Agrégateur de flux

The Academy of European Law (ERA) will held its Annual Conference on European Family Law on 22-23 September 2022 .

The conference will deal with the new Brussels II Regulation, which is applicable from 1 August 2022, hearing of the child, parentage, surrogacy and double motherhood, as well as recent CJEU case law on international family law.

Speakers include Véronique Chauveau, Dagmar Coester-Waltjen, Gilles Cuniberti, Joanna Guttzeit, Frank Klinkhammer, Carlos de Melo Marinho, James Netto, Marta Requejo Isidro, Caroline Rupp, Nadia Rusinova and Andrea Schulz.

For further information, see here.

Starting from 1 August 2022, the Regulation (EU) 2019/1111 of 29 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast)(Brussels II ter Regulation) became applicable, replacing the Brussels II Regulation.

As nearly two decades has passed since the Brussels II Regulation itself became applicable, it seemed important to record its retirement also on CoL and to welcome its successor. Special thanks need to go to Mayela Celis who rang the bell timely.

For further discussion on the new Regulation and the changes its brings, I am happy to refer our readers to the special volume of Polish quarterly on civil procedure („Polish Civil Procedure”, „Polski Proces Cywilny”), which we brought to your attention a while ago.

Although repealed, the „old” Regulation does not completely loose its relevance. Under Article 100 of the Brussels II ter Regulation, the former is still applicable in particular to the legal proceedings instituted prior to 1 August 2022 and to the decisions given in such proceedings.

So… Exit the Regulation (but not fully), enter the Regulation. Anyway, Long Live to the Latter ?

Canara Bank v MCS International [2022] EWHC 2012 (Comm) is interesting with respect to Cooper J’s discussion of privity of choice of court and law, and the corporate carve-out of retained (post Brexit) Rome I.

Canara (an Indian bank) say that the Guarantee at the core of the issues, with English choice of law and court, was transmitted automatically to MCS France under the French Civil Code as a result of an amalgamation or merger of two French companies, namely the original guarantor and MCS France.

On the impact of Rome I, the judge [53] presumably with parties’ counsel approval, remarks that ‘pursuant to Article 1(2)(e) and (f), Rome 1 does not apply to questions governed by the law of companies or to the issue of whether or not an agent is able to bind a principal in relation to a third party. For both these issues, it is necessary to look to common law principles.’

[88] It is said again that whether an agent is able to bind a principal in relation to a third party is excluded from Rome 1 further to article 1(2)(g), the corporate carve-out. I do not think that is necessarily the case, even in combination with the Article 1(2)(e) carve-out for choice of court. The judge at any rate continues by applying the Dicey Rule 243 that where an agent acts or purports to act on behalf of a principal, their rights and liabilities in relation to each other are in general governed by the law applicable to the relationship or contract between them, with Dicey Rule 244(1) adding a bootstrap /von Munchausen /putative law element:

The issue whether the agent is liable to bind the principal to a contract with a third party, or a term of that contract, is governed by the law which would govern that contract or term, if the agent’s authority were established.”

[89] In light of the foregoing, ‘it was common ground between the parties, and rightly so, that Mr. Maurel’s actual authority on behalf of MIF fell to be determined under French law and the question of whether and to what extent Mr. Maurel was able to bind MIF in respect of the Guarantee given Canara’s knowledge of the resolution is a matter of English law.’

Common English conflict of laws is held to apply to the issue of transfer of a guarantee during the dissolution of a company, and parties agree [76] that whether a corporation has been amalgamated with another corporation is to be determined by the law of its place of incorporation: French law is held to be the relevant law for the dissolved guarantor issue, and expert reports were discussed.

Overall conclusion is [125]

Having considered the issue of good arguable case by reference to each of the issues raised by the parties in relation to the question of whether MCS France was a party to the Guarantee and therefore the jurisdiction agreement contained within it, it seems to me to appropriate to step back and consider whether overall Canara has a good arguable case on whether or not MCS France was a party to that jurisdiction agreement. In this regard, I consider that it does. Even were I to be wrong on one of the issues considered above, the balance of the evidence supports the conclusion that MCS France is a party to the Guarantee and to the jurisdiction agreement contained within it. In circumstances, where the evidence establishes that Canara, MCS France and MCS UK have done business since 2014 on the basis that the Guarantee was binding on MCS France, it would be a surprising conclusion that there was no good arguable case that MCS France was a party to the jurisdiction agreement.

Interesting, if flimsy on the corporate carve-out issue.

Geert.

Guarantee with EN law and jurisdiction clause. Whether it extends to French amalgamated company for purposes of jurisdiction.
Retained Rome I held not to apply on basis of corporate law carve-out.

Canara Bank v MCS International [2022] EWHC 2012 (Comm)https://t.co/jRg4GCW0Yr

— Geert Van Calster (@GAVClaw) July 30, 2022

A. Introduction

During the Summer of 2019, I attended one of the two flagship courses organised by the Hague Academy of International Law – the annual Summer Courses on Private International Law.

I quite vividly recall that, during the opening lectures, one of the Professors welcomed the participants at the premises of the Academy, a few steps from the Peace Palace itself, and made an observation that, at that time, seemed as captivating as remote.

As my precise recollection of his words may be far less accurate than the memory of the impression they made on me, I paraphrase: when it comes to education in general, in years to come – he noted – it will be a privilege to be able to benefit from a physical presence of a teacher or professor, being there, in front of you, within the reach of your hand and of your questions.

At that time, just a few months prior to the beginning of the worldwide spread pandemics, even the Professor himself most likely did not realize the extent to which his words would soon prove prophetic.

That was, however, not the sole lecture that I recall vividly.

Among others, Professor Matthias Weller (University of Bonn, one of two general editors of CoL.net) presented his course titled ‘Mutual Trust’: A Suitable Foundation for Private International Law in Regional Integration Communities and Beyond?

The present post is not, however, an account of this Hague experience. It is an account of a different and more recent one that resulted from the lecture of the freshly published Volume 423 of Recueil des Cours of the Hague Academy of International Law and of the Course by M. Weller within its pages.

 

B. Structure of the Course

The Course, in its just published incarnation, is composed of eight chapters.

Details about the Course and the Volume within which it is contained can be found here, on the website of its publisher, Brill. I can also refer the readers to the post on EAPIL by Elena Alina Otanu who also reported about the publication.

Thus, in this post, I will refrain from detailing the content of every Chapter and rather present and discuss its main and/or most interesting themes. Please be warned though that their selection is highly subjective, as there is far more to uncover within the pages of the Volume.

Chapter I (“Introduction”) sets the scene for the analysis provided for in the following Chapters. Here Weller also builds up the main hypothesis of his work (see section C below).

I digress but from a methodological standpoint, the Course is very thoughtful and may serve as an example of how to deal with a matter of comparative private international law that is highly difficult to conceptualise.

The methodological awareness is most visible in Chapter I, as well as in Chapter III (“Regional integration communities and their private international law”), which furtherly explains how the analysis is conducted through the text.

Between those two, lies Chapter II (“Private international law: a matter of trust management”), where the Author explores one of his core ideas that private international law may be conceived as a matter of “trust management”. As this is an innovative paradigm with which the Author approaches his main hypothesis, it calls for some additional exposition and discussion (see section D below).

The Author devotes next four chapters (Chapters IV – VII) to the specific regional integration communities, namely: Association of Southeast Asian Nations (ASEAN), Central African Economic and Monetary Community (OHADA), El Mercado común del sur (MERCOSUR) and EU. Here, I found the Chapter on EU to be highly innovative – at least to my knowledge, this is the first comprehensive attempt to look at the plethora of heavily-discussed private international law mechanics from “trust”-oriented perspective (see section E below).

Chapter VIII (“General conclusions”) closes the book, recaps the Author’s findings and provides food-for-thought for future research in the field.

 

C. Hypothesis under scrutiny in the Course

The Course starts off with a series of references showing the relevance of “mutual trust” for various aspects of functioning of the EU and its legal framework, in particular – for its private international law.

Quoting J. Basedow who stated that the EU is the “experimental laboratory of private international law”, Weller sets the main hypothesis of his work (para. 5): there might be a fundamental relevance of mutual trust to the private international law of any regional community.

To test this hypothesis, the Author delves into analysis of selected “regional integration communities”. Doing so, Weller aims to examine whether and to what extent mutual trust is of relevance for the private international law of those communities, be it as a foundation or guiding principle, triggering more intensive cooperation (in presence of mutual trust) or preventing it (in the lack of it).

The Author also hints the possibility to take his main hypothesis even further, although this aspect does not constitute the focal point of the Course: there might even be something fundamental in “mutual trust” for private international law as it is, also where it does not operate within a framework explicitly created for the purposes of regional integration communities (to use the term employed by the Author, also where it comes to “extracommunity efforts on private international law”, para. 127). Indeed, I would argue that, at present, no system of private international law should be conceived as operating in isolation, blind to the global reach of the situations that it aims to govern.

Back to the Course itself and the hypothesis:

Weller explores and employs, as he puts it, an EU “product” – the notion of “mutual trust” (para. 8), to verify his main hypothesis in the context of various regional integration communities.

The readers should not be misled though. The Course is not built around the idea that the EU private international law, with its concept of ‘mutual trust’, constitutes an ultimate form of private international law system or a pinnacle of achievement of some sorts, and that any other regional integration communities efforts have to be benchmarked against the “EU model”. Far from that.

In fact, Weller uses the concept of “trust”, and its qualified form of “mutual trust” as a tool that allows him to research the main hypothesis of his Course.

Doing so, the Author explicitly refrains from adopting a solely EU-oriented perspective. He goes so far as to state that “not everything that comes from experiments ends up in good results, let alone the best solution for everyone”. “Not even ‘integration’ as such may be considered a priori the most suitable avenue for all states and regions in the world” (para. 8). This becomes even clearer if we read into the Chapter III. Here, the Author goes so far as to call “naive” the belief according to which “progress” boils down to increasing degrees of mutual trust (para. 126).

Also, even where Weller refers to notion of “mutual trust” and calls it at some instances an EU “product”, he also makes it clear that “mutual trust” is not an EU invention: rather, he roots it in the German regional economic community of the nineteenth century, the German Union (paras. 432 and 482).

 

D. Paradigm of the Course: Private international law as a matter of “trust management”

In Chapter II (“Private international law: a matter of trust management”) the Author exposes and explores the paradigm that he proposes and researches in the following Chapters, with regards to selected regional integration communities.

In order to do so, he divides the Chapter into two sections.

In the first section of this Chapter, Weller explores the concept of “trust”: what it is and what purpose it serves, not only in the field of private international law.

The Author manages to seamlessly transit from “trust” as a societal phenomenon, deeply researched and explained both by sociological and economic (think: risk management) theory, with its qualified form (“mutual trust”) that became so crucial for the EU and beyond.

Within the first section, Weller also juxtaposes “trust” to “knowledge” arguing, in essence, that the former allows to act (even) where information is deficient. Trust relates, he explains, to the predictability of the actions of another. He builds up another dichotomy on that observation: in the lack of information, there is a choice between “trust” and “control”, and it is the former that appears to be a better candidate for governance of private international law issues.

In the second section Weller exposes the paradigm he proposes: for him, as mentioned above, private international law may be conceived as a matter of “trust management”. In other terms, as he puts it: to trust or not to trust – this is the question of private international law (para. 123).

To make his point, the Author looks closely at what J. Basedow called the “ultimate and most far-reaching form of judicial cooperation between States” – the recognition and enforcement of foreign judgments (para. 40).

He elaborates on various tools of “trust management” with regards to foreign judgments: from “total control” (no effects of foreign judgments at all), through revision au fond, doctrine of obligation, letter rogatory and far-reaching trust with residual control via exequatur proceedings to full faith and credit among federal states and, finally,“full trust”. He argues that all of them represent a specific amount of “trust” that is given to the judicial system of another State, complemented by “control” mechanics of some sorts.

Furthermore, Weller does not shy away from exploring other aspects of private international law through the mutual trust-tinted lens. He addresses also, inter alia, authentication of foreign documents and their service or taking evidence abroad (paras. 85 et seq.), as well as application of foreign law (paras. 104 et seq.).

I digress again: reading initially into first section of Chapter II, I had a (false) impression that the views on trust are too one-sided and do not take into account that both “trust” and “mutual trust” are not (and cannot be) blind to the various circumstances that occur within the framework to which the trust applies.

Trust is first and foremost a societal phenomenon and not a religious one. In this perspective, there is something to say about what distinguishes “trust” from “faith” – the latter is not (or at least should not be) undermined by lack of feedback; it can even “fuel” more faith and intensify it. By contrast, when it comes to “trust”, a systematic lack of positive feedback, replaced by feedback that calls for concern, needs to results into reconsideration as to whether the trust must still be given and the control waived.

My initial false impression was, however, quickly dispersed. Weller recognizes the dynamics of trust too. In the paragraphs that follow, he quotes and comments extensively on one of the key elements of this research, building up on the consideration of K. Lenaerts according to which “mutual trust cannot be confused with blind trust” (para. 90). This becomes even clearer when we read into Chapter VII on EU private international law.

 

E. “Trust management” in EU private international law and beyond

I turn now to aforementioned Chapter VII, devoted to EU private international law or, if we read into this Chapter more attentively, to EU law in general.

Here, Weller discusses extensively the “mutual trust” and human/fundamental rights dynamics and argues that the balance between the former and the latter is nothing else but trust management (para. 360).

He shows, next, that private international law-inspired mechanics of trust management may apply beyond the field of EU private international law. This may seem as an even more perverse turn if we take into account that, as Weller observes, in the context of EU integration, judicial cooperation in civil matters developed in the shadows of judicial cooperation in criminal matters (para. 377).

Interestingly, Weller recognizes that even within the context of EU integration, the EU legislator does not cap the pre-existing trust with legislative framework within which this trust operates. By contrast, at least in some instances (he cites E-commerce and Service Directives), the EU legislator diagnosed a lack of mutual trust and then imposed an obligation of the Member States for mutual recognition as a cure (para. 371).

Then, he goes through various EU private international law provisions and case law pertaining to them in order to explore how the “trust management” is dealt with under EU law.

I mention just one piece of this exploration on public policy, operating under the Brussels I regime as a ground four refusal of enforcement.

Weller mentions the case that resulted in the German Federal Supreme Court judgment of 2018, which accepted the application of public policy exception with regards to a Polish judgment condemning ZDF to publish an apology on its main webpage after it described two concentration camps as being “Polish”. The Supreme Court considered that the obligation for ZDF to publish a preformatted text on its website contradicted freedom of speech and freedom of press as guaranteed under Article 5(1) of the German Basic Law. The enforcement was rejected on the basis of public policy exception.

The case has been extensively discussed in the literature before. However, faithful to the paradigm of the Course, Weller examines the case from trust management perspective.

Adopting this perspective, Weller argues that the German court “could have and would have better enforced just the enforceable parts of the Polish judgment” and “it seems that it would have been under an obligation from EU law to do so in order to maintain the movement of judgment within the EU as far as possible, an obligation that emanates from the effet utile of the Brussels regime (para. 405).

I might add, in line with this contention: if the right of enforcement of a foreign judgment is conceptualized as a right protected under the Charter (and – to be more specific – under its Article 47), then any interference to that right, although “provided for by law” [see: public policy exception of Article 34(1) of the Brussels I Regulation/Article 45(1)(a) of the Brussels I bis Regulation], must respect the requirement resulting from Article 52(1) of the Charter. Thus, if I follow Weller paradigm, also Article 52(1) of the Charter is a “trust management” tool, that calls for proportionate and restricted (only when it is “necessary”) refusal of “trust” in the EU.

 

F. So again, why do I need “mutual trust” when I already have “comity”?

I close this post with another recollection of the Summer Course of 2019: during one of his intervention at the Hague Academy, Weller mentioned that when he had shared with one of his colleagues about this “mutual trust” research, the said colleague had asked: so again, what is the difference between “mutual trust” and “comity”?

According to my account of that conversation, Weller provided, if I recall correctly, an answer that boiled down to the following statement, I paraphrase: while “comity” allows for cooperation between States, over the heads of individuals, the concept of “mutual trust” enables the cooperation between States but with paying a particular attention to the individual; it elevates the individual and his/hers interests to the attitude, where they become a matter of true concern also to the States.

The difference between “mutual trust” and “comity” is furtherly explored in the Course, although I might be accused of reading too much in-between the lines.

On the one hand, in Chapter II, commenting on various tools of “trust management”, the Author mentions the concept of “comity” again. He explains that one of it aspects can be seen as “an abstract trust in the administration of justice by the foreign state from where the judgment emerged – it results from the acknowledgment of the sovereignty and such equality of the foreign state is concretized by the presumption that the administration of justice in the foreign state is equally well placed to produce justice in the particular case at hand”.

On the other hand, in another part of the book, he makes an interesting point: the individuals push a State towards trust, so the States cooperate on behalf of those individual when they enable and supervise judicial cooperation (paras 35 and 72). In yet another part of the book, pertaining to the application of foreign law, the Author even juxtaposes trust-based mechanics, concerned with the rights of the individuals, with the sovereignty-based (“outdated”) concepts of comity (para. 111).

Furthermore, States are, Weller argues, in obligation to optimize their trust management – doing so, they optimize the chances of the individuals when it comes to the enforcement of their rights in cross-border contexts (para. 122).

I concur. But why such obligation exists? Under Weller’s paradigm, the general concept of “comity” cannot be the justification, at least not the “outdated” one. Besides, if we follow Weller on that point, from the perspective of interest of individual, “comity” may be seen as a construct inferior to “mutual trust”.

If we read into text, the Author provides an answer though: the obligation to optimise trust management results from the imperatives of rule of law and of the fundamental right to effective access to justice; as such, it is a matter of constitution guarantees (para. 123 and 444). I might add that there is also something to say about effective protection of fundamental/human rights that underlie the substance of specific rights and/or legal situations shaped under foreign law or within foreign territory. In essence, it is necessary to optimise trust management system also because it allows to ensure recognition and enforcement of rights and legal situations that are rooted in fundamental/human rights.

I tweeted the case on 4 May….slowly I am getting trough the backlog. In Otsuka v GW Pharma [2022] EWHC 1012 (Pat) Karet DJ upheld jurisdiction to hear a dispute about a patent licence in circumstances where the licensee has indicated it will challenge the validity of licensed patents granted outside the UK.

On 7 January 2022 GW commenced proceedings against Otsuka in a state court in New York. There is a significant overlap between the matters raised in the New York claim and the E&W claim (as GW have indicated they will defend it). GW seek a declaration that under the Agreement between the parties none of the relevant patents Covers Epidyolex, including because the patents are invalid. Epidyolex is a drug for the treatment of seizures associated with various conditions or epileptic syndromes. The active ingredient in Epidyolex is cannabidiol (“CBD”).

[47] ff the judge considers the Moçambique rule which means that an English court has no jurisdiction to adjudicate a claim of title to foreign land. In Lucasfilm v Ainsworth the UKSC with some reference to the CJEU’s application of Brussels Ia’s Article 24, held that there is no jurisdiction in proceedings for infringement of rights in foreign land where the proceedings are “principally concerned with a question of the title, or the right to possession, of that property” (including intellectual property). [51] Reference is also made to Chugai Pharmaceutical Co Ltd v UCB Pharma SA and to Unwired Planet International Ltd v Huawei Technologies (UK) Co Ltd.

The judge [73] holds GW’s intended challenge to a foreign patent in this case is not direct in the sense suggested in Chugai and the rule in Moçambique is not engaged. Claim formulation in the US proceedings features as a strong argument in that conclusion. [81] ff a forum non challenge is rejected.

Geert.

EU private international law, 3rd ed. 2021, 2.196 ff.

Jurisdiction upheld in #patent licence dispute with licensee indicating challenge to validity of patents granted outside UK
Moçambique rule applied to IPR
Foreign Act of State doctrine, forum non conveniens

Otsuka v GW Pharma [2022] EWHC 1012 (Pat) https://t.co/RLypWznwbQ

— Geert Van Calster (@GAVClaw) May 4, 2022

On 13 September 2022, the French Société de législation comparée will hold a conference on ascertainment of foreign law under the French Draft Code of Private International Law. The full programme of the conference can be found here.

The speakers will discuss the provisions of the draft code on ex officio application and proof of foreign law, which were presented on this blog here.

The new provisions are an attempt to reform proof of foreign law before French courts by seeking inspiration from foreign models, in particular models which involve academic institutions to report to the court on the content of foreign law and models which allow cross examination of expert witnesses on foreign law.

The conference could have been a great opportunity to confront the new provisions with foreign models which do rely on academic institutions or cross examine witnesses in court, but most unfortunately virtually all speakers are French academics and practitioners (the only exception being the director of the Swiss institute of comparative law).

The conference will take place 60 boulevard de la Tour-Maubourg, 75007 Paris, from 5 until 7:30 pm. Attendance is free, but registration is required at emmanuelle.bouvier@legiscompare.com.

In spite of the vacation period, several judgments have been handed down on 1 August 2022.

One of them concerns the interpretation of PIL instruments, namely Regulation (EC) No 2201/2003 and Regulation (EC) No 4/2009. The request from the Audiencia Provincial de de Barcelona leading to Case C-501/20, MPA (Habitual residence – Third State), on the hearing of which I reported here, as well as here as regards AG Spuznar’s opinion of last February, has been decided as follows:

1. Article 3(1)(a) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, and Article 3(a) and (b) of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations must be interpreted as meaning that the status of the spouses concerned as members of the contract staff of the European Union, working in the latter’s delegation to a third country and in respect of whom it is claimed that they enjoy diplomatic status in that third State, is not capable of constituting a decisive factor for the purposes of determining habitual residence, within the meaning of those provisions.

2. Article 8(1) of Regulation No 2201/2003 must be interpreted as meaning that, for the purposes of determining a child’s habitual residence, the connecting factor of the mother’s nationality and her residence, prior to the marriage, in the Member State of the court seised of an application relating to parental responsibility is irrelevant, whereas the fact that the minor children were born in that Member State and hold the nationality of that Member State is insufficient.

3. Where no court of a Member State has jurisdiction to rule on an application for the dissolution of matrimonial ties pursuant to Articles 3 to 5 of Regulation No 2201/2003, Article 7 of that regulation, read in conjunction with Article 6 thereof, must be interpreted as meaning that the fact that the respondent in the main proceedings is a national of a Member State other than that of the court seised prevents the application of the clause relating to residual jurisdiction laid down in Article 7 to establish the jurisdiction of that court without, however, preventing the courts of the Member State of which the respondent is a national from having jurisdiction to hear such an application pursuant to the latter Member State’s national rules on jurisdiction.

Where no court of a Member State has jurisdiction to rule on an application relating to parental responsibility pursuant to Articles 8 to 13 of Regulation No 2201/2003, Article 14 of that regulation must be interpreted as meaning that the fact that the respondent in the main proceedings is a national of a Member State other than that of the court seised does not preclude the application of the clause relating to residual jurisdiction laid down in Article 14 of that regulation.

4. Article 7 of Regulation No 4/2009 must be interpreted as meaning that:

–        where the habitual residence of all the parties to the dispute in matters relating to maintenance obligations is not in a Member State, jurisdiction founded, on an exceptional basis, on the forum necessitatis referred to in Article 7 may be established if no court of a Member State has jurisdiction under Articles 3 to 6 of that regulation, if the proceedings cannot reasonably be brought or conducted in the third State with which the dispute is closely connected, or proves to be impossible, and there is a sufficient connection between the dispute and the court seised;

–        in order to find, on an exceptional basis, that proceedings cannot reasonably be brought or conducted in a third State, it is important that, following an analysis of the evidence put forward in each individual case, access to justice in that third State is, in law or in fact, hindered, in particular by the application of procedural conditions that are discriminatory or contrary to the fundamental guarantees of a fair trial, without there being any requirement that the party relying on Article 7 demonstrate that he or she has been unsuccessful in bringing or has attempted to bring the proceedings in question before the courts of the third State concerned; and

–        in order to consider that a dispute must have a sufficient connection with the Member State of the court seised, it is possible to rely on the nationality of one of the parties.

So far, the decision is available in seven official languages of the EU, although some versions are still labeled as provisional.

EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU) is an EU-funded Project conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, the University of Heidelberg, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.

The ninth EFFORTS Newsletter has just been released, giving access to up-to-date information about the Project, save-the-dates on forthcoming events, conferences and webinars, and news from the area of international and comparative civil procedural law.

For information, in particular, on the EFFORTS Final Conference (30 September 2022, University of Milan), see also our previous post here.

Finally, regular updates are available via the Project website and the Project’s LinkedIn and Facebook pages.

Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union

La France a présidé le Conseil de l’Union européenne pendant 6 mois. A cette occasion, la Délégation des Barreaux de France et Lefebvre Dalloz se sont associés pour vous proposer ce podcast visant à sensibiliser sur les travaux et les actions conduites dans le domaine de la justice au plan européen.

en lire plus

This post is one for the comparative binder. Fong Chak Kwan v Ascentic Limited and Others [2022] HKCFA 12 (many thanks to Poomintr Sooksripaisarnkit for alerting me to the judgment) discusses a variety of issues, the one of interest to the blog is the tort gateway for a tort allegedly committed outside of Hong Kong. The ruling on that issue was delivered by Lord Collins, a former UKSC judge who continues to sit in the Hong Kong judicial system (unlike others who have withdrawn from the Hong Kong courts in light of the region’s rule of law issues).

[67] Direct damage was sustained on the Mainland, with indirect damage only in Hong Kong.

The First Instance judge [68] ‘in line with the majority judgments of Lady Hale and Lord Wilson in [UKSC Brownlie] .., and being unpersuaded by the minority view of Lord Sumption, decided that (a) the expression “damage” in Gateway F was not limited to damage which completed the cause of action; (b) the expression was not limited to direct damage as opposed to indirect/consequential damage; (c) where damage was felt in more than one jurisdiction, indirect/consequential damage qualified under Gateway F if it was of some significance; (d) the expression was to be given its ordinary and natural meaning, which embraced indirect/consequential damage; and (e) the consequences of a wide interpretation were sufficiently addressed by the discretion as to forum conveniens.’ 

The Court of Appeal [69] ‘like the judge, held that the reasoning of the majority in Brownlie v Four Seasons Holdings Inc was to be preferred to that of the minority. Damage included all of the heads of damage which might be suffered as a result of tortious conduct, including all the detriment, physical, financial and social which the plaintiff suffered as a result. The natural and ordinary meaning of Gateway F was clear, and there was no basis for drawing a distinction between direct and indirect damage. Nor was there any basis for applying the European jurisprudence on the Brussels Convention and Brussels I Regulations. Finally, the expression “the damage” in Gateway F did not mean that all the damage, or the damage which completed the cause of action, had to be sustained in Hong Kong.’

[74] ff Collins NPJ provides a historic and geographical comparative (Commonwealth) tour d’horizon, confirming the lower courts’ view.

[107]-[108] ‘(I)n the light of the legislative purpose, the natural and ordinary meaning of the word “damage” is just that, and the rule does not distinguish between the damage which completes a cause of action and that which does not, nor does it distinguish between direct or indirect damage, or between physical or financial damage. The question is whether there is a legislative purpose, or a public policy, or an absurd or undesirable result, which justifies a narrower construction, to encompass only direct damage as opposed to indirect damage.’: the judge finds there is no such purpose, policy or result.’

[109] he discusses 3 flows in the reasoning of the alternative reading, which are worth a read. [121] the same safety valve is emphasised as the UKSC did in the majority view in Brownlie: where the exercise of the locus damni gateway leads to unwarranted results, forum non conveniens can come to the rescue.

Geert.

Comparative conflicts
Note 64 ff Collins NPJ on jurisdiction in respect of tort allegedly committed outside of Hong Kong, with extensive reference to UKSC Brownlie https://t.co/Z0a0CPOowB and other jurisdictions https://t.co/oR1H7cR0Oe

— Geert Van Calster (@GAVClaw) June 22, 2022

M P A
DFON
La Cour apporte des précisions quant à la compétence judiciaire en matière de divorce, de responsabilité parentale et d’obligations alimentaires

Affaires jointes C 273/20 et C-355/20 & Bundesrepublik Deutschland (Regroupement familial avec un mineur réfugié) et dans l’affaire C-279/20 & Bundesrepublik Deutschland (Regroupement familial d’un enfant devenu majeur)
Justice et Affaires intérieures ELSJ ASIL
Regroupement familial : le refus de délivrance d’un visa national aux fins du regroupement familial au parent d’un mineur réfugié non accompagné devenu majeur au cours de cette procédure est contraire au droit de l’Union

HOLD Alapkezelő
Liberté d'établissement
Les exigences découlant du droit de l’Union en matière de politique de rémunération des gestionnaires d’investissements peuvent s’appliquer au versement de dividendes par ces gestionnaires à certains de leurs employés actionnaires qui relèvent du champ d’application personnel de cette politique

Staatssecretaris van Justitie en Veiligheid (Refus de prise en charge d’un mineur égyptien non accompagné)
Espace de liberté, sécurité et justice
Protection internationale : les mineurs non accompagnés disposent d’un droit de recours contre le refus de prise en charge par un Etat membre où réside un proche

Sea Watch
Transport
Les navires d’organisations humanitaires exerçant une activité systématique de recherche et de sauvetage de personnes en mer peuvent faire l’objet d’un contrôle par l’État du port

Bundesrepublik Deutschland
Espace de liberté, sécurité et justice
Une demande de protection internationale introduite par un mineur ne peut être rejetée comme irrecevable au motif que ses parents se sont déjà vu accorder une telle protection dans un autre État membre

Familienkasse Niedersachsen-Bremen
Principes du droit communautaire
Un citoyen de l’Union ayant établi sa résidence habituelle dans un État membre d’accueil ne peut pas être exclu du bénéfice d’allocations familiales pendant les trois premiers mois de son séjour au motif qu’il ne perçoit pas de revenus tirés d’une activité dans cet État membre

Vyriausioji tarnybinės etikos komisija
Principes du droit communautaire
La législation lituanienne prévoyant la divulgation en ligne d’une partie des données contenues dans la déclaration d’intérêts privés des directeurs d’établissements percevant des fonds publics est contraire au droit de l’Union

The latest issue of the RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht) has been published. As always, it contains a number of insightful articles. Here are the authors, titles and abstracts:

Jürgen Basedow, Ulrich Drobnig *25.11.1928 †2.3.2022

Daniel Gruenbaum, From Statehood to Effectiveness: The Law of Unrecognised States in Private International Law

One of the functions of private international law (PIL) is to determine the law that governs a legal relationship. Yet what occurs when the rules designated by PIL emanate from an entity that has not been recognised as a state by the government of the forum? This article aims firstly to identify and describe the major prevailing approaches to applying the law of unrecognised states in contemporary PIL practice. It then critically appraises the principal reasons justifying the application of foreign law despite it emanating from unrecognised states. The article finally argues that applying the law of unrecognised states reveals the potential for PIL to grapple with non-state rules and with interactions of normative orders of all different sorts, regardless of their state pedigree.

Matthias Fervers, Die Drittwirkungen der Forderungsabtretung im Internationalen Privatrecht (Third-Party Effects of Assignments of Claims in Private International Law)

Although Art. 14 Rome I Regulation addresses the relationship between the assignor and the assignee as well as the relationship between the assignee and the debtor, there is still no provision as to the third-party effects of assignments. The question of what law should govern these third-party effects is, correspondingly, a subject of considerable discussion. While some propose that the law governing the assigned claim should be applicable, others suggest that third-party effects should be governed by the law that applies to the contract between the assignor and the assignee; the current prevailing opinion assumes that third-party effects should be governed by the law of the habitual residence of the assignor. This article demonstrates that a limited possibility for a choice of law for assignor and assignee is the most appropriate solution.

Christoph Wendelstein, Der Handel von Kryptowährungen aus der Perspektive des europäischen Internationalen Privatrechts (The Trading of Cryptocurrencies from the Perspective of European Private International Law)

The rules in the Rome I Regulation are used to ascertain the applicable law in cases of trades in cryptocurrencies. However, these are only partially appropriate for a predictable determination of the applicable law. While in B2B and C2C cases of “stationary” trading of cryptocurrencies via Crypto-ATMs the law at the location of the ATM still provides a predictable legal system, this is not the case for online trading with crypto-brokers or via crypto exchanges. Especially in cases of online trading via crypto exchanges, a further complication results from the fact that such platforms allow their users to trade legally under a pseudonym – in line with the historical notion of cryptocurrencies. This may complicate or even prevent the determination of the applicable law. The resulting “vacuum” is to some extent filled by the technical design of the transaction through the use of smart contracts. However, this does not dispense with the question of applicable law. The article examines these and other questions and points out possible solutions de lege lata.

The table of contents in German is available here.

The deceased, living in Germany, leaving as her sole heir her son, who also lives in Germany, owned immovable property in Germany and Lithuania. Her son obtained a European Certificate of Succession from the German authorities, naming him as the sole heir of the deceased’s entire estate. He presented the certificate to the Lithuanian authorities and applied for the immovable property to be recorded in the Real Property Register. They refused to do so on the grounds that the certificate was incomplete, as the European Certificate of Succession submitted did not contain the information required under the Lithuanian Law on the Real Property Register to identify the immovable property by documents to be submitted, in that it did not list the property inherited by the applicant. The heir sought legal redress against this rejection with the Lithuanian courts. Against this background the referring court asked:

Must point (l) of Article 1(2) and Article 69(5) [of Regulation No 650/2012] be interpreted as not precluding legal rules of the Member State in which the immovable property is situated under which the rights of ownership can be recorded in the Real Property Register on the basis of a European Certificate of Succession only in the case where all of the details necessary for registration are set out in that European Certificate of Succession?

AG Szpunar first of all referred to the overall objective of the ESR as spelled out in recital 7 to facilitate the proper functioning of the internal market by removing the obstacles to the free movement of persons who want to assert their rights arising from a cross-border succession (para. 39). In doing so, the Regulation does not harmonise substantive law but has opted for harmonising private international law, choice of law in particular (para. 40) but also provides for the European Certificate of Inheritance, subject to an autonomous legal regime, established by the provisions of Chapter VI (Art. 62 et seq.) of the Regulation.

Article 68 lists the information required in a European Certificate of Succession “to the extent required for the purpose for which it is issued” and this includes “the share for each heir and, if applicable, the list of rights and/or assets for any given heir” (italic emphasis added).

Under a succession law like the German that does not provide for succession other than universal succession it is clear that the estate as a whole, rather than particular assets, is transferred as a totality. AG Szpunar concludes: “That being so, it is not necessary to include an inventory of the estate in the European Certificate of Succession, inasmuch as the situation referred to in point (l) of Article 68 of Regulation No 650/2012 by the phrase ‘if applicable’, the need for a list of assets for any given heir, does not arise” (para. 55). Thus, the phrase “if applicable” is not to be understood solely as a reflection of the wishes of the person applying for a European Certificate of Succession (para. 57). Even though the applicant is required to inform the authority issuing the certificate of its purpose, it is for that authority to decide, based on that information, whether or not an asset should be specified. The Commission Implementing Regulation No 1329/2014 (point 9 of Annex IV to Form V) does not have a bearing on this decision as it can only implement but not modify the Regulation (para. 73).

However, where the situation does not depend upon a national right of succession governed by the principle of universal succession and where the purpose of the certificate can only be achieved by indicating the share of the inheritance for the person in question, “it is most likely that the asset in question should be specified” (para 62). And even if there is no need to list assets (such as under German law), “it should be noted in that regard that, if a European Certificate of Succession is to produce its full effects, a degree of cooperation and mutual trust between the national authorities is required. That may imply that the issuing authority is required, in a spirit of sincere cooperation with the authorities of other Member States, to take account of the requirements of the law governing the register of another Member State, especially if that authority holds relevant information and elements” (para. 65).

Of course, Point (l) of Article 1(2) of the ESR states that “any recording in a register of rights in immovable or movable property, including the legal requirements for such recording, and the effects of recording or failing to record such rights in a register” is excluded from the scope of the regulation. By its judgment in Kubicka, AG Spzunar explained, “the Court found that points (k) and (l) of Article 1(2) and Article 31 of that regulation must be interpreted as precluding refusal, by an authority of a Member State, to recognise the material effects of a legacy ‘by vindication’, provided for by the law governing succession chosen by the testator in accordance with Article 22(1) of that regulation, where that refusal is based on the ground that the legacy concerns the right of ownership of immovable property located in that Member State, whose law does not provide for legacies with direct material effect when succession takes place. As a consequence of that judgment in Kubicka, the German law disputed in the main proceedings was not applied to the transfer of ownership. However, it did not concern real property registration rules. The national property law of a Member State may therefore impose additional procedural requirements, but only inasmuch as any such additional requirements do not concern the status attested by the European Certificate of Succession.” (paras. 77 et seq).

As Advocate General Bot noted in his Opinion in Kubicka, in practice, other documents or information may be required in addition to the European Certificate of Succession where, for example, the information in the certificate is not specific enough to identify the asset the ownership of which must be registered as having been transferred. In the present case, however, AG Szpunar rightly observed, “the Lithuanian authorities have all the information needed for the purpose of making an entry in the Real Property Register: they are able to identify the person to whom the asset in question belongs or belonged and to ascertain, from the European Certificate of Succession, the status of heir of the applicant in the main proceedings”. Thus “the effet utile of the European Certificate of Succession would be undermined if Lithuanian property law were able to impose additional requirements on the applicant” (para. 81).

In other words, even though the contents of a European Certificate of Succession, due to the underlying lex successsionis, may not exactly represent what is required for documentation by the lex registrii of the requested Member State, the overarching principle of the EU’s efforts for integration, namely mutual trust, and, more concretely, the effet utile of the ESR create the obligation of the requested Member State to substitute required documents under its lex registrii as much as functionally possible – a methodical tool that may perhaps be abstractly framed as “extended substitution” and may well develop to a powerful concept for the European Succession Certificate.

Be that as it may, limited to the constellation in question, AG Szpunar concluded:

“Point (l) of Article 1(2), point (l) of Article 68 and Article 69(5) of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession preclude the application of provisions of national law pursuant to which an immovable property acquired by a sole heir pursuant to a right of succession governed by the principle of universal succession can only be recorded in the Real Property Register of the Member State in whose territory that asset is located on the basis of a European Certificate of Succession if all the data required under the national law of that Member State to identify the immovable property are included in the certificate.”

The full text of the Opinion is here.