EAPIL blog

Fabian Kratzlmeier (Chicago) has accepted the invitation of the editors of the blog to present his recent book, titled ‘Die Grenzüberschreitende Unternehmensrestrukturierung im Europäischen Rechtsrahmen’ (Cross-border corporate restructuring and European private international law), published by Mohr Siebeck.

Reorganizing viable firms (instead of liquidating them) has been the state of the art in U.S. bankruptcy law for decades now, and it has become increasingly popular throughout Europe in recent years. This trend is reflected in legislative activities, such as the repeated reform efforts to the German bankruptcy code aiming at rescuing profitable, but over-indebted firms within the traditional insolvency procedure. It is also evidenced by practical patterns, most notably (not only) German companies using foreign restructuring instruments, in particular the English Scheme of Arrangement, to amend their financing structure while continuing trading in the 2010s. Even then – more than a decade ago – the wide-reaching impacts of such cross-border restructurings were heavily discussed in bankruptcy and private international law scholarship by some scholars, showing the (not only political) brisance of private international law in the area of restructuring law.

Whenever the earnings of a debtor company no longer cover its financial obligations, the creditors (and the shareholders) share a common interest in maximizing the pool of distributable assets. Where the continuation of the business under the old legal entity promises a higher present value compared to the liquidation of the debtor – be it piecemeal or through a business sale – economic logic demands a legal framework to resolve the underlying collective action problem. It is therefore the task of a modern insolvency and restructuring law to provide the parties involved with an appropriate set of rules that facilitates negotiations in order to adjust the debtor’s liabilities to the prospective earnings of the company (e.g. through debt reductions, deferrals or debt-equity-swaps).

In terms of the (continental) European landscape, the Restructuring Directive 2019 (hereinafter “Directive”) has set new standards in restructuring law, requiring Member States to reform and, in many cases, modernize their insolvency and restructuring laws. It mandates all Member States to maintain preventive restructuring instruments, enabling financially distressed companies to temporarily protect their business assets against collection or enforcement actions, and providing a majority voting scheme in order to cram down (groups of) dissenting creditors. In accordance with its minimum harmonization concept, however, the Directive leaves the Member States with a large number of choices and deviation options. Thus, the national restructuring frameworks differ widely from one another in some key aspects; e.g. regarding the entry threshold (the extent of financial distress required to access), the duration and scope of the moratorium, and the conditions and limits to the cram down mechanism (in particular as to group formation and priorities), to name but a few. The legal and economic positions of the various groups of stakeholders – and, consequently, their negotiating power in the immanent struggle over the distribution of going concern value – depend to a large extent on the jurisdiction in which the reorganization takes place and what options for action the local restructuring law offers to the respective stakeholders. It is obvious, that decision makers, when looking for suitable restructuring options, will not limit themselves to their home state’s reorganization tools, but explore foreign instruments as well, as past experiences with the English Scheme of Arrangement have proven before. As long as there is legal certainty, i.e. the reorganization is likely to be recognized by the relevant (i.e. asset-intensive) jurisdictions, decision makers have in incentive to choose the restructuring location that best serves their interests, ultimately resulting in a regulatory competition between national restructuring regimes throughout the EU. Private international law, in this context, regulates this competition by limiting (or unlocking) such choice of foreign insolvency and restructuring venues (and their respective laws). Against this background, the present study undertakes to comprehensively review and, building on its findings, further develop the legal framework for cross-border corporate restructurings within Europe, presenting a solution that is both coherent with existing European legislation, and consistent with the underlying principles of European insolvency law.

There is, however, another reason why further research in this area is desperately needed: Thanks to the ever-growing integration of the internal market and, thus, the establishment of international trade relations and supply chains, purely nationally operating companies (other than micro-enterprises) have long become the exception. It does not take much to make a national restructuring case an international one, i.e. the cross-border element does not need to amount to a foreign branch or similarly consolidated business structures. A foreign creditor or a third-party debtor based abroad suffices to turn a national company into an international restructuring case. Hence, the minimum harmonization of the substantive law by the Directive alone is not going to achieve the underlying goal set by the Union legislator, that is to provide all European companies with access to effective and efficient restructuring instruments. Rather, in cases with cross-border exposure, the question inevitably arises as to whether the financial crisis can be overcome in a single procedure – hauling all (including foreign) affected parties into one procedure and having it recognized across all (relevant) jurisdictions – or whether several procedures are necessary in order to implement a sustainable restructuring of the company and thus safe the going concern value.

Unfortunately, this need for international coordination and harmonization of cross-border corporate reorganizations, arising from the very conceptual nature of collective proceedings, has been hardly taken into account by the legislator when drafting the Directive. There are only three recitals (12 to 14) dealing with these issues in the first place, and even they contain only rudimentary (and hardly expedient) considerations regarding the relationship between the Directive and existing regulations in European private international law. In particular, they reference the European Regulation on Insolvency Proceedings (EIR) as well as the center of main interest (COMI), which is of paramount importance to the current international insolvency regime, to which it serves as the central connecting factor determining both jurisdiction and applicable law. In terms of (reliable) conclusions regarding the classification of the new restructuring frameworks and their integration into the existing private international law framework, however, the recitals only provide limited guidance. The recitals make it clear, though, that at least some of the proceedings created in transposing the Directive (i.e. those that are to be publicly announced) shall be subject to the EIR and, therefore, be included in the latter’s Annex A.

The study takes this as its starting point to demonstrate that the EIR provides a tailor-made set of rules for public proceedings, providing clear and (for the most part) fitting rules on international jurisdiction and applicable law while also guaranteeing EU-wide recognition. At the same time, however, there are some drawbacks in the EIR’s application to restructuring proceedings mainly resulting in setbacks to the collectivization mechanism aimed at on a substantive level. These issues, including rights in rem and secondary proceedings, are discussed in depth, and appropriate solutions are presented both de lege lata and de lege ferenda.

Turing to confidential restructuring frameworks, to which the recitals are silent, the scholarly debate is still evolving. Due to their private nature, they are increasingly popular in practice. At least in part motivated by the onsetting regulatory competition in the field, therefore, many Member States (including Germany, the Netherlands, and Austria) opted for a dual transposition enacting both a public and a private alternative. Since confidential procedures will not be included in Annex A and, thus, will prima facie remain outside the scope of the EIR, there are considerable hurdles to overcome in order to embed such procedures into the existing European private international law framework. First and foremost, the so-called bankruptcy clause enshrined in Art. 1 (2)(b) Brussels I bis Regulation challenges the integration into the existing secondary law altogether. A closer look at the issue reveals, however, that this provision excludes only those procedures, which qualify as “insolvency proceedings” under Art. 1 EIR, regardless of whether such proceeding is included in Annex A. Turning to international jurisdiction, the study is building on the controversy and the different propositions surrounding international jurisdiction to restructure foreign companies under an English scheme of arrangement. In that context, the arguments previously put forward in support of Art. 8 (1) (jurisdiction wherever at least one affected party has her domicile) and 24 (2) Brussels I-bis Regulation (jurisdiction at the place of the registered seat) are discussed and assessed as to their validity with regard to the new restructuring instruments. After all, the Directive differs in key respects from its English blueprint, and, thanks to its EU-law origin, requires special considerations concerning the coherence of (secondary) European law. Ultimately, the study finds that neither of the international jurisdiction rules provided for in the Brussels-I-bis Regulation are well-suited (or even practicable) for collective procedures such as the preventive restructuring instruments under the Directive. Therefore, it calls for a concentration of restructurings at the debtor’s COMI, which is in line with (and, upon a detailed examination, even envisioned by) both the EIR, and the Directive itself. In this respect, the study, using state-of-the-art European Union law methodology, extracts a coherent and consistent private international law framework for confidential restructuring procedures, centered at the debtor’s COMI, and recognized throughout the EU. At the same time, it proposes legislative amendments to the current system to clarify the private international law rules on cross-border restructurings – both for parties involved and Member States experiencing competitive pressure – and to improve the (few) inadequacies under the current legal regime.

Overall, the study reveals that the applicable law concentrates – public and confidential – restructuring proceedings at the debtor’s COMI on the one hand, but on the other hand also guarantees EU-wide recognition of the restructuring results achieved. The collectivization of creditors and shareholders implemented – in substantive terms – by the Directive, thus, continues on the level of private international law, enabling the continuation of viable companies even in a cross-border context.

The European Group for Private International Law (GEDIP) has recently adopted a position paper on the proposal for a Council Regulation in matters of Parenthood.

The Group welcomes that the EU intends to legislate in this field, since parenthood is a status from which persons derive numerous rights and obligations.

However, the Group is of the opinion that there are important shortcomings in the proposal due to the narrow perspective taken and an insufficient consideration of the legal complexities concerning parenthood in cross-border situations. It therefore encourages a reconsideration of the proposal in the light of its observations.

The Vrije Universiteit Brussel (VUB) and the Small Claims Analysis Net 2 (SCAN2) Project consortium partners and are organising a final conference regarding Small Claims Dispute Resolution on 22-23 February 2024.

The SCAN2 final conference will be organised around two main pillars: first, present the acquired research results of the SCAN2 project to the public, and second, bringing together international academics, practitioners, PhDs, and stakeholders in a supranational forum aiming to discuss the latest legal developments on the existing legal remedies for the small claims models of dispute resolutions for consumers within the European Union.

The call for papers concerns the second pillar of the conference focused on the latest developments and sharing of knowledge in relation to the European models of small claims dispute resolution and online dispute resolution (ODR).

Special consideration will be made for the topics discussing the European Small Claims Procedure Regulation (EU) 861/2007 (as amended by Regulation (EU) 2015/2421), but the organisers encourage submissions also on the following topics: small claims remedies for consumers; online dispute resolution for small claims; cross-border justice for consumers; small claims judgment and enforcement challenges; consumer privacy and data protection in using technology for resolving small claims; the connection between the Brussels Ia Regulation and the Regulations on the European Enforcement Order, the European Small Claims Procedure, the European Payment Order and the European Account Preservation Order and their implementation in national procedural law; best national and supranational practices of national small claims proceedings; digitalisation of small claims proceedings; different fora for the initiation of the small claims proceedings; relationship between the Digital Service Act and ODR for consumers; the future of consumer ODR; and the revision of the new ADR directive and small claims.

Additional information can be found here. Enquiries concerning the academic aspects of the event and the call for papers should be directed to the Conference Chair, Marco Giacalone, at marco.giacalone@vub.be. All other enquiries should be addressed to seyedeh.sajedeh.salehi@vub.be or paola.giacalone@vub.be.

The Spanish Association of Professors of International Law and International Relations (AEPDIRI) is organizing its VII Seminar on current issues in Private International Law on the topic A Private International Law centred on the rights of individuals. The seminar will take place at the Faculty of Law of the Universidad Pontificia Comillas (ICADE) in Madrid (https://www.comillas.edu) on 14 March 2024.

The Seminar is intended to discuss topics related to the challenges posed by the rights of individuals from a broad perspective and from a Private International Law dimension, related to the following thematic lines: Current issues raised by the regulation of the capacity of persons in Private International Law; Current issues raised by the regulation of parentage in international situations; The rights of vulnerable persons from a Private International Law dimension; Challenges posed by digitisation to the rights of the individual in private cross-border situations; Due diligence obligations in value chains and Private International Law; Civil liability of multinationals for human rights violations; New challenges in Immigration Law; Migrants’ rights from a Private International Law perspective.

Researchers are welcome to propose presentations which should cover one of the above-mentioned questions. Proposals should fit into the objectives of the Seminar and will be selected –for their oral presentation and/or publication- according to their relevance, quality and originality in respect to their contribution to the development of Private International Law studies.

Proposals should be submitted, following the requirements of the call, no later than 15 January 2024, by e-mail to: seminarioactualidad.dipr2024@aepdiri.org.

The working language of the Seminar will be Spanish, but papers may be also presented in English or French.

The submission of abstracts for selection as well as the participation to the Seminar are free of charge.

A new book entitled Blockchain and Private International Law has been published by Brill. It is available in open access and may be downloaded here. A book launch will take place on 20 December 2023 at 18:15 CET online and at the University of Lausanne (here is the link to the livestream).

The authors of the books are experts from various jurisdictions. The editors are Andrea Bonomi, Matthias Lehmann, and Shaheeza Lalani. It comprises five parts with overall 26 chapters.

The first part focuses on fundamental issues. It addresses the foundations of Distributed Ledger Technology (Tetsuo Morishita), the principle of technological neutrality  (Bruno Mathis), the general significance of private international law for crypto assets (David Sindres), property law issues associated with them (Christiane Wendehorst), as well as the problem of blockchain pseudonymity as an obstacle for the determination of the applicable law (Anne-Grace Kleczewski).

The second part addresses general conflict-of-laws problems raised by the blockchain. A taxonomy of crypto assets is given (Felix Krysa), the (in)significance of the situs is analysed (Amy Held), policy decisions are examined (Burcu Yüksel Ripley and Florian Heindler), and the law governing digital representations of off-chain assets is discussed (Emeric Prévost).

The third part examines specific crypto assets and legal relationships. It deals with central bank digital currencies (Caroline Kleiner), stablecoins (Matthias Lehmann and Hannes Meyle), blockchain torts  (Tobias Lutzi), insolvency issues (Giovanni Maria Nori and Matteo Girolametti), the law applicable to secured transactions on the blockchain (Matthias Haentjens and Matthias Lehmann), smart contracts (Mehdi El Harrak), blockchain-based negotiable instruments (Koji Takahashi), and crypto derivatives (Gregory Chartier).

The fourth part focuses on blockchain dispute resolution. In particular, the importance of the DAO for dispute resolution is investigated (Florence Guillaume and Sven Riva), and the recognition and enforcement blockchain-based decisions is analysed (Pietro Ortolani).

The fifth part of the book contains country reports. Represented are the legal systems of Switzerland (Pascal Favrod-Coune and Kévin Belet), the United States (Frank Emmert), Germany (Felix M. Wilke), in Liechtenstein (Francesco A. Schurr and Angelika Layr) and Japan (Tetsuo Morishita).

On 7 November 2023, less than three weeks after the judgment in Limbu v Dyson Technology Ltd (reported here), where the High Court of England and Wales applied the forum non conveniens doctrine to a business and human rights claim, the Inner House of the Scottish Court of Session (Scotland’s supreme civil court) directed around 5,000 Kenyan tea pickers in Campbell v James Finlay (Kenya) Ltd to pursue their claims for occupational injuries in Kenya (previous judgments in this case included [2022] CSIH 29, which addressed the certification of group proceedings, and [2022] CSOH 57, which concerned a motion for anti-suit interdict).

The case and the Inner House’s judgment are notably unusual for several reasons.

Let’s begin with the facts. The claimants, Kenyan tea pickers, brought proceedings against James Finlay (Kenya) Ltd, a Scottish company, in Scotland. Unusually for a transnational business and human rights dispute, the defendant directly employed the claimants in Kenya. No Kenyan subsidiary or supplier was involved in the alleged wrongs. This enabled the claimants to advance relatively straightforward negligence claims for breach of employer’s duty of care.

Everyone agreed that prima facie the court had jurisdiction under rule 1 in Schedule 8 to the Civil Jurisdiction and Judgments Act 1982, which is a rule of general jurisdiction based on the defendant’s domicile. The defendant challenged the court’s jurisdiction on two grounds: the existence of an exclusive Kenyan choice-of-court agreement and forum non conveniens.

The defendant relied on rule 6 in Schedule 8 to the 1982 Act to argue that the Scottish courts had no jurisdiction due to an exclusive Kenyan choice-of-court agreement. This is an unusual argument as this provision deals with the prorogation, not derogation, of jurisdiction of the Scottish courts, and a foreign jurisdiction agreement does not take away jurisdiction from an otherwise competent Scottish court but serves as a significant factor when deciding whether jurisdiction should be exercised. The court did not engage with these subtleties of Scottish private international law. It promptly dismissed this jurisdictional challenge by concluding, quite rightly, that the contract clause in question (“9. Industrial Sickness: The terms of the relevant national legislation shall apply.”) was not a choice-of-court agreement.

A glaring omission in the judgment is the court’s failure to acknowledge that in employment disputes the jurisdiction of the UK courts depends on sections 15A and C-E of the 1982 Act. These provisions transpose the jurisdictional rules for employment matters from the Brussels I bis Regulation into UK law. Consequently, the Scottish courts had jurisdiction over the Scottish-domiciled defendant (section 15C(2)(a)) and a choice-of-court clause in the employment contract could not deprive the claimants of this forum. The protective jurisdictional rules may be departed from only by an agreement made ex post or expanding the available forums for the employee (section 15C(6)). In other words, there was no need to even look at the dispute resolution clause for the purposes of addressing the first jurisdictional challenge.

The court then proceeded to consider forum non conveniens. The defendant contended that a no-fault compensation scheme established by the Work Injury Benefits Act 2007 in Kenya barred claims for damages, insisting that the claimants should pursue compensation under this scheme.

A preliminary question remained unaddressed: is forum non conveniens available when a UK court has jurisdiction over an employment dispute under section 15C?

The primary aim of sections 15A and C-E was, as articulated in the Explanatory Memorandum accompanying a statutory instrument which was used to transpose the jurisdictional rules for employment matters from Brussels I bis into UK law, “to ensure employees are not disadvantaged by EU exit”. Prior to Brexit, jurisdiction under Brussels I bis was mandatory (Owusu). There are other reasons against the availability of forum non conveniens in this context. It may be inconsistent with the objective of employee protection (for the strength of this objective under sections 15A and C-E, see, for example, Gagliari v Evolution Capital Management). If a foreign choice-of-court agreement can only be effective if made ex post or if it expands the available forums for the employee, allowing forum non conveniens, which is normally a less strong reason for staying proceedings, might seem contradictory. Sections 15A and C-E allow the employee to serve the claim form on the employer as of right in England, eliminating the need to seek permission to serve the claim form out of the jurisdiction. It appears inconsistent not to require the claimant to show that the forum is forum conveniens in service out cases, but to allow the defendant to plead forum non conveniens. Consequently, it is unsurprising that leading scholars (A Briggs, Private International Law in English Courts (2nd edn, OUP 2022) 194 and L Merrett, Employment Contracts and Private International Law (2nd edn), OUP 2022) 165) suggest that forum non conveniens might not be available in this context.

On the other hand, section 49 of the 1982 Act unequivocally provides that “Nothing in this Act shall prevent any court in the United Kingdom from staying, sisting, striking out or dismissing any proceedings before it, on the ground of forum non conveniens or otherwise, where to do so is not inconsistent with the 2005 Hague Convention.” Additionally, there is the authority of Dicey, Morris and Collins, who, in para 12-012, adopt a tentative view that forum non conveniens is available when a UK court has jurisdiction over an employment dispute under section 15C.

It is a shame that the court did not address this preliminary question of the availability of forum non conveniens.

The Lord Ordinary (first instance judge) decided, relying on expert evidence, that the Kenyan Work Injury Benefits Act 2007 did not apply to the claimants because it did not list back injury as a condition for the no-fault compensation scheme. Although the Act did allow for the possibility of the responsible official listing new conditions, no such decision had been made. He further rejected the plea of forum non conveniens because he decided that the claimants would not obtain justice in the Kenyan courts.

The Inner House disagreed. It found that the Act applied to the claimant’s occupational injuries. It further noted that the no-fault compensation scheme “is said to work well and is cost and lawyer free” ([67]). On the basis of all of this, the court held, at [69], that:

Having regard to the court’s construction of the WIBA, the appropriate manner of proceeding is to sist these proceedings pending resolution of the claims under the WIBA, including any appeals to the [Employment and Labour Relations Court], in Kenya. If the court’s construction, or its understanding of the practical operation of the WIBA, turn out to be ill-founded, or if the WIBA claims were not determined in accordance with the scheme, or if there were to be excessive delay, the court may have to revisit the question of substantial justice and consider whether the sist should be recalled. However, the court cannot determine, as matters presently stand, that the WIBA, if it operates as its terms suggest, is not capable of providing substantial justice. The concept of such justice applies to both parties and envelops the general public interest.

Leaving aside the point that the court invoked here a public interest factor, which sits uneasily with the House of Lords decision in Lubbe v Cape Plc, one gains the impression from this paragraph that the court applied a kind of conditional forum non conveniens doctrine.

But then one reads the next paragraph, where the court said that it was not applying forum non conveniens:

The court will recall the interlocutor of the Lord Ordinary dated 11 July 2023 in so far as it repels the defenders’ second plea-in-law (on forum non conveniens). It will allow the reclaiming motion and sist the group proceedings (GP1/22) pending resolution of the group members’ claims in Kenya under the WIBA scheme. It will not determine the plea of forum non conveniens at present.

One is at a loss what to make of this. The court evidently exercised a form of inherent power to sist the proceedings. But there is no attempt to explain the origin or nature of this power or its interaction with forum non conveniens.

All of this amounts to a very confusing (and confused) judgment. Hopefully, the case will find its way to the Supreme Court. The case is just too important to be decided in this way.

— I am grateful to Professor Adrian Briggs and Professor Louise Merrett for sharing their insights regarding the availability of forum non conveniens when a UK court has jurisdiction over an employment dispute under section 15C of the 1982 Act. Additionally, I extend my gratitude to Dr Bobby Lindsay for explaining specific points of Scottish law and for sharing a case note on the first instance judgment in this case, which will be published in the January edition of the Edinburgh Law Review. Finally, I thank Andrew Smith KC and Cameron Smith, who clarified some aspects of this litigation and offered thoughts on the likelihood of obtaining permission to appeal to the UK Supreme Court. Any mistakes or omissions in this post are solely mine.

The virtual book launch of The Elgar Companion to UNCITRAL will take place on 14 December 2023 at 1:00 pm (CET) as a video conference via Zoom under the aegis of the Max Planck Institute for Comparative and Private International Law.

Co-edited by Rishi Gulati (University of East Anglia and Barrister, Victorian Bar, Australia), Thomas John (MCIArb, Independent Mediator, Arbitrator and Legal Consultant, the Netherlands) and Ben Köhler (Max Planck Institute for Comparative and International Private Law), this comprehensive Companion delineates the range of issues considered at UNCITRAL, as well as assessing the potential for future work and reforms.

The book will be virtually launched by the Secretary of UNCITRAL Anna Joubin-Bret followed by an informative panel discussion will be included.

See here for registration to the book launch.

The Official Journal of the European Union of 9 June 2023 reports anout the following request for a preliminary ruling from the Sofiyski rayonen sad (Sofia District Court – case C-222/23):

Is Article 62(1) of [the Brussels I bis Regulation], read in conjunction with Articles 18(1) and 21 TFEU, to be interpreted as precluding the concept of a natural person’s ‘domicile’ from being derived from national legislation which provides that the permanent address of nationals of the forum State is always situated in that State and cannot be transferred to another place in the European Union?

Is Article 5(1) of [the Brussels I bis Regulation], read in conjunction with Articles 18(1) and 21 TFEU, to be interpreted as permitting national legislation and national case-law under which a court of a State may not refuse to issue an order for payment against a debtor who is a national of that State and in respect of whom there is a reasonable presumption that the court lacks international jurisdiction because the debtor is likely to be domiciled in another EU State, which is apparent from the debtor’s declaration to the competent authority that he has a registered address in that State? In such a case, is the date on which that declaration was made relevant?

Where the international jurisdiction of the court seised is derived from a provision other than Article 5(1) of [the Brussels I bis Regulation], must Article 18(1) TFEU, read in conjunction with Article 47(2) of the Charter of Fundamental Rights, be interpreted as precluding national legislation and national case-law under which an order for payment may be issued only against a natural person who is habitually resident in the forum State, but a finding that the debtor, if a national of that State, has established that he is resident in another State cannot be based solely on the fact that he has given the first State a registered address (‘current’ address) that is in another State of the European Union, if the debtor is unable to demonstrate that he has entirely moved to that other State and has no address in the territory of the forum State? In this case, is the date on which the declaration concerning the current address was made relevant?

If the answer to the first part of the third question is that the issue of an order for payment is permissible, is it permissible under Article 4(1) of [the Brussels I bis Regulation], read in conjunction with Article 22(1) and (2) of Regulation (EU) 2020/1784 of the European Parliament and of the Council of 25 November 2020 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, as interpreted in the judgment in Case C-325/11, Alder, and in conjunction with the principle of effective application of EU law in the exercise of national procedural autonomy, for a national court of a State in which nationals cannot give up their registered addresses in the territory of that State and cannot transfer them to another State, when it receives an application for an order for payment in proceedings in which the debtor is not involved, to obtain information in accordance with Article 7 of Regulation (EU) 2020/1784 from the authorities of the State in which the debtor has a registered address about the debtor’s address in that State and the date of registration there, in order to determine the debtor’s actual habitual residence before the final decision is given in the case?

In the case at hand, ‘Toplofikatsia Sofia’ EAD, a company registered under Bulgarian law, applied to the Sofia District Court for an order for payment against V.Z.A., the debtor, for a pecuniary claim. V.Z.A. is not yet a party to the proceedings, because the order has not yet been issued. The claim arose from the fact that V.Z.A., who owns an apartment heated by the district heating network, had not paid for energy supplied between 15 September 2020 and 22 February 2023. In order to determine its international jurisdiction, the Sofia court requested of its own motion information on the address of the debtor from the population register in March 2023. According to this information, V.Z.A. has a permanent address registered in 2000 in Sofia (Bulgaria) and, since 6 March 2010, has had a current address registered with the Bulgarian authorities that is in another Member State of the European Union. Bulgarian law does not provide for the possibility of registering a particular current address abroad but merely for indicating the other State in which it is located.

In a nutshell, the legal issues at stake are two: first, the compatibility with Union Law of the assimilation, as per national law, of the permanent address to the notion of domicile, independently of the existence of a current address in another Member State; second, the possibility of resorting to the provisions of Regulation No. 2020/1784 in order to identify the current address of a debtor.

The request is remarkable in that, to the best of my knowledge, it will be the first one on the new Service Regulation, which applies as of 1 July 2022.

If the fourth question is taken up by the Court of Justice in its exact terms, the ruling will involve Article 7 on assistance on address enquiries, i.e., a provision non-existing under the previous Service Regulation, and the only one applicable where the address of the person to be served with a document is not known (see Article 1, paragraph 2 of the Regulation). As noted by B. Hess in his commentary to Article 7 in A. Anthimos, M. Requejo (eds), The European Service Regulation. A Commentary, Edward Elgar Publishing, 2023, the rule introduces a new mechanism aiming at facilitating address research in other EU Member States, without, nevertheless, establishing a self-standing European procedure, unlike Articles 51 (2), 61 – 63 of the Maintenance Regulation, or (for the purposes of obtaining information on accounts of the debtor) under Article 14 of the European Bank Account Preservation Order Regulation. The assistance given in the framework of Article 7 remains a matter of the national law of the requested EU Member State – some information thereto related can be found at the e-justice portal.

Updates will follow.

The Paris Court of Appeal will celebrate the fifth anniversary of the establishment of its chamber dedicated to international disputes in a symposium on December 13th, 2023 (4-7 pm).

This will be an opportunity to take stock of its achievements by reviewing progress made since 2018, the modus operandi, the perception of the Chamber’s users, its strengths and areas for improvement, and to consider the future.

Four round tables will discuss the specific procedural framework established for handling international disputes, whether the international chamber has developed a specific caselaw, the international attractiveness of French commercial justice and future reforms.

The programme can be found here.

Speakers will include judges from the court, academics, lawyers practising in Paris and abroad and officials from the French Ministry of Justice.

The symposium will be held in French with simultaneous translation.

Attendance is free, but registration is required at colloque.ca-paris@justice.fr

The third issue of the Revue critique de droit international privé of 2023 will be released shortly. It focuses on notarial practice in international family property law in the Ukrainian context, but contains also numerous case notes on private international law.

In the first article, Pierre Boisseau (University of Tours) examines the contours of the legal framework applied to receive and protect Ukrainians fleeing the fighting in their country of origin (Du droit d’asile classique à l’accueil des déplacés ukrainiens: réflexion sur la complémentarité des dispositifs de protection des réfugiés).

The abstract reads:

In Europe in general, and in France in particular, the reception of refugees is based on three complementary systems. In addition to the traditional right of asylum and subsidiary protection, there is now temporary protection. In very simplified terms, political asylum concerns those fighting for freedom; subsidiary protection protects people who have been victims of abuse by nonstate groups; and temporary protection, which stems from the geopolitical context in Europe, is currently used to receive and protect Ukrainians fleeing the fighting. Many have benefited from this, although part of them have now returned to Ukraine. But this surge of generosity towards Europeans does not seem to inspire the draft Pact on Asylum and Immigration of Thursday 8 June 2023 concerning refugees from other continents.

In the second article, Ambra Marignani (University of Tours) and Svitlana Yaroslavovna Fursa (Honored Lawyer of Ukraine & Center for Legal Research of Kyiv) study the question of property rights for couples displaced from Ukraine, under a conflict-of-laws perspective (Les pouvoirs des époux sur leurs biens : quelles problématiques pour les déplacés d’Ukraine ? Regards issus d’une comparaison franco-ukrainienne).

The abstract reads:

Displaced spouses from Ukraine may not imagine that, in some cases, French law is applicable to their rights to own, manage, enjoy and dispose of property. Notaries will be in the front line in containing this risk by informing and advising them. This work will be essential, particularly with regard to the rights that differ in content between French and Ukrainian law, which has been highlighted by the comparison of laws.

In the third article, Audrey Damiens (University of Tours) and Svitlana Yaroslavovna Fursa (Center for Legal Research of Kyiv) explore the role of notaries in dealing with the sensitive issue of cross-border separation of couples between France and Ukraine (La pratique notariale et les divorces en droit international privé : réflexion entre la France et l’Ukraine en temps de guerre).

The abstract reads:

The situation in Ukraine has led to population movements, particularly towards France. Married couples or one of their members now find themselves in a situation that comes under private international law. In their practice, French notaries are and will be faced with an increasing number of international situations relating to Ukraine, including divorce. This article looks at the practical difficulties that French notaries may encounter in divorce cases in Ukraine, and suggests some possible solutions. On the one hand, it looks at divorces in Ukraine that would come before a French notary. Secondly, it is proposed to consider divorce by mutual consent in France in an international situation linked to Ukraine.

In a fourth article, Alina Goncharova (State University of Soumy, Ukraine & Invited Fellow, University of Tours) and Fabienne Labelle (University of Tours) examine the law applicable to inheritance from a French-Ukrainian comparative perspective (Dévolution successorale et réserve héréditaire: comparaison entre la France et l’Ukraine).

The abstract reads:

The purpose of this study is to compare French and Ukrainian inheritance law. This study is particularly interesting in the event that Ukrainian law is applicable to the succession submitted to the French notary, as it provides some useful benchmarks in Ukrainian law. By studying the hypotheses of shares reserved for certain heirs, it also highlights significant differences in the internal public policy of each country. These differences could give rise to practical difficulties and discussions in both doctrine and case law.

Finally, a fifth article from the same authors, Alina Goncharova & Fabienne Labelle, deals with the question of drawing up wills in international French-Ukrainian context (Le testament, outil de planification de la succession internationale Le cas des Ukrainiens protégés temporairement en France).

The full table of contents is available here.

Under Article 8 of the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”), a court shall refer the parties to arbitration “if a party so requests not later than when submitting his first statement in the substance of the dispute.” This Model Law rule, upon which the equivalent provision of the Norwegian Arbitration Act is based, was the subject of a recent Norwegian Supreme Court decision over a dispute between a Danish and a Norwegian company regarding a distribution contract containing an arbitration clause referring disputes to arbitration in Denmark.

Before the dispute was initiated, the Danish company claimed for preservation of evidence in Norwegian courts, in accordance with the Norwegian Procedural Code. In connection to the claim for preservation of evidence, the Norwegian company stated that the matter was subject to arbitration and the court procedure should therefore be dismissed. This issue – whether the arbitration clause was a procedural impediment to the preservation of evidence – was rejected by the court of first instance. When this decision was appealed, both the court of second instance and the Supreme Court joined the conclusion of the court of first instance.

When evidence had been preserved, the Danish company initiated a procedure for a Norwegian conciliation council. Under Norwegian procedural law, a conciliation council serves as a court of first instance in civil matters but with a limited adjudicative competence. As its name implies, the idea behind the conciliation council is to settle civil disputes through conciliation. However, a conciliation council shall refer complicated matters to the ordinary courts. The conciliation council in the case in question referred the matter to the ordinary district court. Only then, in the procedure at the district court, did the Norwegian defendant state that the matter should be subject to arbitration. The district court dismissed this objection, referring to the decision by the Supreme Court, which had held that the arbitration clause did not impede the preservation of evidence. The court of appeal also came to the conclusion that the arbitration clause was not an impediment for the procedure, albeit with a completely different legal analysis underlying this conclusion. The court of appeal argued that the defendant had based its objection on the substance of the matter before the conciliation council, without invoking the arbitration clause. Hence, the right to invoke the arbitration clause as a procedural impediment was precluded under the Norwegian Arbitration Act.

As this decision was also appealed, the issue for the Norwegian Supreme Court was whether the right to invoke the arbitration clause was precluded. In its decision, the Supreme Court first held that a Norwegian conciliation council, despite its limited competence, is a national court for the purposes of the Norwegian Arbitration Act. Consequently, the next issue for the court to ponder was whether the defendant had requested the conciliation council to refer the parties to arbitration in the way that Article 8 of the Model Law requires. Under this article, a request shall be made “not later than when submitting [the] first statement on the substance of the dispute.” Holding that the wording of Article 8 is ambiguous and that there seems to be no clear international case law on the issue, the Supreme Court made its own interpretation of the critical point in Article 8. Here, the Court held that the Norwegian Procedural Act requires that a defendant party in a dispute before a conciliation council gives notice on whether it accepts or contests the claim. Norwegian law does not require the defendant to justify its position on the plaintiff’s claim. Taking a stance on whether a claim is accepted or contested is, regardless of whether this is justified, a statement on the substance of the dispute, according to the Supreme Court’s decision. Further, the court held that the opposite interpretation would risk creating unnecessary procedural delays. The right of the defendant to invoke the arbitration agreement was therefore precluded.

In summary, a party that wants to invoke an arbitration agreement as a procedural impediment must do so no later than at the first occasion when the party has a chance to submit a statement on the substance of the dispute.

Caroline Sophie Rapatz, Professor at the Christian-Albrecht University of Kiel, has accepted the invitation of the editors of the blog to present her recent book, titled ‘Das Internationale Privatrecht der EU – Vorbild oder Vormacht? Abgrenzungen und Wirkungen im Verhältnis zum nationalen und völkerrechtlichen Kollisionsrecht’ (European Union Private International Law – Role Model or Hegemony? Delimitations and Effects in Relation to National and International Conflict of Laws), published by Mohr Siebeck.

The relationship between the EU Regulations on private international law and the conflict-of-laws rules and instruments of other regulatory levels – national traditions and codifications on the one hand, bilateral treaties and multilateral conventions on the other – is at first glance a straightforward one. Within their scope of application, European rules take precedence with regard to national ones; the continued application of pre-existing treaties is guaranteed by exceptions in the EU Regulations. In fact, however, the interplay between the different regulatory levels is much more complicated.

This is evidenced by the increasing number of ECJ decisions which have to deal with the exact scope of application the EU Regulations and their delineation vis-à-vis national and international PIL rules. At the borderline between European and Member States’ PIL, characterisation issues are frequently solved in favour of the EU Regulations’ far-reaching application, displacing national conflicts rules (e.g. ECJ 12 October 2017 – C-218/16 (Kubicka); ECJ 1 March 2018 – C-558/16 (Mahnkopf)). However, when it comes to politically sensitive issues – for example, non-judicial divorces or non-heterosexual marriages – there is a remarkable tendency to leave more or less clearly defined gaps in the European instruments (e.g. ECJ 20 December 2017 – C-372/16 (Sahyouni)) and require the Member States to provide their own solutions. As a recent ECJ decision has demonstrated, questions of the EU Regulations’ scope of application are becoming virulent also with regard to treaty PIL (ECJ 12 October 2023 – C-21/22 (OP)). Naturally, such decisions on the scope of the European instruments can only be taken on the European level – but they leave the other regulatory level with the burden of adapting to them and solving the resulting coordination problems.

Furthermore, the influence of European PIL is not limited to the European instruments’ actual – and often broadly interpreted – scope of application. Although formally unaffected, national and international PIL rules increasingly have to adjust to the ever-growing domination of European regulatory concepts and values. Apart from the practical need for the Member States to adapt their remaining national PIL rules to their new European context in order to keep them functional, the demands of EU primary law put further pressure on the Member States. Again, the ECJ plays a central role, especially when questions of cross-border (status) recognition are at stake and national values are confronted with the fundamental freedoms (e.g. ECJ 2 June 2016 – C-438/14 (Bogendorff von Wolfersdorff); ECJ 5 June 2018 – C-673/16 (Coman)). In the interaction of treaty and convention conflict-of-laws rules with the EU Regulations, deviations from the European model prove to be practically and conceptually detrimental; combined with the political power of the EU, the development of treaty PIL is threatening to become dangerously dysbalanced.

As a German Habilitationsschrift, the monograph provides an in-depth analysis of the current state of the European harmonisation of PIL and shows that the approach to Europeanisation by individual EU Regulations has failed. EU PIL needs to reorient itself – either through self-constraint in a continued multi-level system, or through the courageous step towards a complete European Conflict-of-Laws Code.

The last month of 2023 will be a quiet one at the Court of Justice (in PIL terms). As of today, just a hearing and the delivery of an opinion are scheduled.

The hearing in the German case C-35/23, Greislzel, will take place on Thursday 7 December at 9.30 am. The request for a preliminary ruling, lodged in January 2023, addresses the interpretation of Articles 10 and 11 of Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels IIa). The Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main, Germany) is asking:

To what extent is the regulatory mechanism provided for in Article 10 and Article 11 of the Brussels IIa Regulation limited to proceedings conducted in the context of relations between EU Member States? More specifically:

1. 1. Does Article 10 of the Brussels IIa Regulation apply, with the effect that the jurisdiction of the courts in the former State of residence is retained, if the child had his or her habitual residence in an EU Member State (Germany) before his or her removal and the return proceedings under the Hague Convention on the Civil Aspects of International Child Abduction (‘the HCAC’) were conducted between an EU Member State (Poland) and a third State (Switzerland) and, in those proceedings, the return of the child was refused?

If question 1 is answered in the affirmative:

1. 2. In the context of Article 10(b)(i) of the Brussels IIa Regulation, what requirements are to be imposed for the purposes of establishing continuing jurisdiction?
   3. Does Article 11 (6) to (8) of the Brussels IIa Regulation also apply in the case of return proceedings implemented under the HCAC in the context of relations between a third State and an EU Member State, as a State of refuge, in so far as the child had his or her habitual residence in another EU member state before the removal?

In the case at hand, a child, born to a German-Polish couple in Switzerland, had been living in Germany with her mother since she was some months old before the two moved to Poland. The father, who remained in Switzerland, had consented to the relocation, but (so he claims) only for some time. Afterwards he applied via the Swiss Central Authority (Federal Office of Justice in Bern) for the return of the child to Switzerland under the 1980 Hague Convention. The District Court for Krakow-Nowa Huta in Krakow, Poland, rejected the application. At a later stage, he lodged a new claim for the return of the child to Switzerland with the German Federal Office of Justice in Bonn, although he did not continue to pursue it. Finally, he applied in Germany for the transfer of sole parental custody of the child and, in the alternative, for the right to determine the place of residence. He also requested that the mother be ordered to return the child to him in Switzerland as of the effective date of the decision.

The request has been allocated to a chamber of five judges, with Mme L.S. Rossi reporting. AG M. Campos Sánchez-Bordona will deliver an opinion beginning of next year.

In addition, AG N. Emilou’s opinion in C-90/22, Gjensidige, expected some time ago, will most probably be published on 14 December.

On 17 October 2023, the European Commission adopted its 2024 work programme. As explained in a press release, the programme aims at simplifying the rules for citizens and businesses across the Union.

The initiatives that the Commission plans to take, or pursue with particular interest, in the course of 2024 are listed in three annexes.

Annex I is concerned with new policy and legislative initiatives. None of the initiatives in question relates to judicial cooperation in civil matters.

Annex II, on REFIT initiatives (i.e., initiatives aimed at making EU law simpler, less costly and future proof), contemplates, among other things, a revision of online dispute resolution for consumer disputes.

The repeal of the online dispute resolution for consumer disputes Regulation (Regulation (EU) No 524/2013) will remove associated reporting requirements, which are no considered to be longer needed. In addition, a proposal for a directive amending Directive 2013/11 on alternative dispute resolution for consumer disputes is addressed. The goal is, generally, to simplify and reduce current reporting requirements.

Various procedures with possible implications for private international law are featured in Annex III, which lists the pending procedures that the Commission regards as a priority. Although they are based on Article 114 TFEU rather than Article 81 TFEU, they are also relevant to private international law, notably insofar as they lay down provisions which are meant to apply whatever the applicable law, as determined under conflict-of-law rules, and accordingly interfere with the latter.

The list features the proposed Regulation on combating late payment in commercial transactions. The text is meant to address the inadequacy of the current legal framework, as shaped by Directive 2011/7 (the Late Payment Directive).

The proposed Directive on liability for defective products, repealing Directive 85/374 (Product Liability Directive) is also among the listed priorities, as is the proposed Directive on adapting non-contractual civil liability rules to artificial intelligence (AI Liability Directive). The objective of the latter is to promote the rollout of trustworthy AI to harvest its full benefits for the internal market. It does so by ensuring victims of damage caused by AI obtain equivalent protection to victims of damage caused by products in general. It also reduces legal uncertainty of businesses developing or using AI regarding their possible exposure to liability and prevents the emergence of fragmented AI-specific adaptations of national civil liability rules.

The proposed Directive on improving working conditions in platform work is equally on the list. Its rules may have a bearing on the operation of the rules of Rome I on the law applicable to employment contracts.

Annex III goes on by mentioning the proposed Directive on European cross-border associations, and the connected proposed Regulation as regards the use of the Internal Market Information System and the Single Digital Gateway, which aim at facilitating the effective exercise of freedom of movement of non-profit associations operating in the internal market.

The list further includes the proposals on the digital euro (see further this post) and the proposed Directive harmonising certain aspects of insolvency law. According to the Commission, action at EU level is needed in the field of insolvency to substantially reduce the fragmentation of insolvency regimes. The future instrument would support the convergence of targeted elements of Member States’ insolvency rules and create common standards across all Member States, thus facilitating cross-border investment. Measures at EU level would ensure a level playing field and avoid distortions of cross-border investment decisions caused by lack of information about and differences in the designs of insolvency regimes. This would help to facilitate cross-border investments and competition while protecting the orderly functioning of the single market. Since divergences in insolvency regimes are a key obstacle to cross-border investment, addressing this obstacle is crucial to realising a single market for capital in the EU.

The author of this post is Carlos Santaló Goris, lecturer at the Centre for Judges and Lawyers of the European Institute of Public Administration (Luxembourg).

On 26 October 2023, the High Regional Court of Karlsruhe (Oberlandesgericht Karlsruhe) rendered a judgment on an appeal confirming a decision of the Regional Court of Baden-Baden refusing to issue a European Account Preservation Order (‘EAPO’). The creditor had invoked a 2023 amendment in the Maltese Gaming Act to justify the periculum in mora required to obtain a EAPO. The judgment is at the crossroads of two issues. On the one hand, the systemic difficulties that creditors across the EU are facing to satisfy the periculum in mora condition. On the other, the Maltese legislative reform referred to, which is currently under the scrutiny of the European Commission for potentially infringing EU law.

A German creditor requested an EAPO against a debtor domiciled in Malta before the Regional Court of Baden-Baden (Landgericht Baden-Baden). The debtor was a company offering online gambling services. The creditor applied for the EAPO relying on a judgment of that court sentencing the debtor to pay 13.000 euros plus interest to the creditor. The EAPO application was rejected: the court found that the periculum in mora requirement, which is essential to obtain an EAPO, had not been proven. This prerequisite is defined in the EAPO Regulation as ‘an urgent need for a protective measure in the form of a Preservation Order because there is a real risk that, without such a measure, the subsequent enforcement of the creditor’s claim against the debtor will be impeded or made substantially more difficult’ (Article 7(1) EAPO Regulation).

The creditor appealed the decision before the High Regional Court of Karlsruhe, which also considered that the periculum in mora criterion had not been duly satisfied, confirming the decision of the Regional Court of Baden-Baden.

The existence of a title is thus not sufficient to grant an EAPO. Creditors, irrespective of whether or not they have a title, have to prove the periculum in mora. In the case at hand, in order to justify the existence of such risk, the creditor argued that the 2023 amendment of the Maltese Gaming Act would prevent the future enforcement of the claim against the creditor. The reform introduced in the Maltese Gaming Act Article 56A, which states the following:

Notwithstanding any provision of the Code of Organization and Civil Procedure or of any other law, as a principle of public policy:

1. no action shall lie against a licence holder and, or current and, or former officers and, or key persons of a licence holder for matters relating to the provision of a gaming service, or against a player for the receipt of such gaming service, if such action:

• • conflicts with or undermines the legality of the provision of gaming services in or from Malta by virtue of a licence issued by the Authority, or the legality of any legal or natural obligation resulting from the provision of such gaming services; and
  • relates to an authorised activity which is lawful in terms of the Act and other applicable regulatory instruments.

2. The Court shall refuse recognition and, or enforcement in Malta of any foreign judgment and, or decision given upon an action of the type mentioned in sub acticle (i)

The reform would prevent the enforcement in Malta of judgments rendered in other Member States against holders of Maltese licenses to provide online gaming services. This is, precisely, the argument used by the German creditor to substantiate the periculum in mora. The creditor considered that ‘as long as the law is in force, there is a risk that the defendant will move money from Maltese accounts to non-European countries (…), thereby preventing enforcement’. In line with the creditor’s opinion, the German gambling regulator (Gemeinsamen Glücksspielbehörde der Länder) considered that such a solution would contravene the automatic recognition and enforcement regime of the Brussels I bis Regulation. Nonetheless, it should be noted that the Brussels I bis Regulation includes infringement of national public policy among the grounds to contest the recognition and enforcement of judgments granted in other Member States (Article 45(1)(a) Brussels I bis Regulation). Under the EAPO Regulation, it is also possible to contest the enforcement of an EAPO on the ground that it would violate the public policy of the Member State of enforcement (Article 34(2) EAPO Regulation). Had the Regional Court of Baden-Baden granted the EAPO, the debtor could have raised the violation of the Maltese public policy to contest enforcement of the EAPO.

The European Court of Justice (‘ECJ’) has generally interpreted the public policy exemption under the Brussels system in a restrictive manner: a violation of public policy exists only in case of ‘manifest breach of the rule of law regarded as essential in the legal order of the State in which enforcement is sought or a right recognised as being fundamental within that legal order’ (C‑568/20, H Limited, para. 44). The iGaming industry has significant weight in the Maltese economy – it allegedly contributes to around 12% of the Maltese GDP. However, this does not mean that is it essential or fundamental for the Maltese legal order, as the ECJ requires. Accepting the move of the Maltese legislator to protect the iGaming industry would open the door for other Member States to adopt a similar solution to protect relevant sectors of their economies. That abusive use of public policy would result in undermining the proper functioning of the simplified mechanism of recognition and enforcement under the Brussels I bis Regulation.

The controversy surrounding the Maltese legislative reform has not passed unnoticed for the European Commission. Last May, one Member of the European Parliament, Sabine Verheyen, asked the Commission what its stand was towards the reform of the Maltese Gaming Act. The Commission replied that it ‘is in the process of assessing the compatibility of the draft Bill with EU law’.

For the High Regional Court of Karlsruhe, the Maltese legislative reform was not a reason to acknowledge the existence of the periculum in mora. It expressly relied on the guidance offered by Recital 14 of the Preamble of the EAPO Regulation, which contains certain criteria on how to determine that there is a risk. Recital 14 focuses on concrete actions adopted by the debtor that could show that they intend to hinder the enforcement of a claim such us dissipating, concealing, or destroying the assets. Other circumstances such as ‘the mere non-payment or contesting of the claim or the mere fact that the debtor has more than one creditor’ are not sufficient alone to determine that there is a risk. Therefore, for the court, ‘it follows that there must be concrete signs and not just typical abstract dangers of the risk of thwarting of enforcement or of making enforcement more difficult without the provisional account seizure’. Since the creditor did not show ‘any specific or viable indications that the debtor could use up, conceal, destroy or otherwise sell their assets through unusual actions’, the periculum in mora could not be established. The High Regional Court of Karlsruhe found that it was also irrelevant whether or not the post-reform Maltese Gaming Act is incompatible with EU law.

The interpretation that the High Regional Court of Karlsruhe gave of the EAPO´s periculum in mora is coherent with the strict interpretation other German courts had made of this prerequisite. The High Regional Court of Hamm (Oberlandesgericht Hamm) considered that transferring a debtor’s funds from a German bank account to another outside Germany was not sufficient to establish the periculum in mora. In another EAPO case before the Regional Court of Bremen (Landesgericht Bremen), the creditor justified the periculum in mora arguing that the debtor had failed to make two promised payments. Furthermore, the creditor added that the debtor was experiencing financial difficulties. The court found that both arguments were insufficient to claim the existence of a risk. Citing the Preamble of the EAPO Regulation, the court stated that mere non-payment by the debtor was not enough.

Across the EU, courts in other Member States, which relied on the Preamble of the EAPO Regulation, have also adopted a similar stance towards the periculum in mora as German courts have. In Slovakia and Portugal, the most common case law on the EAPO Regulation are judgments rejecting EAPO applications because creditors failed to satisfy the periculum in mora in light of the standards of the Preamble (see 2020 Prof. Requejo Isidro’s post concerning  a Portuguese court judgment on the EAPO). Creditors seem to find it difficult to prove that debtors have adopted specific actions intended to hinder the future enforcement of the claim. The Commission Proposal had a more lenient approach towards the periculum in mora for those creditors with an enforceable title: they were exempted from proving it (some scholars defend the reintroduction of that more lenient approach: Burkhard Hess, Europäisches Zivilprozessrecht (2nd edition De Gruyter 2021), para. 10.141). Had the EU legislator adopted the approach defended by the Commission, the creditor of the present case would not have experienced any issue since he had already obtained an enforceable judgment.

Dr Mihail Danov, Associate Professor at the University of Exeter, has accepted the invitation of the editors of the blog to present his recent book, titled ‘Private International Law and Competition Litigation in a Global Context’, published in the Hart Publishing series on Studies in Private International Law.

The book examines the private international law issues in competition law claims which are issued by private parties and which arise out of infringements that distort the process of competition in different countries. The issues are important because many private antitrust damages claims would raise regulatory issues concerning the nature of the conduct as well as tortious issues concerning the causation and quantification of damages that may be sustained by numerous consumers and businesses (that may be up or down the chain of commerce).

The private international law aspects matter in practice because the jurisdiction rules (predetermining the applicable procedural rules) and the choice-of-law rules (ascertaining applicable law/s which are used to determine whether the conduct is anticompetitive as well as to quantify damages) would both have an impact on the outcome of a cross-border competition law dispute. More importantly, the book demonstrates that private international law issues are closely intertwined with injured parties’ access to legal remedies in private antitrust damages claims. For example, since many competition law infringements may last for several years and cause harm to various injured parties, the procedural rules (concerning case-management; disclosure; standard of proof) at the place where the parties litigate would be key for judges to quantify damages by applying the applicable substantive law rules. This means that the injured parties’ access to justice might often depend on where the proceedings are issued.

A major layer of complexity, which signifies the importance of private international law, is that competition law infringements may frequently be committed by multinational groups of companies that would naturally engage in transnational economic activities. Since the relevant anticompetitive conduct would potentially cause antitrust damages to many consumers and businesses in different jurisdictions, multiple and related private antitrust damages claims (and public enforcement actions) may be issued against different subsidiaries forming part of the same infringing undertaking/s (i.e. group/s of companies). A regime for judicial cooperation is needed because competition laws would reflect the national public policy (being classified as overriding mandatory rules for the private international law purposes). In order to determine whether the conduct is anticompetitive, judges may apply extra-territorially their own competition laws (without necessarily factoring in foreign regulatory interests). This means that an important question is how any related competition law claims – which arise out of the same competition law infringement/s and which raise common issues (concerning the nature of the conduct or causation or damages) – are to be governed in a global context. A closely connected policy choice concerns any preclusive effects of foreign judgments / decision, establishing competition law infringements and/or dealing with certain common issues.

The existing private international law rules are considered along with their implications for the resolution of cross-border competition law disputes before the English courts with a view to suggesting how a regime for judicial cooperation should / could be developed. The issues – which need to be considered by injured parties, defendants, judges and which should be addressed by policy-makers with a view to promoting a level of judicial cooperation in antitrust matters – are identified. The book goes further to advance an argument for a new approach to governance by suggesting that private international law techniques may be key to attaining a level of judicial cooperation in a global context.

The author of this post is Kleopatra Koutouzi (Attorney-at-Law / In-house legal Counsel at Aims Shipping Corporation and External Collaborator with the International Labour Organisation (Maritime Unit)).

In my recently published PhD research entitled Mass Claims in Maritime Law and Alternative Methods of Dispute Resolution, I attempted to answer the above question by dealing with an issue more and more debated at a national and an international level: whether a group of people, suffering damage due to a maritime casualty, can defend their rights collectively before an arbitral tribunal, taking into consideration that collective mechanisms facilitate effective judicial protection.

Shipping has been one of the strongest supporters of arbitration for as long as one can find records. However, arbitration clauses are not included anymore only in contracts between equals. Arbitration clauses in passengers’ tickets and crewmembers’ employment contracts are a common phenomenon recently. The example of the cruise industry shows a trend which may become a mainstream in the near future. Therefore, novel dispute resolution devices affect directly the maritime industry, since most of the international trade and activities are carried out by sea. Given also that maritime casualties tend to take nowadays the form of massive catastrophes, the international maritime community should be alerted to deal with mass and often divergent claims in a rather quick and efficient way.

Τhe research applies a cross-sectoral approach, i.e. the intersection of maritime law with international commercial arbitration law, the procedural practice of mass collective claims and alternative (out-of-court) dispute resolution (ADR). The study cuts across several legal fields and it does so on a comparative basis with four jurisdictions of reference – United States of America (USA), United Kingdom, France and Greece. For the conduct of this research, the United States jurisdiction is used as a benchmark. US law has long been recognized as one of the most friendly and familiar with methods of collective actions – in the form of the unique worldwide phenomenon of class actions – and the use of alternative methods of dispute resolution – with a great emphasis on arbitration. This turns USA into one of the main destinations for the resolution of large-scale disputes. Moreover, the recent US case law on class action waivers in consumer and employment agreements and the relevant debate generated therefrom as well as a series of court decisions compelling arbitration in seafarers’ injury claims are very pertinent to the current analysis.

In this study, the term “mass claims” is used in order to describe claims which arise when a number of people, either contractually bound to the shipowner or not, suffer damages resulting from the same historic event, in our case from a maritime casualty or a maritime adventure whether on board the ship or ashore. Therefore, the claims examined arise either simultaneously or at around the same time and present very similar legal and factual issues without however being identical. In relation to the number of claims involved, for convenience purposes, the research adopts the threshold set by the EU Recommendation of 11 June 2013 and considers mass claims any claims brought collectively by two or more natural or legal persons claiming to have been harmed in a maritime casualty or adventure. Therefore, individual accidents fall outside the scope of this work.

The main research questions answered in this book are:

1. Is arbitration a legally permissible dispute resolution method for the handling of mass claims in the aftermath of a maritime casualty and how should the silence of the governing instruments be interpreted and handled?
2. Is it an appropriate mechanism from a policy point of view, taking into account all the interests involved (private, collective, public)? In such a case, how may a balance be established between procedural efficiency and procedural fairness?
3. Would it be possible to propose solutions, building on the common elements found in the annotated jurisdictions?
4. Is there any added value of mass arbitrations in maritime fields where specific collective indemnity schemes are already in place and have proved effective, as in the case of oil pollution from ships?

To address the above questions the book examines two different categories of claims; a) contract-based ship passengers’ claims, and b) tort-based ship pollution claims. In relation to the first category, reference is made to the specific liability regime governing the sea carriage of passengers, examining the use of arbitration in the relevant disputes (through the lens of consumer protection) as well as the issue of the class action waivers included in many passage contracts. In relation to the second category, reference is made to the specific regime regulating liability and compensation in case of ship pollution with the aim of testing whether arbitration can provide a valid alternative to the jurisdiction of national courts for the resolution of this kind of claims; to that end, the processes activated to address the consequences of the DeepWater Horizon accident provide useful food for thought.

The analysis deals with international contracts of carriage and therefore cross-border disputes with a particular focus on cruises and package holidays. Cruise passengers can raise their claims based mainly on the contract they had entered into while arranging a specific cruise trip. This contract is actually a special form of consumer contract and therefore the cruise passenger “wears the consumer’s uniform” as well. The discussion in relation to ship-passenger claims revolves around the theory and application of class and collective forms of arbitration in consumer disputes. A wide spectrum of claims are taken into consideration, e.g. claims for loss of or damage to luggage, illness, injury and death, claims for delays and cancellations, loss of enjoyment, inconvenience and distress. Single events and purely domestic cases fall outside the scope of this work.

The analysis concludes that in all four examined jurisdictions, the majority of passengers’ claims are considered arbitrable. The categories of claims still excluded from arbitration are personal injury, illness, and death claims. The arbitrability of passengers’ claims is also supported by the provision for arbitration in the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea which authorizes post-dispute arbitration agreements. The main difference in the approach of the examined fora is their stance towards the form and drafting of the arbitration agreement. While the USA adopt the most extreme, if one can say, approach, by enforcing both arbitration clauses stipulating for mandatory arbitration to the exclusion of state courts and post-dispute arbitration agreements, Europe, influenced by the European Courts of Human Rights jurisprudence and the Unfair Terms Directive, clearly rejects mandatory arbitration clauses, since they are presumed to be abusive. Differently, post-dispute arbitration agreements between the passengers and the carrier do not seem to be a problem in either jurisdiction.

Many passengers fear the time, cost, and energy associated with pursuing an individual arbitration and therefore prefer to proceed on a group basis. However, the analysis reveals that large scale arbitration could work well in case of passengers with relatively low value claims, not justifying a single action. Respondents on the other hand only favor broad resolution of group claims after it becomes clear that the matter will be adjudicated on a large-scale basis. In many cases, respondents believe that their legal liability will be eliminated if they can eliminate the possibility of a group action, since many claimants will be unable or unwilling to proceed on a bilateral basis. Taking into account the above, it seems that the possibility of large-scale arbitration would be more beneficial for the passenger than for the shipowner, while at the same time the latter would still be benefited from the use of arbitration, joining multiple claims into a single neutral forum and enjoying secrecy on matters of wide social significance.

Nevertheless, in theory such arrangements are always easier than in practice. In the USA, even though the use of arbitration in consumer/passenger disputes is much more popular and advertised, large-scale arbitration seems not a feasible alternative at present. The US example of cruise lines is indicative of their approach. Specific and now standardized clauses on cruise ship tickets require passengers to submit most claims to arbitration and prohibit them from uniting similar claims in a class action or class arbitration. They contain the so called “class action waivers”. Even worse, the US Supreme Court, in a series of judgments upheld their validity.

With respect to Europe, while EU law has achieved the goal of uniformity in consumer protection, and the principle of the protection of the weaker party is incorporated in all legislations of the EU Member States, the mechanisms of collective relief are at an infant stage. Moreover, the possible application of the concepts of class actions and class arbitration in the continental law generate still various concerns. It is also true that EU policymakers, even though they have recently attributed a significant role to collective redress, they do not look at the arbitration forum for the resolution of mass claims.

The discussion in relation to this category of claims revolves around the theory and application of mass forms of arbitration, which are in principle treaty-based. The analysis and arguments drawn have been heavily influenced by the concept of mass arbitration  that was first innovatively used in the context of investment arbitration. In contrast to the passengers’ claims, there is no contractual relationship in place between the victims of mass harm and the ship-owner. Also, the claims are usually vast in numbers and the various claimants cannot be easily grouped, since they base their claims on different legal grounds. Their only link is that they have suffered damage due to the same event.

The main factor that triggered the application of this exercise in the field of pollution claims is the need for concentration of these claims in one forum. This derives, on the one hand, from the text of the international conventions and, on the other hand, from the fact that they cannot be handled properly if they are not concentrated in one place.

According to the wording of 1992 CLC, if there is a pollution damage in several countries, claimants can address the courts of all of these countries, irrespective of their nationality or the exact localisation of the damage they bring their claim for. Also, there is no lis pendens rule in the 1992 CLC, according to which the proceedings in one contracting State could be stayed in favour of earlier proceedings in another contracting State. Moreover, the ship-owner has the right to set up the fund in any of the contracting States in which an action is brought, or, if no claim is brought, in any of the contracting States in which a claim could be brought. Nevertheless, only the court of the place where the fund has been constituted is competent to decide on the apportionment and the distribution of the fund, which means that all claims for payments must in the end be addressed to this court. Similar wording is used in the International Convention on Civil Liability for Bunker Oil Pollution Damage (BOPC) and the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS).

The above coupled with the different kinds of proceedings initiated in the various fora generate the reasonable question of why are there so many alternatives of competent courts since the claims will have to get technically concentrated in the end in one forum? The fact that there is not a single court that has jurisdiction over all the interested parties, creates a huge risk.

Many courts dealing with such cases resolve procedural issues by excluding foreign plaintiffs from the plaintiff group. However, courts that cannot assert jurisdiction over all of the putative parties to a dispute fail to fulfil one of the primary rationales supporting large-scale relief, namely the resolution of mass disputes at a single time, in a single forum. This deprives the parties of certain efficiencies of scale as well as the speedy route to finality that so many defendants desire. Second, it requiring claimants to seek redress in different jurisdictions can lead to different parties having different rights and remedies, despite having suffered identical injuries from the same historic event. Third, forcing cases to go forward in multiple jurisdictions can lead to inconsistent results, since courts in one state are not bound by factual or legal determinations made elsewhere. This can lead to defendants being required to undertake conflicting duties and it can also give rise to inequitable treatment of injured parties, particularly if judgements that are rendered earlier in time exhaust a limited fund.

The instruments regulating compensation for ship-source pollution do not provide for arbitration. The alleged reason is because the whole structure of compensation under the international conventions is based on an entitlement to limit liability. So, in order to claim the benefit of limitation, a shipowner is required to constitute a limitation fund with the court of the contracting state in which the action is brought against him. The conventions therefore envisage litigation rather than arbitration, although the majority of cases are settled by negotiation.

There are two kinds of (parallel) proceedings that can take place in the aftermath of a maritime casualty: proceedings on the merits of the case, if the extent of the liability and/or the extend of the damage are disputed, and limitation proceedings, which are initiated by the shipowner in order to benefit from the limitation of his liability.

The analysis carried out for the research concludes that arbitration is compatible with both proceedings.

Αs to the types of claims that arise, it is clear that all of them can be validly submitted to arbitration except for the personal injury and death claims. But, even these types of claims are clearly arbitrable in the USA and, in part, also in other common law jurisdictions, like the UK. The same applies to the types of damages claimed by the victims. Although the adjudication of damages falls strictly speaking outside the scope of the current analysis, it is worth clarifying that international tribunals are very much familiar and experienced in adjudicating both compensatory (such as actual loss, consequential loss, pure economic loss) and non-compensatory damages (such as moral and punitive damages).

Also, the selection of claims for compensation is not in any way contrary to the function of an arbitral tribunal. One can argue that the courts have better facilities and more staff to support a large volume of claims, but another could counter-argue that an arbitral tribunal constituted for this particular purpose will have more time and expertise to handle this task efficiently and quickly. Also, arbitral tribunals have historically proved that they have the capacity to deal efficiently with large-scale claims which have strong technical characteristics.

Most of the advantages of arbitration benefit both sides involved in environmental disasters. Particularly for the respondent, the possibility to adjudicate mass claims in a single neutral forum and thus to achieve concentration of homogeneous claims in one place would be a highly valued point since it would either facilitate settlements or result in consistent awards. This would be coupled with the preservation of confidentiality of the arbitral proceedings and, thus, the reduced risk of negative publicity. This would make arbitration appear very appealing to potential respondents.

Given the need for efficiency and procedural economy as well as the trend in contemporary European civil procedure for further specialization and privatization of civil justice, arbitration comes up as a viable solution for mass claims in the maritime environment. De lege ferenda solutions, mainly in the form of legislative proposals to existing maritime treaties, are displayed in the conclusions’ chapter of the book.

To conclude, the research carried out reveals that one field which can easily generate mass sea-related pollution claims and which remains unregulated is the field of oil rigs and offshore hydrocarbon platforms. An international Convention regulating their use as well as the dispute resolution methods in case of mass accidents like Deep Water Horizon is a matter of urgent necessity. If adopted, a Convention could offer a fertile ground for the use of arbitration in tabula rasa towards the resolution of mass pollution claims.

Further insight into the results of the research can be found in the book which is available here.

This post has been written by Dr Bobby Lindsay, Lecturer at the University of Glasgow. He is the author of a forthcoming book in the OUP Private International Law Series, entitled Cross Border Public Law Claims: Private International Law’s Exclusionary Rules.

It is not uncommon for a Rule formulated within Dicey, Morris and Collins to be treated by English lawyers with near-legislative reverence. Fentiman (‘English Private International Law at the End of the Twentieth Century’ in Symeonides (ed), Private International Law at the End of the Twentieth Century, 1999, p169) has noted the impression that, at least in practice, ‘coherence in the conflict of laws means coherence with that legendary work’. Even still, it is remarkable for a judgment of the UK Supreme Court to be framed almost exclusively around an inquiry into the scope of one of the Dicey rules. Rule 20(1) of the latest (16th) edition states:

English courts have no jurisdiction to entertain an action:

(1) for the enforcement, either directly or indirectly, of a penal, revenue or other public law of a foreign state

In Skatteforvaltningen (‘SKAT’) v Solo Capital Partners LLP [2023] UKSC 40, the ‘essential questions’ were identified to be the scope of Rule 20(1) and its application to the facts, which concerned an alleged widescale fraud on the Danish tax authority ([2]). It marks the first time the apex court has considered the revenue rule since Re State of Norway’s Application [1990] 1 AC 723 in 1989, and the first time it directly has addressed the ‘other public law’ strand of Rule 20(1).

The Danish tax authorities already have contributed to our understanding of the scope of what is now Rule 20(1). But the £4 million sought (via a nominee liquidator) by SKAT’s predecessor in QRS v Frandsen [1999] 1 WLR 2169 pales in significance compared to the £1.44 billion sought by SKAT in the present litigation. The case related to ‘cum-ex’ schemes (also known as ‘dividend stripping’). To create the impression that multiple parties owned shares with dividend entitlements, companies would trade shares with (cum) and without (ex) dividend rights at high volume. That impression allowed those multiple parties to present to tax authorities as meeting the criteria for refunds in respect of dividend tax, when only one party – the true owner of the dividend-entitled shares – could legitimately claim such a refund.

Solo Capital Partners (‘SCP’), the appellants, allegedly assisted companies with such a scheme to SKAT’s detriment. Non-residents of Denmark are liable to pay 27% in ‘withholding’ tax (WHT) on dividends received from Danish companies. Before paying out on dividends, Danish companies will withhold the tax which is due and pay this to SKAT to discharge the shareholder’s liability, before passing on the residue to the shareholder or their agent. However, taxpayers falling under provisions of relevant double taxation treaties were entitled to receive a full or partial refund in relation to the withheld WHT. Clients of SCP presented themselves to SKAT as entitled to WHT refunds, which they duly received. But SKAT later alleged that those clients never owned the relevant shares, never were liable for WHT, and were not entitled to those refunds. The scale of the fraud has become a national Danish scandal, and one factor behind the reorganisation of SKAT into seven separate authorities.

Tortious, equitable, and restitutionary claims (in English and Danish law) were brought by SKAT in England against (as at the time of the Supreme Court’s decision) 89 defendants, including SCP and associated parties. To keep such mass litigation manageable, trials of two preliminary issues were directed: the first on jurisdiction; the second to establish what constituted a valid WHT application under Danish tax law. Andrew Baker J found against SKAT on the jurisdiction point ([2021] EWHC 974 (Comm)), holding that SKAT’s claims were inadmissible attempts to enforce Danish revenue law. This was reversed by the Court of Appeal ([2022] EWCA Civ 234). Permission to appeal to the Supreme Court successfully was obtained by SCP; the trial of the second preliminary issue continued to judgment while the Supreme Court heard the jurisdiction point.

Lord Lloyd-Jones first notes ([21]) the suggestion of the editors of Dicey, Morris and Collins that the rule does not really go to the existence of the English court’s jurisdiction, but to its exercise. His Lordship then observes the distinction between the enforcement of a revenue law (which is forbidden) and the recognition of such a law (which is permitted). He then goes on ([22]) to discuss the two primary justifications which have been put forward for the rule. First, sovereignty: by submitting a tax claim in State B, State A exceeds the bounds of its own sovereignty in an impermissible manner. Secondly, the avoidance of embarrassment: the admittance of revenue claims might risk the forum having to declare a particular foreign tax as contrary to public policy, and so wholesale rejection is said to be the safest court. Lord Lloyd-Jones disfavoured the second rationale. English courts, eg in asylum cases, or those involving forum non conveniens and the foreign act of state doctrine(s), may have cause to criticise the conduct of foreign states, their institutions, or their legal system. The sovereignty rationale provided ‘a principled basis’ for the rule.

The key dispute between the parties was whether the existence of an unsatisfied foreign revenue claim was a prerequisite for the application of the revenue rule ([23]). Lord Lloyd-Jones surveyed ([24]-[32]) revenue law authorities from Sydney Municipal Council v Bull [1909] 1 KB 7 up to Webb v Webb [2020] UKPC 22. In each, the relevant court operated on the assumption that the revenue law rule prohibits the collection or recovery of tax which has not been paid. Importantly, this was consistent with the speeches in the House of Lords in Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd [1986] AC 368 (see [27]-[29]). There, Lord Mackay noted (at 441A) that the ‘enforcement’ of a foreign revenue law could not be said to arise where ‘no claim under that law remained unsatisfied’: an ‘unsatisfied claim’ was an ‘essential feature’ of the application of the revenue rule.

Lord Lloyd-Jones concluded ([36]) that the existence of an unsatisfied demand for tax was a prerequisite for the application of the revenue rule. Without such a claim, the foreign tax authority’s action cannot be said to involve the enforcement of the foreign revenue law. Not only was this consistent with the ratio of Williams & Humbert, but the limitation was consistent with the sovereignty-based rationale for the revenue rule: if no tax was due, then the tax authority’s claim could not be an extraterritorial assertion of the sovereign power to impose tax. It also cohered with the enforcement/recognition distinction. As the whole basis of SKAT’s claim was that no tax was due from the relevant parties at any point, the revenue rule was not engaged on the facts ([38]-[39]). While the ‘Danish tax system undoubtedly provided the context and opportunity for the alleged fraud and the operation of the fraud can be understood only by an examination of that system’, that did not make the claim one for the enforcement of Danish tax law. At most, the resolution of the claims would involve the recognition of various aspects of the Danish tax regime by the English courts, which was permissible. These were simply private law claims of the same variety as enjoyed by ‘all legal and natural persons’ ([42]).

Nor were the claims precluded by the wider ‘sovereign power’ rule: it was not a claim to recover amounts imposed by Danish public law and did not involve the exercise of any ‘prerogative right’ ([53]-[54]). The test in Mbasogo v Logo Ltd [2006] EWCA Civ 1370, focusing on the exercise of a peculiarly sovereign/prerogative/pubic right, effectively was endorsed ([55]-[57]). Any initial exercise of sovereignty by Denmark was too remote from the claims before the English courts to see them fall foul of that test; the tax regime merely provided the context for the restitutionary claims, which could have been pursued by any private party ([58]). That conclusion was not altered by the fact that SKAT had acquired evidence through sovereign powers: that was ‘at most, of merely peripheral significance’ to the characterisation of the claim ([61]). The claims, therefore, fell entirely outside the scope of Rule 20(1), and now may proceed to trial, which presently is listed to take place for well over one year.

The judgment in SKAT puts it beyond doubt that an unsatisfied tax claim due under foreign law is a prerequisite for the application of the revenue rule. In a decision handed down between the High Court and Court of Appeal judgments in SKAT, a majority of the Hong Kong Court of Appeal refused to conclude definitively on this point. Andrew Baker J’s first instance judgment played some role in the hesitancy of the majority; the categorical view of a unanimous UK Supreme Court to the contrary will no doubt influence the future position in Hong Kong and elsewhere.

Despite clearly stating the limits of the revenue rule, the decision does not give much succour to those (such as the present author) who would like to see the rule pared back. The rule still is alive and well. In discussing the conspiracy claim brought by HMRC in Case C-49/12 Sunico, Lord Lloyd-Jones opines ([44]-[47]) that private law actions brought by a foreign tax authority still will be caught by the revenue rule if their success would have the effect of making good on an unsatisfied tax claim. That stands in opposition to conclusions reached (albeit on a preliminary basis) in Hong Kong and Singapore, but a similar approach recently has been adopted in Gibraltar. The rule still will constitute a firm barrier to attempts by foreign tax authorities to pursue claims for tax the payment which has been evaded by fraudsters.

The judgment also confirms that the ‘other public law’ rule, possibly rebranded as the ‘sovereign authority rule’, definitively forms part of the exclusionary rules of English private international law.  That raises the question of its relationship with the revenue and penal law rules. Rule 20(1) suggests the ‘other public law’ rule sits alongside the revenue and penal rules. However, following SKAT, it seems that the ‘sovereign authority rule’ is a higher-order principle, and that the revenue and penal law rules are specific categories of its operation. Lord Lloyd-Jones notes ([54]) that ‘it would require exceptional circumstances’ to bring a claim falling outside the revenue rule within the ‘wider sovereign authority rule’, and it is difficult to envisage what such circumstances could entail. Lord Lloyd-Jones notes ([62]) that the sovereign authority rule, but not the revenue rule, may be subject to a public policy exception. While it might seem strange that a public policy exception operates at the general, but not the specific, level, the situation can be compared (loosely and impressionistically) with the law of negligence. There, a claim falling within an established category attracts the application of fixed rules, but a novel claim invites wider considerations of policy. The existence of that policy stopgap perhaps makes up for the fact that definition of what is an ‘other foreign public law’, or what involves the exercise of foreign ‘sovereign authority’, sometimes can be elusive.

Whether the Supreme Court’s analysis of SKAT’s claim makes that definitional exercise any more straightforward is a question for another time. More, too, could be said about Rule 20 being described as one which goes to the ‘admissibility’ of foreign claims (eg [1], [15], [39]). The Supreme Court’s faith in the ‘sovereignty’ justification, rendered contestable by convincing attacks by Carter, and a sustained recent critique by O’Hanlon, also deserves further comment. And nothing in the decision does much to help illuminate the precise relationship between Rule 20(1) (the revenue rule, the penal rule, and the ‘sovereign authority’ rule) and Rule 20(2) (the various act of state doctrines). But, on the narrow question presented to the Court, its very clear limitation of the revenue rule is to be welcomed.

On 23 November 2023, the UK Ministry of Justice published its response to the consultation on whether the UK should sign and ratify the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. The Government has concluded that it is the right time for the UK to join Hague 2019 and will seek to do so as soon as practicable.

The Convention will have UK-wide extent, that is apply in all three jurisdictions of the UK. It will be implemented using a registration model, similar to the one used for the 2005 Hague Choice of Court Convention. The UK will not make a declaration under Articles 14, 16 or 19.

The Children’s Rights Academy at the University of Geneva offers an executive training programme on Civil Aspects of International Child Protection (ICPT).

The programme includes four half-day online modules in English (Children’s Individual Rights in Transnational Parental Relationships; International and Comparative Family Law; Vulnerable Migration and Practice of Child Protection Stakeholders: Inter-agency Co-operation in Context), scheduled to take place between 7 December 2023 and 18 April 2024.

Roberta Ruggiero, Gian Paolo Romano and Karl Hanson are the programme directors; Vito Bumbaca is the coordinator.

Speakers include: Roberta Ruggiero, Olga Khazova, Karl Hanson, Gian Paolo Romano, Philippe Lortie, Michael Wilderspin, Ilaria Pretelli, Vincent Chetail, Irina Todorova, Noelle Darbellay, Mayela Celis Aguilar, Jason Harts, Nicolas Nord, Joëlle Schickel and Jean Ayoub.

For further info, see here.