EAPIL blog

On 26 March 2020, advocate general Tanchev delivered his Opinion on the JE case (case C-249/19) – the first case to be decided by the CJEU on the Rome III Regulation on the law applicable to divorce and legal separation (Regulation 1259/2010).

At stake is the interpretation of Article 10 of the Regulation, according to which, ‘Where the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex, the law of the forum shall apply.’

The question for a preliminary ruling, from the Regional Court of Bucharest, revolves around the expression ‘the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce.

The referring court asks whether that should be interpreted

(a) in a strict, literal manner, that it is to say only in respect of a situation where the foreign law applicable makes no provision for any form of divorce, or

(b) more broadly, as also including a situation where the foreign law applicable permits divorce, but does so in extremely limited circumstances, involving an obligatory legal separation procedure prior to divorce, in respect of which the law of the forum contains no equivalent procedural provisions?

THE FACTS OF THE CASE

JE and KF married in Romania, on 2 September 2001. Fifteen years later, JE brought an action for divorce, also in Romania. By civil judgment of 20 February 2018, the national court established the general jurisdiction of the Romanian courts and established that the law applicable to the dispute was Italian law, pursuant to Article 8(a) of Regulation No 1259/2010, since — on the date on which the court was seized of the divorce petition — the parties were habitually resident in Italy (the parties have resided in Italy for a considerable time).

According with Italian law, a divorce petition such as the one brought by JE can be applied for only where there has been a legal separation of the spouses established or ordered by a court and at least three years have passed between the legal separation and the time at which the court was seized of the divorce petition (the statement, in reality, does not accurately describe the Italian legislation on divorce, as reformed: in 2015, a bill was passed which reduced the three-year period to a one-year period, adding that six months suffice in particular circumstances; arguably, however, the change does not affect the substance of the AG’s reasoning).

Since it had not been demonstrated that a court decision had been made to effect a legal separation of the parties and since Romanian law makes no provision for legal separation proceedings, the court ruled that those proceedings had to be conducted before the Italian courts and, accordingly, any application to that effect made before the Romanian courts was inadmissible.

THE PROPOSAL AND ITS REASONING

The Opinion submits that Article 10 of Regulation No 1259/2010 must be interpreted strictly: the expression ‘where the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce’ therein relates only to situations in which the applicable foreign law does not foresee divorce under any form.

AG elaborates his proposal in a classical, orthodox way. First, he examines the wording and the scheme of the provision. The law of the forum only applies ‘where the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce’; the wording ‘makes no provision for divorce’ cannot mean that the applicable law ‘provides for divorce under certain (substantive or procedural) conditions’. AG explains that the provision is a consequence of the universal application of the Union conflict-of-law rules in relation to divorce and legal separation, in accordance with Article 4 of the same regulation. He acknowledges that Article 10 of Regulation No 1259/2010 endorses favor divortii, but with limits. In particular, it does not cover a case where the marriage cannot be ended because certain prerequisites are not met: for instance, where the applicable law sets out restrictive grounds for divorce such as the requirement of a long(er) period of separation.

To back his opinion, AG seeks additional support in systemic arguments, which he derives from Article 13 and Recital 26. Article 13 of Regulation No 1259/2010 provides that nothing in that regulation shall oblige the courts of a participating Member State whose law does not provide for divorce to pronounce a divorce. According to Recital 26, ‘where this Regulation refers to the fact that the law of the participating Member State whose court is seized does not provide for divorce, this should be interpreted to mean that the law of this Member State does not have the institut[ion] of divorce’. AG posits that the Recital gives an explanation beyond the specific context of Article 13 on the interpretation of the expression ‘makes no provision for divorce’- hence, it also applies to Article 10, which employs the same expression.

The historical interpretation supports as well the construction of the provision proposed in the present Opinion. AG recalls that the first alternative contained in Article 10 was introduced above all with a view to Maltese law, which, at the time of drafting of the Regulation, did not provide for the granting of any divorce.

The spirit and purpose of Article 10 speak equally in favor of a strict interpretation. Through the adoption of common rules on conflict-of-laws, the participating Member States accepted the principle that their courts could be obliged to apply foreign law despite differences which this might present vis-à-vis their own national law; they also accepted limited exceptions to that principle. Article 10 is one of them: like all exceptions, it must be interpreted strictly. Moreover, an extensive interpretation would frustrate the spouses’ autonomy in relation to divorce and to legal separation (foreseen under Article 5 of the regulation), and prevent the application (pursuant to Article 8 of the regulation, in the absence of a choice by the parties) of the law which is most closely linked to them.

CONSEQUENCES OF THE ANSWER

In addition to giving advice to the CJEU, AG Tanchev suggests how it could provide guidance on the consequences of the proposed answer to the preliminary question. In this regard, following the Commission, AG proposes that the court seized apply the substantive conditions foreseen by the applicable law and forgo the application of any procedural conditions foreseen by that law, in circumstances –like in the case at hand- where the procedural law of the forum does not allow for those procedural conditions to be met.

No doubt AG’s intention is to be praised. At the same time, and because the problem the Romanian court is facing can be characterized as pertaining to procedure (the Romanian court declared the petition inadmissible, which by the way begs the question, was it applying Romanian law as lex fori , or rather Italian law?), the proposed solution may be seen a little bit in the verge of overstepping the competences of the Court (who could nevertheless include it obiter). In addition, the parallelism AG Tanchev draws with EU regulations where respect for the substance of the applicable law in the State of the forum, when the latter’s law has no equivalent (substantive) concept in law, is reached through adaptation, is questionable.

Finally, still related to this part of the proposal: AG Tanchev indicates that the Romanian court should “confirm in its decision in the divorce proceedings that that condition of legal separation was fulfilled”. Fine, except for the fact that a problem remains regarding divorce: according to Italian law at least three years must have passed between the legal separation and the time at which the court was seized of the divorce petition. How is the Romanian court going to deal with this – for, obviously, no date of separation is available? (Further: it the parties agreed on the three-years period having elapsed, will their assertion be accepted ?)

 

In spite of the open questions and doubts just described, I believe this is an Opinion that will well received. Indeed, concerning the core subject matter it is not a surprising one; it is at any rate is correct in contents and rationale, and a well articulated piece of work. And – not that common in the writings of the CJEU –  one with many references to legal doctrine.

The general course that Catherine Kessedjian (University of Paris II – Panthéon Assas) gave at the Hague Academy of International Law in January 2019 on Neutrals in International Law – Judges, Arbitrators, Mediators, Conciliators (Le tiers impartial et indépendant en droit international, juge, arbitre, médiateur, conciliateur) has been published in the Collected courses of the Academy.

The course is written in French, but the author has provided the following English abstract:

At a time when the role of adjudicators and neutrals is criticized in domestic as well as international law, it seemed a good idea to explore the characteristics of the women and men who participate in the act of justice, and their methods of working, either as judges, arbitrators, mediators or conciliators.

The goal of the lectures was to call the students’ attention to the fact that judicial decisions are not the only way neutrals speak to the larger public and us, legal specialists. There are many other ways that are pertinent for exploration in order to better understand how justice is rendered in international law.

International law is to be understood in the broad sense as covering both public international law and private international law. Indeed the lectures were given as the general course of the inaugural winter session of the Academy entitled “international law” and conceived as a departure from the classic dichotomy still pertinent for the summer session.

The lectures, therefore, endeavor to explore the common characteristics of all neutrals and those that may be more specifics for any of the sub categories.

Among all the topics that could have been chosen to reach the goal we had set for ourselves, only a few were indeed included in the lecture i.e. : theory of law; history; the special role of mediators and of domestic judges; architecture; allegories of justice; the personality of neutrals; impartiality; jurisdiction; cooperation and more.

Finally, it is to be noted that these are the first Hague lectures reproducing images to help the discussion. In a world where images are omnipresent, we are convinced that they contribute to a better understanding of the topics and facilitate memory to concentrate on some of the more potent messages these lectures want to convey. Several testimony of that method have been reported in the lectures themselves.

Caricature created by A. Senegacnik for Ch. 14 of C. Kessedjian’s Lectures,
Reproduced with the kind permission of the artist

The full table of contents of the Lectures can be found here.

Courts in the EU increasingly issue injunctions against anti-suit injunctions, or “anti-anti-suit injunctions”. We have already read in this blog about the French practice. The Germans are doing it as well.

Facts

One example is a decision by the Court of Appeal in Munich dated 12 December 2019 (English translation here). As in the French proceedings, at issue was a claim for patent violation. And again, the defendant raised a counter-claim for fair, reasonable and non-discriminatory (FRAND) licensing in the US and applied for an anti-suit injunction against the proceedings in Europe. 

Perhaps less usual is that the defendant resorting to this tactic was a behemoth of the German industry, the company Continental, which produces everything from tyres to electronic systems for car manufacturers. Continental had been sued in Germany by Finnish company Nokia for an alleged patent violation. Continental in turn sued Nokia in the US for FRAND licensing and applied for an anti-suit injunction there to stop the German proceedings.

The reason behind this behaviour apparently is that the US courts interpret the conditions for FRAND licensing more favourably for the licensee than their European counterparts. Defendants in patent licensing disputes therefore try to shift the battlefield to the other side of the Atlantic. Even German companies now prefer Californian over Bavarian courts, and companies called “Continental” switch to different continents.

Decision

Continental’s tactic drew the ire of the Landgericht Munich I, a tribunal of first instance. It issued an injunction against the German company, enjoining it from any anti-suit application in the US against the proceedings in Germany (English translation here). The Court of Appeal (Oberlandesgericht) in Munich affirmed.

The legal rule on which Nokia’s lawyers based their claim was quite peculiar. They resorted to nothing less than the authorisation of self-defense under the German Civil Code (sec. 227 BGB). One is accustomed to the usage of this provision in cases about pub brawls or domestic violence, but less in intellectual property rights disputes between multinational companies.

The Munich Court of Appeal felt somehow uneasy with this legal basis. They stayed in more familiar terrain by weighing the interests of the parties. The court stressed Nokia’s right to pursue its patent in court (sec. 1004 BGB applied by analogy), which would be constitutionally protected and impeded by the pending US anti-suit injunction. The defendant, on the other hand, could be expected to raise the FRAND issue in the German proceedings. Hence the decision to issue the anti-anti-suit injunction.

Group of companies – A minor complication

One peculiarity of the case is that the defendant in the German proceedings, the parent company Continental AG, was not identical to the party of the counter-proceedings in the US. Instead, these had been started had been another company of the Continental group. The court had however little problems in attributing the behaviour of the subsidiary to the parent of the same “Konzern” or group of companies.

Public international law – A major problem

What is more surprising is that the Munich court had no qualms to consider its injunction as being entirely in line with customary public international law. In the past decades, European courts, especially in Germany, have complained about the extraterritorial overreach by US courts and the violation of sovereignty through anti-suit injunction. Now they are doing the same.

The tribunal of first instance had come up with an interesting justification. In its opinion, anti-suit injunctions could not be illegal under customary public international law because the Anglo-Saxon courts had issued them for years. In other words, bad practice creates bad customary law.

The Munich Court of Appeal found an even easier excuse. It simply stated that the extraterritorial effects would be a mere reflex of the anti-anti-suit injunction and not impair the sovereignty of the US. More worryingly still, it also opined that the legality under public international law hardly mattered since the injunction was in line with the German constitution. Constitutionality trumps legality under international law – a strange and dangerous concept.

Assessment 

Anti-anti-suit injunctions are a remarkable shift from the traditional European aversion against extraterritoriality and the interference with judicial proceedings abroad. Courts in Germany and in France seem to have lost both their naivety and their innocence. They now use the same weapons as their Anglo-Saxon counterparts.

The development can be summarised in terms of the Old Testament: “An eye for an eye”. As the experience of claw-back-litigation has taught, the winning country will be the one where most assets are located. German companies will thus probably never again apply for anti-suit injunctions against proceedings in Germany.

The aim of the European courts to defend their jurisdiction is certainly understandable. Yet the mutual exchange of anti-suit injunctions across the Atlantic also has costs. What stops a US court from issuing an “anti-anti-anti-suit injunction”? In the end, civil justice becomes a power play. It is long ago that public international law incarnated the polite rules of diplomacy. We seem to be back to the state of nature.

The author of this post is María Barral Martínez, trainee at the Court of Justice of the European Union.

On 26 March 2020, Advocate General Campos Sánchez-Bordona issued his Opinion in C-80/19, E.E. (the text of the Opinion was not available in English at the time of publishing this post).

At first glance, the case is reminiscent of case C-658/17, WB, where a request for a preliminary ruling from Poland sought clarification on the concept of “court” within the meaning of article 3(2) of the Regulation 650/2012 (“European Succession Regulation”), and which also dealt with the nature of the certificates of succession rights at national level. To a lesser extent, the case follows up on the question of competence of national authorities to issue certificates of succession, addressed by the Court in C-20/17, Oberle.

However, in E.E., the Court is faced with several questions that go a step further.

First, the referring court asks whether Lithuanian notaries meet the definition of “court” under article 3(2) of the Regulation.

Second, should this not be the case, whether Lithuanian notaries, without having to apply general rules of jurisdiction, can issue national certificates of succession and if these are deemed to be authentic instruments which have legal effects in other Member states.

Moreover, the referring court inquires, considering the present case’s factual circumstances, if the succession at stake qualifies as a succession with cross-border implications and, therefore, whether the European Succession Regulation should apply.

In addition, the referring court asks whether it could be inferred from the Regulation that the habitual residence of the deceased can only be one. Finally, certain questions were posed relating to the choice of Lithuanian law and on the choice-of-court agreement by the parties concerned.

The case

The Appellant’s mother, a Lithuanian national married to German national, moved to Germany with her son (E.E., “the Appellant”). In one of her visits to Lithuania, she had her will made by a notary located in Kaunas, designating her son as sole heir of her entire estate, which consisted of an apartment in Kaunas. After the Appellant’s mother died, he contacted the notary office in Kaunas to initiate the succession procedure, asking for a certificate of succession rights.

The notary refused to issue the certificate. She argued that, according to the European Succession Regulation, the last habitual residence of the deceased mother was in Germany. The Appellant challenged the notary’s decision before the Kaunas District Court (“District Court”), which quashed the decision of refusal and ordered the notary to open the succession procedure, and to issue a certificate of succession rights. The District Court stated that even though the Appellant’s mother had moved to Germany, she was a Lithuanian national and, on the day of her death, she owned immovable property in Lithuania. Further, she had not severed her links with that country, had kept visiting it, and set up her last will there.

The notary appealed the first instance court decision. The Kaunas Regional Court (“Regional Court”) ruled in her favour putting forward that whenever the habitual place of residence of the deceased is disputed, only a court can establish the legal fact leading to the recognition of the habitual place of residence of the deceased in her country of origin. In the present case nothing indicated that the court of first instance had addressed that issue; in deciding against the notary’s decision it had rather – and unreasonably- relied upon general principles.

E.E. lodged a cassation appeal before the Supreme Court of Lithuania, who submitted the request for preliminary ruling. Case C-658/17, WB, was pending at the time, but decided before the attribution of C-80/19 to AG Campos.

Application of the Regulation, the concept of cross-border implications and last habitual residence of the deceased

AG Campos Sánchez-Bordona starts his analysis addressing the applicability of the Regulation. In his view (in disagreement with the arguments of the referring court, in fear that applying the Regulation to the case at hand would make it harder for the sole heir to claim his rights), when a given succession presents cross-border implications, the application of the Regulation is compulsory (point 36). He highlights that the Regulation itself may provide for means to mitigate the effect of the cross-border character of a succession. Notably, under Article 22 thereof, a person may choose her national law as the law governing his succession, following which the parties concerned will be allowed to opt for a choice-of-court agreement giving the courts of the member state of the nationality of the deceased exclusive jurisdiction to rule on the succession as a whole.

The Regulation does not provide for a definition of “succession having cross-border implications”. It nevertheless portrays different examples of succession having cross-borders implications. In the light of them, AG indicates that some key elements could be the location of the estate, the heirs and legatees or the nationality of the deceased.

Further, AG looks into whether it is possible to establish the last habitual residence of a deceased in more than one state and on how could it be determined. He notes that allowing for the location of the habitual residence in more than one Member State would thwart the aim of the provisions under the Regulation (point 44). In accordance with the principle of unity of succession, legal certainty and the aim to avoid contradictory results, article 4 of the Regulation should be understood as meaning that the last habitual residence of the deceased can only be located in one Member state.

Moreover, he emphasises that the concept of habitual residence is an autonomous notion of EU Law to be primarily interpreted in the light of the objectives of the Regulation itself (point 46). The habitual residence of the deceased should reveal a close and stable connection with the Member State concerned. To determine the exact location of the habitual residence, it is necessary to carry out an overall assessment of the life of the deceased during the years preceding his death. Such assessment should be done in a case by case approach. The authority dealing with the succession should consider all evidence that would help to determine the habitual residence. For that purpose, AG points out that  the Regulation itself provides some guidance. Recitals 23 and 24 envisage two different scenarios: The first one, where factual information, especially in relation to the duration and regularity of the testator presence in a State, already reveals a close and stable connection with the state concerned. The second one features a situation where the deceased was not, on a permanent basis, in a single State. In the latter, a personal element (the nationality of the deceased) or economic factors (where the main assets of the estate are located) should weight more in the overall assessment of the circumstances relating to the life of the deceased.

In contrast, as AG puts it, mere statements of the persons with an interest in the succession are not pertinent for the ascertainment of the habitual residence of the deceased (point 50).

Lithuanian notaries and national succession certificates

Next, the Opinion deals with the question of whether Lithuanian notaries are “courts” within the meaning of article 3(2) of the Regulation. AG, based on the information provided by the referring court and the Lithuanian government during the hearing, concludes that, when issuing a national certificate of succession rights, Lithuanian notaries are not vested with the power to hear and determine disputes in matters of succession. Hence, they cannot settle contentious issues between the parties (point 81). Neither can they interpret any doubts arising from the provisions of the will, rule on its validity or execution. For that, a judicial authority is required. Therefore, following the Court’s line in WB, Lithuanian notaries do not meet the definition of “court” under article 3(2) of the Regulation. Therefore, they are not subject to the rules of jurisdiction in that instrument (points 83 and 84).

AG observes that, subject to the referring court verification, Lithuanian national succession certificates, issued by a notary at the request of one of the parties, in accordance with an official model, and following verification of the facts and statements listed therein, qualify as authentic instruments under of article 3(1)(i) of the Regulation. Hence, they shall produce evidentiary legal effects in other Member States (point 88).

Applicable law and Choice-of-court agreement

The Opinion turns then to the question whether the parties accepted the jurisdiction of the Lithuanian courts and whether Lithuanian law applies.

As AG highlights, only the deceased can choose the applicable law; the choice is limited to his/her national law according to article 22(1) of the Regulation. Moreover, it is subject to certain formal requirements laid down under article 22(2) thereof. A choice of law by the deceased which has not been explicitly made in a declaration in the form of a disposition of property must result exclusively from the terms of such a disposition. Elements such as the travel of the testator to Lithuania to grant her will before a notary, the nationality of the latter or the legal system bestowing him with the competence to draft the will, are only supportive -but not decisive- factors. Precisely because a notary was called to intervene at a time when the Regulation had already entered into force, it could be expected that the testator got legal advice as to the applicable law.

In the case at hand, the will of the deceased was drawn up before 17 August 2015. As she passed away after this date, the application of the transitional provisions under article 83 of the Regulation was called for. Article 83(4) thereof establishes a legal fiction by which “if a disposition of property was made prior to 17 August 2015 in accordance with the law which the deceased could have chosen in accordance with this Regulation, that law shall be deemed to have been chosen as the law applicable to the succession”. Under these circumstances, as AG indicates, there is no further need to ascertain if a valid choice of law was made by the testator under Article 83 (2) of the Regulation.

With reference to the choice-of-court agreement, AG remarks that Article 5 would allow for such an agreement only under the condition of a choice of law by the testator. In the present case the question arises whether the parties concerned would still have that option, since the national law of the testator had not been chosen but is imposed as a result of the legal fiction designed under Article 83(4). In point 113, AG indicates that the answer must be yes, ruling out a formalistic reading of the Regulation. Jurisdiction is thus granted to the authority most familiar with the applicable substantive law, in consistency with the objective set out in Recital 27 of the Regulation.

Finally, AG understands that there has been no agreement between the parties concerning the exclusive jurisdiction of Lithuanian courts to rule on the succession. Only unilateral statements and actions were made by the Appellant and the spouse of the deceased in favor of having all succession matters settled in Lithuania  In particular, the spouse consented to the jurisdiction of Lithuanian courts while expressing that he would not be a party to any proceedings. Against this background, AG concludes that article 7(c) should be read as meaning that a statement made outside the proceedings by a party concerned with the succession, by which she accepts the jurisdiction of the courts in respect of proceedings initiated by other party, amounts to an express acceptance of the jurisdiction of those courts, provided it satisfies the formal conditions required by the procedural rules of the forum (Point 123 (7)).

On 26 July 2019, the Greek Supreme Court gave a ruling involving the interpretation of the Brussels II bis Regulation in a matter of parental responsibility (Ruling No 927 of 2019).

The facts

A. and B., of Greek and German nationality, respectively, an unmarried couple, had two children. They all lived in Greece.

The mother, B., seised the Court of First Instance of Rhodes seeking the exclusive custody of the children as well as an interim measure to the same effect. In the resulting summary proceedings, A., the father, declared that he would not object, as long as the court ordered that the children keep their habitual residence in Rhodes. B. stated that she did not intend to relocate the children.

The Court provisionally granted exclusive custody to B., without issuing any order regarding the habitual residence of the children. A hearing on the merits was scheduled to take place a few months later.

Shortly after the above prrovisional order was issued, B. informed A. that she planned to spend Christmas with the children at her parents’ house in Germany.

A. formally notified B. that he disagreed. Nevertheless, B. travelled to Germany with the children. Although she had bought return tickets, she eventually decided to stay in Germany with the children.

As a reaction, A. sought the revocation of the provisional measures on custody, as well as the return of the children to Greece and an order granting him exclusive custody rights. A.’s efforts were initially successful. The provisional measures were revoked, and custody was provisionally granted to him.

B., however, challenged the jurisdiction of the Greek courts over A.’s action for custody.

The Rhodes Court of First Instance considered the challenge to be founded and accordingly declined jurisdiction. A.’s appeal against this decision was dismissed by the Dodecanese Court of Appeal.

The Supreme Court’s ruling

The case reached the Supreme Court. The latter began by considering Article 8 of the Brussels II bis Regulation, whereby, as a general rule, jurisdiction over matters of parental responsibility lies with the courts of the Member State where the child habitually resides. The Supreme Court held that relocation while proceedings are pending does not affect the jurisdiction of the court seised.

The Supreme Court agreed with the Court of Appeal that the practical difficulties that relocation may entail in particular for the parent not exercising custody rights have no bearing as such on the issue of jurisdiction, which depends solely on the habitual residence of the children at the time the court is seised. Thus, once the habitual residence of a child has been transferred from one Member State to another, the courts of the latter State come to have jurisdiction, unless the transfer amounts to a wrongful removal or retention, as defined in Article 2(11) of the Regulation.

Based on the foregoing, the Supreme Court confirmed the ruling of the Court of Appeal. Specifically, it held that when A. filed his action (in February 2015), the children were already habitually resident in Germany. Actually, the names of the children had been entered in the register of the population of the town of Kevelaer in February 2014; they benefited from a health insurance there since April 2014; they attended a kindergarten there; they had developed strong relations with B.’s relatives living nearby. The Court also noted that the children, who were also German nationals, spoke German, whereas they barely spoke any Greek.

The Supreme Court held that no wrongful removal had taken place in the circumstances, stressing that, at the time when the transfer took place, B. had temporary exclusive custody rights. Against this backdrop, relocation was lawful, and A. should have rather pursued a re-arrangement of his contact rights with the children.

The statement made by B. in the course of the summary proceedings that she did not intend to relocate the children was not considered to be decisive. Given that B. had exclusive custody rights over children, she was entitled, pursuant to Article 2(9) of the Regulation, to determine the children’s place of residence.

With respect to Article 10, on jurisdiction in case of child abduction, the Supreme Court found that no wrongful retention had taken place after the revocation of the provisional measure, which granted A. exclusive custody rights. The Court noted that A. had not sought to have the new provisional measures recognised and enforced in Germany, and held that A.’s assertion that the latter measures are enforceable without any procedure being required is erroneous. The revocation of a provisional measure, the Court held, is not a judgment for the purposes of Article 11(8) of the Brussels II bis Regulation. Actually, at that time, the children had already an established place of residence in Germany.

The final line of defence for A. was Article 12(3) of the Brussels II bis Regulation. This provides that the courts of a Member State have jurisdiction over parental responsibility in proceedings unrelated to a matrimonial matter where: (a) the child has a substantial connection with that Member State, namely by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State, (b) their jurisdiction ‘has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child’.

In particular, A. argued that B. had implicitly accepted the jurisdiction of Greek courts by initially filing an action before the Court of First Instance of Rhodes.

The Supreme Court dismissed the argument. First, it stated that, by filing her initial petition, B. could not be deemed to have tacitly accepted the jurisdiction of Greek courts for any ensuing proceedings. Secondly, the Court noted that the initial action had been brought prior to the relocation of B. and the children in Germany, adding that B. had then asked for her action in Greece to be discontinued. Finally, the Court observed that no tacit acceptance could be deemed to exist, since B. expressly challenged the jurisdiction of Greek courts as a result of A.’s action.

On 3 March 2020, the international chamber of the Paris Court of Appeal confirmed that French courts may issue an anti anti suit injunction against two US corporations which had obtained an anti suit injunction from a US court in a patent case.

When the Paris court of appeal delivered its judgment, the French anti anti suit injunction had already proven successful, as the motion for the anti suit injunction filed before the US court had been withdrawn in the meantime. The French higher court nevertheless addressed the issue and confirmed that the Paris first instance court had the power to grant the remedy.

Background

The dispute arose between, on the one hand, various companies of the Lenovo and Motorola groups and, on the other hand IPCom, a German company.  IPCom claims it owns various patents that Lenovo and Motorola use for manufacturing their devices. Lenovo and Motorola claim that IPCom did not offer them a license on appropriate terms and conditions (fair, reasonable and non discriminatory, or FRAND), and in particular that IPCom royalty demands violate these terms.

Initial Proceedings in California

In March 2019, Lenovo Inc. (‘Lenovo US’) and Motorola Mobility LLC (‘Motorola US’) sued IPCom before a US District in San Jose, California, for breach of contract, declaratory judgment, antitrust monopolization and declaratory judgment of non violation of certain U.S. patents. The suit was predicated on the allegation that IPCom failed to offer Lenovo and Motorola a license to its alleged standards essential patents (SEPs) relevant to the 2G, 3G and 4G cellular standards on FRAND terms and conditions.

IPCom challenged the jurisdiction of the U.S. court. It explained that it is a small company, employing six people only in Germany, and it argued that its contacts with the USA were not significant enough to justify the jurisdiction of a U.S. court under the Due Process jurisprudence of the U.S. Supreme Court.

In December 2019, the U.S. court accepted that the plaintiffs had failed to make a prima facie showing of personal jurisdiction over IPCom and thus limited discovery to the issue of personal jurisdiction.

Subsequent Proceedings in England

IPCom counterattacked in England, where it initiated proceedings against Lenovo UK and Motorola UK in July 2019. I understand that IPCom claims revolve around the allegation that it owns certain patents, and that these patents were infringed by the two UK defendants.

In September 2019, Lenovo US and Motorola US sought an anti suit injunction from the US court against IPCom and requested that the California court :

(1) enjoin IPCom from prosecuting the patent infringement action IPCom filed in the United Kingdom against Plaintiffs’ U.K. affiliates; and

(2) enjoin IPCom from instituting against Plaintiffs, Plaintiffs’ affiliates, or any of their customers any action alleging infringement of IPCom’s claimed 2G, 3G and/or 4G SEPs during the pendency of this action.

In November 2019, the London High Court issued an anti anti suit injunction against Lenovo UK and Motorola UK enjoining them from preventing the continuation of the English proceedings.

The French Injunctions

In October 2019, IPCom had also initiated proceedings in Paris, but this time against the Lenovo and Motorola US and French entities.

IPCom first initiated interim proceedings and sought injunctions against all the defendants. In November 2019, IPCom also initiated proceedings on the merits against the French subsidiaries only.

On November 8th, 2019, the Paris first instance court issued two anti anti suit injunctions.

The first was concerned with the existing US application. The French court ordered Lenovo US and Motorola US to withdraw their motion for an anti suit injunction in the California proceedings, insofar as such motion related to any judicial proceedings initiated by IPCom and alleging infringements of the French part of the European patent owned by IPCom, materialising by acts on French territory.

The second was a prospective anti anti suit injunction, whereby the court enjoined Lenovo US and Motorola US from initiating any such new proceedings (i.e. seeking an anti suit injunction), before any foreign court.

Both injunctions were to be sanctioned by a civil penalty (astreinte) of € 200 000 per day of non compliance (first injunction) or per instance of violation (second injunction).

Lenovo US and Motorola US moved to give notice of partial withdrawal of their motion in the U.S., in accordance with the French injunctions.

By a judgment of 3 March 2020, the Paris Court of Appeal confirmed the power to issue the first injunction. It held, however, that the second injunction was too broad (no limitation of either its temporal or territorial scope), and did not meet the requirements for issuing interim remedies, as the goal was neither to stop actual harm, nor to prevent imminent harm.

The judgment focused on whether the general requirements for granting interim relief were met. French courts have general power under the Code of civil procedure (Article 835) to issue interim measures for the purpose of stopping manifestly illegal harm. The court found that the harm was to be enjoined by the U.S. court from initiating proceedings alleging infringement of the patent in France, and that the harm was manifestly illegal, because it violated the exclusive jurisdiction of French courts and two fundamental rights of IPCom: its right to (intellectual) property and its right to a fair trial.

The Power of French Courts to Issue Anti Anti Suit Injunctions

French courts were long hostile to anti suit injunctions. In 2004, the French supreme court for private and criminal matters (Cour de cassation) had ruled in an obiter dictum that anti suit injunctions violate French public policy as the affect the jurisdiction of French courts. However, in 2009, the Cour de cassation qualified this ruling, by holding that foreign anti suit injunctions would not violate French public policy where their aim was solely to sanction a pre-existing contractual obligation, i.e. a jurisdiction clause (in favour of a foreign court).

After the 2009 decision, they were some attempts to go one step further and seek anti-suit injunctions from French courts. As far as I know, they all failed (see, e.g., the Vivendi case in 2010).

In Lenovo, the issue was obviously different, as the parties sought a remedy against anti suit injunctions. While the court’s decision is quite remarkable, the judgment did not attempt to lay down general principles. It is a narrow decision, focused on the general requirements for granting interim measures.

Yet, two series of reasons should be more specifically underlined.

First, the court insisted that French courts had exclusive jurisdiction to rule on the infringements to a French patent (here, the French part of a European patent). This suggests that it would be more difficult to obtain a similar remedy in a contractual or tort case, where no court could seriously claim exclusive jurisdiction (except in presence of a jurisdiction clause).

Secondly, the court ruled that the U.S. anti suit injunction would violate several fundamental rights of the German plaintiff. The first was the right to property under Protocol 1 of the European Convention of Human Rights.  The second was the right to a fair trial under Article 6 ECHR, and more precisely, it seems, the right of access to court. The court explained that, because the patent of the plaintiff was to expire shortly, the anti suit injunction would, in effect, deprive IPCom from its IP right. The court added that the plaintiff could not be protected in the meantime by the U.S. court, since the French court had exclusive jurisdiction. This last proposition is not fully convincing. It is not because French courts consider their jurisdiction as exclusive that a U.S. court would necessarily decline jurisdiction.

Ultimately, Lenovo was probably a good case for issuing such an injunction. The  jurisdiction of the French court was strong, while there were already signs that the foreign court might decline jurisdiction.

Christoph Schmon is the author of The Interconnection of the EU Regulations Brussels I Recast and Rome I – Jurisdiction and Law, published by Springer.

The publisher’s blurb reads as follows.

This book deals with the interconnection between the Brussels I Recast and Rome I Regulations and addresses the question of uniform interpretation. A consistent understanding of scope and provisions is suggested by the preamble of the Rome I Regulation. Without doubt, it is fair to presume that the same terms bear the same meaning throughout the Regulations. The author takes a closer look at the Regulations’ systems, guiding principles, and their balance of flexibility and legal certainty. He starts from the premise that such analysis should prove particularly rewarding as both legal acts have their specific DNA: The Brussels I Recast Regulation has a procedural focus when it governs the allocation of jurisdiction and the free circulation of judgments. The multilateral rules under the Rome I Regulation, by contrast, are animated by conflict of laws methods and focus on the delimitation of legal systems.

See here for further information.

On 27 February 2020 the Court of Justice of the European Union (CJEU) gave its ruling in BALTA, a case concerning the enforceability of choice-of-court clauses in insurance contracts (an English translation of the judgment was not available at the time of publishing this post).

The Court had addressed a similar issue in 2005, in the case of Société financière et industrielle du Peloux. It held then that a jurisdiction clause in an insurance contract cannot be relied upon against an insured who has not expressly subscribed to that clause and is domiciled in a State other than that of the policy-holder and the insurer.

BALTA concerned an insurance contract covering ‘large risks’ within the meaning of the Solvency II Directive. In principle, the provisions in the Brussels I bis Regulation aimed to protect the weaker party, including the provisions that restrict the enforceability of choice-of-court agreements, do not apply to such disputes as relate to those contracts (see Article 15(5) and Article 16(5) of the Regulation).

The Court of Justice ruled that this leeway shall not be permitted where the insured is not the policyholder and is not a qualified professional in the insurance sector.

Facts

The case concerned a dispute between a Latvian insurance company and a Lithuanian security company. The latter had sued the insurance company in Lithuania for compensation under a ‘large risks’ insurance contract that the defendant had concluded with a Latvian company holding the shares of the security company. The insurance company challenged the jurisdiction of the seised court on the basis of a clause in the insurance contract which conferred jurisdiction on the courts of Latvia.

As regards matters of insurance, the Brussels I bis Regulation provides for a special exception for disputes concerning contracts covering ‘large risks’. It is assumed that the parties to a ‘large risks’ insurance contract have significant and equivalent economic power and do not need the protection that is normally afforded by the Regulation to the weaker parties, including the insured. Prorogation of jurisdiction agreed upon by the parties to settle disputes is, accordingly, then fully allowed. However, in the present case, the insured was not the policyholder and had not expressly subscribed to the clause (which the Court reworded as not having agreed with the clause: see para. 25).

The Issue at stake and the Court’s answer

The Lithuanian court asked the Court whether, in the described circumstances, the insured is entitled to claim the protection provided for under the Brussels I bis Regulation. The Court answered in the affirmative, on the ground that the insured was not a qualified insurance professional. Accordingly, the choice of court was not enforceable against him.

The court’s Reasoning

The Court elaborated in its reasoning on the specific protection granted to insured parties, beside that of policyholders, under the Brussels I bis Regulation, especially pursuant to Article 11(1)(b). The Court observed that derogation for ‘large risks’ insurance contracts should be limited to policyholders, when the insured has not expressly subscribed to the clause. Although the latter statement had already emerged in the Court’s case law (notably in Société financière et industrielle du Peloux), the exact scope of the ‘large risks’ derogation remained uncertain. How should the significance of a third party insured bargaining power be evaluated? The question is critical as it is on that single basis that Article 16(5) of Brussels I bis Regulation may be set aside.

According to the Court, the ‘large risks’ derogation only apply to contracting parties and shall not be extended, in principle, to any insured third party (para. 41 of the judgment). While refusing a case-by-case analysis, the Court stated that the protective provisions in matters relating to insurance should be restricted to parties in need of protection. This would not be the case, in particular, of professionals in the insurance sector.

It is however not clear what other situations could be relevant. According to the Court, the security company may benefit from the protective provisions of the Brussels I bis Regulation in matters relating to insurance. Surprisingly, the Court does not take into consideration the legal relationship between the policyholder (i.e., the mother company in the case at issue) and the insured (i.e., its subsidiary) to assess the applicability of the ‘large risks’ derogation. This will not be without operational implications for European undertakings with activities in multiple markets.

Marion Ho-Dac, of the Polytechnic University of Hauts-de-France, has joined the team of editors of this blog. Check her first post here!

The readers of this blog may have noticed that very little has been published by the Court of Justice lately. Actually, a message was posted on 19 March 2020 on the website of the Court, reading as follows:

Owing to the unprecedented health crisis that we are currently experiencing, the Court of Justice is obliged temporarily to change its working arrangements.

Judicial activity continues, but priority is of course given to those cases that are particularly urgent (urgent proceedings, expedited proceedings and interim proceedings).

Procedural time limits for instituting proceedings and lodging appeals continue to run and parties are required to comply with those time limits, without prejudice to the possible application of the second paragraph of Article 45 of the Protocol on the Statute of the Court of Justice of the European Union.

By contrast, the time limits prescribed in on-going proceedings – with the exception of the abovementioned proceedings that are particularly urgent – are extended by one month with effect from today. (…)

Hearings that are listed between now and 3 April 2020 are adjourned until a later date (…).

It has also been decided the judgments and conclusions fixed during the week from 23 to 27 March 2020 will be the subject of a hearing on 26 March 2020. In both cases, the judgments will be read by the President, and the conclusions by the Chief Advocate General.

The AG’s Opinion in C-249/19, JE, which was scheduled for 24 March 2020, will therefore be published two days later.

Saugmandsgaard Øe’s Opinion in C-186/19 , Supreme, will wait until April.

The remaining Court activity in matters relating to private international law remains as foreseen.

The author of this post is Tomaso Ferando, Research Professor at the University of Antwerp. This is the third in a series of posts aimed to explore the impact of the coronavirus crisis on the phenomena of mobility and exchange that form the constituent elements of private international law, and to discuss the responses that private international law rules provide to the challenges posed by the crisis itself (see the previous contributions by Giovanni Chiapponi and Matthias Lehmann). The EAPIL blog welcomes further contributions on these topics, either in the form of comments to the published posts or in the form of guest posts. Those interested in proposing a guest post for publication are encouraged to contact the blog’s editorial team at blog@eapil.org.   

If we leave aside for a second the worrisome death toll that the covid-19 virus is claiming, there is no doubt that the spread of the virus from one wet market in Wuhan to more than 162 countries sheds light on interesting aspects of the contemporary world such as the existence of privileged patterns of human mobility that can facilitate the diffusion of diseases, the impact of aviation and daily commuting on greenhouse gases emissions, and the porosity of national borders (and people’s minds) when the threat is hidden in the lungs of businesspeople and tourists rather than in the lives of refugees and economic migrants.

Among economists, the ongoing pandemic has also triggered concerns with regards to the slowdown in production and consumption and the consequences that it is having on global growth’s projection, international trade and the performances of specific sectors such as manufacturing, energy, aviation and tourism. In the words of Japanese Finance Minister Taro Aso: “The spread of the new coronavirus is a public health crisis that could pose a serious risk to the macro economy through the halt in production activities, interruptions of people’s movement and cut-off of supply chains.”

The reliability of supply chains, i.e. the complex network of people, materials and logistic that makes the continuous provision of goods and services possible, is under the spotlight. In few weeks, the alleged efficiency of global networks of production has been compromised by the lockdowns of the Hubei province imposed by the Chinese Government, by the emergency measures adopted by countries all over the planet and by the change in patterns of consumption, with some goods that experienced unexpected high demand and other that lost any traction.

In a global scenario characterized by hyper-reliance on China as the factory of the world, the isolation of 15 Chinese provinces that was ordered at the end of January did not really matter because it concerned more than 57 million people, which is less than 1% of the global population. It mattered because that corner of the world is responsible for almost 90% of the Chinese GDP and 80% of the Chinese export: despite the global nature of the supply chains, it didn’t take long for such geographically defined measures to generate enormous repercussions on the global economy.

In the last weeks, Global Value Chains’ experts, governments, workers and citizens have been increasingly reflecting on the high level of risk and fragility that is intrinsic to overly integrated and interdependent value chains that rely on just-on-time worldwide logistic, depend on the supply of components provided by hundreds of intermediary producers located in different corners of the planet (although mainly in China) and are based on the uninterrupted coordination among all the parties involved – regulators, producers, traders, retailers and consumers alike. After the Japanese earthquake that suspended numerous production line, covid-19 seems to be the ultimate stress test for the global economic system: one that may leave the world economy – and global health – significantly changed.

For lawyers interested in the relationship between law, global capitalism and the production and allocation of value across jurisdictions and among people, there is no doubt that the speed of the economic contagion and the content of the regulatory responses aimed at mitigating or preventing the economic contagion provide a new opportunity to discuss the central role that law plays in constructing, weakening, preserving, oiling and – in some cases – destroying,  the multi-layered, multi-territorial, inter-dependent and extremely fragile expression of contemporary financial capitalism that is often described with the less controversial notion of Global Value Chains.

Why does law matter for Global Value Chains?

Although it may not be evident, law is central to the existence, functioning and distributive processes that are related to global value chains. This is certainly the case of contract law, which is often represented as the backbone of a complex system of horizontal interaction between suppliers and purchasers, the glue that keeps them together and that guarantees, through a system of standards, requirements, alternative dispute resolution mechanisms and public enforcement (and along with reputation and the possibility of long-term commercial relationships), that goods and services of the right kind are delivered on time – normally by the global brand company that consumers recognize. But this is not all. As we discuss in the Manifesto on The Role of Law in Global Value Chains, the link between law and supply chains go beyond the organization and management of their complexity and concerns the creation and allocation of value itself: property law, labor law, trade and investment law, intellectual property law, health and safety law, tort law, etc. not only determine commercial choices on where to source, the logistic routes to follow and the overall geographical footprint of the chain, but also who will be appropriating the value generated by the combination of labor, nature and capital.

When we think at the impact that the lockdown in the Hubei province had on a car manufacturer like Toyota, that relies on 2,192 distinct firms (both direct and indirect suppliers) to source and assemble the circa 30,000 pieces needed to produce a car, we can certainly think at the contractual implications of delays and breaches or, as suggested by the Digital Supply Chain Institute, at the way global brands may use contract to “develop an ecosystem of suppliers that have a commitment to meeting your requirements, even in the face of challenges,” an advice that we may interpret as the construction of legal obligations that overcome the economic and logistic difficulties of lockdowns. But this is not everything.

Another way of thinking about law, coronavirus and global value chains is to ask what legal structures have contributed to the construction of chains, like automotive, precision instruments and communication equipment, that are strongly dependent on the inputs originating from one country. Then, we would not talk about contracts, but about trade liberalization, the adoption of the TRIPs, labor and fiscal requirements, the non-internalization of environmental externalities in China or in the market of destination, the use of legislation to provide public subsidies to oil, and the whole set of legislative and regulatory forces that pushed production away from Europe and the United States and pulled it into China. From this perspective, law in its widest and most diverse meaning is one of the main reasons why the global economy is structured around supply chains and the health crisis has triggered a rapid economic contagion.

Moreover, law is central to the responses offered by governments across the world in their attempt to limit the impact of the economic contagion or improve their position in the supply chain by seizing a larger share of the – future and possible – pie (what is generally known as ‘upgrading’). For example, governments around the world may perceive the slowdown in Chinese production as an opportunity to provide financial and regulatory support the production sites capable of filling the current gap or to attract future investments by companies interested in diversifying their sourcing or in delocalizing away from a region where production is particularly exposed to health risks. Similarly, governments of countries strongly dependent on oil and commodity export (like Saudi Arabia, Chile, Brazil, Norway, etc.) may use their regulatory and legislative powers to reduce the cost of production and extraction – with the consequent implications on society and the environment – or try to create the conditions to diversify their economies and reduce their exposure to the systemic risk of a highly interconnected economy.

Independently on the regulatory or legislative interventions that will be adopted, there is no doubt that law will be central to designing the future geographies of global supply capitalism. More importantly, law already has a core role in redefining the way in which value is extracted and distributed and on the allocation of power between workers, capital and nature. With the help of one concrete example, the next section shows the importance of adopting a systemic approach to the interaction between supply chains and law, specifically through the lenses of value, coercion and redistribution.

Law and State of Necessity at the Service of Global Value Chains

We all know too well that masks and hand sanitizers may significantly reduce the risk of contagion. We also know that they are in high demand, extremely hard to find and that stocks cannot be produced at the speed that is needed by hospitals, let alone the totality of the world population. What may be less known is that before the outbreak of the virus China – yes, China – was producing more than a half of the N95 sanitary masks used by medical personnel around the planet, and that in the last month the number has multiplied by ten thanks to the financial support of the government and the conversion of factories from iPod assemblers into masks producers.

Given the dependence on Chinese provisions and the limited national production, individual European countries and the European Union stepped into the supply chain: public procurement, legally determined maximum prices and export bans have been three of the measures adopted to redesign the shape and reach of the chains. In particular, Italy, Czech Republic, Germany and France used their regulatory powers to ban or require ad hoc administrative authorization to the export of any protective equipment, directly redefining the extension and distributive effects of the global supply chain. In this context, the European Commission represents an illustrative example of the multiple ways in which law and regulatory power can shape the geography and content of supply chains. On 14 March, the Commission threatened to open an infraction procedure against Germany to favor the conclusion of a deal with Italy for the purchase of 1 million masks: the fear of a sanction opened a new route for the global supply chain of masks that would have otherwise not being in place. On 15 March, it published the so-called implementing act requiring that any export of face masks and medical to non-EU countries be subject to authorization by member states, thus limiting the possibility of the supply chains to reach third countries and their people. On 16 March, it launched a joined public procurement with member states for testing kits and respiratory ventilators. And the lockdowns have only started.

However, the story of the global supply of masks and hand sanitizers is not only one of public incentives, trade dependence on China and the strategic use of the state of health necessity to justify restrictions to trade or interventions in the global supply chain with significant impact on the availability of crucial medical equipment across Europe and in countries outside the EU potentially less prepared than the European Union in avoiding the contagion. The sudden surge in the demand for medical equipment is also the story of the women and men who in the production lines across the planet and the competition between countries and producers to guarantee a cheap and quick supply.

In Taiwan, Czech Republic, Kerala, Israel and Hong Kong alike, hundreds of thousands of prisoners have been organized in production lines to supply their ‘unfree’ labor to the global demand for masks and sanitary products, a situation that border on paradox if we consider the recent strikes in Italian prisons due to the poor hygienic conditions and the draconian confinement measures introduced to prevent the spread of the virus among prisoners. In Hong Kong, women inmates at the Lo Wu prison have volunteered – or been asked, according to other sources – to work night shifts to make 2.5m face masks a month for a monthly compensation of HK$800 (£80), a sum that is significantly under Hong Kong’s minimum wage. In Israel, inmates in the Ayalon and Rimonim prisons – two of the complexes where Palestinian prisoners have recently been on hunger strike – have been producing  face masks will serve police officers, firefighters and health inspectors. In the State of New York, the governor has promised that 100 gallons a week of “NYS Clean” will be distributed for free to residents, schools and the Metropolitan Transportation Authority: behind them, there is the work of nearly 100 inmates in the State’s prisons who perceive an average hourly salary of $0.65 cents, significantly lowered than the $15 an hour in New York and $11.10 in the rest of the state.

Yet, poorly paid and exploited labor is not only a prerogative of newly established supply chains aimed at providing cheap and abundant emergency medical equipment. In these weeks more than ever, factory and logistic workers who cannot operate from remote are fighting an even harder battle against emergency decrees that often abide by the imperatives of competitiveness, productivity and the need to keep the global supply chain running. Because, even in the state of necessity and the risk for the workers’ health, there are supply chains that have not been halted or – tin the case of logistic workers and couriers – there has been an increase in demand. Excluded from the lockdown, factory workers and operators in the logistic sector depend on the decisions of their employers and on the implementation of safety measures that are often incompatible with the production line and the security procedures.

In Italy, for example, FCA Fiat Auto decided not to close the factories producing intermediate components for international supply chains and the National Association of the Automotive Industrial Chain (Antia) released a manifesto on behalf of the Italian automotive sector asking “workers to resist and continue in the effort to maintain the international competitiveness of one of the leaders of the Italian economy.” The fear of losing its place in the global supply chain and the absence of a strong regulatory intervention converge in requiring workers to leave the safety of their houses and assume a higher risk than most of the national workforce. In the logistic sector, Amazon has announced 100,000 new jobs to increase its emergency delivery capacity both in Europe and the United States. The positive moment for the company and the need to keep the business going have their repercussions on workers and working conditions. In Italy, the Amazon workers in Torrazza, Piedmont, organized a protest against the company’s decision not to close the operations after one of the employees tested positive to covid-19 and to just quarantine part of the workforce and sanitize the warehouse. In Piacenza, near Milan, Amazon warehouse workers are on strike to denounce the company’s lack of appropriate response to the multiple coronavirus cases across Europe and the incompatibility between the company’s procedures and the health and safety requirements imposed to the whole country with the Decree on 10 March. Not to talk about the truck drivers, farm workers and the deliverers whose work is essential to making everyone else’s isolation possible and is legally excluded from the lockdown but have not received any specific form of guidance, protection and support in the legal construction of the state of emergency.

Law and Global Value Chains after covid-19

The coronavirus pandemic is already leaving an indelible mark on both global health and global economy. In this context, the role of law as one of the main tools the construction of interdependent world and interconnected supply chains cannot be overlooked. Similarly, a systemic and critical approach to law can help better understanding the rationale and distributive effects of national and regional interventions at the time of the global state of emergency. Yet, it is also important to focus on the space that law will play in shaping lives, interactions and commercial interconnections once the biological threat is over. As a matter of fact, there are at least three main lessons that we can learn from what is happening.

1. First of all, it is clear that states, national economies and citizens (above all non-skilled workers, consumers, and the most vulnerable) are exposed to highly volatile and fragile global supply chains. Law was central to the construction of the present complexity and could be a passive observer of the continuous delocalization of production away from Europe into the neighbor countries or in the loss of works without any form of public support. However, it can also intervene to subordinate market dynamics to the needs and interests of the public. Financial and regulatory incentives, bans, public procurement, universal basic income, fiscal coordination and other measures can be adopted to shape and redesign the geographies and distributive implications of global commodity capitalism. Why, therefore, not using this opportunity to rethink the relationship between states, supply chains and citizens? Why not recognizing the precariousness of supply chains and recognize the inevitability of legislative measures aimed at redistributing wealth and income? Why not using public prerogatives to build resilient, affordable, sustainable and reliable chains – for example for food and medical equipment – that guarantee citizens’ rights and essential needs and are spared from the uncertainties and profit-driven prerogatives of global competitiveness?

2. Secondly, the pandemic is revealing what jobs (factory and logistic workers) are truly essential to global supply capitalism and how their indispensability is often twisted against them to ask for more without providing enough (for example, going to work even if they are exposed to high risk of contagion). Yet, the actions of resistance undertaken in Piacenza, Torrazza and in other logistic and production sites across the world reveal the disruptive potential of strikes and protests in the context of just-on-time and transnationally coordinated supply chains. In the absence of adequate responses from the state and their employers, warehouse, automotive and manufacturing workers in Italy – and soon elsewhere in the world – are leveraging their power as potential choke points of transnational supply chains, bottlenecks of disruption in a system that depends on their labor but does not recognize it with salaries and precautions. In light of, national labor law will territorialize the transnational character of supply chains and co-define their pace and the distributional implications: will future labor law continue to be conceived as an opportunity to smoothen global production and circulation of goods/services? Will it favor automation and the replacement of humans with machines in order not to lose investments and growth opportunities? Or will it recognize the centrality of workers in the continuation of global supply capitalism and strike a new balance?

3. Finally, the health-economic crisis is highlighting the socio-environmental risks behind the mantra of competitiveness and the continuous search for cheap inputs (labor, nature, animals, etc.). The economic downturn is closely linked with the hyper-dependence on China as the (cheap) global factory. Some of the last epidemics (covid-19, swine flu, avian flu and the ‘mad cow’) were all triggered by lack of consideration for animals and the dire exploitation of their flesh and environment. On the other hand, the reduction in greenhouse gases, the rediscovery of social interactions, the abandonment of unnecessary consumerism and the rebirth of solidarity are proving that human and non-human beings can – and must – go slower. This is not an invitation of a perennial state of exception, but an invitation to assessing the compatibility of global supply capitalism with the objectives and limits of people and planet. Are we going to get more or the same or take advantage of this situation to pause and reflect? So far, the use of underpaid inmates to address the urgent need for increased production of masks and hand sanitizers and the reduction in the price of oil to stimulate the economy demonstrate that both private and public solutions to the crises have been looked for within the same unsustainable framework. Without a shift away from cheapness and competitiveness, the interlinked future of supply chains, health and global economy can only be bound to more crises, more contagions, more deaths and more precariousness. Is it too ambitious to join Capra and Mattei and hope that lawyers will be in the front line of a radical move away from social and environmental self-destruction and in the adoption of new a new paradigm that does not see law as an enabler of value accumulation through global supply chains but as a tool to build a new ecological order informed by principles of environmental and social justice?

Ilaria Pretelli (Swiss Institute of Comparative Law) has posted Provisional Measures in Family Law and the Brussels II Ter Regulation on SSRN.

Provisional and Protective Measures in family matters need special consideration because they are not limited to economic matters and significantly interfere with the self-determination of persons and often of vulnerable persons, namely children. This circumstance explains the exceptional regime of the Brussels II ter Regulation as compared to the general regime of the Brussels I and Lugano systems. The article also deals with the problem of the law applicable to provisional measures, in the absence of a specific European rule on this matter. We argue that, whenever a provisional or protective measure is taken by the judge who will not rule on the substance of the matter and especially in cases where the measure is provisional and anticipates the merits, judges should avoid the application of the law of their forum and apply the law applicable to the substance to the provisional measure they are required to issue.

The paper is forthcoming in the Yearbook of Private International Law.

The Department of Law of the University of Aarhus and the European Association of Private International have decided to postpone by one year the Association’s founding conference, originally scheduled to take place on 14, 15 and 16 May 2020.

The conference is now set to take place on 27, 28 and 29 May 2021.

The decision comes in response to the challenges posed, and the concerns raised, by the coronavirus crisis.

The venue, Aarhus, remains unchanged, and so does the conference program.

The Department of Law of the University of Aarhus and the European Association of Private International Law hope that all those who expressed an interest in the event will attend the conference next year.

Registered participants wishing to maintain their registration are invited to write an e-mail to this effect to Gitte Schneider (gs@law.au.dk) by 17 April 2020.

All other registered participants will automatically receive their fees back. This will occur in the days following the above date.

For further information, please visit the webpage of the conference in the website of the Aarhus University, here.

See you in Aarhus in 2021!

Teemu Juutilainen is the author of Secured Credit in Europe – From Conflicts to Compatibility, which is about to be published by Hart Publishing.

The abstract reads as follows.

This monograph seeks the optimal way to promote compatibility between systems of proprietary security rights in Europe, focusing on security rights over tangible movables and receivables. Based on comparative research, it proposes how best to tackle cross-border problems impeding trade and finance, notably uncertainty of enforceability and unexpected loss of security rights. It offers an extensive analysis of the academic literature of more recent years that has appeared in English, German, the Scandinavian languages and Finnish. The author organises the concrete means of promoting compatibility into a centralised substantive approach, a centralised conflicts-approach, a local conflicts-approach and a local substantive approach. The centralised approaches develop EU law, and the local approaches Member State laws. The substantive approaches unify or harmonise substantive law, while the conflicts approaches rely on private international law. The author proposes determining the optimal way to promote compatibility by objective-based division of labour between the four approaches. The objectives developed for that purpose are derived from the economic functions of security rights, the conditions for legal evolution and a transnational conception of justice.

More information here.

In May 2018, the European Commission published a proposal for a Regulation amending the 2001 Evidence Regulation. The name of the proposal immediately clarifies the lack of ambition of the project: the intention is to amend the existing text, not to recast it.

The Commission Proposal

The Proposal aims at improving the 2001 Regulation by: using electronic transmission as the default channel for electronic communication and document exchanges; promoting modern means of taking evidence such as videoconferencing and incentives (via the financing of national projects) for Member States to equip courts with videoconferencing facilities; removing legal barriers to the acceptance of electronic (digital) evidence; tackling divergent interpretations of the term ‘court’;  communicating the importance of the uniform standards provided by the Regulation (streamlined procedures, equal standard of protection of the right of the parties involved); best practices for competent courts, to help them apply the procedures properly and without delay; and raising courts’ and legal professionals’ awareness of the availability of the direct channel of taking evidence under the Regulation.

On 13 February 2019, the European Parliament adopted its first-reading position on the proposal, with 37 amendments to the text of the Commission.

On 29 November 2019, the Council of the European Union adopted a general approach of the text.

The main purpose of the proposal is to improve transmission of requests and communication by using modern communication technology. There is no doubt that this is an important concern. Yet, the operation of the Evidence Regulation arguably raises much more important issues.

The Optional Regulation

The Evidence Regulation should further European integration by facilitating and expediting the taking of evidence in other Member States.

Instead, it is the experience of many European practitioners that the Regulation does just the opposite. It creates obstacles, and slows down the taking of evidence abroad. The reason is simple: the Regulation requires the intervention of authorities in the requested state as a preliminary step to the taking of evidence abroad. The most liberal provision in this respect is Article 17, which introduced “Direct taking of evidence by the requesting court” in other Member States. But even under Article 17, it is necessary to “submit a request to the central body or the competent authority” of the requested state.

The European Union has abolished the exequatur procedure for judgments rendered in civil and commercial matters. Under the Brussels II bis Regulation, decisions on the return of a child are immediately enforceable and may not be challenged in the requested state, even for alleged violations of human rights. But the taking of evidence abroad is still subject to a preliminary procedure. The system completely lags behind.

In Lippens and ProRail, the Court of Justice of the European Union (CJEU) addressed the issue by ruling that the application of the Evidence Regulation was not mandatory, and that Member States could simply ignore it and take evidence abroad under their own procedures, without seeking any kind of approval from the requested state. In particular, the CJEU ruled in ProRail:

43. (…) it must be recalled that, according to recitals 2, 7, 8, 10 and 11 in the preamble to Regulation No 1206/2001, the aim of the regulation is to make the taking of evidence in a cross-border context simple, effective and rapid. The taking of evidence, by a court of one Member State in another Member State must not lead to the lengthening of national proceedings. (…)

45. An interpretation of Articles 1(1)(b) and 17 of Regulation No 1206/2001 according to which the court of a Member State is obliged, for any expert investigation which must be carried out directly in another Member State, to take evidence according to the method laid down by those articles would not be consistent with those objectives. In certain circumstances, it may be simpler, more effective and quicker for the court ordering such an investigation, to take such evidence without having recourse to the regulation. 

The CJEU however reserved cases where the taking of evidence would affect the powers of the requested Member State.

The Proposal of the Commission does not address the optional character of the Regulation. This means that the future amended Regulation will remain an optional instrument that the courts of the Member States are free to (continue to) ignore.

Liberalizing the Taking of Evidence in Other Member States

The most important issue that the Proposal does not tackle, however, is that of the obstacles that the Regulation creates in the taking of evidence abroad, and that litigants avoid by resorting to national law.

During the legislative process which lead to the adoption of the initial Evidence Regulation, Germany had proposed to fully liberalize the operation of judicial experts in other Members States. Under this exception, courts could appoint a judicial expert to carry out his mission in other Member States without any need for a preliminary procedure in the requested state. The exception was eventually not adopted. However, this is exactly what the CJEU has allowed in ProRail, which was concerned with the operation of a judicial expert in another Member State.

The reform of the Evidence Regulation was thus the perfect opportunity to reconsider the issue. A much more ambitious reform would have attempted to identify cases where the taking of evidence abroad could be liberalized by abolishing any preliminary procedure, and cases where some kind of involvement of the requested state would still appear to be justified.

Instead, the European lawmaker is about to ignore the problem and, by doing so, to generate considerable uncertainty.

Disclosure: the author was a member of the expert group established by the European Commission for the purpose of drafting the Proposal of the Commission.

The Covid-19 pandemic is on everybody’s mind. Around the world, countermeasures limit public life and freedom of movement, especially cross-border traffic. This raises the question to which extent Private International Law is relevant and capable of handling this new situation. Here are some provisional thoughts on the potential impact of travel bans and other emergency measures under the Rome I and II Regulation.

Transport contracts

Some countries have restricted free movement from persons coming from areas affected by the Corona virus. Austria, for instance, does not allow people coming from Italy into its territory, while the US has just banned travel from Europe with the sole exception of the UK. As a result, flights, trains and bus trips have been cancelled.

For courts in the EU (with the exception of Denmark), the law governing these transport contracts is regulated by Article 5 of the Rome I Regulation. The determination of the applicable law is quite straight forward: The fallback rule is that the law of the habitual residence of the passenger applies (Article 5(2) Rome I). The trickier question, however, is which impact the local law at the place of destination might have on the contract.

The answer for EU courts is given by Article 9 of the Rome I Regulation. The prohibition to enter the territory of a Member State certainly qualifies as an overriding mandatory rule in the sense of paragraph 1 of the provision. Should the courts of that Member State decide over the case, they would apply this provision as part of their lex fori (see Article 9(2) Rome I). The result would certainly not be very different for courts outside the EU, which would apply such provisions as part of their public policy.

The court of another Member State, for instance those of the place of departure, may give effect to the overriding mandatory rules of the state of destination because the contract is to be performed there (see Article 9(3) Rome I). In case the latter has prohibited all travel, this would render the performance of the contract unlawful in the sense of the provision. Mind that the courts of the other states have discretion whether to give effect to the travel ban (see the word “may” in Article 9(3) Rome I).

Cancelled or Postponed Events

The virus has led to the cancellation of events around the world, from congresses to concerts and soccer matches. Usually, the tickets to these events will be subject to the local law where the event takes place.

However, this is not always the case. The parties may have chosen another law (Article 3 Rome I). The consumer protection rules do not interfere with this choice, when the event takes place in a state in which the consumer does not have its habitual residence (see Article 6(4)(a) Rome I). In the absence of a choice, the law at the habitual residence of the service provider applies (Article 4(1)(b) Rome I). If it is – as usual – a corporate entity, the law at the place of its central administration governs (Article 19(1) Rome I). These laws may be replaced by that of a branch that has concluded or executed the contract (Article 19(2) Rome I).

If as a result a foreign law governs the contract, the law of the place of the event may be applied as an overriding mandatory rule under the conditions set by Article 9 of the Rome I Regulation. Insofar, the same considerations as for transport contracts apply. Where the law of the event does not call for a full cancellation, but rather for some changes, such as a postponement or the shift to another place, this law may be considered as the law of the place of performance (lex loci solutionis) under Article 12(2) of the Rome I Regulation.

Cancelled or Delayed Deliveries

Where deliveries of goods were cancelled or postponed, the solution is much the same as for events. The law of the place of performance may apply either as an overriding mandatory provision under Article 9 of the Rome I Regulation or is to be taken into account as lex loci solutionis under Article 12(2) of the same Regulation.

An interesting extension of the concept of public policy rules can be observed in China: According to a recent post on Chinese law a Chinese authority is issuing so-called force majeure certificates pretending to absolve Chinese companies from the need to fulfill contracts with foreign parties. The author assumes that courts of the People’s Republic could consider these certificates as part of public policy even in the absence of compulsory government orders.

From an EU viewpoint, the assessment is quite different. European courts apply legal concepts independently of any measures by administrative authorities. And while compulsory restrictions certainly qualify as overriding mandatory rules, the same is not true for the doctrine of force majeure, which does not meet the requirements of Art 9(1) Rome I. European courts will therefore follow this concept only where it is part of the law governing the contract, and assess independently whether its conditions are met. They can merely take into account, as a matter of fact, mandatory provisions at the place of performance if the applicable substantive law so allows (see to this effect the ruling of the Court of Justice in Nikiforidis, para 51).

Infections

It is hard to identify the source of a Corona infection, but it may not be impossible. A victim may for instance sue the operator of a foreign airport, hospital or hotel for the failure to take appropriate precautions. If both parties are privy to a contract, the law applicable to that contract will decide over the necessary measures, including duties of information and warning in the pre-contractual phase (Article 12 Rome II).

It is also possible that the parties are not contractually bound to each other. Imagine for instance a passenger of a flight suing another passenger who has neglected her infection. Which law applies? EU courts will have to search for the solution in the Rome II Regulation.

A first idea that might spring to mind is to apply Article 7 of the Rome II Regulation, which deals with environmental damages. Yet Recital 24 of the Rome II Regulation defines ‘environmental damage’ as ‘adverse change in a natural resource, such as water, land or air, impairment of a function performed by that resource for the benefit of another natural resource or the public, or impairment of the variability among living organisms’. The virus is respiratory and travels by air, but arguably, it does not change this natural resource. Its main negative effects are on the health of other individuals. While one may debate this assessment, it seems more certain that Corona does not impair fauna’s variation.

Hence the general rule of Article 4 of the Rome II Regulation applies. The first, rather curious, result is that any claim is governed by the law of the common habitual residence of the sick and the infected person (Article 4(2) Rome II). The dispute between two Italian residents on a plane from Frankfurt to Moscow would thus be governed by Italian law, unless there is a manifestly closer connection (Article 4(3) Rome II).

If the parties to the dispute reside in different states, then the law of the place where the damage occurred applies (Article 4(1) Rome II). Airplanes are considered as being part of the territory of the country where they are registered. The suit of a Swedish passenger against a Swiss resident on a flight from Stockholm to Geneva in a plane registered in Ireland would thus be governed by Irish law.

Cross-border infections, for instance by sending contaminated goods or livestock, are also governed by the law of the place of damage (Article 4(1) Rome II) or by the common habitual residence of the parties (Article 4(2) Rome II). Mind you, however, that the rules of safety and conduct at the place where the tortfeasor acted have to be taken into account (Art 17 Rome II). Thus, when infected animals are sent from Rome to Paris, the sanitary restrictions of Italian law would have to be considered by a court. But this is only the case insofar as they “appropriate”.

These results can again be influenced by overriding mandatory rules of the forum (Article 16 Rome II). Whether the court can also apply foreign overriding mandatory rules under the Rome II Regulation is subject to dispute. This should however be allowed in analogy to the possibility provided under the Rome I Regulation (Article 9(3) Rome I).

Conclusion

These considerations only concern private international law and leave out interesting questions of substantive law, such as those relating to force majeure, frustration or impossibility, which may be decided differently in each Member State. Moreover, they are merely provisional thoughts. It remains to be seen in which exact shape and form conflict of laws issues will arise from Covid-19.

The author of this post is Giovanni Chiapponi, research fellow at the MPI Luxembourg. The post is based on a presentation given at the weekly meeting of researchers of Department 1 of the MPI Luxembourg on 11 March 2020.

As the Covid-19 (corona virus) spreads out, the Italian government has taken some important measures, which have a strong impact on the structure of the internal judicial system. Thus, the Decree-Law No 11/2020 of 8 March 2020 contains extraordinary and urgent measures on the management of the judicial workload and on the internal organization of the judiciary to contrast the negative effects of the virus on the functioning of judicial activities.

Indeed, even in a period of crisis, where there are many risks at stake for the health of the population, it is important to ensure a proper administration of justice. Hence, the rationale of the decree is to guarantee an effective and efficient functioning of the judicial system.

In this regard, the decree provides for the postponement of hearings and for the suspension of time limits in civil, criminal, fiscal and military proceedings.  Consequences follow in all these fields of law, however my remarks will only focus on the consequences affecting civil matters.

According to Article 1(1), most civil hearings scheduled between the day following the entry into force of the decree (9 March 2020) and 22 March 2020 will not take place due to a mandatory postponement.

In the same way, pursuant to Article 1(2), time limits for exercising judicial acts within civil proceedings are automatically suspended for the period 9 to 22 March 2020. Where a time limit would normally begin during the period of suspension, the starting point is delayed until the end of the latter period.

Despite the urgency of the situation, some exceptional rules are provided under Article 2 of the decree. Both the mandatory postponement of hearings and the suspension of time limits do not concern some categories of proceedings that deal with urgent issues. In this regard, Article 2(2)(g) lists the following exceptions: determinations as to the adoptability of children, matters relating unaccompanied minors, the removal of minors from their family and situations of serious prejudices; matters relating to maintenance obligations; provisional measures affecting fundamental rights; decisions regarding compulsory health treatments; matters in respect of the voluntary termination of pregnancy; measures of protection from domestic violence; measures of expulsion; decision on provisional enforceability of judgments before Courts of Appeal and the Court of Cassation; all matters entailing the risk of serious prejudice to the parties.

Furthermore, Article 2(1) provides that the presidents of individual courts may adopt technical and organisational measures aimed to respond to health concerns while ensuring, as far as practical, the proper administration of justice.

The following measures, among others, may be adopted for the above purposes: purely organisational measures such as limitations to the access to, or the opening hours of, courthouses; guidelines as regards the conduct of hearings; exceptions to the publicity of hearings in civil matters; the use of IT technologies in court hearings; the postponement of non urgent hearings.

Some comments

The decree impacts on some fundamental principles of civil procedure (e.g. the right of defense, the equality of arms, the reasonable length of the proceedings) enshrined in the Italian Constitution, the Charter of Fundamental rights of the European Union and the European Convention on Human rights. It aims at ensuring a balance between the right to health and health care (recognized at a constitutional and European level by the Charter of Fundamental rights and the European Convention on Human Rights) and the rights of the parties in the context of civil proceedings.

Despite the urgency and uncertainty of the situation, it is indeed important to ensure the respect of the fundamental procedural rights of the parties. In this regard, the decree suspends limitation periods to file a claim with the court and procedural time limits for the exercise of parties’ rights in order not to undermine parties’ prerogatives. The lapse of time is “locked” and in principle, this does not entail negative consequences for the parties in the proceedings.

However, some doubts on the interpretation of the text of the decree arise. In such a technical question as time limits, clear indications are needed as regards, in particular, the calculation of time limits.

Namely, the decree refers to “time limits … within the proceedings”. Which time limits are concerned, precisely? Does the suspension of time limits apply to all pending legal disputes (including the objections against injunctions and the appeal procedure) or does it apply only to those legal disputes in which hearings were fixed in the period 9 to 22 March 2020 and that have been postponed by the decree?

For instance, if no hearing is scheduled , but the deadline to submit an appeal before the Court of Appeal expires on 11 March, is the time to appeal suspended? Arguably, the first reading should be preferred, since it allows the parties to better safeguard and protect their rights.

If the first reading were adopted, another issue would arises: how should time limits be calculated retroactively if they expire within the period of suspension? For instance, if a time limit expires on 11 March, what would be the new expiry date? The expiry date, it is argued, should be 24 March (9+2/22+2), as the suspension period is to be applied.

In the meantime, the Government’s department for the relations with the Parliament in an explanatory note delivered on 11 March has indicated that the broad interpretation suspending time limits in all pending legal disputes should apply.

However, the note has no binding effect as such and does not bridge the existing legal gap. As required by the Italian Bar Council, the Italian legislator should intervene to guarantee certainty.

As the immediate conversion of the decree into law seems to be difficult, the government may provide for an authentic interpretation of the rules at stake. This would ensure that the parties’ legitimate expectations on the proper administration of justice are not undermined or frustrated.

The foreign proceedings, it is contended, should then prevail on the ground that they were brought first. The fact that the justice system in one EU Member State has come to a stand-still cannot entail that other Member States have to stop their systems, too. That would run counter the interest of the parties.

Finally, some considerations may be made on the implications of this emergency legislation for judicial cooperation at the European level. These uncertainties on time limits will inevitably entail uncertainty in cross-border cases. As Italian procedural law applies under the lex fori principle, the parties must act in accordance with Italian procedural time limits including these extraordinary rules provided by the law decree. As issues arise for parties in the context of national proceedings, in the same way they will spill over in cross-border settings.

In this respect, it is interesting to underline that some European instruments in the field of judicial cooperation in civil matters provide for strict time limits (e.g. Article 5(3) of the Small Claims Regulation or Article 18 of the Regulation on the European Account Preservation Order).

What happens to those time limits if the Italian law applies under the lex fori principle? Are they suspended in the period 9 to 22 March according to the Law decree? In order to safeguard the rights of the parties, which are even more at risk in cross-border cases, it would be reasonable to suspend also these time limits. However, the Italian legislator is not competent to suspend time limits laid down in EU Regulations. Should the European legislator intervene?

Another key issue, which may have negative consequences in cross border cases, concerns Article 32 of the Brussels I bis Regulation, which provides for an autonomous definition of the time in which a court is deemed to be seized of a dispute. May we consider that an Italian Court is seized of a dispute during the period 9 to 22 March? The same considerations pointed out above can be reiterated: the activity of Italian courts should, in principle, be suspended, but as we are dealing with a concept laid down in a European Regulation, the Italian lawmaker cannot provide for exceptional rules applying to the Brussels I bis Regulation. This is again an open question, which shines a light on the risk that the lis pendens rule may be frustrated.

To conclude, as Covid-19 spreads out throughout the EU, the exceptional situation may lead other Member States to adopt urgent measures to contain the spread of the virus. As the system of judicial cooperation in civil matters is based on mutual trust and the application of provisions under the law of the Member State of origin, the question arises how the EU procedural law system may react to the introduction of extraordinary measures.

Judicial cooperation in civil matters, indeed, is based on the assumption that there is no state of emergency. Thus, if Member States start to introduce exceptional procedural rules in their own systems, there is the high risk that the EU procedural system would not be ready to face emergency measures. The EU should arguably allow Member States a certain degree of flexibility at least to provide exceptional rules for the urgent circumstances at stake.

Olivier Cachard and Paul Klötgen (both University of Nancy) have published a new edition of their manual of private international law.

The book is primarily a teaching tool. It is a textbook but it also includes numerous abstracts of cases, legislation and articles, as well as a glossary.

The book covers the traditional topics of jurisdiction, choice of law and foreign judgments. The focus is on French private international law, but the book often refers to sources from other jurisdictions.

More details can be found here.

The author of this post is Marlene Brosch, senior research fellow at the MPI Luxembourg.

The first advisory opinion of the European Court of Human Rights (ECtHR) under Protocol 16 to the European Convention on Human Rights (ECHR), rendered on 19 April 2019, tackled no less than the highly sensitive and controversial topic of surrogacy motherhood in the well-known Mennesson case – in particular, the recognition of the intended, non-biological mother’s legal parenthood.

The opinion from Strasbourg and the subsequent judgment of the French Court of Cassation have already triggered numerous comments and reactions (notably on this blog; see also here and here). This post aims to raise some procedural aspects of overarching interest.

From hierarchy to cooperation: the change of procedural perspective

The kick-off Mennesson case illustrates the structural change envisaged by Protocol 16 to implement human rights compliance in the Contracting States. The hierarchical approach through the condemnation of France in 2014 shifted to the cooperative, dialogical approach initiated by the Cour de Cassation through the advisory opinion request.

It should be reminded that the judicial dialogue would not have been possible in this first case if the French legislator had not paved the way, in 2016, for the re-opening of proceedings on personal status matters following a judgment of the ECtHR affirming a violation of the Convention.

In this respect, it is worth considering whether domestic rules for the re-examination of a final decision could also be interpreted as applying to advisory opinions. Could the non-binding, yet factual authority of advisory opinions lead to a review of a final domestic judgment rendered previously on the issue in question?

The role of the advisory opinion procedure within the adjudicative function of the ECtHR

The amended Rules of Procedure of the ECtHR do not explicitly clarify the processing order between individual applications under Article 34 ECHR, on the one hand, and requests for an advisory opinion under Protocol 16, on the other. However, given the nature of the questions referred (“questions of principle”), Rule 93 (2) specifies that “requests for advisory opinions shall be processed as a matter of priority […]”.

This priority is indeed crucial. The domestic proceedings are usually stayed during the advisory opinion procedure, and, in light of the fundamental rights issues involved, delays before the ECtHR may have severe impacts on the domestic case.

This priority order was precisely put into practice within the first advisory opinion procedure. A few months before the Cour de Cassation filed the request for an advisory opinion, two individual applications were lodged against France under Article 34 ECHR concerning the very same issue, i.e., the recognition of the legal parenthood of the intended, non-biological mother. The Grand Chamber delivered the advisory opinion within a record-breaking period of only six months after the Cour de Cassation had filed the request.

About half a year later, in November 2019, the joint judgment concerning the individual applications was rendered in line with the advisory opinion. This timing seems to indicate that the ECtHR includes advisory opinions in its case-law with a “leading function” to decide on identical or similar individual complaints expeditiously.

Outlook towards Luxembourg

Incidentally, the issue of parental rights and surrogacy is also occupying the CJEU. In the pending Merly case (T-505/19), a staff member of the European Parliament (EP) seeks the annulment of an EP decision refusing to grant him adequate special leave to take care of his twin children newly born via surrogacy. In C.D. (C-167/12) the ECJ tackled a similar situation concerning maternity leave for the intended mother, which was denied under EU employment directives.

However, in the pending case before the General Court, the applicant directly claims a violation of the right to respect his family life under Article 8 ECHR in conjunction with Article 14 ECHR.

Thus, further implications of the recent developments in Strasbourg remain to be seen.

In a judgment delivered on 4 March 2020, the French supreme court for private and criminal matters (Cour de cassation) accepted to apply the doctrine of renvoi in a parenthood dispute.

The proceedings were initiated by a man who claimed that he was the father of a girl born from a married woman and demanded a DNA test to establish it. The spouses opposed it.

While the married couple resided with the child in France, the mother was a German national couple and the husband was an Italian and an Australian national. The child was born in Germany.

Article 311-14 of the French civil code provides that filiation is governed by the law of the nationality of the mother. The claim of the alleged lover was thus, in principle, governed by German law. The spouses argued that, under German law, the claim was inadmissible, unless the plaintiff could challenge that the girl was raised as the child of the spouses.

French courts, however, found that Articles 20, 19 et 14, § 1 of the German Introductory law to the Civil Code (EGBGB) provided that, under German private international law, filiation was governed by the law of the residence of the child and the law of the effects of marriage which was the law of the common domicile of the spouses if they were of different nationalities.

Indeed, Article 20 EGBGB provides that a challenge to filiation will be admitted if the action meets the requirements of either the law of the residence of the child or the law governing the effects of marriage. In the present case, Article 20 designated French law on each ground.

From the perspective of France, there was thus a renvoi from German law.

Substance blind choice of law rule

It is the first time that the court applies the doctrine of renvoi in the field of parenthood. While the doctrine is of general application in France (and more widely in many civil law jurisdictions), there was a doubt for parenthood because many choice of law rules in the field are not substance blind. They favour one outcome, for instance by providing that one way of establishing parenthood is valid if it is accepted by one of several laws.

Article 311-14 of the French civil code is a traditional choice of law rule, using a single connecting factor to determine the applicable law. It is does not, therefore, favour any particular outcome, and can be regarded as substance blind, or “neutral”. The court expressly insisted on this feature of the relevant choice of law rule.

The court held:

3. Pursuant to Article 311-14 of the Civil Code, filiation is governed by the personal law of the mother at the time of the birth of the child.

4. This provision lays down a multilateral, neutral choice of law rule which does not exclude renvoi. 

First degree renvoi

Although the English speaking world has borrowed the term renvoi from the French, the doctrine is very different in the civil law and in the common law tradition. There are, in truth, two doctrines of renvoi in the civil law tradition, and none of them corresponds to the English double renvoi/foreign court theory.

The first doctrine is first degree renvoi. It provides that if the choice of law rule of the forum designates foreign substantive law, and the foreign choice of law rule designate the substantive law of the forum, the forum should accept the renvoi and apply the substantive law of the forum. This is what this case was about: the French choice of law rule designated German substantive law, and the German choice law rule designated French substantive law. The Cour de cassation accepted the renvoi.

Scholars have long identified that first degree renvoi may lead to the remarkable situation where two states both accepting first degree renvoi would play a game of tennis table over the border and create an endless process of designating each other’s law. In the present case, Germany does accept first degree renvoi (Rückverweisung in German), so it might well be that a German court would find that French law provides for the application of German law, and accept the renvoi from Art 311-14. If that were the case, it would follow that each court would apply its own law, instead of applying each other’s law. Quite an incentive for forum shopping.

Until recently, the Cour de cassation never cared to elaborate on the rationale of its decisions. This has changed recently. So, in the present case, the court cared to explained why renvoi should be admitted. It held:

(…) the resolution of the conflict of laws by application of German rules, which designate French law, ensures coherence of outcomes irrespective of the court seized by the application of the theory of renvoi.

Well, I am not sure about that. The purpose of first degree renvoi never was to ensure consistency of outcomes. In the present case, which involves two civil law jurisdictions which admit renvoi, the doctrine will not create any coherence of outcomes whatsoever. A French court will apply French law. A German court, if it accepts renvoi, will apply German law.

In truth, it is the second doctrine of renvoi, second degree renvoi, which aims at ensuring consistency of outcomes. Under this second doctrine, the choice of law rule of the forum designates foreign jurisdiction 1, which designates foreign jurisdiction 2, which also designates foreign jurisdiction 2. The doctrine provides that all three courts should apply the law of foreign jurisdiction 2. If this is the case, then consistency of outcomes will be ensured: all courts will apply the same substantive law.

In other words, the Cour de cassation offered the rationale of second degree renvoi to justify the application of first degree renvoi.

Wrong reasoning, right outcome?

There is, however, one case scenario where first degree renvoi can accidentally ensure consistency of outcomes. This is the case of a foreign country which would not accept renvoi.

As already mentioned, German law accepts first degree renvoi in principle. However, the relevant German choice of law rule is not substance blind. It favours one outcome, namely challenge to an existing filiation. It might be, therefore, that German law limits the operation of renvoi in this context, in order not to contradict the policy advanced by the rule.

Our German readers probably know…