EAPIL blog

The Law Faculty of Humboldt University is inviting applications for a four-year PostDoc position in European law. The position is fully paid  and funded by the graduate research programme DynamInt (Dynamic Integration Order) which itself is funded by the German Research Foundation (Deutsche Forschungsgemeinschaft).

The selected researcher is supposed to pursue her/his research project in the field of European Law (including European Private International Law and  International Civil Procedure). She/he is also expected to interact with  the group of young researchers, who all work on their dissertation  projects within the thematic framework of harmonization and plurality  tendencies in the EU.

The position is targeting German-speaking researchers. More information available here.

René Jansen (former PhD Candidate at Tilburg University) has accepted the invitation of the editors of the blog to present his book, titled ‘Legal Privilege and Transnational Evidence-Taking – A Comparative Study on Cross-Border Disclosure, Evidence-Shopping and Legal Privilege’, published by Intersentia. The study is available in open access here. For the (revised) commercial edition, see here.

Nowadays, lawyers also represent foreign clients. They can, for instance, do so by telephone or e-mail, or during a short visit abroad. Furthermore, a lawyer can choose to work in a foreign country for a longer period of time, for instance as a legal adviser or an in-house counsel. Finally, a lawyer – who has been already admitted to the bar of his home state – could obtain the required qualifications for representing his clients in a foreign court.

In this study, the following research question is centralised: “To what extent may courts order the disclosure of information that is privileged according to a foreign state’s rules on legal privilege, and should they apply a different conflict rule for determining the applicable privilege law when making this assessment?”.

This study touches upon a problem that has also been witnessed in case law. At the same time, literature nor case law clarifies how courts should respond in reaction to a litigant’s request for disclosing information that has been shared between an opponent and her foreign lawyer during civil proceedings. This may cause legal uncertainty. For example, may the court grant the request? If so, which state’s rules on legal privilege should it apply, that of the forum state or a foreign state? And does it make a difference whether the disclosure-request is made during commenced proceedings, or in light of a contemplated procedure?

In this study, I argue in the second chapter that the Hague Evidence Convention and the EU Evidence Regulation do not prevent a court from compelling a litigant to disclose a document in violation of a foreign state’s laws. In  the third chapter, I describe how in each of the examined legal systems (Dutch, English, French, German and U.S. federal) the court in principle has the authority to grant such a disclosure order. In the fourth chapter, I discuss the extent to which the courts of the examined legal systems may grant a disclosure order in the context of a foreign civil procedure, whilst also addressing Article 35 of the Brussels I bis Regulation. In the fifth chapter the differences that exist between the rules on legal privilege of the examined legal systems are presented, whereas the sixth chapter explores the possibility of constructing a new conflict rule for the type of cases that this study examines.

The most important findings are the following. There are various methods for taking evidence during transnational civil proceedings. Litigants could make use of differences that exist between these methods for circumventing restrictions on disclosing information under foreign law. For instance, a litigant could initiate proceedings in a state which laws offers the lowest level of legal privilege protection. If a court in that state subsequently applies the forum state’s rules on legal privilege, information could be obtained that is protected against disclosure according to foreign law.

I therefore plead that courts should apply a newly-constructed conflict rule for determining the applicable law on legal privilege during transnational civil litigation, in case a litigant attempts to obtain information that has been shared between an opponent and the latter’s foreign lawyer. In principle, the conflict rule aligns with the state’s laws where the lawyer habitually works. The conflict rule also contains a number of alternative rules for certain situations, such as when the lawyer has operated within an international team of lawyers.

The University of Antwerp has opened a vacancy for PhD research, which inter alia relates to EU private international law, under the supervision of Johan Meeusen and Mathieu Leloup.

It concerns a four year doctoral scholarship, sponsored by the Research Foundation – Flanders (FWO), to write a PhD on mutual trust and rule of law requirements in the field of judicial cooperation in civil and criminal matters. The researcher will have to examine, inter alia, the enforcement of the European Union’s rule of law requirements by courts applying EU private international law instruments.

All information on this position, and how to apply for it, can be found at Doctoral scholarship holder the law of the European Union, with particular attention for the rule of law, mutual trust and the area of freedom, security and justice | University of Antwerp (uantwerpen.be).

The Paris-Saclay University and the law firm Linklaters LLP, in collaboration with Saint-Joseph University in Beirut, are organizing a competition on private international law  – Concours de Droit international privé (CDIP).

CDIP is designed for students of the first year of the master degree. The language of the competition is French.

The timetable of the 2024 edition is as follows:

• Beginning of February 2024 – publication of the case;
• Early May 2024 – deadline for responses from French students and selection of teams to take part in the oral part of the competition;
• July 2024 – deadline for the response from Lebanese students;
• Early September 2024 – deadline for the reply from French students;
• end of September 2024 – finals in the international chamber of the Paris Court of Appeal (to be confirmed).

Apart from enriching experiences, the prizes include a three-month internship at Linklaters LLP.

For the history of the competition and its previous editions please consult CDIP website. The webpage will be updated soon to provide further information about 2024 edition.

On 19 January 2024, the High Court of England and Wales (Dias J) gave a judgment in Border Timbers Ltd v Zimbabwe, which concerned an application to set aside an order granting registration of an ICSID award. The court dismissed the application while holding that the execution of the award was precluded by state immunity.

To reach this conclusion, the court dealt with interesting questions of private international law and international arbitration, namely the distinction between recognition, enforcement and execution of awards and the application of state immunity to the execution of ICSID awards.

Facts

Zimbabwe lost an ICSID arbitration (Border Timbers Limited, Timber Products International (Private) Limited, and Hangani Development Co (Private) Limited v Republic of Zimbabwe (ICSID Case No. ARB/10/25)). The award was not satisfied. The award-creditor successfully applied for registration and entry of judgment on the award in England pursuant to the Arbitration (International Investment Disputes) Act 1966 (“1966 Act”) and section 62.21 of the Civil Procedure Rules. The award-debtor applied to set aside the registration of the award on the basis that it was immune from the jurisdiction of the UK courts under the State Immunity Act 1978 (“1978 Act”).

Legal Framework

Articles 53-55 of the ICSID Convention deal with the recognition and enforcement of ICSID awards in the Contracting States. The first sentence of Article 54(1) states that “Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State.” Article 54(3) specifies that the execution of ICSID awards is governed by the laws concerning the execution of judgments of the requested state. Article 55 preserves the application of the requested state’s law of state immunity from execution.

The 1966 Act implements the ICSID Convention in UK law. Section 1 of the Act provides for the registration of ICSID awards. Section 2(1) of the Act specifies that the effects of registration are that a registered award “shall, as respects the pecuniary obligations which it imposes, be of the same force and effect for the purposes of execution as if it had been a judgment of the High Court”. The Act does not address foreign states’ immunity from execution.

The 1978 Act provides for general immunity from jurisdiction except insofar as one of the stipulated exceptions can be established. The award-creditor argued that the exceptions in sections 2 (“submission to jurisdiction”) and 9 (“arbitrations”) of the Act applied. Section 2 specifies that a state is not immune as respects proceedings in respect of which it has submitted to the jurisdiction of the UK courts. Section 9 states that where a state has entered into a written arbitration agreement, it is not immune as respects proceedings in the UK courts which relate to the arbitration, subject to any contrary provision in the arbitration agreement.

Judgment

The court held that Articles 53-55 of the ICSID Convention stipulated that every Contracting State undertook to recognise an ICSID award as binding for the purposes of res judicata and to enforce any pecuniary obligations it imposed by giving it the same status as a final judgment of its own courts. The requested court cannot re-examine the award on its merits or refuse recognition or enforcement on grounds of public policy. Questions of execution were left to national courts and laws. In particular, Article 54(1) amounted to a waiver of state immunity in respect of recognition and enforcement, but not in relation to processes of execution against assets.

The exception to state immunity in section 2 of the 1978 Act was drafted with reference to specific proceedings before a specific court, thus requiring any submission to be in respect of the jurisdiction actually being exercised in those proceedings. A waiver of immunity unrelated to any identifiable proceedings was therefore not synonymous with a submission to the jurisdiction under section 2. Article 54 of the ICSID Convention was not a sufficiently clear and unequivocal submission to the jurisdiction of the English courts for the purposes of recognising and enforcing the award against the award-debtor. The award-debtor, therefore, had not submitted to the jurisdiction of the English courts within the meaning of section 2 for the purposes of obtaining recognition and enforcement of the award.

Unfortunately, the court’s discussion of the exception to state immunity in section 9 of the 1978 Act is somewhat unclear. After finding that section 9 required or permitted the English courts to re-examine the jurisdiction of the tribunal (whether an ICSID or non-ICSID tribunal) and that ICSID awards did not fall to be treated differently from other awards in this respect, the court concluded, at [89], that:

The position under section 9 is therefore different from that which pertains under section 2 in relation to Article 54. The enquiry which the court has to conduct under section 2 is whether there was a submission to the jurisdiction. On my analysis, the existence of a valid award is a given in that context, and the only question is whether it was rendered pursuant to Convention procedures. Questions of jurisdiction simply do not arise.

Therefore, according to the court, the award-creditor did not establish the applicability of the section 9 exception.

The remaining question was whether state immunity was engaged at all in relation to an application for registration of an ICSID award. The court held that the procedure for registration of ICSID awards set out in section 62.21 of the Civil Procedure Rules did not require service of any originating process or involved any exercise of discretion or adjudication. This was because the award-creditor had a statutory entitlement to have the award registered, subject only to proof of authenticity and other evidential requirements. The foreign state was not impleaded unless and until the order granting registration was served on it. The doctrine of state immunity had no application at the anterior stage of registration. It was the service of process on a state that involved an exercise of sovereignty. This contrasted with the mere notification of the application for registration. The opportunity of a state to assert immunity before any attempt was made to execute against its assets was adequately secured by requiring service of the order for registration. Consequently, the award-debtor could not apply to set aside the registration of the award on the basis that it was immune from the jurisdiction of the UK courts. However, it could claim immunity in relation to any further steps towards execution.

Interestingly, the court further stated that this approach enabled a principled distinction to be drawn between applications to enforce ICSID awards, which were not served and where the award could not be reviewed, and applications to enforce awards under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958. The NYC potentially required service and expressly required the court to exercise its adjudicative jurisdiction in determining that no defences applied.

Comment

The judgment is of interest for private international law for three reasons. First, it illustrates, in very clear terms, the difference between recognition, enforcement and execution of an award. Second, it confirms the conceptual distinction between a general waiver of immunity and a submission to jurisdiction. Third, it clarifies the ministerial (and not adjudicative) nature of the act that the court is asked to perform on an application for registration of an ICSID award.

However, the reasoning of the court is not entirely satisfactory. After repeatedly reading paragraph 89 of the judgment, I still do not understand why the court concluded that the award-creditor did not establish the applicability of the section 9 exception. A more persuasive line of reasoning would have been to point out that the award-debtor’s offer of ICSID arbitration, as contained in Article 10(2) of the Switzerland-Zimbabwe BIT, incorporated the ICSID Convention, including Article 55, which provides that questions of execution are left to national courts and laws – this could have amounted to a “contrary provision in the arbitration agreement” within the meaning of section 9(2) of the 1978 Act.

The fourth edition of European Private International Law – Commercial Litigation in the EU, authored by Geert van Calster (KU Leuven), is out. The book is published by Bloomsbury.

This classic textbook provides a thorough overview of European private international law. It is essential reading for both practitioners and students of private international law and transnational litigation, wherever they may be located: the European rules extend beyond European shores.

Opening with foundational questions, the book clearly explains the subject’s central tenets: the Brussels I, Rome I and Rome II Regulations (jurisdiction, applicable law for contracts and tort). Additional chapters explore private international law and insolvency, freedom of establishment, and the impact of private international law on corporate social responsibility. The relevant Hague instruments, and the impact of Brexit, are fully integrated in the various chapters.

Drawing on the author’s rich experience, the new edition retains the book’s hallmarks of insight and clarity of expression ensuring it maintains its position as the leading textbook in the field.

The graduate resesarch programme DynamInt (Dynamic Integration Order) of Humboldt University is inviting international PostDocs to apply for a short-term (3 to 6 months), fully paid research stay in Berlin.

The PostDoc is supposed to pursue her/his research project in the field of European Law. She/he is also expected to interact with the group of young researchers, who all work on their dissertation projects within
the  thematic framework of harmonization and plurality tendencies in the
EU.

More information are available here.

The latest issue of the International & Comparative Law Quarterly (Volume 73, Issue I) is now available. This issue features one article and one book review that focus on private international law.

Toni Marzal, The Territorial Reach of European Union Law: A Private International Law Enquiry into the European Union’s Spatial Identity, 29-63

This article offers a reconstruction of how the Court of Justice of the European Union (EU) justifies the territorial scope of application of EU law. Scholarship on this issue tends to advocate for an expansive projection of EU norms in the pursuit of global values, subject to the external limits of public international law. This article will develop a critique of this approach by pointing to its underlying assumptions as to the territorial dimension of the EU’s rule, the insoluble practical issues that it leads to, and the need to consider differently the EU’s spatial identity and relation to the wider world. It will also be argued that, in fact, other case law sometimes already reflects an alternative vision, by imagining the EU implicitly, not as a ‘global actor’ promoting universal values, but as a concretely situated and spatially bounded community. It will be shown that this is so with the methodological help of private international law, and in particular three doctrines that are traditional to this discipline—the localisation of cross-border relations, international imperativeness, and the public policy exception. This will ultimately allow for a more sophisticated understanding of the EU’s territory to emerge—irreducible to the physical coordinates of its acts of intervention, or the mere sum of the physical spaces under Member State sovereignty, but as a distinct space of social relations, informed and delineated by the particular axiology and structure of the EU legal system.

Chukwuma Okoli, Jurisdiction Over Non-EU Defendants: Should the Brussels Ia Regulation be Extended? by Tobias Lutzi, Ennio Piovesani and Dora Zgrabljić Rotar (eds) [Hart Publishing, Oxford, 2023, 376pp, ISBN: 978-1-5099-5891-7, £90.00 (h/bk)], 281-283

The whole issue is available here.

This post was written by Mathilde Codazzi, who is a doctoral student at the University Paris II Panthéon-Assas.

In a judgment of 22 November 2023, the French Supreme Court has ruled that a court is “deemed to be seized” under Article 16(a) of the Brussels II bis Regulation at the time which the document instituting proceedings is lodged with the court, irrespective of whether the applicant lacked diligence in the accomplishment of the required steps to serve the defendant.

Background

The parents of a child born in 2012 in France separated in 2014. The mother and the child lived in Germany from 2015 to 2018. The father brought an action before the Family Court of Nantes (juge aux affaires familiales) on 28 May 2019, two months before the mother and the child went back from France to Germany, for the purpose of deciding upon the terms and conditions of parental responsibility.

In December 2019, the Family Court issued a summon to the defendant’s address (the mother) in France for the hearing, which came back stating that the recipient was unknown at this address. In January 2020, the Court invited the plaintiff to serve the defendant for a hearing which was eventually postponed because of COVID. On 18 September 2020, the father eventually served the defendant notice of the act introducing the proceedings, as required by the Court.

On 17 March 2020, however, the defendant had seized the German court for the purpose of deciding upon parental responsibility.

The French Family court declined its jurisdiction on the ground that that German court had been seized first.

Court of Appeal

By a judgment of 25 October 2021, the Rennes Court of Appeal upheld the first instance court’s decision. It ruled that by failing to inform in due course the court registry of the defendant’s new address in Germany and the defendant of the ongoing proceedings against her before serving her, the applicant had been grossly negligent within the meaning of Article 16(a) of the Brussels II bis Regulation as he failed to take the required steps to serve the defendant. As a result, by the time the applicant served the defendant, the child’s habitual residence had been transferred to Germany and German courts were thus competent to rule on parental responsibility.

Judgment

The issue was therefore to determine whether the applicant’s failure to inform the court registry of the defendant’s new foreign address and the defendant of the pending proceeding before serving the document on the defendant is constitutive of a “failure to take the [required] steps” under Article 16(a) of the Brussels II bis Regulation.

By a judgment of 22 November 2023, the French Supreme Court overruled the Rennes Court of Appeal’s decision.

The Court first recalled that pursuant to Article 8 of the Brussels II bis Regulation, the competent courts in matters of parental responsibility are the courts of the Member State in which the child is habitually resident at the time the court is seized. The Court went on to rule that, according to Article 16(a) of the Regulation, a court is deemed to be seized upon accomplishment of only one formality: the filing of the document instituting proceedings. Therefore, the Rennes Court of Appeal, having noted that the applicant had filed the request then properly served the defendant, could not decline jurisdiction on the ground that the applicant had failed to take the required steps to serve the defendant.

The French Supreme Court also refused to stay the proceedings and refer the matter to the Court of Justice of the European Union for a preliminary reference as there was no reasonable doubt about the interpretation of Article 16(a) of the Brussels II bis regulation.

Assessment

The applicant having regularly lodged the document instituting proceedings with the court, the French court was already seized even though the defendant had not been served yet. This interpretation of Article 16(a) of the Brussels II bis Regulation is rather strict: the court is deemed to be seized as soon as the document instituting proceedings is regularly filed by the applicant, without the circumstances in which the required steps are then accomplished by the applicant being relevant for this purpose.

In a report presenting the judgment, the Court explained that the concept of negligence should be given an objective meaning, and be understood as an ‘omission’ to serve the document. The lower court had, in contrast, given the concept a subjective meaning focused on whether the plaintiff had been negligent.

Arguably, this interpretation remains relevant under the Brussels II ter Regulation, which applies since 1 August 2022, given that Article 17(a) of the latter text is basically identical to Article 16(a) of the Brussels II bis Regulation.

The Yearbook of Private International Law for 2022/2023 (volume XXIV) is out. It features the following contributions.

Doctrine

Elisabetta Bergamini, Raluca Bercea, Andreea Verteș-Olteanu, The Changing Scenario on Advance Directives between National Rules and Private International Law

Gerald Goldstein, Objective, Subjective and Imperative Localization in the Resolution of Conflict of Laws

Giesela Rühl, Man Yip, Success and Impact of International Commercial Courts – A First Assessment

Adam Samuel, A “Common Law” of International Arbitration? – In Memory of Claude Reymond

Sharon Shakargy, Un-Identifying Identification

Guojian Xu, Xin Cai, Recognition and Enforcement of Foreign Judgments in China – Legal Framework and Recent Developments

New Technologies and Private International Law

Andrea Bonomi, Blockchain and Private International Law – Some General Remarks

Narges Keshavarzbahadori, Due Process Requirements in Blockchain-based Arbitration

Marta Zamorska, Artificial Intelligence-Supported Arbitral Awards – A Pandora’s Box or the Future of International Commercial Arbitration?

Robert Walters, Harsha Rajwanshi, Reconciling “Confidentiality” in Data Protection, Cyber Security, Artificial Intelligence in International Arbitration

The French Draft Private International Law Code

Cyril Nourrissat, The Draft Code of French Private International Law

Dominique Bureau, Horatia Muir Watt, Codifying against the Clock… – On a French Project for the Codification of Private International Law

Marie Goré, Rules on Trust in the French Draft Code of Private International Law

Recognition of status filiationis within the EU and Beyond

Cristina González Beilfuss, Ilaria Pretelli, The Proposal for a European Regulation on Filiation Matters – Overview and Analysis

Tamir Boldbaatar, Batzorig Enkhbold, Surrogate Motherhood under Different Laws – Legal Arrangements and Challenges of Mongolia

Valentina Calderai, Rachele Zamperini, Surrogacy Contracts and the (In)Alienability of Fundamental Rights a View from Italy – On Case No 38162/2022 of the Corte di Cassazione

Helga Luku, Free Movement, Children’s Rights and National Identity in the EU Parenthood Proposal

Paulina Twardoch, Surrogacy Agreements from the Conflict-of-Laws Perspective Today and Tomorrow

Recent Developments in International Successions

Georges Khairallah, The New Right of Compensation under French International Succession Law – A Provision with an Uncertain Future

Eva Lein, Choice of English Succession Law and German Ordre Public

Andrea Bonomi, Revocation of the Will upon Marriage – Issues of Characterisation, Applicable Law, and Renvoi – An Italian Supreme Court’s Decision and Some Reflexions on the Potential Outcome under the European Succession Regulation

National Reports

Chukwuma Okoli, The Enforcement of Foreign Jurisdiction Clauses in Nigeria – A Critique of the Nigerian Court of Appeal’s Recent Restatement

Forum

Yves El Hage, “How to Locate a Cyber Tort?”

The Tug of War over Online Gambling

Many Member States try to limit gambling through strict prohibitions, with the sole exclusion for governmental monopolies.

Malta, however, has a burgeoning online gambling industry with pan-European reach, which it deems to be protected by the freedom of services enshrined in primary EU law.

The island state resists the enforcement of judgments from courts in other Member States that take a different view; to this end, it even plans to adopt an explicit legislative provision prohibiting the enforcement of such judgments by Maltese courts (see here). [image from freepik]

The Recent Episodes in Austria

Meanwhile, gamblers in Austria who have lost money have found a lucrative alternative. Instead of bringing their claims themselves, they sell and assign them to a Swiss company, which then tries to enforce these claims before Austrian courts. This raises the question of the latters’ international jurisdiction.

In a number of decisions, the Austrian Supreme Court (OGH) has answered it in the affirmative (22 June 2023, 27 June 2023, and 25 September 2023). The reasons are of general interest; inter alia because they add a further aspect to the complex discussion on the localisation of financial loss under Article 7 No 2 of the Brussels I bis Regulation (see already here and here).

Consumer Protection is Out

To the uninitiated, Article 18 Brussels I bis seems to provide a basis of jurisdiction for the gamblers’ claims. Yet in the eyes of the Austrian Supreme Court, this provision is inapplicable because the plaintiff is not asserting his own claims, but assigned ones. This is in line with the case law of the CJEU, who excluded assigned claims from the scope of the consumer protection provisions (see the Schrems case, C-498/16, paras 42–49).

Choice of Forum

Another potential stumbling block could be a clause contained in the contracts between the gamblers and the operator according to which all disputes should be decided by the courts of Malta. The Austrian Supreme Court rightly denies any effects of this clause against the Swiss litigation vehicle. As the CJEU had ruled in DelayFix (C-519/19, para 42), such a clause produces effects only between the parties to the initial agreement.

Where Are Gambling Contracts Performed?

We are getting closer to the meat of the case, which is Art 7 Brussels Ibis. First, the contractual head of jurisdiction under Article 7 No 1 Brussels I bis needs to be analysed. Undoubtedly, the parties had entered into a contract, more precisely a service contract in the (European-autonomous) sense of lit. b. But where was the service to be performed?

The Austrian Supreme Court locates the place of performance within the meaning of Article 7 No 1 lit b Brussels I bis in the state of the service provider, i.e. in Malta. The courts there would also have jurisdiction to hear claims for the restitution of money paid under the gambling contracts. Hence, this head of jurisdiction does not allow a claim in Austria.

Where does Gambling Damage Occur?

This brings us to the last and thorniest question, whether the tort/delict jurisdiction under Art 7 No 2 Brussels Ibis points to Austria.

Two of the decisions try to reach this result by a rather classic localisation exercise. Citing the CJEU’s decision in Kolassa (C-375/13), they deem the habitual residence of the victim as the place of damage, provided another element of the case takes place there. The fact that the gambler held an account in Malta was considered irrelevant since the final damage of the gambler materialised in Austria.

Yet then, these decisions add a very different element, namely the violation of the Austrian gambling laws. The decision of 22 June 2023 phrases it in the following way:

Above all, however, the damage materialised in Austria because the damage asserted results from alleged violations of Austrian gambling law by the defendant and therefore from violations of Austrian public policy rules.

Yet the decision of 25 September 2023 follows a different line of thought. It does even attempt a classic localisation approach, but puts the violation of public law at the centre of its reasoning. In its own words:

The breach of duty relevant to the damage is located in Austria, which is why the international jurisdiction of the court of first instance for the tortious claims for damages asserted is to be affirmed pursuant to Article 7 No 2 Brussels I bis Regulation.

Assessment

The quoted passages merit criticism. A breach of duties, even under public policy rules, does not amount to a damage. The violation of rules is actually a tortious act that causes the damage, but not the damage itself. The two must be distinguished.

The Austrian Supreme Court may have been led astray by some utterances of the CJEU in the VEB decision, which referred, in determining jurisdiction under Article 7 No 2 Brussels I bis, to the place where a securities issuer company had to comply with statutory reporting obligations (VEB v BP C-709/19 para 359). Yet this was done to ensure the foreseeability of the competent court, not to locate the damage itself.

The violation of a state’s public policy provisions therefore does not allow its courts to exercise jurisdiction. The damage under Article 7 No 2 Brussels I bis must still be determined by localising a loss. Following the Kolassa reasoning, the country of the habitual residence of the gambler can be used under the condition that another element of the case takes place there. This other element could be the payment from the account of a bank established there, as the CJEU had ruled. Unfortunately, the Austrian Supreme Court did not make any determinations in this regard, but it may be assumed that the gamblers’ banks were established in Austria. Arguably, this would provide a sufficient reason to locate the damage there, without the need to refer to the Austrian public policy provisions on gambling.

— Thanks to Paul Eichmüller, Felix Krysa and Verena Wodniansky-Wildenfeld for reviewing this post.

Within the framework of the PAX 2.0 Project, Université Paris Dauphine will host the PAX Judicial Training, which will take place on 4-5 March 2024.

While the PAX Moot Court is oriented to students, the PAX Judicial Training is designed for judges and aspiring judges seeking to enhance their understanding of EU private international law.

Taking into account this year’s PAX Moot competition, whose case has been previously dealt with in this blog, judicial training will focus on international jurisdiction in cross-border civil disputes, provisional measures in EU private international law, legal capacity and parental authority and other EU private international law-related issues.

Registrations are open until 15 February 2024 at ramachandra.oviode-siou@dauphine.eu.

Speakers include Arnaud Raynouard, Marta Pertegás Sender, Vesna Lazić, Hélène van Lith, Boriana Musseva, Tsvetelina Dimitrova, Neža Pogorelčnik Vogrinc, Beatriz Añoveros Terradas, Jona Israël, Laura van Bochove, Thalia Kruger, Erlis Themeli and Duncan Fairgrieve.

The detailed programme is available here.

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. The following abstracts have been kindly provided by the editor of the journal.

G. Cuniberti, Time limitations affecting foreign judgments

The issue of time limitations affecting foreign judgments is addressed in remarkably different ways in comparative private international law. The primary reason is that enforcing States define the subject matter of limitations differently: they can focus on the foreign judgment itself, but also on the obligation vindicated before the foreign court, the exequatur judgment, or an autonomous obligation arising out of the foreign judgment in the forum. Additional layers of complexity are that rules of limitation can be characterised either as procedural or substantive in nature, and that foreign judgments losing enforceability should not be enforced. The question should therefore be asked whether this diversity is an impediment to the free circulation of judgments within the European Union, which should be remedied by some form of harmonisation.

J. Hoffmann, Jurisdiction of German courts for collective action against third country defendants

Collective action under the new German VDuG (Law on the Enforcement of Consumer Rights) allows the collective enforcement of similar claims of consumers. Such actions are not only relevant regarding domestic German defendants or those located within the EU but may also be of practical importance regarding third country defendants. This article discusses under which circumstances German courts have jurisdiction for such collective actions. It argues that the exclusive jurisdiction clause in § 3 VDuG does not preclude the application of the general jurisdiction rules of German law. Specific rules apply regarding claims stemming from violations of data protection law.

P.G. Picht and C. Kopp, Choice of law under the Rome I and Rome II regulations: current case law issues

The article deals with current choice of law issues in the practical application of the Rome I and Rome II Regulations. Despite the fact that the relevant provisions have been in existence for some time now, they still raise important and intricate questions. On the basis of recent German case law, the article examines three of these issues in more detail, namely (1) choice of law through litigation behaviour, (2) the exceptional admissibility of a choice of law in bilateral competition law infringement matters, and (3) the validity of choice of law clauses in general terms and conditions.

A. Schulz, Gender self-determination in Private International Law – Towards a new article 7a EGBGB

In August 2023 the German government proposed a draft bill for a “Gender Self-Determination Act” which will allow transgender, intersex and non-binary persons to change their legal gender by means of a simple self-declaration. While some of the details of the future Self-Determination Act are still being debated, less attention has been paid to the fact that the draft bill also contains a proposal for a conflict of laws rule which will determine the law applicable to a person’s gender in cross-border settings. According to Article 7a (1) Draft Introductory Act to the German Civil Code, a person’s gender will generally be governed by the law of the state of which the person is a national. However, according to Article 7a (2) Draft Introductory Act to the German Civil Code, a person residing in Germany may, for the purpose of changing their gender, choose German law. This article aims to take a first look at this draft conflict of laws rule and to illustrate some of the pending questions regarding the new rule.

J. Oster, Jurisdiction clauses in general terms and conditions in digital commerce

In its ruling of 24.11.2022 (Tilman SA ./. Unilever Supply Chain Company AG), the CJEU had to decide on the validity of a jurisdiction clause that was included in general terms and conditions to which the contract referred by the inclusion of a hypertext link. The Court held this to be in accordance with Article 23 para. 1 and 2 of the Lugano II Convention, even though the party against whom that clause operates had not been formally asked to accept those general terms and conditions by ticking a box on that website. The Court thus expanded its case-law on the inclusion of jurisdiction clauses in electronic contracts. The decision has a significant impact on the interpretation of Article 25 para. 1 and 2 Brussels Ia Regulation, which has the same meaning as Article 23 para. 1 and 2 of the Lugano II Convention.

M. Lieberknecht, Enforcement proceedings concerning frozen assets under the EU’s economic sanctions regime

In its Bank Sepah decision, the ECJ offers guidance on an issue of increasing importance: the legal status of frozen assets owned or controlled by persons on the EU’s sanction lists. Specifically, the ECJ weighs in on the fate of frozen assets in the context of enforcement proceedings. The Court adopts an extensive reading of the concept of freezing, which does not only rule out the recovery of assets for the benefit of the creditor but also bars mere protective measures such as seizure, which do not affect ownership rights in the asset. Considering the purpose of freezing orders, this extensive reading is not convincing. The Court’s second dictum, on the other hand, is all the more cogent. It states that the legal effects of a freezing order on enforcement proceedings are not affected by whether or not the creditor’s claim is related to the subject matter of the sanctions in question.

W. Hau, Having two bites at the same cherry? – On the recognizability of a preclusion based on the duty to concentrate claims in one lawsuit

Following an English lawsuit, the winning employee brings further proceedings in France with additional claims against his former employer. This strategy would not be permissible under either English or French procedural law. Nevertheless, the CJEU holds that the preclusive effect of the English decision is not to be recognized in France under the Brussels I Regulation (still applicable in the case). The opposing view expressed here is that only public policy permits refusal of recognition of such a preclusive effect of a foreign judgment.

P. Huber and L. Bernard, Objections to the claim itself and parallel (enforcement) proceedings in the European Union

What impact does it have, if an objection to the claim itself is raised in different member states of the European Union in order to stop one or several enforcement proceedings? This question arose in an Austrian proceeding. The OGH solely dealt with the question of jurisdiction for the Austrian enforcement proceeding. The case, however, raises further issues regarding the coordination of parallel proceedings which are discussed in this article.

E. Jayme and C.F. Nordmeier, Family and the law of torts – Private International Law and Legal Comparison – Conference of the German-Lusitanian Jurists’ Association, September 15th and 16th 2023, Heidelberg

Albert Henke (University of Milan), Marco Torsello (University of Verona) and Elena Zucconi Galli Fonseca (University of Bologna) edited a book titled International Commercial Courts. A Paradigm for the Future of Adjudication? with Edizioni Scientifiche Italiane.

International commercial courts are specialized judicial bodies designed to provide a forum for adjudicating complex cross-border business disputes efficiently and fairly for operators acting across different jurisdictions.

Based on the enriching experience of a webinar jointly organized by the Universities of Bologna, Milan, and Verona, this volume collects papers of renowned specialists in the field of cross-border dispute resolution, divided into three parts. The first part of the volume addresses the phenomenon of international commercial courts in the EU, with particular attention to the German, French, Dutch, and Italian experiences. The second part includes papers that shed light on the experience of extra-European countries, such as those of the Gulf area, Singapore, China, and the OHADA States. The third part of the volume compares the structure and functioning of international commercial courts with international commercial arbitration.

Not unlike arbitral tribunals, international commercial courts aim to provide a more predictable and consistent legal environment for international business transactions. This volume aims to provide a comparative overview of this emerging phenomenon. Only time will tell whether international commercial courts will establish themselves as relevant players in international dispute resolution.

The contributions featured in the book were authored by E.A. Ontanu, M. Lamandini, D. Ramos Muñoz, M. Stürner, A. Biard, X. Kramer, G. Antonopoulou, M.A. Lupoi, M. Torsello, G. Dimitropoulos, G.F. Bell, X. Qian, S. Mancuso, J. Monaci Naldini, and A. Tanzi.

More information available here.

In a previous post, I presented the traditional approach of the French Supreme Court in civil and criminal matters (Cour de cassation) on the applicable law to the time limit to enforce foreign judgments, which was confirmed by a judgment of 11 January 2023. But the central issue addressed by this judgment was whether the action to seek a declaration of enforceability of a foreign judgment (exequatur) was itself governed by any time limit.

Background

The case was concerned with an acte de défaut de biens issued by a Swiss authority. This peculiar act of Swiss law is a public document issued by a Swiss enforcement authority (office des poursuites) when a debtor was unable to meet its debts. The acte is an enforceable title, which as such can be enforced in other European States under the Lugano Convention.

In this case, the creditor had sought a declaration of enforceability in France of an acte de défaut de biens 15 years after it was issued in Lausanne. The debtor argued that the action to seek the declaration was time barred. The lower court had ruled that it was not, on the ground that the time limit to enforce an acte de défaut de biens was 20 years under Swiss law. In contrast, the debtor argued that the French time limit of 10 years should have been applied.

Judgment

The case raised the novel issue of the time limit to seek a declaration of enforceability, which is distinct from the issue of the time limit to actually enforce a foreign judgment in France, on the basis of such declaration.

Time Limit to seek exequatur

The Court de cassation ruled that there is no applicable time limit to seek exequatur in France. The rule is formulated in general terms, by referring to exequatur. The applicability of the Lugano Convention, and the fact that the Swiss judgment was to be declared enforceable, and not granted exequatur, is not mentionned, and seems irrelevant for the court.

French scholars debated which law should apply to the determination to the time limit to seek exequatur of a foreign judgment. But none of them had considered the possibility that there might be none. Certainly, by ruling that there is no time limit to seek exequatur of a foreign judgment in France, the court implicitly ruled that the issue is governed by French law.

In a context where the time limit applicable to the enforcement of the foreign judgment is provided by the law of the State of origin (as it is under Swiss law), the practical consequence of having no time limit to seek exequatur is limited. The creditor has no particular incentive to wait to seek exequatur, since it does not impact the time limit to enforce the judgment, which is running.

But the French rule is different. The applicable time limit to enforce a foreign judgment in France is the French 10 year time limit, and it starts running from the French exequatur decision. This means that any creditor with a foreign judgment the time limit of which is about to expire may seek exequatur in France and get a new 10 year period to enforce in France. In the foreign time limit was already quite long (for instance, 30 years in Luxembourg), the result could be to offer the possibility to the creditor to enforce the judgment for a remarkably long time period (40 years).

Should the Rule Be Different Under the European Law of Judgments?

The Lugano Convention and EU regulations on foreign judgments are silent on the time limit to seek exequatur (including, obviously, the Brussels I bis Regulation, which does not provide for any exequatur). Does that mean that there should be none, or that the issue is governed by national law? If it is governed by national law, it would seem, however, that too short a time period might not comport with the European freedom of circulation of judgments. In contrast, it is hard to criticise the French rule in that respect.

As announced on this blog, registrations for the EAPIL Winter School, which is taking place in Como between 12 and 16 February 2024, will close on 25 January 2024

Organised by the University of Insubria, in cooperation with the Jagiellonian University in Kraków, the University of Murcia and the University of Osijek, this year’s edition of the Winter School will be devoted to Personal Status and Family Relationships.

The detailed programme can be found here.

The School is aimed primarily at law graduates, law practitioners and PhD candidates with an interest in private international law, EU law and human rights law.

Those interested in attending the School are invited to submit their application through this form before 25 January 2024. The admission fees amount to 250 Euros.

For information: eapilws@gmail.com.

This blogpost is written by Stichting IJI (The Hague Institute for private international law and foreign law)

On 13 June 2023 the Amsterdam Court of Appeal addressed the scope of Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (hereinafter: Regulation 2016/1103) (ECLI:NL:GHAMS:2023:1358).

The court had to rule on the matter of jurisdiction regarding the division of real estate located in New Zealand between parties who had agreed upon the exclusion of marital property. In this post, we will discuss the court’s assessment of the substantive scope of Regulation 2016/1103 with regard to the jurisdiction of the Dutch court.

Regulation 2016/1103: Overview

Regulation 2016/1103 entered into application on 29 January 2019 following the objective of certain Member States to establish a more enhanced cooperation between themselves aimed at adopting common rules on jurisdiction, applicable law and the recognition and enforcement of decisions with regard to property regimes of international couples, covering both marriages and registered partnerships.

The Regulation has been adopted under the special regime of enhanced cooperation, as provided for by Article 20 of the Treaty on European Union (TEU) and Articles 326 to 334 of the Treaty on the Functioning of the European Union (TFEU). The territorial scope of the Regulation is therefore limitedly binding for the Member States participating in this cooperation.

According to Article 69 of Regulation 2016/1103 the regulation applies only to legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 29 January 2019.

Its substantive scope should include all civil-law aspects of matrimonial property regimes, both the daily management of matrimonial property and the liquidation of the regime, in particular as a result of the couple’s separation or the death of one of the spouses. For the purposes of the Regulation, the term ‘matrimonial property regime’ should be interpreted autonomously and should encompass not only rules from which the spouses may not derogate but also any optional rules to which the spouses may agree in accordance with the applicable law, as well as any default rules of the applicable law. It includes not only property arrangements specifically and exclusively envisaged by certain national legal systems in the case of marriage but also any property relationships, between the spouses and in their relations with third parties, resulting directly from the matrimonial relationship, or the dissolution thereof (Recital 18).

The Facts

The parties involved in this case got married in New Zealand in 1993. At that time, both parties had the Dutch nationality. Additionally, the woman had also the New Zealand citizenship. The parties lived in New Zealand and three children were born during their marriage.

Before marriage, the parties drew up prenuptial agreements in the Netherlands. The parties chose to apply Dutch law to their marital property and, regarding their marital property regime, decided on the exclusion of community of property in accordance with Dutch law.

On 31 March 1999 the man purchased a house in New Zealand. The parties lived in this accommodation from 2000 to 2008 with their three children. In 2007 the man paid off his mortgage on this property. Before relocating to the Netherlands, the parties drew up a ‘property agreement’ with regards to the house, stating that the parties were now co-owners of the property. This was necessary as the applicable Dutch marital property regime of the exclusion of community of property would not result in co-ownership over the property. In the property agreement the parties agreed on the following:

(…)

BACKGROUND

(…)

1. 1976. The parties wish to record their agreement as to the ownership of the home pursuant to Section 21(2) of the Property (Relationships) Act 1976.

AGREEMENT TERMS

1. 1. The husband declares that the home is relationship property.
   2. As from the date of this agreement the husband and the wife shall own the home as joint tenants and the husband declares that he now holds ownership of the home, as registered proprietor, as trustee for the husband and the wife accordingly.
   3. (…)
   4. Ownership of the home, and any transfer, is subject to all existing registered encumbrances, but the mortgage to the ASB Bank is to be discharged, as it has been repaid in full.
   5. This agreement is made pursuant to Section 21(2) of the Property (Relationships) Act 1976 and is specific to the home and is not attempting to determine ownership of any other property (separate or relationship) which may also be owned by the husband and/or the wife, nor does it otherwise effect the pre-nuptial agreement signed by the parties prior to their marriage.
   6. This agreement is binding on the parties in all circumstances including (…) dissolution of marriage (…).
   7. Each party:

(a) (…)

(b) acknowledges that before signing this agreement he or she has had independent legal advice as to the nature, effect and implications of this agreement.

(…)

The parties eventually got divorced on 18 November 2019 in the Netherlands.

First Instance Judgment

As an ancillary provision to the divorce petition the man requested the Amsterdam District Court to divide the property in New Zealand and to grant him compensation for his private investments in this property. The court retained itself competent to decide on this request based on Article 6 of Regulation 2016/1103. The court recognized the co-ownership of the property and applied Dutch law to the division of the property in line with the choice of law in the prenuptial agreement of the parties.

The court then ordered the sale of the property and ordered the woman to cooperate with that sale. If the woman would not cooperate, the court granted the man the power to act solely with regards to the sale of the property. In addition, the court ruled that both parties would share the revenue and would be held responsible for the costs regarding the sale. The woman appealed the court’s decision on the matter of the court’s competence and the applicable law to the division of the house.

Appeal Request

According to the woman, the Dutch court should have never considered itself competent under Article 6 (a) of Regulation 2016/1103 because that Regulation did not apply to the matter at hand. Accordingly, the Amsterdam District Court could not establish its jurisdiction based on the application of the Regulation.

According to the woman the parties shared no marital property in light of their prenuptial agreement. Therefore, the request regarding the division of the property could not fall within the scope of Articles 1 and 3 of Regulation 2016/1103. Instead, the woman argued that any community of property should be dissolved under “common” property law specifically related to proprietary rights and interests, since the marital property regime stipulated the full exclusion of community of property.

Court of Appeal Judgment

The Amsterdam Court of Appeal stated that with regard to legal claims in the field of international matrimonial property law that are brought on or after 29 January 2019, the Dutch court shall establish its jurisdiction on the basis of Articles 4 to 19 of Regulation 2016/1103. This applies even if the claim relates to a marriage that was concluded prior to this date. Materially, Regulation 2016/1103 covers “matrimonial property regimes” (Article 1(1) of Regulation 2016/1103). This includes all property relationships which, as a result of the marriage or its dissolution, exist between the spouses or in relation to third parties (Article 3 (1) (a) of the Regulation). The Court of Appeal then explained then the scope of the Regulation with regards to the property agreement at hand, as follows:

The parties entered into the Property Agreement in 2008. With this agreement the parties became co-owners of the property in New Zealand. Under subsection D of the Property Agreement, the parties recorded that they entered into the agreement “pursuant to Section 21(2) of the Property (Relationships) Act 1976.” It is further recorded under Section 5 of the Property Agreement that “This agreement is made pursuant to Section 21(2) of the Property (Relationships) Act 1976 and is specific to the home and is not attempting to determine ownership of any other property (separate or relationship) (…) nor does it otherwise effect the pre-nuptial agreement signed by the parties prior to their marriage.”

The Court of Appeal considered that the property agreement refers explicitly to the Property (Relationships) Act 1976. The Property (Relationships) Act 1976 pertains to the division of property of married couples (or cohabitating couples) in the event of divorce or death in New Zealand. In addition, the parties signed the property agreement as “husband” and “wife”. Thus, with the referral to the Act and the signing of the agreement in their official capacity as husband and wife, the parties had chosen to establish proprietary consequences through their marital status. With that in mind, the Court of Appeal established that the request for the division of the property in New Zealand falls within the scope of Regulation 2016/1103. Then, the Court of Appeal concluded that since the spouses were habitually resident in the Netherlands at the time the case was brought before the first instance court, the Dutch court had jurisdiction pursuant to Article 6 (a) of the Regulation. The fact that the property is established in New Zealand does not alter the foregoing.

Conclusion

This decision of the Amsterdam Court of Appeal clarifies the broad scope of Article 1 in relation with Article 3 of the Regulation 2016/1103 and Recital 18 of the preamble. Art 1(1) provides that this Regulation applies to matrimonial property regimes. This Article should be read in conjunction with Article 3(1)(a), which defines the notion of ‘matrimonial property regime’ as ‘a set of rules concerning the property relationships between the spouses and in their relations with third parties, as a result of marriage or its dissolution.’  The Court of Appeal explains in its decision that the Regulation 2016/1103 may apply even in cases where the marital property regime includes an exclusion of community of property. The exclusion of community of property might entail that an issue relating to assets of the spouses does not fall within the material scope of the Regulation. After all, it can be argued that there is no connection with the marriage of the persons concerned. However, if the spouses made an agreement with respect to a certain asset and opt for a property relationship as a result of – or in connection with – their marriage, the provisions of Regulation 2016/1103 may be applied for the division of such property.

As the Regulation is still quite young, it will be interesting to monitor rulings on similar subjects from the courts of the participating countries.

As announced in a previous post, a seminar series on the recast of Brussels I bis Regulation, is taking place during the 2023-2024 academic year, both in Paris at the Cour de cassation and online (in French), under the scientific coordination of Marie-Elodie Ancel (University of Paris-Panthéon-Assas) and Pascal de Vareilles-Sommières (University of Paris 1 Panthéon-Sorbonne).

The second seminar will take place on 18 January 2024 from 16.00 to 18.00 (UTC+1).

It will be devoted to the recast of the Brussels I bis Regulation’s provisions on special jurisdiction. The main topics to be discussed include jurisdiction on contractual matters, in litigation over financial damage and in disputes relating to collective redress.

The list of speakers includes David Sindres (University of Angers), Bernard Haftel (University of Sorbonne Paris Nord), Caroline Kleiner (University of Paris Cité) and Valérie Pironon (University of Nantes).

The programme, as well as registration and access details can be found here.

The recording of the first seminar (30 November 2003) is now available online.

The other seminars will take place from 16.00 to 18.00 (UTC+1) on 26 February, 18 March, 22 April, 30 May and 24 June 2024.

The seminar series is organised by the Research Centre for Private International Law and International Trade (CRDI, University of Paris Panthéon Assas) and the Sorbonne Department Study of International Private Relationships (SERPI, University of Paris 1 Panthéon-Sorbonne), together with the Société de Législation Comparée (SLC), the French national school for the judiciary (ENM) and the French Supreme Court for civil and criminal matters (Cour de cassation).

On 12 January 2024, the United Kingdom signed the Hague Convention of 2 July 2019 on the recognition and enforcement of foreign judgments in civil or commercial matters. As reported by Ugljesa Grusic on this blog, the UK government had announced some weeks ago its intention to move towards joining the Convention.

The next step will consist for the UK in ratifying the Convention.

The Convention will then enter into force for the UK pursuant to Article 28(2), that is, “on the first day of the month following the expiration of the period during which notifications may be made in accordance with Article 29(2)” with respect to the UK.

The notifications referred to in Article 29(2) are statements whereby a Contracting State may inform the depositary, within twelve months, that the ratification of another State (the UK, in the circumstances) “shall not have the effect of establishing relations between the two States pursuant to this Convention”. In practice, Contracting States may decide that they will not be bound by the Convention vis-à-vis any State that would later join the Convention. The Convention is currently in force for the European Union and Ukraine (since 1 September 2023), and is set to enter into force for Uruguay on 1 October 2024. None of the latter States is expected to make use of this opportunity as regards the UK.

The eighteenth annual bibliography of private international law, compiled by Symeon C. Symeonides, Willamette University, is now available.

The bibliography lists 124 books and 288 journal articles on private international law or conflict of laws and related fields, such as prescriptive jurisdiction, extraterritoriality, federal-state conflicts, as well as certain aspects of arbitration, the law of foreign relations, and international human rights.

The books and articles included in the list appeared in print in 2023, in English.

The bibliography has been posted on SSRN and can be found here.