Agrégateur de flux

It has already been announced on this blog that a conference on The Law of Treaties as Applied to Private International Law is set to take place in Milan, on 5 and 6 May 2023, under the auspices of SIDI, the Italian Society of International Law and EU Law, and EAPIL.

The early bird period, which was initially meant to end on 6 March, has been extended until 20 March 2023. Those registering before the latter date will benefit from a discounted registration fee of 80 Euros (further reduced to 50 Euros for PhD students and those who earned their PhD over the last few weeks).

For more information, and the registration form, see here.

Applications are now open for three- to six-month legal internships at the Permanent Bureau’s headquarters in The Hague, for the period from July to December 2023!

Interns work with our legal teams in the areas of Family and Child Protection Law, Transnational Litigation and Legal Cooperation, and Commercial, Digital and Financial Law. Duties may include carrying out research on particular points of private international law and/or comparative law, taking part in the preparation of HCCH meetings and contributing to the promotion of the HCCH and its work.

Applications should be submitted by 31 March 2023. For more information, please visit the Internships Section of the HCCH website.

 

 

 

 

 

 

Parveen v Hussain [2022] EWCA Civ 1434 (I am still in clearing the backlog mode) is an excellent illustration of this most peculiar of issues under conflict of laws, the issue of ‘Vorfrage’, with the Court of Appeal ending up recognising the second marriage of a Pakistani lady, but not her prior foreign divorce expressed by her first husband per Talaq.

The Court of Appeal held that the fact that that divorce is not entitled to recognition under the English rules, does not mean that the woman did not have the capacity to (re)marry: her previous divorce was effective under the law of Pakistan.

Moylan LJ summarises that the issue raised by the appeal is in essence the relationship between capacity to marry rules and divorce recognition rules. [7]:

[In England and Wales] “a person’s capacity to marry is governed by the law of their antenuptial domicile. The recognition of a divorce, whether obtained in “the British Islands” (section 44) or in a “country outside the British Islands” (section 45), is governed by the provisions of the [Family Law Act] FLA 1986. What happens when the two are in conflict? In other words, when a person, in this case the wife, has capacity to marry by the law of her antenuptial domicile, Pakistan, but her previous divorce is not entitled to recognition in England and Wales under the FLA 1986, is priority to be given to the law applicable to capacity to marry or to the law applicable to the recognition of divorces.”

After a first marriage in Pakistan, which ended in 2008 by husband Talaq, the wife remarried. The second husband commenced divorce proceedings in 2018. This led to the pronouncement of a Decree Nisi of divorce in 2019. In or about August 2020, the second husband applied for the Decree Nisi to be rescinded and for the Petition to be dismissed on the basis that the wife remained married to her previous husband at the date of her marriage to the  second husband. The husband then issued a nullity Petition in 2021 in which he contended that at “the time of the marriage the (wife) was already lawfully married”. The wife submits that her marriage to the husband is valid because she had capacity to marry under the law of Pakistan which recognised her divorce as having validly determined her previous marriage.

[22] Per Akhtar v Secretary of State for Work and Pensions [2022] 1 WLR 421:

“Validity of Marriage

[60] Under English rules of private international law: (a) the general rule is that the formal validity (i.e. the formalities) of a marriage is governed by the law of the country where the marriage was celebrated, Dicey at para 17R-001; and (b) the general rule is that capacity to marry (or essential validity) is governed by the law of each party’s antenuptial domicile, Dicey at para 17R-057 (now 17R-054). Bigamy is “a matter of capacity”, Dicey at para 17-082 (now 17-079).

[61] If a marriage is valid in respect of both form and capacity it will be recognised as valid under English law and, as a result, the parties will be recognised as having the status of husband or wife.”

‘Bigamy’ is qualified as a rule of capacity to marry (‘essential validity’ or what the civil law is likely to call substantive validity. Extensive review followed of various authorities,  including the well-known Schwebel v Ungar, with the Court of Appeal as in that latter case, giving priority to capacity to marriage. An ordre public exception was rejected on the basis of the wife at all relevant times having been domiciled in and lived in Pakistan. [89] “The public policy objectives would be sufficiently achieved by denying recognition of the divorce to the wife’s previous husband because of his connections with the UK.”

A super case to teach Vorfrage, qualification and ordre public.

Geert.

An excellent illustration of Vorfrage
Relationship between capacity to marry rules and divorce recognition rules
Moylan LJ giving priority to the former, referring ia to Schwebel v Ungar

Parveen v Hussain [2022] EWCA Civ 1434 https://t.co/Tb1jSeCs9P

— Geert Van Calster (@GAVClaw) November 7, 2022

I last updated the draft for this post in November….I am hoping somewhat to catch up with posts this week.

In Transworld Payment Solutions U.K. Ltd, Re [2022] EWHC 2742 (Ch) Freedman J refused an application to set aside an order to serve out of jurisdiction. Claimants’ case is that the E&W proceedings arise out of an alleged “VAT carousel fraud”, carried out in England and Wales, by English and Welsh companies. There are concurrent Curaçao proceedings.

Defendants raise a forum non conveniens jurisdictional defence. They submit that the Curaçao court is presently seised as to the issue as to whether the companies were effectively parties to a number of settlement agreements, and the effect of the same.  These Settlement Agreements are subject to Curaçao law and contain a Curaçao jurisdiction clause (which is not exclusive).  They also submit that the fraud claims will be determined as part of the applications for negative declarations in the Curaçao Proceedings.  The Claimants dispute that the fraud claims or the full scope of the fraud claims will be determined in the Curaçao Proceedings.

There are significant areas of dispute between the parties as regards what is in issue in the Curaçao Proceedings. The issue that is of most interest to the blog, is the consideration of applicable law under Rome II. [79] Freedman J notes “VTB [VTB Capital Plc v Nutritek International Corp [2013] UKSC 5] ,was a case where English law (used as a shorthand to refer to the law of England and Wales) was the proper law of the tort, but where the majority of the court nonetheless stayed the action in favour of the matter being more appropriately litigated in Russia.”

A first issue is the catchment area of Rome II’s ‘non-contractual obligations’, to typically common law equitable wrongs including dishonestly assisting breach of trust/fiduciary duty. [83] the judge holds with reference to Dicey, Morris and Collins 16th Ed. that they likely do. [84] The most likely lex causae following Rome II is English law and  ‘(I)t seems unlikely that Article 4(3) would apply given the closer connection of any tort or delict with England and Wales rather than with Curaçao or any other country. ‘

The issues will be further discussed at trial and one imagines both Rome I and Rome II will return there. But for now, jurisdiction is going ahead.

Geert.

Largely unsuccessful application for forum non conveniens (viz: Curacao) set-aside of permission to serve out of jurisdiction
Considers ia applicable law Rome II viz deceit, conspiracy, equitable wrongs

Transworld Payment Solutions [2022] EWHC 2742 (Ch) https://t.co/ly6m6XRFsN

— Geert Van Calster (@GAVClaw) November 7, 2022

The first instance court of Gelderland held in X v Lufthansa that the latter’s limitation to objecting to territorial jurisdiction within The Netherlands, rather than to jurisdiction of the Dutch courts as such, amounts to submission under A26 BIa, leaving the Dutch courts to decide on territorial jurisdiction with reference to internal Dutch civil procedure rules (CPR).

The remainder of the judgment then agrees with Lufthansa on the basis of Dutch CPR identifying the defendant’s office or branch as the territorially relevant factor, leaving Gelderland without jurisdiction. The court seemingly rejected itself as forum contractus, holding that CJEU C-204/08 Rehder v Air Baltic does not apply due to the flight in current case not being intra-EU (final destination being Baku). I would have expected the court to consider C-20/21 LOT Polish Airlines, where the final destination equally was outside the EU.

I do not know what claimant argued (forum contractus one assumes, perhaps locus damni per A7(2) BIA?), at any rate it is wrong to hold that a limitation of jurisdictional objection to internal distribution, implies submission per A26 BIa, for those heads of jurisdiction which assign jurisdiction territorially, not just nationally. That includes A7 forum contractus and forum delicti.

Geert.

 

I should really keep this for exam purposes
First instance Gelderland holds opposition to court's territorial jurisdiction, not to NL jurisdiction as a whole, does not obstruct A26 Brussels Ia submission
Ahum…

X v Lufthansa ECLI:NL:RBGEL:2023:900https://t.co/QS53WEXmSp

— Geert Van Calster (@GAVClaw) March 4, 2023

On 8 February 2023, the European Commission presented two proposals, the purpose of which is to pave the way to the negotiation (and conclusion) of bilateral agreeements between France and Algeria in the field of private international law.

One proposal is for a decision of the Council of the Union and the European Parliament that would authorise France to negotiate a bilateral agreement on matters related to judicial cooperation in civil and commercial matters (COM/2023/65 final). The other is for a Council decision authorising France to negotiate a bilateral agreement with Algeria on matters related to judicial cooperation concerning family law matters (COM/2023/64 final).

The future agreements are meant to replace bilateral agreements concluded in 1962, 1964 and 1980, and to align cooperation with Algeria with EU standards in this area.

The subject matter of the new agreements falls, to a large extent, within the exclusive external competence of the Union. In these circumstances the negotiation of bilateral agreements of Member States with third countries is generally limited to the possibilities offered by the special mechanism provided by Regulation No 662/2009 (on particular matters concerning the law governing contractual and non-contractual obligations) and Regulation No 664/2009 (regarding jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, matters of parental responsibility and matters relating to maintenance obligations, as well as regarding the law applicable to matters relating to maintenance obligations).

Also relevant, in principle, is Article 351 TFEU. This begins by establishing that the rights and obligations arising from agreements pre-dating the launch of the European integration process between one or more Member States on the one hand, and one or more third countries on the other, are not affected by EU law. However, the provision goes on to state that, to the extent that such agreements are not compatible with the Treaties (and EU legislation), “the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established”.

When the prospect of one or more bilateral agreements between the two States emerged, in 2016, the Commission, while recognizing the exceptional economic, cultural, historical, social and political ties between France and Algeria, remarked that, in its judicial cooperation with third States, the Union broadly relies on the existing multilateral framework, such as the one created by the Hague Conference on Private International Law, rather than bilateral agreements. The Commission observed that  authorising a Member State to negotiate and conclude bilateral agreements with third countries in the area of civil justice falling outside the scope of Regulations No 662/2009 and No 664/2009 would not be in line with the EU policy in this field.

The position of the Commission was later reviewed in light of further developments and additional information, including the fact that an accession of Algeria to key Hague Conventions was (and still is) unlikely to happen in the foreseeable future (Algeria is not a member of the Hague Conference and has not acceded, so far, to any convention elaborated under the auspices of the Conference), and the fact that an EU-Algeria agreement related to judicial cooperation in civil matters is not planned by the Commission.

The Commission observed that the EU policy in the field of private international law is based on multilateralism, and that bilateral agreements between the EU and a third country, even where the third country consistently refuses to accede to Hague Conventions, could be contemplated only where a sufficiently strong Union interest can be identified based on the substantial relevance of judicial cooperation with this country across Member States and not only for an individual Member State. In the opinion of the Commission, this is not the case of the relations with Algeria.

The Commission further contended that neither the possibility offered by Article 351 TFEU nor an authorisation under Regulations 662 and 664/2009 are applicable in the present case.

Article 351, the Commission explained, is of no avail because it applies, for a founding Member (like France), only to agreements concluded prior to 1958, whereas the existing bilateral agreements between France and Algeria date from 1962, 1964 and 1980 (the Commission does not seem to give weight to the fact that, back in 1985, the European integration process simply did not include judicial cooperation: the latter became a concern for the European Community, as it was then, only with the entry into force of the Amsterdam Treaty, in 1999).

The Regulations of 2009, for their part, are of limited help, according to the Commission, because their scope is very narrow and they do not cover the range of matters dealt with in the France-Algeria draft agreements. Besides, the Commission stressed, the two Regulations are of exceptional nature and should be interpreted in a restrictive manner.

Therefore, the Commission concluded that an ad hoc authorization under Article 2(1) TFEU to France could be considered (according to Article 2(1), where the Treaties confer on the Union “exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts”, but clarifies that the Member States are permitted to do so themselves, inter alia, “if so empowered by the Union”).

The decisions that the Commission has proposed to adopt would authorise France to negotiate (and at a later stage conclude) bilateral agreements with Algeria in matters falling within the EU exclusive external competence, having considered the exceptional ties which link these two countries, provided that this would not constitute an obstacle to the development and the implementation of the Union’s policies.

In the memorandum that accompanies the two proposals, the Commission reiterated that “multilateralism remains a cornerstone of the EU policy towards third countries in the field of judicial cooperation in civil and commercial matters”, and clarified that the authorisation to negotiate, if granted, should be “considered exceptional” and by no means serve as a precedent. The mere refusal of a third State to accede to the relevant Hague Conventions, the Commission added, “should not be regarded as a the only pre-requisite to grant an authorisation under Article 2(1) TFEU, but evidence of the exceptional situation of the relationship of a Member State with a given third country should be duly demonstrated”.

The call for papers is open for the IX International Conference on Private International Law of the Carlos III University of Madrid, which will take place on 4 and 5 May 2023.

This year’s conference will focus on the Proposal for a Council Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood, presented by the European Commission on 7 December 2022.

The proposed papers will be selected by the Scientific Committee of the Conference, composed of Alfonso-Luis Calvo Caravaca, Heinz-Peter Mansel, Javier Carrascosa Gonzalez, Ilaria Pretelli and Fabrizio Marongiu Buonaiuti. Papers may subsequently be published in the online journal Cuadernos de derecho transnacional.

All those interested are invited to send the title of the paper they intend to propose and an abstract of a maximum length of 800 words by 17 April 2023 to the email congresodipr@uc3m.es.

For all further info, see here.

Comme il se doit dans chaque chronique d’actualité des mois de janvier-février, il faudra commencer par faire écho au discours annuel du Président de la Cour européenne des droits de l’homme qui, pour la première fois, est une Présidente. Sur le plan strictement jurisprudentiel, la Cour de Strasbourg, au cours des deux premiers mois de 2023, se sera surtout signalée à l’attention en refusant la mention du sexe neutre sur l’acte de naissance ; en élargissant la protection des lanceurs d’alerte et celle des victimes secondaires ; en stigmatisant l’absence de toute reconnaissance juridique des couples homosexuels ou l’avertissement du caractère dangereux pour les enfants d’un livre de contes mettant en scène des personnages LGBTI ; en conciliant le respect effectif de la Convention avec les exigences de la lutte contre le terrorisme. Elle se sera aussi intéressée à des questions qui retiennent plus rarement son attention comme les particules nobiliaires ou les variantes d’une langue nationale …

Sur la boutique Dalloz Code civil 2023, annoté Voir la boutique Dalloz

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Par un arrêt du 16 février 2023, la Cour de justice précise certaines dispositions du règlement (CE) n° 805/2004 du 21 avril 2004 portant création d’un titre exécutoire européen.

Sur la boutique Dalloz Droit et pratique des voies d’exécution 2022/23 Voir la boutique Dalloz

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May today’s milestone (reported here) be also an ode to late professors Alegría Borrás and Julio González Campos for their absolute tireless efforts regarding the Spanish language at the Hague Conference on Private International Law (HCCH) and their infatuation with the Spanish language.

Let us remember that we are standing on the shoulders of giants.

 

Take a last look at this image from the website of the HCCH; it will likely change soon. The HCCH has adopted Spanish as an official language from 1 July 2024. . . Here is the official announcement from The Hague Conference (the link provides also the Spanish version): During the annual meeting of the Council on General Affairs and Policy (CGAP), the Members of the Hague Conference on Private International Law (HCCH) expressed their unanimous support for the introduction of Spanish as an official language. From 1 July 2024, Spanish will join English and French as one of the three official languages of the Organisation. This development represents an important further step contributing to universality and inclusiveness at the HCCH, reflecting the importance of multilingualism and multilateralism as core pillars of its work. The adoption of Spanish as an official language will facilitate the proper and effective implementation and operation of the HCCH’s Conventions and instruments in Spanish-speaking States and will therefore have a decisive positive impact on the lives of the hundreds of millions of native Spanish-speakers around the world. The adoption of Spanish will also simplify the lives of the countless other individuals who interact with Spanish-speaking States – be it through commerce, travel, personal relations, or other. The decision to adopt Spanish as an official language of the HCCH will be reflected in CGAP’s Conclusions and Decisions, to be published in the coming days. . . And here is a first blog entry from Claudia Martínez, appropriately in Spanish. . . Notably, a Spanish version of the HCCH website has existed since the launch in 2009. Then, it was the only language version other than the English and French ones. Today, (more or less) full versions exist also in German and Portuguese;  other language sites provide translations of Hague Conventions.

Alexander DJ Critchley has added an enriching installment to Hart’s renowned Studies in Private International Law Series entitled “The Application of Foreign Law in the British and German Courts”.

The author has extensive experience as solicitor in Scots law with a specialisation in family law. His book is the publication of a doctoral thesis completed with distinction at the university of Tübingen (Germany). The blurb reads as follows:

This book explores the application of foreign law in civil proceedings in the British and German courts. It focuses on how domestic procedural law impacts on the application of choice of law rules in domestic courts. It engages with questions involved in the investigation and determination of foreign law as they affect the law of England and Wales, Scotland, and Germany. Although the relevant jurisdictions are the focus, the comparative analysis extends to explore examples from other jurisdictions, including relevant international and European conventions. Ambitious in scope, it expertly tracks the development of the law and looks at possible future reforms.

Please check out Hart’s banner at the top of this page for special discounts for CoL readers.

 

Royal Antwerp Football Club
Libre circulation des personnes
Football : selon l’avocat général Szpunar, les règles de l’UEFA relatives aux joueurs formés localement sont partiellement incompatibles avec le droit de l’Union

Les Mousquetaires et ITM Entreprises / Commission
Concurrence
La Cour annule, partiellement, les arrêts du Tribunal et, en conséquence, les décisions de la Commission ordonnant des inspections dans les locaux de plusieurs entreprises françaises du secteur de la distribution en raison des soupçons de pratiques anticoncurrentielles

This post was contributed by Fabienne Jault-Seseke, who is Professor at University Paris Saclay (UVSQ), and a member of GEDIP.

I reported here on the French judgment which questioned the Court of Justice of the European Union (ECJ) on res judicata. Two months later, in a Recamier case, the French Court of cassation referred again to the ECJ on res judicata as reported by François Mailhé here.

AG Pikamäe delivered his opinion on 16 February 2023 in the first case C-567/21, BNP Paribas. As a reminder, the case relates to an action for payment of various sums, brought in France against a French company by one of its former employees in connection with his dismissal. Previously, he had initiated proceedings in London, his last place of work, and had obtained a judgment ordering the company to pay him compensation for unfair dismissal. In the first instance, a French labour court declared the claims relating to his dismissal inadmissible, because of the res judicata effect of the English judgment. On appeal, the judgment was overturned: the Court of Appeal considered that the various claims for compensation had not been examined by the English court.

The first question referred to the ECJ concerns the obligation to concentrate claims provided for by both legal system at stake.  The second and third questions are related to the notions of cause and subject-matter of the action. In this case, the question is whether an action for unfair dismissal in the United Kingdom has the same cause of action and the same subject-matter as an action for dismissal without real and serious cause in French law or an action for payment of bonuses or premiums provided for in the employment contract, as these actions are based on the same contractual relationship between the parties.  The answers depend on the respective role of Union law and national laws to determine res judicata. Res judicata is not mentioned in the Brussels I Regulation. So the Advocate General first looks at the relationship between res judicata and recognition. Not surprisingly, he states that res judicata is one of the facets of recognition.

AG Pikamäe focuses on two issues, that of the scope of res judicata and that of the consequences for the court of another Member State hearing a related case.

Res Judicata

In a first step, regarding the scope of res judicata and the impact of an national rule of concentration of claims, AG Pikamäe refers to the Jenard Report and the Hoffman judgment (145/86) to justify appliying the doctrine of “extension of effects”, leaving it to the law of the Member State of origin to determine the effects of the judgment invoked in a second Member State (para 46). Therefore, no independent interpretation of the res judicata is given. The Gothaer judgment that might have led to the opposite conclusion. is here irrelevant. It is specific and only apply to jurisdictional decisions.

Thus the law of the United Kingdom must be “taken into account” (applied would have been more precise) for the purpose of determining the authority and effectiveness of the judgment given by the British court (para 52).

But the obligation to concentrate claims does not affect the authority and effectiveness of the judgment (para 53). For AG Pikamäe the rule of “abuse of process”, which is the source of this obligation is not related to res judicata: it is only a means to sanction abuses (para 55). Here it seems that in a somewhat confusing way AG Pikamäe is not interpreting EU law but English law. He refers also to the scheme of Regulation 44/2001 and considers that taking into account, at the stage of the recognition of a decision, a national rule on the concentration of claims could jeopardise the subsequent implementation of the specific rules on jurisdiction in matters relating to individual contracts of employment and of the provisions governing lis pendens and related actions (para 60).  The reasoning does not really convince even in matters of employment contracts where the rules of jurisdiction ensure the protection of the worker. Indeed, one could consider that the protective effect is exhausted with the first proceeding initiated by the worker against his employer. In other words, the employee only has the option of choosing between the place of work and the employer’s home once.

AG Pikamäe goes very far in questioning procedural autonomy when he states that the application of the provisions of Regulation 44/2001 cannot depend on the content of the procedural rules of a Member State (para 62). It does not matter, he adds, that the two Member States concerned have the same rule (para 63). He concludes that a domestic procedural rule on concentration of claims is not an effective criterion for determining the authority attached to a decision given in a Member State. In short, the concentration of claims rule has no consequences for the recognition of decisions. This statement may be surprising. It is up to the law of the country from which the decision originates to specify the extent of res judicata, but the rule on the concentration of claims that it contains is not applied. Thus, while new claims could not have been made in the State of origin, they can be made in another State. Such an attitude is likely to fuel forum shopping and sharpen procedural strategies. In any case the aim of procedural economy is clearly not a priority.

Cause and Subject Matter of Action

In a second step, the opinion focuses on the concepts of cause and subject-matter. The French Cour de cassation had asked the Court of Justice whether a claim for unfair dismissal in the UK has the same cause of action and the same subject-matter as a claim for dismissal without real and serious cause under French law. It also wondered whether a claim for unfair dismissal in the UK has the same cause of action and the same subject-matter as claim for payment of bonuses or premiums provided for in the employment contract, since these actions are based on the same contractual relationship.

The answer to these questions presupposes a precise comparison of the provisions of English labour law with those of French labour law, which is beyond the role of the Court (para 71) but
AG Pikamäe suggests that the Court reformulates the questions referred to it in this way : for the purposes of Articles 33 and 36 of Regulation No 44/2001, do actions based on the same employment contract and relating to obligations arising out of the performance of that contract and to obligations arising out of its termination have the same cause of action and the same subject-matter?

As expected, a parallel between the conditions of lis pendens and those of res judicata is made. AG Pikamäe notes that “the rules on lis pendens and recognition have the common purpose of contributing to the full authority of the judgment given in the Member State of origin, which must not be called into question by a judgment given by a court in another Member State” (para 80). Consequently, he suggests transposing the criterion of identity of parties, cause and subject-matter applicable to lis pendens to res judicata (para 90). As for lis pendens, the terms cause and subject-matter must be regarded as independent.

Building on Gubisch Maschinenfabrik (144/86), Tatry (C‑406/92), and Merck (C‑231/16), AG Pikamäe considers that the claims brought before the Employment Tribunal and those brought before the French Courts, based on the same contractual relationship, are based on the same cause of action.

As regards the ‘subject matter’, the case is more complicated. The Court has stated on different occasions that this means the end the action has in view, that the concept is to be interpreted broadly and cannot be restricted so as to mean two claims which are formally identical and that account must be taken in that regard of the applicants’ respective claims in each of the sets of proceedings. AG Pikamäe distinguishes then between claims relating to the termination of the employment contract and its financial consequences and those relating to the performance of the employment contract (claims for payment of sums due for the performance of work). They have not the same subject-matter (para 106). Nevertheless, the “second” court hearing claims for payment of remuneration in respect of the performance of an employment contract should take into account the possible implications of the original decision. An example is given, the case of the determination, in accordance with the law of the State of origin, by the initial decision of the date of termination of the employment contract, which would be likely to have an impact on the end of the period during which remuneration is due.

AG Pikamäe focuses on the distinction between issues relating to the end of the contract and those relating to the performance of the contract. He considers then that a claim for unfair dismissal in the UK has not the same subject-matter that a claim for payment of sums due for the performance of work. In doing so, it leaves part of the question unanswered. Has a claim for unfair dismissal in the UK the same subject-matter as a claim for dismissal without real and serious cause under French law? A positive answer is only suggested. It is to be hoped that the ECJ will be clearer. The worker is sometimes encouraged to pick and choose among the different laws that may be applied to the employment relationship. The effect would be multiplied if he were also allowed to multiply the proceedings in different countries.

L’arrêt de la Cour de justice du 16 février 2023 porte sur le régime applicable aux décisions de retour prononcées en matière d’enlèvement international d’enfants et concerne plus particulièrement des dispositions du droit polonais concernant la suspension de l’exécution de ces décisions.

Sur la boutique Dalloz Droit de la famille 2023/24 Voir la boutique Dalloz

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The first view of the second issue of ICLQ  for 2023 contains a private international law article that was published online just recently:

 

S Matos, Arbitration Agreements and the Winding-Up Process: Reconciling Competing Values

Courts in a number of jurisdictions have attempted to resolve the relationship between winding-up proceedings and arbitration clauses, but a unified approach is yet to appear. A fundamental disagreement exists between courts which believe that the approach of insolvency law should be applied, and those which prefer to prioritise arbitration law. This article argues that a more principled solution emerges if the problem is understood as one of competing values in which the process of characterisation can offer guidance. This would allow both a more principled approach in individual cases, and a more coherent dialogue between courts which take different approaches to the issue.

Prigozhina / Conseil
Relations extérieures
Le Tribunal annule les mesures restrictives appliquées à Mme Violetta Prigozhina, mère de M. Yevgeniy Prigozhin, dans le cadre de la guerre menée par la Russie contre l’Ukraine

The first issue of the Journal du droit international for 2023 was released. It contains one article and several case notes relating to private international law issues.

In her article, Valérie Pironon (University of Nantes) discusses the issue of international competence in private litigation in the field of anti-competitive practices (L’adaptation des règles de compétence juridictionnelle issues du règlement Bruxelles I bis aux actions en réparation des préjudices causés par une pratique anticoncurrentielle).

The English abstract reads:

Private litigation in the field of anti-competitive practices often has a cross-border dimension justifying the application of private international law mechanisms. Where the dispute is integrated into the European Union, the rules of jurisdiction are those of Brussels I bis Regulation. The implementation of this general regulation in such a specific field of law is often problematic. It seems that the interpretation given by the Court of justice when asked is aimed at encouraging the development of these actions. However, this motivation does not result clearly from the judgments. After considering the hypothesis of a hidden adaptation of the rules of jurisdiction to the material competition stakes at issue, the article questions the prospect of a more transparent adaptation. 

The table of contents of the issue can be accessed here.

This week the Hague Conference on Private International Law (HCCH) published the Practical Guide – Access to Justice for International Tourists and Visitors. The HCCH news item is available here.

As indicated in the Guide, this document “is intended to assist international tourists and visitors to foreign countries seeking access to justice for disputes arising from their tourism experience by providing information on online dispute resolution mechanisms that may be available and HCCH legal instruments that may be relevant in a given case.”

There are a few aspects of the Guide that are worthy of note:

First, the definitions of a visitor and a tourist are interesting.

A “visitor” is considered to mean “a traveller taking a trip to a main destination outside their usual environment, for less than a year, for any main purpose (business, leisure, or other personal purpose) other than to be employed by a resident entity in the country or place visited.”

A “tourist”: “A visitor (domestic, inbound, or outbound) is classified as a “tourist” if their trip includes an overnight stay.”

These definitions are taken from the United Nations World Tourism Organization (UNWTO).

Secondly, Part I of this Guide provides a list of online dispute resolution platforms, although some are not specific to international tourists and visitors. Among the governmental initiatives are: EU Online Dispute Resolution Platform (European Commission), Concilianet de PROFECO (Mexico) and Consumidor.gov.br (Brazil). Among the private initiatives are: Airbnb Online Resolution Centre and Endispute.

Thirdly, Part II of this Guide sets out examples of common claims made by tourists and visitors such as lost baggage, cruise cancelled due to weather, and damage to property at hotel. These examples are merely indicative and of course do not constitute legal advice.

All in all it makes an interesting read and its layout is more easily readable on different devices. Nevertheless, it does make me wonder how much this document would actually help tourists and visitors in times of trouble.