EAPIL blog

Zohra Mchirgui (University of Tunis) has published a monograph on Exclusive Choice of Court Agreements under the 2005 Hague Convention (L’accord exclusif d’élection de for à travers la Convention de La Haye de 2005). The book is a revised version of the doctoral dissertation that she defended at the University of Luxembourg a few years ago (disclosure: under my supervision).

The project of the book is to assess the efficacy of choice of court agreements under the Hague Convention. It focuses on the jurisdictional rules of the Convention, that is the rules governing the validity and the effects of choice of court agreements, but does not deal with the enforcement of judgments.

Among the many issues of interpretation that are covered in the book, Ms Mchirgui discusses the meaning of “manifest injustice” under Art 6(c) of the Convention and argues that it should be limited to violations of the right of access to court. She also discusses the weird reference to public policy in the same provision (which is typically used to confront the application/recognition of foreign norms with the values of the forum) and argues that it should be lead to an assessment of the probability of the application by the chosen court of norms protecting the same values as the overriding mandatory provisions of the non chosen court.

For more details on the book and free access to the first pages, see here.

On 30 June and 1 July 2022 the University of Amsterdam will host the 4th International Class Action Conference.

The conference is organized by a team from the University of Haifa, the University of Tilburg and the University of Amsterdam, in collaboration with other institutions. The theme of this year’s conference is From Class Actions to Collective Redress: Access to Justice in the 21st century.

A broad range of issues will be addressed in the conference, including issues that specifically relate to cross-border situations.

The Conference will bring together a diverse range of international expertise in collective redress, and is intended to act as a forum for the sharing of experiences and knowledge.

See here for the full programme and practical details.

A new book on civil enforcement entitled Civil Enforcement in a Comparative Perspective by Wendy Kennett (Senior Lecturer in Law at Cardiff University and Founding Chair of the Bailiff Law Reform Group (BLRG), now the Enforcement Law Review Group) has been published with Intersentia.

This work by Kennett is particularly important because it concerns an area – civil enforcement – where few scholars conduct their research. Additionally, literature is very limited when it comes to works choosing a comparative format to the topic.

Enforcement officers (bailiffs) are part of the machinery of justice and exercise state authority, yet their role and regulation have been subjected to little academic scrutiny until now. This is surprising given that they exercise state authority and, in most jurisdictions, have extensive access to information about debtors, as well as significant coercive powers. Across jurisdictions different institutions have been in charged with carrying out civil enforcement: courts, officers under the supervision of the courts but external to them, administrative agencies, independent professionals and even freelance certificated agents. The functions that these institutions undertake often extends beyond the enforcement of judgments and other enforcement titles: in some countries they can issue payment orders, or act as administrators in bankruptcy; they may play a significant role in the amicable recovery of debts, or be involved in debt restructuring procedures; they may be limited to the enforcement of civil judgments and authentic instruments, or also collect taxes and other public law debts. In the latter case, mass processing requirements shape the character of the enforcement institution.

The book seeks to expose to view this fertile research territory. In doing so, it sets out two objectives. First, to highlight and explain the diversity of bailiff organisations in Europe. Second, to ask how far governments are taking responsibility for the public management of enforcement activities in the light of their impact on citizens and the increased significance attributed to personal autonomy and financial capability in the ‘neoliberal’ era. In this latter context, attention is paid to the influence of public management trends over the last thirty years and to questions of digital government and data protection.

The text is addressed to academics and policy makers interested in domestic and cross-border enforcement of judgments and orders, the regulation of the legal profession, comparative law and comparative public management – particularly in the context of the administration of justice. It also contains information of relevance to scholars of institutional theory, competition law, transnational public policy transfer and social policy in the area of debt and poverty. The legal systems addressed include Austria, Belgium, France, Germany, the Netherlands, Poland, Slovenia, Spain, Sweden, Germany, and Central and Eastern European Countries.

Christopher A. Whytock (University of California at Irvine School of law) has posted Transnational Litigation in U.S. Courts: A Theoretical and Empirical Reassessment on SSRN.

The abstract reads:

It is widely claimed that the level of transnational litigation in U.S. courts is high and increasing, primarily due to forum shopping by foreign plaintiffs. This “transnational forum shopping claim” reflects the conventional wisdom among transnational litigation scholars. Lawyers use the claim in briefs; judges use it in court opinions; and interest groups use it to promote law reform.

This article reassesses the transnational forum shopping claim theoretically and empirically. It argues that despite globalization, there are reasons to doubt the claim. Changes in procedural and substantive law have made the U.S. legal system less attractive to plaintiffs than it supposedly once was. Meanwhile, other legal systems have been adopting features similar to those that are said to have made the United States a “magnet forum” for foreign plaintiffs, and arbitration is growing as an alternative to transnational litigation. Empirically, using data on approximately 8 million civil actions filed in the U.S. district courts since 1988, the article shows that transnational diversity cases represent only a small portion of overall litigation, their level has decreased overall, and U.S., not foreign, plaintiffs file most of them. The data also reveal that federal question filings by foreign resident plaintiffs are not extensive or increasing either.

These findings challenge the transnational forum shopping claim and law reforms based on it, and suggest that it should no longer be used by lawyers, judges, and scholars. The article’s analysis also suggests new directions for transnational litigation as a field of scholarship that would move it beyond its current focus on U.S. courts toward a focus on understanding the dynamics of transnational litigation in global context.

The paper is forthcoming in the Journal of Empirical Legal Studies.

While reflecting once more about the efforts to reach a forum-ius parallelism via interpretation of the grounds for jurisdiction and the connecting points of the conflict of laws rules (not be the best way to get to it), I found a piece of news about a new Memorandum of Understanding on cooperation on information about foreign law.

MoUs of this kind are indeed not unknown any longer – albeit not used in Europe. What makes this one special is that it has been entered into by the Supreme Court of Singapore and the Supreme People’s Court of China.

A MoU on guidance on the recognition and enforcement of money judgments in commercial cases exists already since August 2018.

The MoU on foreign law was signed at the 5th Singapore-China Legal and Judicial Roundtable held on 3 December 2021. According to the information given by the official website of the Singapore Supreme Court, the MOU establishes a mechanism between the two courts to determine questions of law of the other jurisdiction in international civil and commercial cases. It came into effect on April 3rd. The text, consisting of 17 provisions, is detailed regarding language and deadlines for the transmission of the requested information – always in relation to ongoing proceedings, and with no identification of the parties concerned-, but does not goes into other important issues such as costs. It can be downloaded here: memorandum-of-understanding-between-the-supreme-court-of-singapore-and-the-supreme-people’s-court-of-the-people’s-republic-of-china.

Although not a political commitment, this MoU can be considered as another evidence of the ties between Singapore and China and the progress made in bilateral cooperation despite the COVID-19 pandemic, including in traditional areas of cooperation ranging from trade and investment to financial cooperation. Actually, on December 29, 2021, 14 MoUs were signed ranging from strengthening cooperation in finance, exchange of trade and customs information, competition law, urban governance and planning, nature conservation to maritime safety.

As the readers of this blog know, the EAPIL founding conference will take place in Aarhus on 2, 3 and 4 June 2022.

There are just a few days left for registering. Those wishing to attend the conference are invited to fill in the form available here by 1 May 2022, at the latest.

The full programme of the conference, together with practical details on how to get to Aarhus, and where to stay, can be found in the conference own webpage.

See you soon in Aarhus!

This post was contributed by Yuliya Chernykh, who is associate professor in law at the Inland Norway University of Applied Sciences (campus Lillehammer).

Addressing incidental issues in a blog post for the European Association of Private International Law feels like bringing a topic ‘back home’. Indeed, incidental or preliminary issues are a well-known concept and a classical entry in encyclopedias in private international law. The concept begs a question that must be resolved before the main issue, and is recognisable in private international law because of a choice-of-law puzzle it raises.

Conceptualising incidental issues in investment treaty arbitration is not that ‘at home’. The system (if it can be called a system in the first place) is not premised on domestic courts but on an uncoordinated variety of arbitral tribunals. These tribunals, working under institutional and ad hoc arbitration rules, build their jurisdiction based on bilateral and multilateral treaties on investment protection (to date, more than 3,000 treaties), and apply treaty provisions to resolve investment disputes. All these disputes (to date, more than 1,100 disputes) are about State responsibility under international law because of breaches of standards on investment protection, such as unlawful expropriation, violations of full protection and security, fair and equitable treatment, most-favoured-nations treatment, umbrella clauses and some other standards of investment protection contained in relevant treaties. The public international law framework of investment treaty arbitration complicates the application of national law (also frequently referred to as domestic or municipal law) and the relevance of conceptual frameworks based on private international law perspectives as a result.

What suggests then that the concept of the incidental issue might bring some value for investment treaty arbitration? Or more precisely, what makes it to suggest that treaty-based tribunals should realise that contract interpretation is an incidental issue, and apply national law to it?  I give detailed answers in my Open Access monograph in – Contract Interpretation in Investment Treaty Arbitration: A Theory of the Incidental Issue. Here, I will present a summary of some observations.

To understand the value, one must be aware of the challenges that investment treaty arbitration experiences, on the one side, and the advantages that the concept of the incidental issue provides, on the other side. The challenges are about failures to apply national law to issues traditionally governed by it and overall concerns about the correctness and quality of decision-making and legal reasoning surrounding these issues. The advantages are about structuring decision-making and legal reasoning and ensuring that questions governed by national laws are treated as they should be with the application of the relevant national law. Relying (by analogy) on the concept of incidental issue to approach national law issues in investment treaty arbitration, tribunals ensure that they do not assimilate or unduly substitute their analysis in relation to these issues by other efforts that are not informed by applicable national law. More importantly, if tribunals would approach questions traditionally governed by national law as incidental issues, they would not overlook application of national law.

The frequency of reoccurrence of national law issues in investment treaty arbitration explains why conceptualisation matters as a matter of practice. While public international law sets a general framework for how treaty-based disputes are to be resolved, it does not apply to those questions that come into existence under national laws and are governed by them. Treaty-based tribunals regularly decide on issues relating to existence, transfer, validity, and scope of rights arising from property or contracts; they may also need to consider if a legal entity exists and what capacity it has. Neither property nor contracts or legal entities come into existence as a matter of public international law. These issues are governed by national law only. There could be hundreds of other issues pertinent to various aspects of relationships and status that are not governed by public international law in the first place and require decisions to be made under national laws.

Despite its theoretical and practical attractiveness, the usefulness of approaching national law issues in investment treaty arbitration as the incidental issue has not gained much attention. Some earlier calls may be found in the work of Zachary Douglas – The International Law of Investment Claims (CUP 2009). No voice has so far advocated the conceptualising of contract interpretation as an incidental issue, possibly because incidental issues in private international law are normally more palpable questions often described as addressing/capturing relationships or status. Instead of focusing on the existence of relationships or status, contract interpretation rather depicts the process of ascertaining the content of contractual provisions and its result.

While less discernible, there are still good reasons to treat contract interpretation as an incidental issue. These reasons are essentially the same as articulated earlier. When treaty-based tribunals interpret treaties, there are no doubts about the relevance of the provisions on treaty interpretation contained in Vienna Convention on the Law of Treaties. When treaty-based tribunals ascertain the content of contractual provisions, no complexity shall arise in taking into account applicable national regulations of contract interpretation. Similar to contract validity, contract termination and contract performance, contract interpretation is governed by national law. It is not governed by international law. Jurisdictions differ in the way that they approach contract interpretation and the choice of applicable national law may impact the outcome of the interpretative exercise. My empirical investigation, however, reveals that in 47% of cases, tribunals have not (expressly) relied upon national law in their attempts to ascertain the content of contractual provisions. Conceptualising contract interpretation as an incidental issue accordingly enables one to preserve the analytical distinction between ascertaining the content of contractual provisions under national law and oversimplified assimilation of this analytical activity to fact-finding and other analytical efforts not informed by national laws. In other words, the proposal ensures application of national law to contract interpretation, advances the correctness of the decision-making and reasoning, its predictability and overall quality.

The suggestion is not trivial and can make a difference for a notable portion of cases that appear in investment treaty arbitration. Contracts frequently play a central role in treaty-based disputes. Their premature termination, a failure to prolong, or otherwise observe may trigger State responsibility under relevant treaties for investment protection. Overall, my empirical study of 573 awards reveals a broad variety of contracts that appear in investment treaty arbitration and necessitate interpretation, such as agreements about concessions, construction, credit, electricity purchase, lease agreements, pledge agreements, privatisation, etc. Numerous contractual clauses may necessitate ascertainments, such as limitation of liability clauses, termination clauses, penalty clauses, stabilisation clauses, exclusivity clauses, etc.

Finally, contract interpretation as the incidental issue fits neatly into the overall structure of decision-making in investment treaty arbitration. By way of example, when tribunals need to decide if expropriation of contractual rights has taken place because of premature contract termination by a State in the exercise of its sovereign powers, they inevitably need to engage with contractual provisions on termination. The question which they typically have to answer is whether a State has contractual grounds for terminating contracts. This question precedes a general conclusion about whether the expropriation of contractual rights has taken place. Contract interpretation of the contractual provisions on termination would appear to be the incidental issue of the second order in this analysis, whereas the question as to whether a termination was allowed under the contract would appear to be the incidental issue of the first order.

–

Vigotop v. Hungary, while not using the concept of incidental issue, illustrates the structure of decision-making, the role of contract-related questions under national laws, and the overall suitability of approaching contract interpretation as an incidental issue (Figure 7 on page 340 of my book: Illustration Chernykh).

To sum up, it appears that private international law has much to offer to the decision-making and legal reasoning within the public international law framework. This yet is another opportunity to look at the convergence between both, a topic that is gaining increasing attention, and rightly so. We may all benefit from symposium posts hosted by the European Association of Private International Law, brainstorming potentials, and pitfalls of convergence and divergence between private international law and public international law.

The new issue of the Revue Critique de Droit International Privé (1/2022) is out.

In an opening article, Paul Lagarde pays tribute to the memory of Pierre Gothot (1936-2021).

The editorial by Horatia Muir Watt (Sciences Po), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on Dalloz website (Amicus librorum).

The new issue contains three articles and numerous case notes.

In the first article, Harith Al-Dabbagh (University of Montreal) examines the question of cross-border circulation of foreign Islamic divorces in Quebec (Effet au Québec des divorces étrangers non dotés de l’exequatur – Le cas des divorces islamiques).

The English abstracts reads:

The mobility of individuals and families is constantly increasing. The objective of private international law is to ensure the stability and permanence of their personal and family status across borders. In a land of immigration such as Quebec, many people are getting their divorce elsewhere or settling there after a divorce pronounced abroad. The question of the recognition of divorce and its effects, independently of any exequatur procedure, is thus acutely raised. The issue has given rise to contradictory answers from the doctrine and jurisprudence. Focusing on Islamic divorces, the author attempts to determine the circumstances in which foreign divorce decisions become internationally effective in Quebec independently of any courts’ review of their legality. The study reveals that the dissolution of marriage carried out in Islamic lands frequently comes up against the border phenomenon.

In the second article, Christine Bidaud (University of Lyon 3) analyses the recent French reform concerning the probative value of foreign civil status records, in the light of French and ECtHR caselaw (La force probante des actes de l’état civil étrangers modifiée par la loi bioéthique : du sens à donner à l’exigence de conformité des faits à la réalité « appréciée au regard de la loi française »).

The English abstracts reads:

A new bioethics law was passed on August 2, 2021, in France. Most of the discussions focused on the opening of medically assisted reproduction to female couples and single women, the possibility of identifying a gamete donor, research on human embryos, and other issues of genuine bioethical concern. As for surrogate motherhood, the subject has been introduced more surreptitiously into the debates: the aim was to break the jurisprudence of the Court of Cassation regarding the transcription of foreign birth certificates for children born as a result of surrogacy.

In the third article, Marion Ho-Dac (University of Artois) explores the interplay between EU consumer law and EU private international law, taking the example of the jurisdiction over consumer contracts (Du dialogue interprétatif entre droit (matériel) de la consommation et droit international privé de l’Union – L’exemple du « for du consommateur »).

The English abstracts reads:

The EU consumer law acquis could occasionally be a source of inspiration for EU private international law in order to resolve conceptual uncertainties or fill gaps. This approach has already been followed by the Court of Justice of the European Union, with regard to the notion of consumer in the field of international jurisdiction, opening up a significant interpretative dialogue between substantive EU consumer law and EU private international law. However, the case law of the Court of Justice is far from being clear and uniform in the field, giving rise to theoretical confusion as well as legal unpredictability in B2C relationships. Against this background, the features and merits of an interpretative dialogue between consumer law and private international law in the EU legal order must be analysed. The study proposes, inter alia, to introduce an interpretative test into the reasoning of the Court of Justice based on the requirement of “systemic coherence of EU law”, in order to assess in a systematic way whether or not an intertextual analogy between substantive (consumer) law and EU private international law is appropriate.

More information is available here.

Cedric Hornung has published an inspiring book , titled Internationales Privatrecht zwischen Wertneutralität und Politik (Mohr Siebeck, 2021), about a fundamental tension underlying Private International Law.

On the one hand, the discipline is meant to be value-neutral, in the sense that it admonishes the judge to abstain from evaluating national legal systems before applying them. On the other hand, conflicts rules have become increasingly charged by politics in the last decades, as illustrated, e.g., by the special rules on the protection of consumers in Rome I and the environment in Rome II, or the discussions about the recognition of same-sex marriages or surrogate motherhood. Against this background, Hornung asks the – apparently rhetorical – question whether a private international law free from politisation is at all possible.

The book has been published in German. The author has kindly provided us with the following English summary:

The first main chapter seeks to provide terminological clarity on the meaning of “value-neutrality” and “politics” in the context of private international law. With the help of political concepts by essential theorists such as Aristoteles, Hannah Arendt and Jacques Rancière, the author concludes that two main elements characterise the modern understanding of this field of law: pluralism and internationalisation. When­ever a conflict-of-law rule itself or the underlying motivation reflects a unilateral or national perspective, the idea of an apolitical PIL is abandoned. Still, some instruments have been implemented in the European choice-of-law process despite their political background – the ordre public and the idea of overriding mandatory provisions are just two instances of such generally-accepted perforations. However, the author underlines that these political mechanisms need to respect certain boundaries within their politicisations so as to not completely impede the indented value-neutrality.

The second main part deals with the evolution of political and social incitements when it comes to determining the applicable law in past epochs. Starting with the antique ius gentium and moving on to cross-border legal practice in the Middle Ages, the author examines in which way territorial intentions in particular have played a central role for centuries. With regard to the late statutists, he illustrates that regional interests overlayed the conflict between municipal laws even in cases where universal rules had seemingly been established. Following, modern conceptions of PIL are presented: The author points out that, although often being named as the “father” of modern conflict of laws, Friedrich Carl von Savigny did not manage to globally exclude social, economic, and power-related reasons from his image of the “seat of the legal relation”. Then again, the “nationality rule” of his Italian counterpart Pasquale Stanislao Mancini should not be misinterpreted as purely nationalistic procedure – just like some of the approaches from the North American continent. From a German point of view, a depoliticization of the choice of law has only been realised in the PIL reforms of 1986 and 1999 where virtually no unilateral argument came into effect. On the contrary, the author closes the chapter with a glance at the Europeanisation of this field of law which quite regularly resurrects biased explanatory models.

Subsequent to the historical analysis, the view shifts towards recent developments: On the basis of the infamous Art. 10 of the Rome III Regulation and Art. 13 al. 3 of the German EGBGB (Introductory Act to the Civil Code), the author documents the current tendency to stigmatise some legal orders as per se irreconcilable with European ideals. By embodying this trend, these provisions deny a genuine value-neutrality and superimpose a classification ex ante. How social and protective measures can be incorporated into the conflict of laws without a fundamental breach with its principles is explained in matters of human rights: Thanks to their – at least theoretical – universality, they are suited as gateway for political concerns in the search for the applicable law. Particularly in international supply chains, PIL ought to defend these essential guarantees at an early stage of the legal treatment.

The Radboud University Nijmegen is organising a hybrid conference on 9-10 June 2022 dedicated to The Role of Courts and Access to Justice in the Digital Era. The programme of the event can be consulted here.

The conference is a collaboration of three groups of researchers based at Radboud University: the Institutions for Conflict Resolution group, the Digital Legal Studies group and the Interdisciplinary Hub on Privacy, Security and Data Governance (iHub), and it is made possible also with the support of the Digital Legal Studies Sectorplan and Radboud University.

The theme of the event is triggered by the European Union and national governments emphasis on the need for and benefits of digitalisation of justice. Digitalisation is meant to ‘modernise’ the conduct of judicial procedures. However, there is little reflection on what such ‘modernisation’ entails – beyond saving time and costs – and why a ‘modernised’ procedure is preferable to a ‘traditional’ procedure. In addition, the overall impact of digitalisation of justice on access to justice remains unaddressed: what kind of (access to) justice are governments building? In turn, this requires to examine whether digitalisation of justice changes or indeed transforms – as the concept of ‘digital transformation’ claims – the nature of the justice system, and whether these changes are always positive or desirable. Some even argue that beyond ‘modernisation’ or ‘transformation’, the current reforms amount to a ‘digital revolution’.

Digitalisation is often viewed as a key condition to ensuring effective justice in the modern era, enhancing ‘resilience’ of justice systems. It presumably helps tackle delays, enhance legal certainty, and make justice cheaper and more accessible for all. At the same time, challenges associated with digitalisation are highlighted, such as ensuring access for disadvantaged groups to digital technologies, the impact of digital technologies on fundamental rights and procedural justice, and ensuring security and privacy of digital solutions. The emergence of new technology brings with it the need for ongoing assessment of its impact.

For this purpose the conference brings together about 60 researchers from approximately 30 countries to critically assess the process of digitalisation of justice systems and the evolving role of courts in the digital era in Europe and beyond.

Further information about the conference can be found here. Registration is available here.

In a judgment of 11 May 2021 (Stetsov v. Ukraine; final version: 11 August 2021), the European Court of Human Rights (ECtHR) ruled on whether commercial claims may be enforced by restraining the debtor from leaving the country which ordered the payment of the claim. It found that, in principle, enforcing commercial claims through such restrictions was compliant with the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention), but that the restriction in the case at hand was disproportionate and thus justified the finding that Ukraine had violated the Convention.

Mr Stetsov, a Ukrainian national and resident, granted a personal guarantee to a bank that a company would reimburse a loan of USD 1.5 million. After the company defaulted, the bank sued Stetsov for payment in Ukrainian courts. The Court of Appeal of Kharkiv and a Ukrainian superior court eventually ordered Stetsov to pay about USD 950,000 and additional sums in hryvnias (Ukrainian currency) in judgments rendered in 2014.

As Stetsov would not pay, enforcement officers applied to courts in Kyiv for an order prohibiting Setsov from leaving Ukraine until full payment of the claim. The Kyiv Court of Appeal granted the remedy at the end of 2014, on the grounds that Stetsov knew about the judgment, and had not made any effort to start paying the judgment in four months.

Stetsov applied to replace the measure by establishing a payment of 20% of his monthly salary. The alternate remedy was established, but enforcement officers refused to lift the restriction until full payment of the judgment.

Stetsov sued Ukraine before the ECtHR.

Ukraine has ratified Protocol No. 4 to the Convention securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto, which provides

Article 1 – Prohibition of imprisonment for debt
No one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation.

Article 2 – Freedom of movement
1 Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2 Everyone shall be free to leave any country, including his own.
3 No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
4 The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.

Both parties agreed that Mr Stetsov suffered a restriction to his freedom of movement. They also agreed that such restriction was provided by law (a Ukrainian statute, the legal basis has changed since then) and served a legitimate goal, which was “the protection of the rights of others”. The ECtHR agreed.

The only debate between the parties was thus whether the restriction was proportionate. The ECtHR ruled that after a short initial period, the restriction could only be maintained after finding that the restriction could serve its purpose, i.e. ensuring the payment of the debt.

In this case, the ECtHR found that the decision of Ukrainian enforcement authorities was that the restriction could only be lifted after full payment of the debt. The ECtHR concluded that the restriction could thus not be reviewed to assess whether it was still justified, which made it a disproportionate restriction to the freedom of movement of the applicant.

The applicant sought EUR 10,000 in compensation for its ‘prejudice moral’. The ECtHR generously awarded him EUR 1,000.

Some will find it disappointing that the ECtHR did not condemn more vigorously the use of restrictions to the freedom of movement for the purpose of enforcing civil and commercial claims (French human rights scholar Margenaud has made it clear in a short commentary he has written on this case). It seems, however, that the comparison between Articles 1 and 2 of the protocol makes it clear that legislative intent was not to ban restrictions from leaving a territory, but rather to give significant discretion to the Contracting States.

In contrast, imprisonment for the purpose of paying a debt seems to be banned in principle, irrespective of the proportionality of such remedy. An interesting question is whether the prohibition would extend to imprisonment for failing to comply with an injunction aiming at securing the payment of a debt, such as a Cyprus or Irish Mareva injunction.

A series of online seminars has been in launched in December 2021, organised by the team of the Vici project Affordable Access to Justice at the Erasmus School of Law: the general topic is Trends and Challenges in Costs and Funding of Civil Justice.

The next seminar in the series is scheduled for 20 April 2022 (14-16 CET) under the title Austerity policies and litigation costs reforms.

The relationship between access to justice, efficiency of courts, and litigation costs has never been an easy one. Yet, finding a proper equilibrium has never been more challenging than in recent times. The EU economic crises of the last decade and austerity policies deeply impacted justice budgets in several EU Member States and triggered justice reforms, particularly in the area of litigation costs. Building on the experiences of three EU jurisdictions that have been greatly affected by such developments (Greece, Portugal, and Spain), the seminar will assess the impact of austerity measures on access to justice.

The speakers are Panagiotis Perakis (Vice President CCBE), Paula Costa e Silva (Lisbon University) and Fernando Gascón Inchausti (Complutense University of Madrid).

Register here to attend the event.

This post was contributed by Vincent Richard, who practices with Wurth Kinsch Olinger in Luxembourg.

On 7 April 2022, the Court of Justice delivered its judgment in case C‑568/20, J v. H Limited on the recognition in Austria of an English summary order to pay a debt recognised in a third State judgment. The case shows that the prohibition of “double exequatur” can be circumvented by resourceful litigants.

H Limited, a banking institution, obtained two judgments in Jordan in 2013 ordering J. to reimburse a loan. These judgments were subsequently presented to the English High Court of Justice which issued an order after summary proceedings stating that the debtor had to pay to the bank, a sum equivalent to what the Jordanian decisions ordered. The decision was issued in March 2019 when the country was still a Member State of the EU. This English summary order is not a direct recognition or enforcement of a foreign judgment but an English decision on the merits taking into account the foreign judgment’s res judicata. Consequently, the English court also issued the certificate referred to in article 53 of Regulation n° 1215/2012 for that summary judgment.

The creditor of judgment then tried to enforce this English summary order in Austria where the debtor resides. This action was successful at first. The Austrian first instance court authorised enforcement of the English order and, on appeal, the Austrian Regional Court of Linz dismissed the debtor’s arguments challenging the decision.

The debtor then appealed on a point of law before the Austrian Supreme Court, which in turn addressed three questions to the Court of Justice. In essence, those three questions aim to determine whether the English summary order issued based on the foreign judgment’s res judicata should be considered as a “judgment” according to Regulation n° 1215/2012 and whether it should be recognised in Austria.

Following the opinion of Advocate General Pikamäe, the Court of Justice declared that the English summary order is indeed a judgment according to art. 2a) and art. 39 of the Brussels I a) Regulation but it leaves open the possibility of challenging the compatibility of the summary order with Austrian public policy.

The Court of Justice underlines that mutual trust implies a broad understanding of the notion of “judgment” in the Regulation. Any decision under national law is considered a judgment under the Regulation as long as the procedure leading to the judgment is adversarial in nature. This criterion is itself interpreted broadly (see C-394/07 Gambazzi and particularly AG Kokott’s opinion in the case). Besides that, article 2a) and chapter III of the Regulation leave no margin of interpretation to exclude judgments because of their content as long as they do not fall within the matters excluded from the scope of the whole regulation defined by article 1.

Consequently, the CJEU declares that the English summary order issued based on two Jordanian judgments is a decision susceptible to be enforced according to Brussels I a).

At first glance, the decision of the Court of Justice is concerning because it opens the door to forum shopping tactics for foreign judgments creditors. What is peculiar in the case at hand is that the English summary order is barely distinguishable from a judgment enforcing a foreign judgment. And as the French would say “exequatur sur exequatur ne vaut” meaning that the recognition procedure does not apply to a decision that itself recognises a foreign judgment. Only the original foreign decision on the merits may be subject to recognition. This principle is explicitly mentioned by the Austrian Court in its request for a preliminary ruling. The logic of this reasoning is that the court of the requested State may only check that the judgment is eligible for recognition if it can read the judgment itself and not the appreciation of that judgment made by another court. This reasoning is all the more valid within the Brussels I system because it ensures a clear distinction between judgments originating from other Member States, which should be recognised broadly under uniform conditions and judgments originating from third States. For the latter, Member States remain free to define the conditions applicable to recognition and enforcement. Ruling otherwise would allow the creditors of the foreign judgment to try to have their judgment recognised in the State which is the most open to foreign judgments and to then bypass stricter requirements in the Member State where the debtor has assets. In the present case, it could be argued that the English procedure was used as a Trojan horse to enter Austria. However, the Brussels I a) Regulation does not explicitly exclude this scenario.

The Court of Justice leaves open the possibility of refusing recognition of the English decision by challenging its compatibility with public policy. The Court of Justice states that recognition could be refused if the debtor manages to convince Austrian courts that he was unable to challenge, in the English procedure, the merits of the claim brought forward in Jordan. In essence, this argument amounts to considering that if the English judgment is a genuine English judgment, then there must have been a possibility for an adversarial debate on the merits. In the first part, the CJEU ruled that the English order was a judgment under the Regulation even though it was based on two Jordanian decisions. Therefore, the English judgment must be compatible with the public policy of the requested State regardless of the content of the Jordanian decisions. Or to put it the other way around, if the English proceedings lead to a European decision, then the English proceedings alone must conform to European standards.

Finally, it must be pointed out that a simpler way to address similar issues would be for the debtor to pre-emptively seek a declaration of non-enforceability of the foreign decision in the Member State of enforcement when this is possible. Then, this decision could be used to block enforcement of the State of origin’s decision under article 45 1) d) of the Regulation on irreconcilable decisions. There may be good reasons why this possibility was not considered in the present case though.

Toni Marzal and George Pavlakos (both from University of Glasgow) posted recently on RSSN their article titled A Relations-First Approach to Choice of Law.

The article forms part of the forthcoming volume Philosophical Foundations of Private International Law edited by Roxana Banu, Michael Green and Ralf Michaels to be published by Oxford University Press. The volume is an outcome of an interdisciplinary project carried under the same title. As underlined by Roxana Banu:

PIL situates virtually every legal topic in a different, transnational and pluralistic context. It is therefore hard to comprehend why a philosophical inquiry has thus been far lacking. We seek to penetrate the long-standing isolation existing between the two disciplines and investigate the many opportunities for mutual enrichment.

The abstract of the article reads as follows:

The question of applicable law remains central in the doctrine and practice of private international law (PIL), raising a host of disagreements around the criteria that govern its determination. Paradoxically, this question is commonly approached through a positivist lens, whilst at the same time being guided by a commitment to individual autonomy. In this paper we propose, against mainstream practice, to frame the issue of applicable law as involving a series of questions about relational morality, which ought to be answered independently of any established legal order, and from a concern for the common good. We will proceed in four parts. First, we will demonstrate that a purely positivist understanding fails to properly account for today’s practice, given its propensity to exclude normative considerations as irrelevant to the determination of legal facts, whilst at the same time resorting to such considerations under the cover of hopelessly circular reasoning – a failure that is particularly manifest in the context of PIL. Second, we will show how current PIL tends to accomplish this operation by smuggling into legal reasoning a pre-institutional notion of individual autonomy, which implicitly guides the determination of applicable law, and is divorced from any considerations of relational morality (as well as from ideals of the common good that are left to the ex-post intervention of institutionalised legal orders). Third, we emphasise the independent value of addressing the question of legal relations in pre-institutional terms and propose a fresh way of understanding the legality of such relations among private parties, on the basis of a revised reading of Savigny and Kantian right, as key to the determination of the applicable law. Finally, we explore the downstream implications of our relations-first approach, by considering the topical question of applicable law to claims against parent/buyer companies for the harm caused by their subsidiaries/providers overseas.

The final conference of the JUDGTRUST project on the application of the Brussels I bis Regulation will take place in the Hague (and on-line) on 21 and 22 April 2022, organised by the Asser Institute with the University of Hamburg, the University of Antwerp and the Internationaal Juridisch Instituut.

The conference concludes a two-year project on the correct and consistent application of the Regulation. The research findings of the project will be presented and the conference will provide an opportunity to share knowledge amongst academics, legal practitioners and legislators on how to achieve a greater consistency among various instruments in order to enhance the legal certainty, predictability and access to justice in cross border legal transactions.

The conference will offer an opportunity to discuss about the interpretation of the Regulation; the difficulties in the application and interpretation of the Regulation by State courts; consistency within the European private international law system, and possible solutions.

Speakers include Michał Gondek (European Commission), Markus Tobias Kotzur (University of Hamburg), Vesna Lazić (Asser Institute, Utrecht University), Burkhard Hess (MPI Luxembourg), David Althoff (The Hague Institute of Private International and Foreign Law), Louise Ellen Teitz (Roger Williams University School of Law, Bristol, Rhode Island), Wolfgang Hau (Ludwig-Maximilians University of Munich), Antonio Leandro (University of Bari), Michiel de Rooij (Asser Institute), Javier Carrascosa González (University of Murcia), Gilles Cuniberti (University of Luxembourg), Fieke van Overbeeke (The Hague Institute of Private International and Foreign Law), Mukarrum Ahmed (University of Lancaster), Jachin Van Doninck (Free University Brussels), Luis de Lima Pinheiro (University of Lisbon), Lisette Frohn (The Hague Institute of Private International and Foreign Law), Beatriz Añoveros Terradas (University of Barcelona), Pontian Okoli (University of Stirling) and Francesca Villata (University of Milan).

The full programme is available here. See here for registration.

Ansgar Ohly (Ludwig Maximilian University Munich) wrote an interesting article addressing matters of jurisdiction and choice of law in trade secrets misappropriation cases. The article entitled Jurisdiction and Choice of Law in Trade Secrets Cases: the EU Perspective has been published in an Edward Elgar Research Handbook on Information Law and Governance edited by Sharon K. Sandeen, Christoph Rademacher and Ansgar Ohly. A version of the paper is now available for free consultation on SSRN.

The abstract reads as follows:

Trade secrecy law is a hybrid between intellectual property and unfair competition law. This makes the characterisation of trade secrecy law for the purposes of private international law difficult. This paper argues that neither the EU conflict of law rules for unfair competition law nor those for IP law can be applied, but that a sui-generis solution is called for.

The paper is structured around two parts: one dedicated to determining jurisdiction in trade secrets cases – Part II – and another to applicable law – Part III.

The analysis is systematic and starts from matters of jurisdiction in tort or contract cases, discussing the Bogsitter case (C-548/12) and Wikingerhof case (C-59/19; the judgment was not yet given by the CJEU), Trade Secrets Directive (Directive (EU) 2016/943), and looking at the place where ‘the harmful event occurs’.

For applicable law, the EU provisions seem to force the courts to address the difficult question of whether the protection of trade secrets is a part of intellectual property or of unfair competition law.

One of the problematic aspects of the analysis is related to the specificity of trade secrecy that usually involves a chain of events which consists of the acquisition, the disclosure, and the use of the information.

All of these acts are separate acts of infringement, but at the same time they are related (see the “cascade of liability” established by Article 4 Trade Secrets Directive).

Hence, the question is whether these acts should be dealt with separately for the purpose of establishing jurisdiction and determining the applicable law or whether the entire dispute should be handled by one forum based on one applicable law or other sui generis solution should be considered.

Since the Millennium, public interest litigation has become a growing phenomenon in civil courts. Activists and NGOs are filing civil lawsuits, both domestic and cross-border, in order to promote societal and political shifts.

Typical examples are (business and) human rights claims, environmental claims, climate change litigation but also cartel damage claims. Targeted defendants react also developing litigation strategies, such as bringing the disputes to the general public through the media. A currently much discussed example are SLAPP, strategic lawsuits against public participation – libel lawsuits brought against journalists, media and other stakeholders of the civil society in order to deter them from making investigations.

On 8 April 2022, at 4 pm CET, a Max Planck Law curriculum course is taking place under the title Strategic Litigation – A New Phenomenon in Civil Litigation?, where Burkhard Hess (Director, MPI Luxembourg) will present strategic litigation on the basis of actual cases, and analyse the main features of this (not that new?) phenomenon. The class will primarily focus on civil actions but equally look at recent developments at constitutional and international courts, trying to assess whether and to what extent this type of dispute is transforming civil litigation as we know it.

Those wishing to attend are required to register here by 6 April 2022.

In February 2022, a Working Group has been established within the European Association of Private International Law. The task of the Group was to respond to a public consultation launched by the European Commission on the prospect of an EU-wide protection for vulnerable adults, i.e., persons aged 18 or more who are unable to protect their interests because of an impairment or insufficiency of their personal faculties.

The Group presented the preliminary draft of a position paper prepared for this purpose at a webinar on 10 March 2022.

Having taken note of the feedback received from the participants in the webinar and other interested academics, practitioners and stakeholders, the Working Group shared a final draft with the Association’s Scientific Council.

The position paper, as approved by the EAPIL Council and submitted to the European Commission, is available here.

Here are some of the key takeaways of the paper:

1. Private international law has an important role to play in the realisation of the fundamental rights of persons aged 18 and more who are not in a position to protect their interests due to an impairment or insufficiency of their personal faculty.
2. The Union should urgently adopt measures of judicial cooperation aimed to support, in cross-border situations, the exercise of legal capacity by the adults concerned, in accordance with the United Nations Convention on the Rights of Persons with Disabilities.
3. In taking the above measures, the Union should preserve the operation and the prospect of success of the Hague Convention of 13 January 2000 on the International Protection of Adults. To this end, the Union should combine external action and legislation, meaning that the Convention should provide the basic legal framework in this field, common to all Member States, but legislation should be enacted by the Union to strengthen cooperation between Member States and improve the operation of the Convention in their relations.
4. The legal basis for the above measures would be Article 81 TFEU, with the clarification that the protection of adults should not be deemed to fall within the scope of “family law” within the meaning of Article 81(3).
5. The Union has external competence, based on Article 216 TFEU to authorise the Member States that have not yet done so to ratify, or accede to, the Hague Adults Convention “in the interest of the Union”, on the ground that the conclusion of the Convention would be “necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties”.
6. The legislation of the Union aimed to improve the Hague Convention regionally should relate, inter alia, to choice of court by the adult concerned and the law applicable to ex lege powers of representation.
7. Specifically, the Union should enact a rule whereby ex lege powers of representation are governed by the law of the (Member) State where the adult concerned has their habitual residence at the time when those powers are relied upon, without prejudice to the application of the provisions on ex lege powers of representation as may be in force in the Member State where the powers are invoked, whenever the provisions themselves are meant to apply regardless of the law specified by conflict-of-laws rules.

On 7 April 2022, the Court will deliver the judgment in C-568/20, H Limited. The request, with three questions, was lodged in November 2020 by the Oberster Gerichtshof (Austria); it concerns the interpretation of several provisions of Chapter III of the Brussels I bis Regulation, in addition to its Article 2(a). The dispute on the merits focuses on the enforcement of an order based on a decision of the High Court of Justice, Business and Property Courts of England & Wales, Commercial Court (QBD). AG Pikamäe’s opinion, published on December 16, 2021, proposed the following answers to the CJEU:

Articles 45 and 46 of [the Brussels I bis Regulation] should be interpreted as meaning that the court of the Member State addressed, to which an application for refusal of enforcement is made, may grant that application on the grounds that the judgment and the certificate, provided for in Article 53 of that regulation, adopted by the court of the Member State of origin breach the public policy of the Member State addressed, where the error of law relied upon constitutes a manifest breach of a rule of law regarded as essential in the legal order of the European Union and therefore in the legal order of that State. This is the case of an error affecting the application of Article 2(a) and Article 39 of that regulation requiring that the judgment of which enforcement is sought be given in a Member State.

When reviewing whether there has been a manifest breach of public policy in the Member State addressed through failure to comply with a substantive or procedural rule of EU law, the court of that State must take account of the fact that, save where specific circumstances make it too difficult or impossible to exercise the legal remedies in the Member State of origin, the individuals concerned must avail themselves of all the legal remedies available in that Member State with a view to preventing such a breach before it occurs.

The reporting judge is M. Safjan.

The decision on C-645/20, V A et Z A , is scheduled for the same day. The French Court of Cassation had addressed to the Court a single question on the interpretation of Article 10(1)(a) of the Succession Regulation, lodged in December 2020. AG M. Campos Sánchez-Bordona had suggested to reply as follows:

Article 10(1)(a) of [the Succession Regulation] must be interpreted as meaning that, in the case where the deceased did not have his last habitual residence in any Member State of the European Union, the court of a Member State in which a dispute in a matter of succession has arisen must declare of its own motion that it has jurisdiction to settle the succession as a whole if, in the light of facts alleged by the parties which are not in dispute, the deceased was a national of that State at the time of his death and was the owner of assets located there.

M. Ilešič was appointed reporting judge.

Easter vacation imposes a break on the publication of decisions and opinions. For PIL purposes, the next one will be the opinion of AG M. Richard de la Tour in C- 604/20 ROI Land Investments, a request from the Bundesarbeitsgericht (Germany), lodged on November 2020. The questions referred concern both jurisdiction and applicable law (the Rome I Regulation) in employment and (maybe, or) consumer matters:

1. Is Article 6(1) read in conjunction with Article 21(2) and Article 21(1)(b) of [the Brussels I bis Regulation] to be interpreted as meaning that an employee can sue a legal person – which is not his employer and which is not domiciled in a Member State within the meaning of Article 63(1) of the [Regulation] but which, by virtue of a letter of comfort, is directly liable to the employee for claims arising from an individual contract of employment with a third party – in the courts for the place where or from where the employee habitually carries out his work in the employment relationship with the third party or in the courts for the last place where he did so, if the contract of employment with the third party would not have come into being in the absence of the letter of comfort?
2. Is Article 6(1) of the [Brussels I bis Regulation] to be interpreted as meaning that the reservation in respect of Article 21(2) of the [the same Regulation] precludes the application of a rule of jurisdiction existing under the national law of the Member State which allows an employee to sue a legal person, which, in circumstances such as those described in the first question, is directly liable to him for claims arising from an individual contract of employment with a third party, as the ‘successor in title’ of the employer in the courts for the place where the employee habitually carries out his work, if no such jurisdiction exists under Article 21(2) read in conjunction with Article 21(1)(b)(i) of the [Regulation]?
3. If the first question is answered in the negative and the second question in the affirmative:

(a) Is Article 17(1) of the [Brussels I bis Regulation] to be interpreted as meaning that the concept of ‘professional activities’ includes paid employment in an employment relationship?

(b) If so, is Article 17(1) of the [Brussels I bis Regulation] to be interpreted as meaning that a letter of comfort on the basis of which a legal person is directly liable for claims of an employee arising from an individual contract of employment with a third party constitutes a contract concluded by the employee for a purpose which can be regarded as being within the scope of his professional activities?

4. If, in answer to the above questions, the referring court is deemed to have international jurisdiction to rule on the dispute:

(a) Is Article 6(1) of [the Rome I Regulation] to be interpreted as meaning that the concept of ‘professional activities’ includes paid employment in an employment relationship?

(b) If so, is Article 6(1) of the Rome I Regulation to be interpreted as meaning that a letter of comfort on the basis of which a legal person is directly liable to an employee for claims arising from an individual contract of employment with a third party constitutes a contract concluded by the employee for a purpose which can be regarded as being within the scope of his professional activities?

The delivery is expected on 28 April 2022. M. Safjan will be the reporting judge.

On 31 March 2022, the EU Commission disclosed that it has been working on a proposal for a bilateral treaty to be concluded with the UK focused on recognition and enforcement of foreign judgments.

The purpose of the treaty would be to facilitate the circulation of judgments between the EU and the UK. It would not be a double convention and thus would not include rules governing the (direct) jurisdiction of the courts of the Contracting States.

At the present time, the material scope of the treaty would be limited to civil and commercial matters. It would not, therefore, extend to family law.

The (indirect) jurisdiction of the foreign court would be assessed by a single flexible text. Foreign courts would be considered to have jurisdiction if there was a meaningful connection between the foreign court and the dispute. The French presidency might have pushed for adopting this test, which is currently applied in the French common law of foreign judgments.

In addition, a provision of the treaty would clarify that the test would not be satisfied if the foreign court had retained jurisdiction on the basis of a number of exorbitant rules of jurisdiction that would be identified. This list seems to be clearly inspired for the red list of the Brussels instruments.

The public policy clause is probably the most innovative provision of the treaty. It would be applicable in principle, unless “actual mutual trust” could be found to exist between the relevant EU Member State and the UK.

A provision would then identify cases where such “actual mutual trust” would be presumed.

This would be the case for all judgments circulating between France and the UK, because France participates in the 6 Nations Rugby Championship (so-called “scrum proviso”).

The scrum proviso would apply between Italy and the UK for judgments rendered 32 days after Italy would win its first Championship or would win in Twickenham by more than 20 points.

More details on the draft treaty are available here.