ia with an issue that one does not see all too often in litigation: a change in governing law under Article 3(2) Rome I; and with the application of Article 9 Rome I’s overriding mandatory law aka lois de police provision.

On the first issue, Litasco as claimant argue that the effect of a SWIFT message (SWIFT being an inter-bank electronic messages platform) was to change the applicable law for the relevant StandBy Letter of Credit – SBLC, into English law, pursuant to A3(2) Rome I, which permits the parties to “agree to subject the contract to a law other than that which previously governed it”.

[15] both parties seemingly agreed that “whether the SWIFT message was effective to make that change should be resolved as a matter of English law (whether as the putative applicable law, by reference to Article 10 of Rome I, or as the lex fori, which it said was supported by the Supreme Court’s analysis in Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb [2020] 1 WLR 4117 at [33]).” In that para the SC held

In our view, it is both consistent with authority and sound in principle to apply English law as the law of the forum to ascertain whether the parties have agreed on the law which is to govern their contract (and, if not, what law governs it in the absence of agreement). To apply any other law for this purpose would introduce an additional layer of complexity into the conflict of laws analysis without any clear justification and could produce odd or inconsistent results. As the authors of Dicey, Morris & Collins on The Conflict of Laws, 15th ed (2012) observe, at para 32-036 , by reference to a case in which subsequent conduct was taken into account to construe a contract found to be governed by Chilean law because it was admissible under that law:

Under a proper Rome I analysis however (reminder that Rome I is assimilated UK law) in my opinion there is CJEU authority for neither the lex fori approach nor the putative law approach (clearly post Brexit [Enka was a pre-Brexit case] there binding character of the CJEU is more complicated). In Nikiforidis a role for A10’s putative law was discussed viz the question of temporal application of Rome I and a role for said putative law on that issue was not the outcome.

For the specific claim at issue the question is arguably less relevant seeing as parties agree, therefore the determination of the lex causae to settle the effectiveness of the change arguable may a considered as having been done per Article 3(1) Rome I.

On the facts at issue, [22] the judge holds that advancing an argument that the lex contractus was not amended by the relevant SWIFT message, would not have a real prospect of success.

[23] ff deal with the issue whether Mauritian civil proceedings may be recognisable in England and have an impact on current claim. However [28] it is held that claimant in current claim did not submit to those proceedings and that as such they are clearly not recognisable for current purposes. [29] ff ff hold the same viz relevant criminal proceedings.

[43] ff then discuss the application of the Ralli Bros principle and lois de police. I have discussed in my review of Banco San Juan Internacional Inc v Petroleos De Venezuela SA why in my opinion the application of lois de police may be considered to have been exhaustively regulated by Rome I, hence displacing any application of Ralli Bros. The alternative view is that Ralli Bros continues to apply as a principle of the applicable lex contractus, English law.

In current case, the judge fully conflates Article 9 Rome I with Ralli Bros, taking [6] it seems defendant’s counsel cue:

BEA instead relies on orders made by the Mauritanian courts as providing a defence to Litasco’s claim, originally pursuant to the rule in Ralli Brothers v Compania Naviera Sota y Aznar [1920] 2 KB 287 (CA) and also pursuant to Article 9(3) of the Rome I Regulation but in the skeleton for this hearing, Mr Power (counsel for BEA) indicated that BEA was content to proceed on the basis that Article 9(3) adds nothing to the Ralli Bros principle (which he noted was the view taken by Cockerill J in Banco San Juan Internacional Inc v Petroleos de Venezuela SA [2021] 2 All ER (Comm) 590 at [118]).

– this is a similar route as the one taken in Celestial Aviation Services, and while the substantive outcome may be the same as if one had pursued an Article 9 Rome I analysis, the shortcut still does not convince me.

[84] the conclusion is that a Ralli Bros defence has no reasonable prospect of success and summary judgment is granted.

An interesting judgment.

Geert.

European Private International Law, 4th ed. 2024, 3.90.

 

https://x.com/GAVClaw/status/1891417588841750955

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In X v Amstelveen Equity Trust BV et al, ECLI:NL:RBAMS:2025:2975 (anonymised presumable because of the family issues in the litigation; not a convincing reason to anonymise imo) claimant seeks damages in excess of 1.3 billion $ from two of his uncles and a series of corporations associated with them. The nephew (a similar claim by his ssiter was settled earlier, In Turkey) claims that the uncles mismanaged the shares which were held by his father in the two defendant Turkish companies, a shareholding in which he claims he has succeeded his father.

The claim alleges that the two Turkish corporations transferred the shares to their own ownership and subsequently transferred them to the two Dutch corporations who are also defendants, without paying the proper value to the nephew. Claimant has also seized a Turkish court, with a claim to value the shares, and to annul the decisions of the Turkish corporations to transfer the shares first into their own names and subsequently to the Dutch corporations.  The transfer of the shares is based on relevant article in the Turkish Corporations Act which reads

“if the shares have been acquired by inheritance, division of inheritance, provisions of the property regime between spouses or by compulsory execution, the company may refuse to give approval to the person acquiring the shares only if he proposes to take over the shares at their real value”

Current judgment deals only with the defendant’s request, which it grants, to stay the Dutch proceedings, pending the decision by the Turkish court. [3.14] the shares meanwhile have been sequestered by earlier decision of the Dutch courts.

[5.2] and [5.3] the Court holds that Article 26 Brussels Ia (voluntary appearance aka prorogation aka submission) applies equally to non-EU domiciled defendants, with reference to CJEU C-412/98 Group Josi [44]:

Admittedly, under Article 18 of the Convention, the voluntary appearance of the defendant establishes the jurisdiction of a court of a Contracting State before which the plaintiff has brought proceedings, without the place of the defendant’s domicile being relevant.

As I explain in my critical review of X v Trustees of Max Stern, I do not think that section of Group Josi relates to the non-EU element of the defendant’s domicile, rather its domicile full stop (within the EU). Neither the German Supreme Court nor the Amsterdam court here are right, in my view, and the issue is most certainly not acte claire, particularly given the language of Article 6 Brussels Ia.

[5.4] ff then discusses the call of both the Dutch and the Turkish defendants upon either Article 33 lis pendens or Article 34 related cases, or their residual Dutch equivalent.

The court [5.6] swiftly decides that the Turkish defendants’ call upon Articles 33-34 does not go anywhere seeing as Article 6 (which it, imo wrongly, held grounds its jurisdiction) is not listed as one of the jurisdictional anchors which may be corrected by Articles 33-34. Yet [5.41] the court holds that the (Dutch) ‘sound administration of justice’ justifies a stay ‘on the same considerations’ which led to its granting  a stay on A33-34 grounds viz the Dutch defendants. This is cakeism. Either you hold that Brussels Ia applies and then you apply all of Brussels Ia, including the consequences of the A33-34 limits. Here: if an A33-34 stay is not possible, then neither is a case-management stay or a ‘sound administration of justice’ stay if these merely recycle the, by definition inapplicable, A33-34 analysis (see also my earlier posts echoing ‘circumventing Owusu via the back door’, ia viz de Jong and Municipio): for that is just a ‘me too’ A33-34 stay in circumstances where these Articles clearly do not apply.

Viz the Dutch defendants, the court first of all holds that A33 does not apply for the lis pendens conditions are not met: [5.12] while the Turkish proceedings only concern the Turkish corporations, the Dutch concern both the Dutch and the Turkish ones, and a number of directors; both materially and from the point of view of procedures, the defendants in the Dutch proceedings have a very different position both among themselves and, for the Turkish defendants, viz their position in the Turkish proceedings. [5.13] neither do the proceedings concern the same matters of law, seeing as the Dutch one relates to tort and unjust enrichment, while the Turkish one concerns corporate law as well as economic law.

However the call upon A34 forum connexitatis /related action is successful. I discuss all conditions here and will not repeat them all at length in this post.

[5.19] the court matter of factly posits that for the condition of ‘relatedness’, A30 Brussels Ia’s approach (A30 applies in case of lis pendens between EU Courts) equally applies to A34. It holds that [5.25] the ownership question over the shares is core to, at the least very relevant in, both the Turkish and the Dutch procedures, as is [5.26] the valuation of the shares. [5.27] diverging answers to these questions by the Turkish cq Dutch courts would lead to a risk of irreconcilable judgments. [5.28] that the pending cases in Turkey concern more than just one procedure is held to be irrelevant for the purposes of A34.

Further, applying an Anerkennungsprognose, any future Turkish judgment is likely to be recognisable in The Netherlands following the criteria of the Dutch Supreme Court in Gazprom.

As for the ‘proper administration of justice’, [5.35] the court holds that the Turkish proceedings are likely to be completed within a reasonable period (reference here is made to the Dutch courts likely not deciding such a complex case in a shorter timeframe); the Turkish proceedings already having been underway for quite a while (and for some of them, under an exclusive ground of jurisdiction); and the close link with Turkey even in the Dutch proceedings. [5.40] the court reminds the parties that if circumstances change the balance of competing interests (one would imagine, excessive delay in the Turkish procedures, perceived bias, etc), an application to lift the stay may be made.

Both the A6 decision and the effective application of A33-34 to the Turkish defendants despite these Articles not applying to relevant claim, are a weak link in my view in current judgment. The A33-34 analysis is a touch on the concise size with a view to proper administration of justice.

At any rate, a judgment of note, seeing the extensive engagement with A33-34.

Geert.

European Private International Law, 2.572 ff.

 

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Our University’s reminder re open access policies and our publication repository, reminds me of the interesting provision inserted in 2018 in Article X.196 of Belgium’s Economic Law Act: (DeepL translation)

The author of a scientific article that is the result of at least half publicly funded research retains, even if, in accordance with Article XI.167, he has disposed of his rights to a journal publisher or placed them under an ordinary or exclusive licence, the right to make the manuscript available free of charge in open access to the public in a journal after the expiry of a period of 12 months for human and social sciences and six months for other sciences after the first publication, provided that the source of the first publication is mentioned.
The publishing contract may provide for a shorter period than that stipulated in the first paragraph.
The King [that is shorthand for the Government, GAVC] may extend the period stipulated in the first paragraph.
The right described in the first paragraph cannot be waived. This law is mandatory and applies irrespective of the law chosen by the parties as soon as there is a link in Belgium. It also applies to works created before the entry into force of this paragraph and which do not belong to the public domain at that time.

Under Article 9 Rome I 

1.   Overriding mandatory provisions are provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organisation, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under this Regulation.

2.   Nothing in this Regulation shall restrict the application of the overriding mandatory provisions of the law of the forum.

3.   Effect may be given to the overriding mandatory provisions of the law of the country where the obligations arising out of the contract have to be or have been performed, in so far as those overriding mandatory provisions render the performance of the contract unlawful. In considering whether to give effect to those provisions, regard shall be had to their nature and purpose and to the consequences of their application or non-application.

This is the ‘overriding mandatory law’, aka lois de police aka lois d’application immédiate provision.

Clearly even in Belgian courts the provision is bound to trigger interesting discussions. First of all of course the statutory construction of ‘scientific’ [note that the Dutch (‘wetenschappelijk’) and French use of ‘scientific’ is a much broader category than the English language ‘scientific’; humanities faculties for instance are very much ‘scientific’ in the ‘wetenschappelijk’ sense]. Is a historic novel loosely based on scientific research, a ‘scientific’ work? Further, the meaning of ‘at least half publicly funded research’: that’s a statutory construction quagmire and I suspect the travaux might help (I have not consulted them for this post). Finally, at least for purposes of this blog, the limitation to cases with ‘a link to Belgium’: e.g. would the mere seizing of a Belgian court not suffice? Further, any choice of court away from Belgium, in copyright and other agreements is likely to upend the impact of the provision, seeing as a non-Belgian, EU Member States courts (and the UK under Rome I) will have much more flexible room for manoeuvre under  Rome I (see above) to apply the Belgian Act. This may be managed by authors either by seizing a Belgian court first (in a denial of (copyright) infringement claim, presumably), or potentially by claiming the illegality of choice of court away from Belgium (not such an easy proposition I imagine; e.g. the consumer contract protection prima facie would seem unavailable). Fun with conflict of laws. Have I mentioned it’s exam season? (I know, I am on sabbatical. But not everyone is). Geert. Handbook of EU Private International Law, 4th ed. 2024, 3.73 ff.

This is an academic public service claxon: the European Commission Roadmap towards ending Russian energy imports COM(2025)440 is an absolute treasure trove for questions in current exam season underway in much of the Northern Hemisphere at least.

The Roadmap obviously has solid security credentials in the light of Russia’s invasion of Ukraine, and raises the type of issues which imo are excellent to discuss with students particularly in an oral exam:

what are the implications of the consequential trade restrictions viz international trade law;

how does the EC propose to deal with ongoing long-term contracts (both in the suggestions for communication of these contracts to Commission services, and the roadmap towards ending them. Flag viz the latter element: these contracts are subject to a smorgasbord of dispute resolution clauses, governing law provisions etc. How does force majeur in war times impact on contracts subject to different national laws? (The Commission suggesting ia ‘Building on joint European preparations, the assessment of the impact of the measures carried out by the Commission since the Versailles Declaration, including effects on gas security of supply, market, prices and legal aspects (including contracts), the Commission intends to propose legal measures for the effective phase out of gas imports from Russia.’);

what is the impact of any EU measure on claims under international investment law, particularly for claims that may be brought outside of the EU;

etc. Should guarantee at least half an hour of discussion which may gauge a student’s knowledge of the issues in various legal subjects quite nicely.

You’re welcome.

Geert.

If you do use the blog for research or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.

In HM Treasury & Anor v Global Feedback Ltd [2025] EWCA Civ 624, the Court of Appeal overturned the finding by Lang J in [2024] EWHC 1943 (Admin) that the relevant UK statutory provisions on trade in agricultural products (specifically: beef), giving effect to the UK-Australia 2021 Free Trade Agreement (FTA), are a “provision of [a Contracting State’s] national law relating to the environment” (emphasis added) in Article 9(3) of the Convention on Access to Information Public Participation in Decision-Making and Access to Justice in Environmental Matters (“the Aarhus Convention“).

The judgment has an important impact, before you start wondering why I am reporting on a nerdy issue of international environmental law.

A9(3) Aarhus (the Convention was ratified by the United Kingdom on 23 February 2005, and Brexit has no impact on its membership) requires each Party to ensure that members of the public “have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.”

A9(4) in turn requires inter alia those procedures, and also procedures under Art.9(1) and (2), to “provide adequate and effective remedies” and not to be “prohibitively expensive”. The latter element has been transposed in English civil procedure law as follows:

Part IX of the civil procedure rules – CPR 46 give partial effect to A9(4) by imposing costs limits on “Aarhus Convention claims”. That expression means “a claim brought by one or more members of the public by judicial review or review under statute which challenges the legality of any decision, act or omission of a body exercising public functions, and which is within the scope of Art. 9(1), 9(2) or 9(3)” of the Aarhus Convention (CPR 46.24(2)(a)).

The central issue in this appeal is therefore the meaning and width of the phrase “which contravene provisions of its national law relating to the environment” in Art.9(3).

The issue has arisen in a claim for judicial review brought by Global Feedback Limited (GFL) against the UK Government viz its 23 February 2023 to make the Customs Tariff (Preferential Trade Arrangements and Tariff Quotas) (Australia) (Amendment) Regulations 2023 (SI 2023 No. 195) (“the 2023 Regulations”). The 2023 Regulations give effect to tariff preferences on Australian imports under the Free Trade Agreement (“FTA”) between the UK and Australia which was signed on 17 December 2021 and came into force on 31 May 2023.

GFL claims that the 2023 Regulations will harm the environment by adversely impacting on climate change. It says that the FTA would lead to a substantial increase in greenhouse gas (GHG) emissions from the production of cattle meat, because (i) beef production methods in Australia produce significantly more GHG emissions per weight of beef than those in the UK and (ii) the lower prices of Australian beef compared to UK beef are likely to lead to a net increase in production of Australian beef for consumption in the UK. According to GFL, “carbon leakage” occurs when production moves from one country to another resulting in higher net GHG emissions, for example where the production process in the new country is more GHG intensive.

GFL’s specific target is the insufficient nature, it argues, of the Impact Assessment that coincided with the amendments to the UK’s customs classifications and -tariffs resulting from the UK-AUS FTA.

Lang J ordered that the costs limits in CPR 46 should apply. [58-59] of the current judgment summarise her findings as

the judge decided at [12]-[14] that the present claim does fall within Art.9(3) and (4). She said that it was arguable that s.28 of the 2018 Act required the appellants to have regard to relevant international obligations, including the UNFCCC, and those obligations were directly concerned with environmental issues. The appellants were under obligations in UK national law to have proper regard to their environmental obligations under international law when making the 2023 Regulations. This was sufficient to bring the claim within the scope of Art. 9(1), applying a broad purposive approach.

The judge also took into account at [13] the nature of the alleged contravention. She was not persuaded that the appellants’ obligations only related to GHG emissions in the UK as opposed to Australia, in circumstances where the implementation of the FTA by the 2023 Regulations would promote a market for the importation of Australian produce into the UK with a risk of increased emissions in Australia. There is a public interest in the environmental issues raised by the claim and the scope of s.28 of the 2018 Act may be relevant to other free trade agreements which are being implemented.

The Court of appeal disagrees with the first instance judge.

Holgate LJ reminds parties first of the informative yet non-binding nature of both the findings of the Aarhus Compliance Committee, and the Guidance documents drawn up by the EU when the EU itself acceded to the Convention. He turn summarises the relevant interpretative provisions of the Vienna Convention on the Law of Treaties – VCLT, incl [5v2] in fine, with reference to A33 VLCT, the provision on authentic (language) versions of the Convention.

[74] ff he considers first “relating to”. That, “(and other similar connectors) shows that the nature and strength of the link will depend upon the surrounding language, the wider context of the legislation and its purpose.” Discussion of CJEU authorities not being of determinative help, he then [82] turns to the travaux préparatoires and the French text of the Aarhus Convention to find [88] that the French text confirms that “relating to” is used as a strong, not a loose or broad, connector:

The relevant legal provision of national law should be to do with, or be concerned with, the environment. This is consistent with saying that to fall within Art.9(3) the purpose of the legal provision in question should be for the protection or regulation of the environment. The preparation of the Convention shows that the Parties were not prepared to agree that Art.9(3) should apply to any claim or matter related to the environment or the protection of the environment.

Discussion of relevant case-law does not he decide help claimants, and [134] ‘the present case raises this issue: does Art.9(3) of the Aarhus Convention apply where a claim alleges that a defendant’s decision or act under a legal provision not relating to the environment is vitiated by a public law error in some way connected to the environment or an effect on the environment?’ He decides [141]

it cannot be assumed that the Court’s reasoning in Venn [Venn v Secretary of State for Communities and Local Government [2015] 1 WLR 2328], which was specific to the nature of the well-established role played by the planning regime in environmental protection, is transferrable to open-ended statutory requirements to take into account relevant considerations in other legislation enacted for non-environmental purposes, such as funding for overseas projects, financial market controls or international trading arrangements.

and [148]

this is a challenge which amounts to allegations of breaches of public law principles and not any breach of this country’s law relating to the environment or environmental law. It therefore falls outside the scope of Art.9(3) of the Aarhus Convention. Any costs protection could only be considered through an application for a costs protection order.

Evidently the views of the Court of Appeal are debatable, and one imagines there might be more in the Aarhus travaux that might help claimants. For those interested in the domestic implementation of Treaty law, this is an interesting judgment.

Geert.

1/2 Cost caps, public interest litigationMeaning of "provisions of..national law relating to the environment" A9(3) Aarhus ConventionCustoms provisions in UK-Australia FTA with impact on Greenhouse Gas emissions[HMG] v Global Feedback [2025] EWCA Civ 624bailii.org/ew/cases/EWC…

— Geert Van Calster (@gavclaw.bsky.social) 2025-05-14T06:45:07.686Z

If you do use the blog for research or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.

Seeing as it is exam time across many universities, this is one of a series of posts where some core elements of international litigation strategy is considered. One or two students of the law might find these ponderings useful e.g. in essay submissions.

In African Export-Import Bank v National Government of the Republic of South Sudan & Anor  [2025] EWHC 1079 (Comm), claimant would be entitled to apply for default judgment.  Yet it seeks a reasoned judgment from the Court on the merits, so as to aid its efforts to enforce any judgment abroad. Accordingly, Afreximbank applied for permission to apply for summary judgment, and to be granted such judgment – both of which were granted by Lionel Persey KC. 

The case clearly echoes DVB Bank v Vega Marine, to which the judge here also refers, and Trafigura v Republic of South Sudan[2020] EWHC 2044 (Comm).

[19] Defendants have been given full notice of the proceedings (with detail provided of course by claimant) and the proceedings take place in the forum agreed in the relevant facility agreement for the resolution of the parties’ disputes. Defendants have utterly declined to participate.

[20] The principles governing the applications were summarised by Bryan J in European Union v Syria [2018] EWHC 1712 (Comm) at [61]-[62] and can be summarised as follows:

(1) The purpose of the rule requiring permission to apply for summary judgment against a defendant prior to the filing of an acknowledgement of service is (a)  to ensure that no application for summary judgment is made before a defendant has had an opportunity to participate in the proceedings, and (b)  to protect a defendant who wishes to challenge the Court’s jurisdiction from having to engage on the merits pending such application.

(2) Permission should generally be granted only where the Court is satisfied that the claim has been validly served and that the Court has jurisdiction to hear it.

If those conditions as to valid service and jurisdiction are met, there is generally no reason why the Court should prevent a claimant with a legitimate claim from seeking summary judgment – all the more so in the light of the relevance to smooth enforcement.

[30] ff a claim for sovereign immunity (appropriately flagged by counsel for claimant as a possible defence, should defendants have appeared) is dismissed: but the ‘prior written agreement’ and the ‘commercial activities’ exception to immunity readily apply.

A good reminder of the principles.

Geert.

Summary money judgment re facility agreementsNote express concession by claimant & OK of same by judge, that summary judgment will assist enforcement abroad better than judgment by defaultAfrican Export-Import Bank v [South Sudan] [2025] EWHC 1079 (Comm)bailii.org/ew/cases/EWH…

— Geert Van Calster (@gavclaw.bsky.social) 2025-05-10T07:47:42.290Z

https://x.com/GAVClaw/status/1921109738827256108

 

If you do use the blog for research or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.

When I flagged the hard Brexit in judicial cooperation, I also referred to the one exception to that, which is the embryonic judicial co-operation on intellectual property rights. In Praesidiad Holding BVBA & Anor v Zaun Ltd [2025] EWCA Civ 591 these provisions are put to the test. The judgment dismissed the appeal against the first instance judgment of Zacaroli J in Praesidiad Holding BVBA & Anor v Zaun Ltd [2024] EWHC 1549 (Pat).

In accordance with Article 85(5) of the EU’s Community Design Regulation, proceedings before the EU Intellectual Property Office (“EUIPO”) have res judicata effect. In the case at issue, Betafence had initiated an infringement action in March 2018 in the English courts. Zaun’s response was to seek a declaration of invalidity at EUIPO). In October 2018, by consent, the Infringement Action was stayed pending final determination of the Invalidity Action. At that time, the terms on which the UK would depart from the EU had not been established. The consent order contained a liberty to apply to lift the stay in the event that the departure from the EU impacted on the position with the regard to the RCD, the Invalidity Action or the Infringement Action.

The EUIPO Invalidity Division on 19 July 2019 rejected each of Zaun’s arguments and found that the design was valid. Zaun’s appeal succeeded before the EUIPO Board of Appeal on 2 March 2021 however that decision was then overturned by the General Court of the EU on 19 October 2022. Permission to appeal to the CJEU was refused on 17 April 2023. On 12 June 2023, the Board of Appeal of the EUIPO then issued a confirmatory decision, upholding the validity of the design and finally disposing of all of the invalidity challenges.

Betafence contend that Zaun is precluded from challenging the validity of relevant Community designs, either because Article 86(5) of the Community Designs Regulation still applies (as a result of the provisions of the Withdrawal Agreement, which have direct effect in English law), or pursuant to the English law principles of res judicata.

Zaun, on the other hand, contends that Article 86(5) has been expressly – or at least implicitly – disapplied by UK amendments made to the Registered Designs Act 1949 (“RDA 1949”), in respect of proceedings that were pending at ‘IP Completion Day’ (Implementation Period completion day: 11 PM on 31 December 2020, the end of the UK’s transition period following EU withdrawal from the EU). Their view is that there is accordingly no statutory res judicata that would preclude the counterclaim in the infringement action.

Moreover, Zaun contends that the English law principles of res judicata and abuse of process do not apply because: (1) the EUIPO is not a court of competent jurisdiction; or, if that is wrong, (2) the amendments made to the RDA 1949 should be interpreted as disapplying the doctrines of res judicata and/or Henderson v Henderson abuse of process. It further contends that there is no question of a decision of the EUIPO giving rise to any estoppel or abuse of process in relation to the Re-registered Design, because it is a newly-created UK right.

The judge held that Zaun was precluded from challenging the validity of the designs because Zaun had already unsuccessfully challenged the validity of the RCD before EUIP) and on appeal therefrom to the General Court of the European Union. Zaun contend in short that the effect of the relevant Brexit legislation is that it is able to challenge the validity of the designs in these proceedings.

[26] Title VI of the UK-EU Withdrawal Agreement is headed “Ongoing judicial cooperation in civil and commercial matters”. Article 67(1) provides that:

“In the United Kingdom, as well as in the Member States in situations involving the United Kingdom, in respect of legal proceedings instituted before the end of the transition period and in respect of proceedings or actions that are related to such legal proceedings pursuant to Articles 29, 30 and 31 of [the Brussels I Regulation (Recast)], Article 19 of Regulation (EC) No 2201/2003 [‘the New Brussels II Regulation’] or Articles 12 and 13 of Council Regulation (EC) No 4/2009 [‘the Maintenance Regulation’], the following acts or provisions shall apply:

(a) the provisions regarding jurisdiction of [the Brussels I Regulation (Recast)];

(b) the provisions regarding jurisdiction of Regulation (EU) 2017/1001 [the EU Trade Mark Regulation], of [the CD Regulation], of Regulation (EC) No 2100/94 [‘the Community Plant Variety Rights Regulation’], of Regulation (EU) 2016/679 of the European Parliament and of the Council [‘the General Data Protection Regulation’] and of Directive 96/71/EC of the European Parliament and of the Council [‘the Posted Workers Directive’];

(c) the provisions of [the New Brussels II Regulation] regarding jurisdiction;

(d) the provisions of [the Maintenance Regulation] regarding jurisdiction.”

[36] Arnold LJ summarises the res judicata issues of relevance:

There was no dispute before either the judge or this Court as to the applicable principles concerning res judicata and abuse of process, which were explained by Lord Sumption in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46, [2014] AC 160. In brief summary, there are three principles which are potentially relevant. First, cause of action estoppel, which is the principle that once a cause of action has been held to exist or not to exist, that determination cannot be challenged by either party in subsequent proceedings. Secondly, issue estoppel, which is the principle that, in general, the determination of an issue which is necessary to the decision in earlier proceedings is binding on the parties in later proceedings. Thirdly, the principle derived from Henderson v Henderson (1843) 3 Hare 100, which precludes a party from raising in later proceedings points that were not, but could and should have been, raised in earlier proceedings, which is a species of abuse of process.

[39] summarises the common ground on ‘proceedings pending’:

Claimants accept that, despite Brexit, Zaun was able (subject to the objections raised by the Claimants’ application) to bring its counterclaim for a declaration of invalidity of the RCD in August 2023 because the counterclaim was made in proceedings which were pending as at 31 December 2020. Since the Claimants accept this, it is not strictly necessary to determine which legislative provision(s) enabled Zaun to bring that counterclaim. It is nevertheless pertinent to consider this question, because it provides the starting point for the issues which arise on the appeal. It is clear that the proceedings are “pending proceedings” as defined in paragraph 9(1) of the Schedule 1A to the 1949 Act. During the course of argument counsel agreed that it followed from paragraph 9(2), which provides that, with certain exceptions, the provisions in Title IX of the CD Regulation shall continue to apply to pending proceedings as if the UK were still a Member State, that Zaun was able to bring its counterclaim pursuant to Article 81(d) of the CD Regulation. By virtue of Article 88(1) the applicable law is (the relevant provisions of) the CD Regulation. Although paragraph 9(2) is expressed to be subject to paragraph 9(3) and 9(4), nothing in those subparagraphs prevents Zaun from bringing such a counterclaim. It was also agreed that the same result could if necessary be arrived at via section 7A of the 2020 Act and Article 67(1) of the Withdrawal Agreement: cf. Simon v Taché [2022] EWHC 1674 (Comm) at [66]-[75] (HHJ Cawson QC sitting as Judge of the High Court).

[48] the first instance judge’s views are summarised:

The judge held that Zaun was precluded from bringing its counterclaim in respect of the RCD by Article 86(5), which applied by virtue of section 7A of the 2020 Act and Article 67(1) of the Withdrawal Agreement for two alternative reasons. The first was that the provisions of Title IX of the CD Regulation as a whole were the provisions regarding jurisdiction. The second was that Article 86(5) was a provision regarding jurisdiction. The judge held that, irrespective of Article 86(5), Zaun was precluded from bringing its counterclaim in respect of the RCD by res judicata or abuse of process. Finally, he held that the same conclusions applied to Zaun’s counterclaim in respect of the UKRRD.

[57] reference is made to ia a linguistic argument to hold on the meaning of ‘jurisdiction’:

It is not necessary to decide whether the judge was right about Title IX as a whole, because in my judgment he was right about Article 86(5). The primary definition of “jurisdiction” in Jowett’s Dictionary of English Law (6th ed) is “legal authority; extent of power”, referring in particular to the authority or power of a court. A synonym for jurisdiction in this sense is “competence”. I do not think that this is a purely English conception of the notion. Indeed, the French text of Article 67(1) uses the word “compétence” where the English has “jurisdiction”. In the conflict of laws (private international law) context, it is common to distinguish between “personal jurisdiction”, meaning the persons in relation to whom the court is competent to adjudicate, and “subject matter jurisdiction”, meaning the kinds of question which the court is competent to adjudicate.

[58] Zaun argue that Article 86(5) does not provide for a restriction on jurisdiction, but rather a procedural bar analogous to limitation or a substantive defence analogous to an estoppel. Jurisdiction, it says, is solely about which court or tribunal should decide an issue. Arnold LJ disagrees: [59]:

Article 86(5) plainly does not provide for a substantive defence: it is not located in any of the Titles of the CD Regulation dealing with substantive law, but in Title IX dealing with “jurisdiction and procedure”; and it does not provide that the defendant to the counterclaim has a defence, but says that “[n]o counterclaim … may be made”. I accept that it could be described as a procedural bar, but in my judgment it is aptly characterised as a provision regarding jurisdiction because it qualifies the subject matter jurisdiction, or competence, of Community design courts pursuant to Article 81(d). Furthermore, analogies with English provisions such as those governing limitation are dangerous because, as counsel for Zaun accepted, Article 86(5) must be given an autonomous interpretation as a matter of European law. As for determining which court or tribunal should decide an issue, that involves an allocation of jurisdiction, that is to say, the authority or power to decide the issue.

[60] references pro inspiratio to Brussels Ia’s enforcement provisions are rejected as irrelevant, and [61] references to UK statutory law, too, for “the issue is one of interpretation of Article 86(5), which cannot be affected by the English legislation.” [62] ff additional support is found in Trademark litigation, specifically the Supreme Court in Sky plc v SkyKick UK Ltd [2024] UKSC 36 with [66] specific reference to Lord Reed in that case:

“511. … it would have been highly unfortunate if the United Kingdom’s withdrawal from the EU had been other than on terms which enabled pending legal proceedings to be decided on the basis of the pre-existing law. It is a basic principle of legal certainty, and an aspect of the rule of law, that the legal consequences of events are, in general, determined in accordance with the law in force at the time of those events, rather than a different law introduced at a later date. Proprietors of trade marks who had brought infringement proceedings in designated United Kingdom courts before the end of the transition period had accrued causes of action under the EU Trade Mark Regulation (to which defendants with grounds for challenging the validity of the marks in question had a counterclaim). Whether the proceedings were concluded before the end of the transition period could depend on wide variety of factors, including, in the present case, the fact that there was a preliminary reference to the Court of Justice of the European Union, and an appeal to this court. It would be incompatible with the values I have mentioned if the time taken by the judicial process were to have the effect of depriving the parties of the remedy to which they were entitled. It would also mean that identical cases would be decided differently, depending on the vicissitudes of litigation, and on whether they happened to be brought in the courts of this country or in the courts of the remaining EU member states.

512. As one would expect, one of the objectives of the Withdrawal Agreement was to avoid problems of that kind. That is not only implicit in its provisions, as I have explained, but is also reflected in its preamble, which stresses ‘that the objective of this Agreement is to ensure an orderly withdrawal of the United Kingdom from the Union and Euratom’, and recites that the parties are resolved to do so ‘through various separation provisions aiming to prevent disruption and to provide legal certainty to citizens and economic operators as well as to judicial and administrative authorities in the Union and in the United Kingdom’.”

[73] the res judicata and abuse of process arguments are discussed, with reference [72] specifically to the “UKRRD was aptly described by counsel for Zaun as a clone of the RCD”.

the principles of res judicata and abuse of process apply to preclude Zaun re-litigating the validity of the UKRRD. More specifically, I consider that Zaun’s counterclaim is precluded by issue estoppel. As explained above, Zaun relies upon the same grounds of invalidity with respect to the UKRRD, albeit arising under the 1949 Act rather than under the CD Regulation, as it does in relation to the RCD. Zaun accepts that the differences in the prior designs being relied upon and in its argument with respect to the question of functionality do not prevent the application of issue estoppel. Thus the issues are the same, and Zaun is prevented by issue estoppel from re-litigating them before the High Court. (If Zaun had relied upon the difference in the prior designs, then there might well not have been an issue estoppel with respect to novelty and overall impression, but there would probably have been an objection based on Henderson v Henderson. As it is, it is not necessary to consider those questions.)

An interesting judgment on the interpretation of the Withdrawal Agreement, the continuing impact of the EU’s Community Design Regulation and its UK counterpart.

Geert.

Brexit claxon, A54(1)(b) and A67 Withdrawal Agreement(co-operation in civil justice matters, jurisdiction)Impact of Brexit on holder of registered Community designPraesidiad Holding BVBA & Anor v Zaun Ltd [2025] EWCA Civ 591 bailii.org/ew/cases/EWC…

— Geert Van Calster (@gavclaw.bsky.social) 2025-05-10T07:39:06.911Z

https://x.com/GAVClaw/status/1921107249872752866

https://www.linkedin.com/posts/geert-van-calster-60abab9_brexit-claxon-articles-541b-and-article-activity-7326873198984142849-K6II?utm_source=share&utm_medium=member_desktop&rcm=ACoAAAHHS6oB7DOA8jUedLLahLDL6cEwepyHYwA

If you do use the blog for research or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.

My review of Skatteforvaltningen v MCML Ltd (Rev1) [2025] EWCA Civ 371 is a touch overdue, seeing as I promptly reported its outcome, immediately read the judgment (it is a majority one, which perhaps explains the lengthy discussion by Nugee LJ (who found himself in the minority), and wrote up on outline on the same day. But then I got distracted.

Good summary is available from MCML’s successful counsel here.

The Court of Appeal (who as I predicted granted permission to appeal after the judge initially refused PTA) has in essence overturned the attempt at resurrecting the relevant claim with a different qualification, applying issue estoppel (arising from a principle of law). This outcome IMO is right: see my critical comments of the attempt at resurrecting the claim here.

Nugee LJ would have allowed the appeal on the ground of issue estoppel save for a very small number of claims which are based on transactions not pleaded in the 2018 proceedings; but would dismiss the appeal so far as based on abuse of process. Newey and Popplewell LJJ agree with him on abuse of process, but on issue estoppel they allowed the appeal in relation to all the claims.

All three reject the arguments based on abuse of process. Henderson v Henderson abuse essentially precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones. It is now seemingly accepted that SKAT’s requalification of a tax claim to a fraud claim was justified essentially due to its not being able to be properly aware of the fraud element due to the sheer size of the relevant discovery material which contained the indication of fraud.

However Newey J and Popplewell LJJ held (all three LJJ nb referring to Indian and Australian authorities) that issue estoppel provides MCML with a complete defence to the proceedings, and that issue estoppel can arise from determinations on points of law as well as points of fact.

As Casemine neatly summarise here,

the determination made by Andrew Baker J – that SKAT’s private law claims were in substance aimed at enforcing the Danish state’s sovereign right to tax (and thus fell under the foreign revenue rule) – was fundamental and should bind the parties in subsequent litigation.

Geert.

https://x.com/GAVClaw/status/1909167174263914789

If you do use the blog for research or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.

I flagged the Amsterdam courts’ reference to the CJEU in Case C-34/24 Stichting Right to Consumer Justice v Apple here. Sánchez-Bordona AG opined late March.

The application software (apps) for Apple devices which use iOS can be purchased from Apple’s ‘App Store’. Where a user whose Apple ID indicates the Netherlands as the country or region attempts to purchase a product in the App Store, that user will normally be redirected to the Netherlands online shop (‘App Store NL’). To change the country associated with their Apple account, users must accept new terms and conditions, and must also have a valid payment method in that new country. 

Applicant foundations are acting in the interests of all users (consumers and professional users) of Apple products and services who have been offered or have purchased products and services from App Store NL. They claim that Apple holds a dominant position in the market for distribution of apps which run on iOS, and in the payment system for those apps (IAP); that Apple is abusing its dominant position, within the meaning of A102 TFEU; and that     the abuse of a dominant position involves the receipt of excessive commission on the sale price received, through the IAP payment system, for apps in the App Store and that this is an unlawful act against users.

Apple argue that jurisdiction for the Amsterdam courts cannot be based on A7(2) BIa because the alleged harmful event did not occur in the Netherlands. That event cannot be located in Amsterdam (Netherlands) since no specific event took place exclusively or in particular in Amsterdam or in the Netherlands.  In the alternative, Apple maintains that the referring court has jurisdiction only as regards users who live in Amsterdam or who make purchases in Amsterdam via App Store NL.

The AG first of all recalls the principles of A7(2) forum delicti jurisdiction. Readers of the blog and /or Handbook will be very familiar with those.

Place of the event giving rise to the damage /Handlungsort /Locus delicti commissi

The AG (50) opines that “the principle that the decisive causal event, for the purposes of [A7(2) BIa] is synonymous with acts which implement the abuse of a dominant position is, to my mind, generally valid: its specific expression varies from case to case.” Reference in the main is made to C-27/17 flyLAL.

As I discussed at the time, this conclusion is not clear from the judgment in flyLAL itself. The AG also concedes that the CJEU’s approach is not clear, as also results from ia AMS Neve or Wintersteiger. I would most definitely applaud a CJEU confirmation of a rule I proposed earlier, that any and all places of implementation of abuse, are loci delici commissi /Handlungsorten.

In the case at issue, the AG sees identification of locu delicti commissi as follows (footnote 28):

treating the abuse of a dominant position as the sale to the end user in App Store NL may be an oversimplification. While the harmful effects claimed are, certainly, on the users’ side, the (alleged) abuse of the dominant position occurs, on the developers’ side, in the form of the unilateral imposition of conditions on those wishing to provide services that are executable on iOS. Those conditions include use of the IAP and the commission which Apple deducts from the price which iOS users pay developers (and which developers pass on to users). In my view, the imposition of those conditions is the event giving rise to the damage for the purposes of determining jurisdiction.

However (53) “as a working hypothesis, I shall proceed on the basis of the referring court’s choice of that event.” (‘that’ being the sales to the end user). This is a bit odd for surely the AG could have cut to the chase and directly put forward his own view on the ldc, seeing as ldc questions are being referred.

At any rate, taking the ‘place of the sale’ as ldc creates its own difficulties. The referring court believes that ‘the sale’ occurred in the Netherlands. Geolocation of consumers in The Netherlands via their Apple ID, and territorial  ‘targeting’ by Apple (57; echoes here of the consumer title’s direction of activities) suggest a ‘Dutch’ territory however that does not help us for the territorial allocation required for A7(2) locus damni determination. (62) One could pinpoint he conferral of jurisdiction to where in the Netherlands the device used to access App Store NL was located at the time of the sale. However that (63) creates issues of evidence, and multiplicity of proceedings.

(72) the AG, having referred to a number of CJEU authority both confirming the territorial identification of a court by A7(2), and the difficulties in identifying such a court, settles for

for a user who, by virtue of his or her Apple ID, is directed to App Store NL, all sales through that App Store occur at that user’s place of residence or establishment in the Netherlands, disregarding his or her actual physical location in that country at the time of each sale. (emphasis added)

(74) “That approach involves acceptance of a forum actoris which, in my view, is justified in the light of Apple’s commercial strategy.” : that strategy further explained as one where a specific audience is territorially ‘sought’: in other words (my words) if the seller uses geolocation and other territorial distinctions, it should not be surprised to be sued there. (This again echoes the consumer title).

Place where the damage occurred /Erfolgort /locus damni

This discussion is even more challenging than the Handlungsort. The referring court asks whether, in order to identify the competent court on the basis of the place where the damage occurred, ‘where the place where [the] purchases took place cannot be determined’, the user’s domicile may be used as a connecting factor. With reference to a number of authorities the AG believes it could, again supporting that conclusion by reference to Apple’s commercial strategy: (83)

the connecting factor based on the user’s domicile is, a fortiori, especially appropriate where, as here, the defendant (Apple) structures its business through the fragmentation, by country, of the market concerned and links end users to that market.

(84) Apple’s GTCs (not applicable here seeing as the claims are non-contractual) referring to the consumer’s place of habitual residence for both choice of court and -law is also referred to in support; of course those terms are an acknowledgment of the consumer title of Brussels Ia and informed by the consumer title of Rome I – yet they at any rate indeed support the conclusion that Apple can hardly be surprised to be sued in The Netherlands.

The impact of the representative action

This section has ruffled feathers: see ia Cécile Rouméas and Miguel Soussa Ferro. (92) The AG in my view justifiably insists on A7(2) forum possibilities being determined by reference to the original ldc and /or ld: “the assignment of a claim or the collective nature of an action do not preclude reliance on [A7)2], [however] international and territorial jurisdiction thereunder will continue to be set, in any event, by reference to the act which gave rise to the damage or the place where the damage occurred.”

(94) “A claim for damages does not lose its connection to the place where the harmful event occurred as a result of the transfer of the claim or because a third party takes over the claim pursuant to a legal provision. The event giving rise to the damage is also the same, and the evidence continues to be where it has always been.” : he is right, given the very origin of the ldc /ld distinction in CJEU Bier, and the territorial links between the court with special jurisdiction, and the events that led to the claim.

(96) “Compliance with the ‘predictability’ criterion precludes the court having jurisdiction, in respect of the same event giving rise to the damage, from changing according to whether the applicant is the holder of the interests, his or her successor, or a representative (of that holder or those interests).”

The AG acknowledges (97) “that, within a Member State, that requirement reduces the usefulness of the representative action mechanism where the national legislature has chosen [unlike eg in Austria, and see also CJEU Volvo, GAVC] not to designate a court having sole jurisdiction for the whole territory which hears that type of action.” (101) the AG equally justifiably points to the representative action having been discussed in the run up to Brussels I’a amendments, 2012 onwards. However no change in A7(2) was made.

This is exactly the type of amendment the EC may wish to put forward in its proposal for amendment, if any, of Brussels Ia and I do not see a de lege lata way to change it now. (For instance as I argue in a forthcoming chapter in a Kramer /Voet /Dori volume, ‘access to justice’ or ‘sound administration of justice’ de lege lata are not principles of Brussels Ia].

Member States may in the meantime find solace indeed in CJEU Volvo and the possibility for them to concentrate proceedings ex ante. The AG adds to this in conclusion of his Opinion, the possibility to concentrate those proceedings ex post, specifically via national lis pendens rules: this however requires ad hoc assessment which is not a risk funders etc of actions of this kind may be prepared to take.

Geert.

If you do use the blog for research or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.

Judgment in The Kingdom of Spain v The London Steam-Ship Owners’ Mutual Insurance Association Ltd (The M/T Prestige) [2024] EWCA Civ 1536 was issued in the run up to Christmas. That happened to be during the final weeks of my visiting fellowship at St Catherine’s Oxford, and a whole series of other distractions since (not in the least my subsequent and current visiting fellowship at the EUI). Hence forgive me for the late posting despite my initial promise to have analysis soon. 

The judgment raises important issues on res judicata (issue estoppel in particular), the continuing opaqueness of the relationship between Brussels Ia and commercial arbitration, and the discipline with which the CJEU needs to address questions (not) put before it, as well as given the particular situation of Brexit, the impact on the UK courts of a CJEU ruling referred to it by them but delivered after Brexit.

Background to the case is here . The substantive outcome of the case is relatively simple. The Court of Appeal rejected the appeal against Butcher J’s refusal to register and recognise a €855 million Spanish judgment which was obtained by Spain and other claimants against the Club in the Spanish Courts on 1 March 2019, issued against the London Steam-Ship Owners’ Mutual Insurance Association, and also refused to grant the Club equitable relief viz Spain and France’s breach of an equitable obligation to arbitrate their claims against the Club.

The issues upon appeal were [3] ff:

The ‘Brussels’ appeals.

3. The first appeal…concerns the question of whether [the €855 million Spanish judgment] should have been registered in England pursuant to Chapter III [Brussels Ia]. The events took place before Brexit. Spain says in support of its appeal that the Spanish judgment should be enforced in England and Wales, relying on a decision of the Court of Justice of the European Union (the CJEU) (The Prestige).. , after the judge had referred certain questions to it on 21 December 2020. The judge decided that the CJEU’s decision did not bind him to register the Spanish judgment, because (a) the CJEU had exceeded its jurisdiction, and (b) Hamblen J in The Prestige (No 2) [2013] EWHC 3188 (Comm), [2014] 1 Lloyd’s Rep 309 (Hamblen J’s judgment) and the Court of Appeal in The Prestige (No 2) [2015] EWCA Civ 333, [2015] 2 Lloyd’s Rep 33 (the CA’s section 66 judgment) had decided under [s66 Arbitration Act 1996] that an order should be made in the terms of an arbitration award delivered on 13 February 2013..by Mr Alastair Schaff KC… Mr Schaff’s award had declared that Spain was bound to arbitrate its claims against the Club. Hamblen J’s judgment and the CA’s section 66 judgment are together referred to as the “section 66 judgments”. Accordingly, since the judge held that he was not bound by what the CJEU had decided, he decided that the section 66 judgments created issue estoppels that were irreconcilable judgments preventing the registration of the Spanish judgment in England & Wales under [A34(3) Brussels Ia].

4. In addition, the judge held that there was an issue estoppel created in favour of the Club as against Spain by Mr Schaff’s award, which would anyway have prevented the registration of the Spanish judgment as a matter of English public policy under [A34(3) Brussels Ia].

5. The judge, therefore, set aside the registration ordered originally by Master Cook. ….It may be noted at this stage that, whilst Mr Schaff also made a similar award against France in separate arbitration proceedings, France has never sought to register the Spanish judgment in its favour against the Club in England & Wales. Mr Schaff’s awards against each of Spain and France are referred to together as “Mr Schaff’s awards”.

The ‘Arbitration’ appeals.

1. 1. 6. …The issues raised by the second set of [three: one by France, one by Spain, one by the Club] of appeals…concern the question of whether separate arbitration awards made by Sir Peter Gross against Spain and by Dame Elizabeth Gloster (together the Arbitrators) against France should be upheld. The Arbitrators and the judge held that the Club was entitled to equitable compensation from Spain and France in respect of their breach of an equitable obligation to arbitrate their claims against the Club. The essential question in the Arbitration Appeals is whether they were right as a matter of law. The Club says they were, and Spain and France say that no such equitable compensation is available in law. There are two important connected, but subsidiary, questions raised by these appeals. The first is whether an injunction restraining the Spanish proceedings could or should have been granted against either Spain or France, and the second is whether the Club was, either in addition to equitable compensation or instead of it, entitled to equitable damages in lieu of or in addition to such an injunction against Spain and France. … Spain and France support the judge’s holding that no injunctions can be granted against them because of section 13(2)(a) of the State Immunity Act 1978. They appeal the judge’s determination to uphold the Arbitrators’ decisions to award the Club equitable compensation. The Club appeals the judge’s decision to refuse it equitable damages under section 50, which the Arbitrators had each declined to award for different reasons. It also appeals the judge’s decision that injunctive relief could not be awarded against it.

The ‘Human Rights’ appeal.

1. 1. 7. The fifth appeal is the Club’s appeal…that the judge ought also to have refused to register the Spanish judgment on the grounds that: (a) the conclusions on civil liability on which it was founded were arbitrary or manifestly unreasonable, and impermissibly decided new facts not found by the lower court, in violation of Article 1 of Protocol 1 (A1P1) and article 6 of the European Convention on Human Rights (ECHR), (b) the conviction of the vessel’s Master was not “subject to review by a higher tribunal” as required by article 14(5) (article 14(5)) of the International Covenant on Civil and Political Rights (ICCPR), and (c) the recognition of the Spanish judgment was, therefore, “manifestly contrary to [the] public policy” of England & Wales under article 34(1). Spain contends that the judge was right to reject the Club’s human rights arguments. He held, in effect, that article 36 of the Brussels I Regulation, which provides that “under no circumstances may a foreign judgment be reviewed as to its substance”, prevented him examining the substance of the Spanish judgment. The Club argued that the judge failed properly to apply the principles laid down in [CJEU Diageo Brands] and in [CJEU Bamberski v. Krombach].

1. 1. 8. These appeals have been argued over many pages and 7 court days. Yet essentially, they raise two short central questions. They are whether the judge was right: (i) to have refused to register the Spanish judgment against the Club, and (ii) to have awarded equitable compensation to the Club. ..

[269] and deciding the various issues upon appeal:

The 2013 arbitration award prevents recognition of the Spanish judgment under Article 34(1) [Brussels Ia]. That issue was not addressed by the CJEU’s decision but non-recognition on that ground is required by considerations of public policy. Equitable compensation is not an available remedy in the context of the conditional benefit principle and in circumstances where damages cannot be awarded under section 50. These conclusions also accord with the overall justice of the case and with considerations of comity.

The judgment is lengthy and the findings essentially come down to this.

The Court of Appeal first of all held that the first instance judge was wrong to hold that he was not bound by the CJEU judgment.

In the Court of Appeal’s analysis, the CJEU was within its rights to decide as it did, including its decisions on the insurance and lis pendens provisions of Brussels Ia (which readers will know I found to be an odd resurrection of BIa to proceedings principally excluded from it), which The Club (see in particular its arguments [138] ff) said had been answered despite those questions not having been referred. Of note is Vos MR’s point [146]

Nor do I think that there was any unfairness, beyond the Club’s legitimate view (which is its real complaint) that the actual decision in [54]-[73] causes potentially problematic practical commercial consequences for the interaction between exclusive international arbitration clauses and processes on the one hand and the ambit of the Brussels I Regulation on the other.

This is a point with which regular readers know I very much agree: the CJEU’s approach to commercial (and investment) arbitration and its relationship with EU law, including EU civil procedure law, is impractical and convoluted and it drives arbitration away from the EU (one wonders what the narrative on the issue was at the recent annual EC legal service conference). It is however rebus sic stantibus the view with which we must contend ourselves.

Next, must the CJEU’s judgment be taken to have decided that A34(1) does not, as a matter of EU law, allow national courts to refuse to register judgments on the grounds of domestic public policies concerning any kind of res judicata including those arising from domestic arbitration awards? [158] Spain’s reading is that the CJEU’s judgment binds courts to hold that A34(1) cannot apply to an arbitration award on which the section 66 judgments were based. The Master of the Rolls disagrees and holds [159] that

Had the CJEU’s decision intended to include res judicata created by an arbitration award in what it said, it could and would have said so.

Instead, the CJEU [79] held that that the EU legislature had

“intended to regulate exhaustively the issue of the force of res judicata acquired by a judgment given previously and, in particular, the question of the irreconcilability of the judgment to be recognised with that earlier judgment by means of Article 34(3) and (4)” (emphasis added).

[160]

failing to recognise the res judicata created by a binding arbitral award,.., would “constitute a manifest breach of a rule of law regarded as essential in the legal order of the Member State”.

The reasons for that in English law are held to be [161]

First, there must be finality to litigation. Secondly, it is wrong as a matter of fundamental legal principle for the domestic courts to ignore and to allow parties to ignore arbitral decisions by which those parties have been finally held by the courts of competent jurisdiction to be bound. Thirdly, the regime of the New York Convention makes it clear that it would be wholly undesirable, as a matter of English public policy, to ignore [the] award. As the judge explained at [285] and [292], inconsistency should be avoided between the effect of the New York Convention and a domestic award. Article 73(2) of the Recast Regulation (the successor to the Brussels I Regulation) is explicit that it does not affect the application of the New York Convention, and that must also be the position under the Brussels I Regulation. Fourthly, the ability of international parties to agree to binding international arbitration is of great importance to the legal system in England and Wales and to the economy of the United Kingdom. That militates in favour of considering the res judicata or issue estoppel created by a binding arbitral award as essential in the legal order of the United Kingdom.

The remainder of the appeal concerns equitable remedies for breach of agreement to arbitrate, and are of less immediate relevance to the blog.

The outcome of this litigation is most unsatisfactory, both for the victims of the disaster, and for the relationship between Brussels Ia and arbitration. I know the EC has different priorities at the moment. Yet at some point a proper exercise on the desirability, feasibility and direction of an EU arbitration act surely must be contemplated (even with the UK outside it, such EU initiative would be most beneficial IMO to arbitration practice).

Geert.

EU Private International Law, 4th ed. 2024, 2.127 ff.

https://x.com/GAVClaw/status/1868961506748198922

I am grateful to Charlotte de Meeûs for her summary below of the most extensive review of TPLF in the EU. It would look to me that the lack of firm support by the study for any of the 3 options it outlines (see below), probably makes it veer towards the first: which one that is, is for readers to find out at the end of this post.

Charlotte inter alia has her own comparative overview here, has also published on the use of TPLF in public interest litigation, and discusses costs recovery (one of the important elements to TPLF) in the context of the ECHR here: I am most happy that as a scholar in the know, she was prepared to write on the study for the blog.

Geert.

*****

European Commission publishes long-awaited study mapping the use and regulation of third-party litigation funding in the EU.

On 21 March 2025, the European Commission published the BIICL study “Mapping Third Party Litigation Funding in the European Union” (the Mapping Study). The Mapping Study provides a comprehensive examination of the legal frameworks, practices, and stakeholder perspectives on third-party litigation funding (TPLF) across EU Member States and selected non-EU countries, including Canada, Switzerland, the United Kingdom, and the United States.

Aims and structure of the Mapping Study

The EC’s initiative was undertaken in response to the European Parliament’s Resolution adopted in September 2022, calling for the Commission to regulate the TPLF market. Upon request of the Commission, the Mapping Study was conducted by the British Institute of International and Comparative Law (BIICL) and Civic Consulting, and supported by various national experts.

 The extensive Mapping Study is divided into two main sections. First, a legal analysis carried out by national experts describing the regulation and practice of TPLF in the selected jurisdictions. Second, the results of the stakeholders’ consultation, gathering the opinions of various stakeholders (e.g., lawyers and law firms, businesses, litigation funders, consumer organisations, academics, public authorities, members of the judiciary) on the possible regulation of TPLF and its practical operation.

Key Findings

On the TPLF regulatory landscape, the Mapping Study finds that within the EU, specific regulation of TPLF is largely absent, except in the context of consumer collective redress following the national transpositions of the Representative Actions Directive – RAD 2020/1828.

This means that TPLF is primarily governed by national contract law and national civil procedure. In jurisdictions outside the EU, such as Canada and the UK, regulation primarily stems from case law, while TPLF in the USA is subject to an interplay of federal and state regulations. Logically, the absence of regulation at national level also means that very few countries have provisions similar or equivalent to provisions laid down in the 2022 Parliament Resolution on TPLF.

On the use of TPLF in the selected jurisdictions, the Mapping Study shows in essence that TPLF practices vary widely depending on the jurisdiction and the sector concerned. TPLF is indeed used in a wide variety of sectors. The selection of funded claims as well as the terms of litigation funding agreements diverge depending on the funder and the claim at hand.

In this context, the Mapping Study emphasises the difficulties arising from the broad diversity in funding practices and from the lack of available data. In the words of the authors of the Study, caution regarding the results of the Study is needed as

“[t]his variety makes general conclusions regarding practices of litigation funders difficult, and it also implies that the results of this consultation are not necessarily a complete picture of litigation funding in the EU, but rather provide a summary of those practices that were observed by the participating litigation funders and other stakeholders” (p. 637).

On the views of stakeholders regarding the use and regulation of TPLF, it is interesting to note that, amongst the 231 stakeholders who took part in the consultation, most views on TPLF were (at least partially) positive. Around 34% of stakeholders indeed viewed TPLF as having only positive effects, 24% considered TPLF to have both positive and negative effects and 17% only perceived negative effects.

Lawyers, litigation funders, and, importantly, consumer organisations generally viewed TPLF as having predominantly positive effects, whereas businesses (excluding lawyers and funders) perceived TPLF more negatively. The main positive effects listed by stakeholders were better access to justice, professionalism and expertise provided by funders in complex cases and filtering effect for non-meritorious cases. Among the four most cited negative effects of TPLF, stakeholders mentioned the reduced compensation for the funded party due to the remuneration owed to the funder; conflicts of interests arising from the involvement of a third-party litigation funder; the control or influence that the funder has on litigation (including on substantive and procedural decisions regarding legal proceedings and settlements); and possible frivolous claims funded by TPLF.

Regarding the question whether regulation of TPFL was needed, the majority (58%) of respondents found that TPFL should be regulated. However, among these 58%, the Mapping Study showed that there was little willingness for regulation exclusively at national level (29% of stakeholders were of the opinion that regulation should take place at EU level and 25% answered that regulation should take place at both EU and national level).

Interestingly, stakeholders also pointed out the issues that were in their view the most in need for regulation, by giving scores of “effectiveness” to the measures proposed in the 2022 Parliament Resolution on TPLF.

The issues that obtained the higher “effectiveness scores” were transparency requirements, conflicts of interests, capital adequacy and responsibility for adverse costs. However, although these issues received the highest “effectiveness score”, none of the measures envisaged in the 2022 Parliament Resolution on TPLF, except for transparency requirements, are considered to be “rather effective”.

Opinions diverged however regarding the type of regulation needed. The Mapping Study identified three possible routes for TPLF regulation namely:

No regulation: this position is based on the argument that there is no evidence that TPLF has negative effects and that overly strict regulation could drive litigation funders away from the EU market. This position adds that the existing national rules (e.g., general contract law and civil procedure, consumer protection, financial and banking rules and collective redress laws) are sufficient and should be used in parallel with courts’ supervision to address some issues linked to TPLF.

Light-touch regulation: this position, adopted by the widest number of stakeholders, is in favour of adopting basic rules governing TPLF without being too specific or too strict so as to drive litigation funders away from the EU market. Regulation would in this scenario not only increase predictability for funders and funded parties but also avoid placing an excessive burden on the courts insofar as regulation of TPFL is concerned. The issues identified as needing regulation include transparency and disclosure of the existence of litigation funding agreements, capital adequacy requirements and consumer protection.

Strong regulation: this position, which focuses on the negative effects associated with TPLF, favours the adoption of a comprehensive regulation of the TPLF market, in line with the approach proposed in the 2022 Parliament Resolution on TPLF. This position contends that while TPLF practices should not be excessively limited, the (negative) impact that TPLF may have on litigation requires some controls through regulation.

Next steps

It is said that information gathered in the context of the Mapping Study will inform the European Commission’s policy decisions regarding TPLF. However, it remains to be seen what steps the European Commission will take following the publication of the Mapping Study and whether and how it will further react to the 2022 Parliament Resolution on TPLF.

The Commission has indeed not explicitly confirmed whether it is inclined to follow one of the three possible routes for TPLF regulation identified in the Mapping Study, nor whether it will take any formal initiative in this respect.

In the meantime, one will therefore have to continue closely to monitor  possible national developments viz the practices of litigation funders, starting with the final report of the UK Civil Justice Council (CJC) reviewing litigation funding and its possible regulation in the UK, which is said to be  expected by summer 2025.

Charlotte de Meeûs.

If you do use the blog for research or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.

Advocate-General Kokott opined last week in Joined Cases C-672/23 and C-673/23 Electricity & Water Authority of Government of Bahrain ea v Prismiian ea .

After her Opinion in Athenian Brewery, where the CJEU itself was less claimant friendly than the AG had opined,  it is the second Kokott AG Opinion on the use of anchor defendant mechanism in follow-on antitrust damages claims in quick succession.

Case C‑672/23 concerns the determination of the joint and several liability of the defendants for damage claimed as arising from an infringement of the prohibition on cartels under EU law in the form of a cartel in relation to underground and submarine cables and related products, works and services.  The claim in the main proceedings is directed not only against the companies mentioned in the relevant Commission Decision but also against other companies that fall into three groups of undertakings. These have at their centre Prysmian Cavi e Sistemi Srl, ABB AB and Nexans France SAS. Of all the defendants, only Draka Holding BV, which is a subsidiary of Prysmian Cavi e Sistemi and itself holds all of the shares in the capital of Prysmian Netherlands BV, is established in Amsterdam, Netherlands. All of the other defendant companies (collectively ‘Draka and others’) each have their registered office in other locations within and outside the Netherlands. Claimants in the main proceedings in this case, the Electricity & Water Authority of the Government of Bahrain and others (collectively ‘EWGB and others’), operate high-voltage networks in the Gulf States. Damage arguably took place outside the EEA.

Case C‑673/23 likewise concerns the determination of the joint and several liability of the defendants in the main proceedings at first instance for damage which is alleged to have arisen as a result of two infringements of the prohibition of cartels under EU law, in this case not established by the European Commission, rather by the Italian national competition authority. The claim in the main proceedings at first instance was directed not only against the companies mentioned in that decision but also against other companies that fall into two groups of undertakings. These have at their centre, on the one hand, Smurfit Kappa Italia SpA, and, on the other hand, Toscana Ondulati SpA. Of those defendants, only Smurfit International BV is established in Amsterdam, Netherlands. All of the other companies (collectively ‘Smurfit and others’) each have their registered office in other locations within and outside the Netherlands.

The questions referred are very detailed indeed (see (17) of the Opinion). They essentially request from the CJEU a roadmap to determine the justifiable use of the anchor mechanism in cases like these. Particularly after Athenian Brewery, national courts arguably have enough material to make that assessment themselves, however the courts at Amsterdam had of course referred these cases prior to Athenian Brewery having been held.

The AG first of all and succinctly recalls

• the principles of an ‘undertaking’ in EU antitrust law [(30):

“in order for it to be found that the parent company and the subsidiary company form an economic unit, the claimant must not only establish the economic, organisational and legal links between these companies, but also prove that there is a specific link between the economic activity of that subsidiary company and the subject matter of the infringement by the parent company”

• and the core application of A8(1) Brussels Ia in the antitrust context (32): (A8(1)’s condition of close relatedness is

“fulfilled where several undertakings that participated in an infringement of EU competition rules, established by a decision of the Commission, are the subject of claims based on their participation in that infringement, despite the fact that they participated in that infringement in different places and at different times” (reference to CJEU CDC); and

” The same is also true of claims based on a company’s participation in an infringement of the EU competition rules which are directed against that company and against its parent company and in which it is alleged that those companies together form one and the same undertaking” (reference to CJEU Athenian Brewery).

The AG then entertains the referring court’s question on whether the prospect of success of the claim against the anchor defendant must be taken into account. ‘Prospect of success’ is a better translation than the translation elsewhere in the Opinion of the questions referred, where the Dutch term ‘toewijsbaarheid’ is translated as ‘admissibility’. The referring court clearly seeks guidance on the relevance of the merits of the claim.

The AG concludes on this section

“account is to be taken of the prospects of success of the claim against the anchor defendant, but only as an indication that the claimant has not artificially fulfilled the conditions for that provision’s applicability, which may be true in the case of a manifestly unfounded claim.”

‘Prospect of success’ must be an echo of common law CPR (a ‘real issue to be tried’), although we do not quite know: the AG, as is her MO, refers to no scholarship in her Opinion.

On this point I do not think the authorities support the conclusions which the AG draws from it.  She writes (37)

“Article 8(1) of the Brussels I bis Regulation must not be abused by bringing a claim against several defendants for the sole purpose of removing one or more of them from the jurisdiction of the courts of the State in which that defendant or those defendants is or are domiciled. That would be the case if there were firm evidence to support the conclusion that the claimant artificially fulfilled, or prolonged the fulfilment of, the conditions for that provision’s applicability.” (references omitted)

References were to CJEU CDC, and what the AG writes (37) is correct.

However the AG then jumps to the claim being ‘manifestly unfounded’: (38)

“For that to be the case, however, it is not sufficient that the claim against the anchor defendant should (possibly) appear to be unfounded. Rather, the claim must be manifestly unfounded or contrived or be devoid of any real interest to the claimant at the time when it is brought.”

In the original German, the Opinion uses ‘unbegründet’, which clearly refers to substantial merit of the case, not procedural or other inadmissability (and indeed this is also how the referring court has intended its question).

In support of her position in (38) the AG refers (other than to her Opinion in Athenian Brewery and to Mengozzi AG in Freeport) to CJEU Reisch Montage para [33]. This CJEU para does not however talk about the claim being unfounded, manifest or not. Rather it is summary of the judgment, right before its operative part and it addresses procedural inadmissability (due to a pending bankruptcy proceeding). In Reisch Montage the CJEU does not address meritorious prospect of success at all.

Whether the likelihood of success of an action against a party before the courts of the State where it is domiciled (some kind of merits review, therefore) is relevant in the determination of whether there is a risk of irreconcilable judgments for the purposes of A8(1), was raised in Freeport but not answered by the CJEU, for such answer was eventually not necessary for the preliminary reference at issue.

The issue was discussed in England, pre Brexit. In the first instance judgment in Sabbagh v Khoury, Carr J’s extensive merits review hinged on the CJEU instruction ‘to take account of all the necessary factors in the case-file’ per CJEU Freeport at [41]. The Court of Appeal on majority confirmed the need for a rather extensive merits review.

I do not think this is what A8(1) either requires or indeed sanctions, and I agree with Lady Justice Gloster, who dissented in the Sabbagh appeal, [178]:

‘the operation of a merits test within Article [8](1) does give rise to risk of irreconcilable judgments, which can be demonstrated by reference to the present facts’,

and [179]

“the overwhelming tenor of the CJEU authorities is to emphasise the fundamental aim of eliminating, rather than simply reducing, a risk of irreconcilable judgments. This aim is achieved if Article [8](1) does not incorporate a merits test and is undermined if it does do so.”

Article 8(1)’s ‘so closely connected’ test clearly requires some appreciation of the facts and the legal arguments, as well as a certain amount of taking into account the defendant’s arguments, however only with a view to assessing relatedness with a view to avoiding irreconcilable judgments. This in my view does not amount to a merits test, whether a wide or a narrow (‘manifestly unfounded’) one and this remains an important difference with the common law ‘real issue to be tried’ requirement.

(40) ff the AG then zooms in on some issues related to the prospect of success (in my opinion the CJEU will not follow on prospect of success and, practising judicial economy, will not entertain these questions).

As she notes, these questions are only raised viz the exercise of jurisdiction, and they are (43) “a complex legal question calling for in-depth examination” – a question which I suspect may be referred again if and when the Dutch courts do exercise jurisdiction. This includes [(44) ff) how attributability of damage to an adverse effect on competition in the internal market, must be interpreted where damage arguably occurred outside of the EEA, and the general issue of territorial scope of A101 TFEU. (In my view the answer may be much more straightforward perhaps than seemingly suggested in the submissions, by focusing on the claims essentially being in compensation for damage following breach of statutory duty). This section also discusses substantive issues of presumption of control in competition law.

(68) ff then returns to the issues of jurisdiction, addressing ia the topic of groups of undertakings, taking into account that in one of the cases it is the  downstream liability of a subsidiary company for an infringement committed by its parent company that is at stake. Intense reference here of course to CJEU Athenian Brewery.

(79) ff addresses the role of the foreseeability of the co-defendant’s being sued in the jurisdiction of the anchor defendant.

I wholly agree with the AG’s view (81) that “foreseeability is not.. an independent criterion that is examined alongside the other elements defining the fulfilment of the provision at issue.” And, (82)

there is no requirement under Article 8(1) of the Brussels I bis Regulation for the co-defendant him or herself to have specifically foreseen that he or she would be sued in the jurisdiction of the anchor defendant. Rather, abstract foreseeability, in the form of the ability of an informed and reasonable defendant to foresee before which courts he or she might be sued outside his or her State of domicile, is sufficient.

(83) a ‘close connection’ with the defendant, such as here through the group undertaking issue, is particularly relevant in this respect.

I have seen many instances recently where opposing counsel banks on lack of predictability to propose rejecting jurisdiction. I would welcome a finding by the CJEU that brings that interpretative rule back to its true nature.

(87) ff then addresses territorial jurisdiction under A8(1). Statutory interpretation as the AG argues, points to a strong yes (reference ia to FTI Touristik) as does linguistic comparison and the report Jenard, despite the CJEU not having yet ruled on the issue viz A8(1) specifically. If there are two anchor defendants in the same Member State, and subject to the effectiveness of EU jurisdictional law not being impaired, national CPR ought to be allowed to join the case against both, but only I assume in one of the courts where the conditions of A8(1) are fulfilled (see (97) “a court which considers itself to lack jurisdiction may take up the option to make a reference to another court available under its national procedural law, provided that the effective enforcement of the Brussels I bis Regulation is not restricted as a result”).

All in all a very relevant Opinion, CJEU judgment is one to watch!

Geert.

EU Private International Law, 4th ed. 2024, 2.516.

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