Flux Belges et Lux

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DHV v Motor Insurers’ Bureau (Rev1) [2025] EWHC 2002 (KB) is an interesting case to discuss statutory construction of EU law, specifically (and this is mostly how it ended up on the blog) with respect to Rome II’s ‘evidence and procedure’ carve-out and the impact of its recital 33 on same.

Those interested in the use of experts in proceedings generally, may want to read the first 80 or so paras of the judgment as well, for the account by Dias J of the various experts and their credibility is most informative, as is [45]

Two accident reconstruction experts gave live evidence: …..The factual conclusions the court reaches must be based on the totality of evidence, combining expert and all other relevant evidence. The court is not bound by the conclusions of any expert if it offends logic and common sense. We do not have trial by experts. This principle applies with equal force to the other pairs of experts, on Spanish law, actuarial evidence and medico-legal matters. I will not repeat that important warning and qualification. (emphasis added)

Now, to the conflict of laws issues at hand:

The judgment on this issue kicks off with general observations on determining applicable law, and the precise implications of ‘foreign law as fact’ with [82] reference ia to Lambert v MIB as well [83 ff] as how exactly that foreign law needs to be applied: entirely as it has been done by the relevant foreign courts (possibly all the way up to their supreme court), or, if their is evidence (provided by the experts) that these foreign courts have not actually properly applied their own laws, by the English court’s ‘proper’ reading of those laws.

[85] ff then discuss Rome II’s ‘evidence and procedure’ carve-out, which I review in the handbook with reference to all authorities reviewed in current case. Pro memoria, relevant statutory provisions are

Article 1(3)

This Regulation shall not apply to evidence and procedure,
without prejudice to Articles 21 and 22.

Note ! this is a proper and entire carve-out altogether from the scope of the Regulation, different from Article 1(2) which excludes certain issues which as a result of Article 1(1) are within its scope, but are then excepted.

(Articles 21 and 22 are of no relevance to the case at issue; see on those Articles eg Quilombola, X v Y (parental responsibility) or X v Y ( monies viz real estate transaction).

Article 15 ‘Scope of the law applicable’

Article 15
Scope of the law applicable
The law applicable to non-contractual obligations under this Regulation shall govern in particular:
(a) the basis and extent of liability, including the determination of persons who may be held liable for acts performed by them;
(b) the grounds for exemption from liability, any limitation of liability and any division of liability c) the existence, the nature and the assessment of damage or the remedy claimed;
(d) within the limits of powers conferred on the court by its procedural law, the measures which a court may take to prevent or terminate injury or damage or to ensure the provision of compensation;
(e) the question whether a right to claim damages or a remedy may be transferred, including by inheritance;
(f) persons entitled to compensation for damage sustained personally;
(g) liability for the acts of another person;
(h) the manner in which an obligation may be extinguished and rules of prescription and limitation, including rules relating to the commencement, interruption and suspension of a period of prescription or limitation.

Of further relevance is recital 33

According to the current national rules on compensation awarded to victims of road traffic accidents, when quantifying damages for personal injury in cases in which the accident takes place in a State other than that of the habitual residence of the victim, the court seised should take into account all the relevant actual circumstances of the specific victim, including in particular the actual losses and costs of after-care and medical attention.

Wall v Mutuelle of course is the core reference employed although as I have said before, it is wrong to suggest such as the judge does here [87] that “While [the evidence and procedure carve-out] is a derogation from article 15, it must be narrowly construed”.

A first bone of contention is whether Rome II applies at all to the case. It’s probably me who does not quite see how that argument is made. The question in the end is not all that relevant given the answer to the second issue: whether recital 33 has a substantive impact on the case. The judge held it does not.

I have not recently looked at Recital 33, nor done a detailed study of its travaux. That word in fact gives the recital too much credit: a recital can be part of the travaux of a statutory provision. It does not have its own travaux, given that recitals plainly are not EU statutory law. In the case of current recital, it was a plaster to sooth the European Parliament’s failure to introduce what would have been in effect a harmonisation of substantive law on full compensation (the restitutio in integrum principle; the judge here refers ia to prof Dickinson’s discussion of the recital).

Dias J also discusses Halsbury on EU statutory law as a general background to the application of EU law. He is wrong in my opinion to [114] suggest that “the current national rules on compensation” as used in recital 33, are a reference to the applicable lex causae (which he incompletely refers to as the ‘lex loci’: ‘damni’ should be added to that). ‘The current national rules’ refers to ius commune as eg the French version shows: ‘En vertu des règles nationales existantes en matière d’indemnisation des victimes d’accidents de la circulation routière.’

Conclusion [127]: recital 33 is not a legal rule. At the most it may be of relevance in an A4(3) ‘more closely connected’ scenario – which is not the case here.

A case of interest for Rome II. Another example, too, of where continental courts in all likelihood would not have allowed the arguments to run quite to the intensity they were argued here (contributing of course to the costs of proceedings in English courts).

Geert.

[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  SC Commercial Bank Privatbank v Kolomoisky & Ors [2025] EWHC 1987 (Ch), Trower J covers a lot of ground (2025 paras of ground).

At the time of the events with which these proceedings are concerned, claimant Privatbank (‘the Bank’) was Ukraine’s largest bank.  It was declared insolvent by the National Bank of Ukraine on 18 December 2016 and was nationalised over the course of the following days.  These proceedings have been brought by the Bank against two of its founding shareholders, first defendant Igor Kolomoisky and second defendant Gennadiy Bogolyubov (the ‘individual defendants’) and six companies (‘the corporate defendants) said to be owned or controlled by them seeking compensation for harm caused by what the Bank alleges to have been their participation in a fraudulent scheme carried out prior to nationalisation. The Bank also claims in unjust enrichment against a number of defendants.

Of relevance to the blog is the discussion of Article 10 (assimilated) Rome II on unjust enrichment, viz a number of restitution claims, and application of Article 26 Rome II on limitation periods and public policy.

Firstly, on Article 10 Rome II: the law applicable to the claim in unjust enrichment.

The Bank contends that its claims against the Corporate Defendants in unjust enrichment are governed by Ukrainian law per A10(2) and (4) Rome II. The Corporate Defendants contend that any claims against them in unjust enrichment are governed by Cypriot law and they rely on A10(2) Rome II.

For ease of digesting this post: Article 10 Rome II reads

1. If a non-contractual obligation arising out of unjust enrichment, including payment of amounts wrongly received, concerns a relationship existing between the parties, such as one arising out of a contract or a tort/delict, that is closely connected with that unjust enrichment, it shall be governed by the law that governs that relationship.

2. Where the law applicable cannot be determined on the basis of paragraph 1 and the parties have their habitual residence in the same country when the event giving rise to unjust enrichment occurs, the law of that country shall apply.

3. Where the law applicable cannot be determined on the basis of paragraphs 1 or 2, it shall be the law of the country in which the unjust enrichment took place.

4. Where it is clear from all the circumstances of the case that the non-contractual obligation arising out of unjust enrichment is manifestly more closely connected with a country other than that indicated in paragraphs 1, 2 and 3, the law of that other country shall apply.

[1581] The language of A10 requires the court first to consider whether the non-contractual obligation concerns a relationship existing between the Bank and the Corporate Defendants, which is closely connected with the unjust  enrichment.  If it does, the law that governs that relationship must be applied unless A10(4) is engaged.  The Bank submitted that its restitutionary claim against the Corporate Defendants engaged A10(1) because it concerned the relationship arising out of its tortious claim under Ukrainian law against the Corporate Defendants.

[1583] Trower J follows Tear J in Banque Cantonale de Geneve v. Polevent:  it is insufficient that, after the tort had been committed, there was a relationship between victim and tortfeasor “with legal consequences”, to engage A10(1).

Pro memoria: Article 10(1) reads

“If a non-contractual obligation arising out of unjust enrichment, including payment of amounts wrongly received, concerns a relationship existing between the parties, such as one arising out of a contract or a tort/delict, that is closely connected with that unjust enrichment, it shall be governed by the law that governs that relationship”

A relationship “existing” between the parties, it is held, must be one that existed prior to the events giving rise to the claim.

A10(2) was not argued by the parties, nor in fact was A4. This leaves the question, first, of the identification of the country in which enrichment took place, and second, whether by application of A10(4), the laws of that country might be displaced by the laws of another country that is manifestly more closely connected to the non-contractual obligation.

On the first issue [1585]: the locus of the enrichment:

… the country in which the unjust enrichment took place for the purpose of determining the effect of Article 10(3).  There is no real dispute about this. The relevant country is Cyprus, because the Bank’s allegation is that the Corporate Defendants were enriched by acquiring property in the form of prepayments under the RSAs in circumstances in which they have never complied with their purported obligations under the RSAs or returned the Unreturned Prepayments.  It is therefore the Bank’s case that the enrichment comes from the acquisition of property in the form of money which occurred with the crediting of the Corporate Defendants’ accounts at the Cyprus branch of the Bank.

Here Trower J [1593] sides with the bank, not readily it seems but firmly nevertheless.

[1586-1587] the Bank’s arguments are outlined (these have a strong Universal Music echo – of course that case was jurisdictional, not applicable law):

[the Bank argues] the only relevant factor which connects the claim in unjust enrichment to Cyprus is the location of the Corporate Defendants’ bank accounts, which adds nothing because that is no more than the justification for applying Article 10(3) in the first place.  The Bank also submitted that Cyprus as a location was of no particular significance, because the Corporate Defendants could equally have had their accounts with another non-Ukrainian subsidiary of the Bank (e.g., in Latvia).  The only point which mattered was that the destination of the funds should be outside Ukraine.

More positively, Ukraine was said to be manifestly more closely connected to the restitutionary obligation than Cyprus, because the Corporate Defendants received the Unreturned Prepayments as part of a fraudulent scheme controlled by two Ukrainian oligarchs with the purpose and effect of misappropriating funds from a Ukrainian Bank.  The Bank also relied on the fact that the scheme was actually implemented by and with the involvement of a number of individuals, including people said to be the UBOs of the Corporate Defendants, who were based in Ukraine (…).  It also relied on the fact that the Corporate Defendants knew that the Unreturned Prepayments were funded by fraudulent loans from the Bank in Ukraine and the whole structure was designed to conceal breaches of Ukrainian currency control regulations.

[1588] are the defendants’ arguments:

it  could not possibly be said that the connections to Cyprus were not real and substantial.  The Corporate Defendants were not themselves Ukrainian (they were incorporated in England and the BVI) and they were managed by Cypriot professional directors; indeed it was the Bank’s own case that the Individual Defendants’ control of and influence over the Corporate Defendants was through Primecap, a Cypriot corporate services provider established by Cypriot lawyers.  [It was also argued] that Cyprus was the country in which the money which was the subject of the Bank’s claim continued to be located when it was transferred on by the Corporate Defendants.  Another factor which counted against a manifestly closer connection to Ukraine was that the prepayments were received by the Corporate Defendants in US$ rather than UAH.

Of note in the judge’s analysis (which of course kicks off [1589] with the observation that ‘all circumstances’ and ‘manifestly’ mandate a high bar for A10(4)) are

• [1589] the comparison is between countries, not laws: “the court’s task is to ascertain whether there is a country, which has a manifestly closer connection to the restitutionary obligation – i.e., the focus is on the country not the law.  In the present case, the exercise required by Article 10(4) is a comparison of the connection between the restitutionary obligation and Cyprus on the one hand and between the restitutionary obligation and Ukraine on the other.”
• [1590] “The comparison is between connections to Cyprus and connections to Ukraine.  Connections to third countries may go to show that not every factor apart from the place of receipt points inexorably to Ukraine, but if they do not point to Cyprus, their usefulness is limited”. (Unless of course, one assumes, if they were to point to a third country hence also its applicable law altogether, but that does not seem to be the case here).

I do not think this is correct. Those wishing to show that A10(3) is to be dislodged by application of A10(4), need to show that that the obligation in unjust enrichment, is manifestly more closely connected to another country, following from all circumstances of the case. Arguably the connections to third countries undermine the A10(4) analysis and therefore are most useful: even if they do not point to the A10(3) country. Of note in this context is that A10(3) is not the result of a most closely connected analysis: it is simply a vector introduced for predictability and certainty. I imagine this may have featured in permission to appeal.

• [1591]: control over Primecap’s activities was exercised by individuals in Ukraine, both generally and for the specific transactions concerned. “The connection to Cyprus is in fact and substance more limited than the place of its establishment and operations might otherwise indicate.  The enrichment occurred in Cyprus (a factor which will always of course be present where it said that Article 10(4) should displace the prima facie rule in Article 10(3)), but the expense was sustained by the Bank in the Ukraine.  I also think that, because steps which gave rise to an unjust enrichment were component parts of a fraud practised on a Ukrainian bank, structured in the way that it was to avoid Ukrainian currency control obligations, and closely interrelated to torts governed by Ukrainian law in which the loss was sustained in Ukraine, points to a very close connection to Ukraine.”

The finding in favour of engaging A10(4) comes despite what the judge [1592] called an argument “with real substance”: the DNA of the whole scheme:

“a transfer out of Ukraine, and (more importantly for the claim in unjust enrichment) a receipt by a recipient outside Ukraine, was an essential element of what all parties accept (for different reasons) was a loan recycling scheme intended to avoid Ukraine’s currency control regulations.  I agree that the fact that it was necessary for any enrichment to occur outside Ukraine, detracts from any connection between the restitutionary obligation and Ukraine, and makes it more difficult for the Bank to say that the connection to Ukraine is manifestly closer than Cyprus.”

All in all it is the ‘control’ element it seems which swayed the judge. If that finding stands, it would be useful eg in the Dyson claims.

Next, on the application of Article 26 Rome II on limitation periods and public policy.

The findings on A26 were made obiter [1995] ff, and with reference ia to the Court of Appeal in Begum v Maran: in essence, Trower J notes the very high bar for Article 26 and would have held that that bar has not been reached in casu.

If and when I hear of an appeal, I shall update.

Geert.

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

Consideration ia of A10 Rome II: law applicable to unjust enrichmentSC Commercial Bank Privatbank v Kolomoisky & Ors [2025] EWHC 1987 (Ch) http://www.bailii.org/ew/cases/EWH…

— Geert Van Calster (@gavclaw.bsky.social) 2025-08-06T10:16:52.929Z

[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.]

Cathay Biotech Inc v Wegochem Europe BV ECLI:NL:RBAMS:2025:3091 is a judgment of relevance to the meaning of ‘arising from’, used frequently in Rome II, Regulation 864/2007; as well as a salutary lesson in how not to apply Article 4 Rome II.

First, on the issue of ‘arising from’ in Article 8.

An alternative to ‘arising from’ used in Rome II is ‘arising out’, for instance in Article 7’s environmental claims: see e.g. Begum v Maran and see my paper on A7 here.

In China, patent infringement judgments have been issued regarding the production of nylon. PRC infringement continues by other entities that have also been held to account by Chinese courts. In current proceedings the patent holder sues a Dutch buyer of the nylon for unlawful conduct, arguing it knew or consciously accepted the significant risk that it was trading in infringing products.

In determining applicable law under Rome II, Cathay Biotech argue A4 is engaged; Wego Europe suggests A8(1) applies:

Article 8
Infringement of intellectual property rights
1. The law applicable to a non-contractual obligation arising from an infringement of an intellectual property right shall be the law of the country for which protection is claimed.
2. In the case of a non-contractual obligation arising from an infringement of a unitary Community intellectual property right, the law applicable shall, for any question that is not governed by the relevant Community instrument, be the law of the country in which the act of infringement was committed.
3. The law applicable under this Article may not be derogated from by an agreement pursuant to Article 14.

The court sides with Cathay Biotech: [5.6]:

The court agrees with Cathay Biotech that it bases its claim on unlawful conduct by Wego Europe… Although this alleged unlawful conduct by Wego Europe originates from the theft of trade secrets by third parties and (subsequent) patent infringements committed by third parties, this does not mean that there is an obligation between Wego Europe and Cathay Biotech ‘arising from’ an infringement of an intellectual property right as referred to in [A8(1) Rome II]. After all, the focus is on the unlawful conduct of Wego Europe described above, not on the question of whether Wego Europe (itself) infringes Cathay Biotech’s Chinese patents. The invocation of a patent right is therefore not the core of the dispute. The scope of the Rome II Regulation and Article 8 means that the aforementioned article only concerns claims relating to a non-contractual infringement of these (intellectual property) rights.

I disagree. Cathay’s claim as it is summarised in 4.4 walk and talks intellectual property rights infringement:

Cathay Biotech bases its claim, in summary, on the following. Wego Europe acts unlawfully towards Cathay Biotech by importing and distributing [long chain dicarboxylic acid] LCDA from the Facility in Europe, while knowing that the production of these LCDA by Hilead and the Users infringes Cathay Biotech’s Chinese patents and that many Chinese court rulings in this regard are being systematically ignored. Wego Europe facilitates the unlawful actions of Hilead and the Users by creating a market for these parties and knowingly profits from their unlawful conduct.

Patent infringement is not a context for Cathay’s claim against Wego: it is its roots and branch. The statutory construction of both ‘arising from’ and ‘out’ (similarly, see Lliuya v RWE where no time was wasted at all on whether climate claims ‘arise out’ of environmental damage) instruct a causal link at the lower level of causal intensity.  Cathay’s claim and its formulation approaches that of conspiracy to cause or at the very least purposedly profit from patent infringement. That in my view must fall within Article 8.

Once Article 8 so dismissed, the court then goes off the rails in its Article 4 locus damni analysis. [5.7 and 5.8]

• it links A4 Rome II squarely to A7(2) Brussels Ia, recalling that Article’s split between Handlungsort and Erfolgort.
• It then squarely suggests that within the A4 Rome II analysis, claimant may chose either Handlugsort or Erfolgort as determining the applicable law (plainly wrong);
• it identifies each distribution center within the EU as a Handlungsort. This is as such an interesting proposition, echoing my suggestions for competition law; yet it is completely out off place in the A4 Rome II analysis.
• it considers Chinese law as applicable law under the Handlungsort analysis (although this would require Cathay’s economic loss (its consolidated accounts are in China) to be considered as ‘direct’ damages per A4, instead of eg the place of the loss of market share in the EU Member States as places of direct damage);
• it finally ends up [5.10] in Dutch law as applying to the claim as a whole under A4(3)’s escape clause, in essence because The Netherlands is held to be the locus delicti commissi: Wego is held to have organised its nylon distribution entirely from The Netherlands.

The judgment amounts to very poor engagement with Rome II.

Geert.

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

Applicable law, patent infringement claimInteresting judgment on (non)application of A8 Rome II viz EU-domiciled purchaser of product made following patent violationMeaning of 'arising from' IPR infringementCathay Biotech v Wegochem ECLI:NL:RBAMS:2025:3091 deeplink.rechtspraak.nl/uitspraak?id…

— Geert Van Calster (@gavclaw.bsky.social) 2025-05-27T07:00:33.048Z

A note on Sidoli v Sidoli [2025] EWHC 1425 (Ch) in which Dew DM deals with a classic issue of characterisation aka qualification,  namely whether the claim at issue is one in rem or one in succession.

[Note [15] an interesting side issue viz the ethics of having deciding a case with reference to an earlier one, Del Curto v Del Curto, with which he disagrees and in which he was on the losing side].

The Italian proceedings, recognition of which is being sought, vindicate Claimants’ rights over Davide Sidoli’s estate, including their rights to assets situated in England and Wales. This in essence begs the question whether the subject matter of the action in Italy was immoveable property not in Italy, hence engaging the Mozambique rule. Kireeva v Bedzhamov features of course.

[27] Dew DM remarks justifiably with respect to characterisation

Claims, in whatever jurisdiction, often have a multiplicity of subject-matter, even more so where the dispute relates to an entitlement to assets from an estate, where the subject-matter can variously be described as the Will, the estate generally, or the individual assets of that estate. Conflicts of law principles, however, often ask the court to decide in an overall sense what the subject matter of a dispute is before determining what system of law applies to it.

[28] it follows that the approach not to be followed is that if one can identify within the claim an asset which is both immoveable and out of the original court’s jurisdiction then any registration under the 1933 Act must be set aside. [29] The subject matter of the claim that was before the Italian Court was Davide’s succession. It was that which was at issue and it was the determination of those issues of succession which gave the Claimants, under Italian law, a right to compensation (and other orders) over the whole of Davide’s estate.

Hence the subject matter of the proceedings in Italy was not immoveable property. However he then holds, having analysed the 1933 Act in both its historical context and its statutory language, that the claim at issue falls within the meaning of the ‘administration of the estate of a deceased person’ over which as a result of the provisions of the 1933 Act, the Italian courts did not and should not have exercised jurisdiction.

Contrasting Sidoli with Del Curto, it is clear that a clarification by the Court of Appeal may be warranted seeing as the outcome of a registration process may now depend on which first instance judge one finds itself in front of.

Geert.

In conflict of laws exam season, excellent example of relevance of qualification aka characterisationWhether claim is in rem or in succession, leading to different outcomes for recognition of Italian judgment in E&WSidoli v Sidoli [2025] EWHC 1425 (Ch)www.bailii.org/ew/cases/EWH…

— Geert Van Calster (@gavclaw.bsky.social) 2025-06-11T07:06:15.153Z

[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.]

The CJEU has held early July in C‑99/24 [Chmieka], on the application ratione temporis of Brussels Ia (cq Brussels I), the application of Article 24(1) [22(1)]’s rights in rem exclusive heads of jurisdiction, ‘contract’ v ‘tort’, and the anchor defendant mechanism: a whole bunch of jurisdictional issues resulting from, on the merits, a fairly straightforward case it seems.

The issue arose in an action for payment of compensation, by a Polish municipal authority against a natural person domiciled in The Netherlands, for the non-contractual use of immovable property situated in Poland. That person was one of the daughters of the original tenant. The rental agreement having been entered into by the mum in 1994, an eviction order was issued in 2007. The mum and, it seems, some of the daughters did not leave the property and in 2013 the municipality asked and obtained a compensation order for the use of the house between 2011 and 2012. That order was served on the family in 2013 (only one of the family members having signed for receipt), and objected to by one of the daughters in a procedure launched in 2023. In that procedure the daughter argues ia that the Polish courts lacked jurisdiction in the 2013 proceedings seeing as, she argued, she had herself been domiciled in The Netherlands since 2007.

Four questions were dealt with.

First, does Brussels I or Brussels IA apply? The question is academic, for the relevant jurisdictional provisions are identical in wording in BIa and BI. The CJEU decided to answer the question anyway. Per A66(1) BIa, it applies only to legal proceedings “instituted … on or after 10 January 2015”. The uncertainty concerns whether the concept of ‘institution of proceedings’ should relate to the date on which the municipality brought the action for payment against the
defendant (15 March 2013) or the date on which the defendant lodged the
statement of opposition (7 July 2023) with a request for review of the case.  The CJEU goes with the former, meaning that in the case at issue, Brussels I applies: [38] , with reference to Hanssen Beleggingen and AMS Neve:

a request for review of the case concerned, such as that at issue in the main proceedings, must be regarded as part of the continuation of the initial action, since that request made by the defendant is an application initiating proceedings which does not constitute proceedings separate from those opened by the initial action, but an extension of that action.

This finding will particularly be of relevance for proceedings where BI and BIa do materially differ.

Next, the potential role for A22 [24]’s right in rem (and tenancies) jurisdiction. In current case the CJEU very much draws the ‘need for restrictive interpretation of the exclusive jurisdictional rules’ card:

[53] (with reference to CJEU Reitbauer):

the assessment of such an action seeking compensation does not require on-site investigations, nor does it involve the assessment of facts or the application of rules and practices of the locus rei sitae in such a way as to justify conferring exclusive jurisdiction on a court of the Member State in whose territory that property is situated

[54] with reference to CJEU Lieber and Gaillard:

First, an action for payment of compensation for the non-contractual use of immovable property, after the termination of a tenancy agreement relating to it, is not covered by that expression because such an action is not based on a right in rem, having effect erga omnes, but a right in personam, which may only be relied upon against the alleged debtor from whom that compensation is sought. Second, an action such as that brought against [the daughter], who is classified as a third party in relation to the terminated tenancy agreement, cannot be included in the concept of ‘tenancies of immovable property’, within the meaning of [A22(1), because such an action does not directly relate to the rights and obligations arising from that tenancy and is therefore not based on the relationship of landlord and tenant

[55]

paragraph 163 [of the Schlosser report suggest that] actions for damages based on infringement of rights in rem do not fall within the scope of [A22] because in that context the existence and content of such rights in rem, usually rights of ownership, are only of marginal significance.

Finally, the interpretation of Article 5 [7] forum contractus v forum delicti: does residing in another person’s property without legal title following the termination of the tenancy agreement authorising the occupation of that property, constitutes tort, delict or quasi-delict?

[58-59] the Court reminds us of the need for autonomous and restrictive interpretation.

[60] with reference to CJEU Obala and Hrvatske Sume

the concept of ‘matters relating to tort, delict or quasi-delict’, within the meaning of [A5(3) BI] includes all claims which, first, do not concern ‘matters relating to a contract, within the meaning of [A5(1)(a)] and, second, seek to establish the liability of a defendant, so that it is necessary to ascertain whether those two conditions are satisfied

[61] with reference to Holterman and Hrvatske Sume

the independent concept of ‘matters relating to a contract’..covers any claim based on an obligation freely consented to by one person towards another

In the case at issue, [62] the facts suggest an A5(3) [7(2)] jurisdiction because

a claim for compensation such as that brought by the applicant in the main proceedings against [the daughter] is not covered by the concept of ‘matters relating to a contract’ because such a claim is based on the fact that a person has occupied immovable property without the free consent of the landlord expressed in the form of a tenancy agreement.

However [67] the national court must

ascertain whether, in the dispute before it, a ‘harmful event occurred’, within the meaning of [A5(3) BI], owing to [the daughter’s] conduct and, more specifically, whether [she] personally occupied the immovable property concerned during the period in question in the main proceedings, that is to say between 2011 and 2012. In the light of the order for reference, it has not been ruled out that [the daughter] resided exclusively in the Netherlands during that period. In the absence of such occupation on her part, no connecting factors making [A5(3)] applicable can be identified.

Finally, the application of A6 [8]’s anchor defendant mechanism: must the Polish court examine the action brought before it so as to decide jointly in respect of all the persons concerned by that action who have resided in the housing in question? A possibility arises from Polish law that different judgments may be delivered in respect of each of those persons, depending on whether the individual concerned did or did not occupy that housing after the termination of the tenancy agreement in question, because there is no joint and several liability between those persons.

Here [71] the CJEU first (with reference to Profit Sim Investment and Athenian Brewery] first of all recalls that the mere fact that the result of one of the proceedings concerned may have an effect on the result of the other does not suffice to characterise the judgments to be delivered in the two proceedings as ‘irreconcilable’. [72-73] The national court must also satisfy itself that the claims brought against more than one defendant are not intended artificially to satisfy the conditions for the application of the anchor defendant mechanism.

Here, [75] “it it seems unlikely that there was, on the date that the action was brought, the same situation of fact and law from which there could have been a risk that ‘irreconcilable judgments’, within the meaning of [A6(1)]”: that is precisely because [76]

[while] the claims for compensation brought by the applicant in the main proceedings against the four persons concerned by that action are, admittedly, connected by their subject matter, the purpose of those claims being identical… it is apparent from the order for reference that, under the applicable provisions of Polish law, first, those claims are severable in so far as different judgments could be delivered in respect of those persons, depending on whether each of those defendants occupied the property concerned during the relevant period, and, second, there is no joint and several liability between them, which appears to imply an individual examination of the facts alleged.

Quite a lot of ground covered.

Geert.

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.

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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.

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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.

 

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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

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