Agrégateur de flux

On Tuesday, Feb 1, 2022, the Hamburg Max Planck Institute will host its  monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CET). Wolfgang Wurmnest (University Hamburg) will speak, in German, about the topic.

International Jurisdiction for Antitrust Violation Claims

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

The third issue of the Journal of Private International law for 2021 was released today. It features the following articles:

Jonannes Ungerer, “Explicit legislative characterisation of overriding mandatory provisions in EU Directives: Seeking for but struggling to achieve legal certainty”

Traditionally, the judiciary has been tasked with characterising a provision in EU secondary law as an overriding mandatory provision (“OMP”) in the sense of Art 9(1) Rome I Regulation. This paradigm has however shifted recently as the legislator has started setting out such OMP characterisation explicitly, which this paper addresses with regard to EU Directives. The analysis of two Directives on unfair trading practices in the food supply chain and on the resolution of financial institutions reveals that their explicit legislative characterisations of OMPs can benefit legal certainty if properly drafted by the EU and correctly transposed into national law by the Member States. These requirements have not yet been fully met as there are inconsistencies and confusion with only domestically mandatory provisions, which need to be resolved. More generally, the paper elucidates the tensions of competence between legislators and courts on both the EU and national levels due to the explicit legislative characterisation. It also considers the side effects on pre-existing and future provisions in Directives without explicit legislative characterisation. Finally, it acknowledges that the extraterritorial effect of OMPs is intensified and therefore requires the legislator to seek international alignment.

 

Patrick Ostendorf, “The choice of foreign law in (predominantly) domestic contracts and the controversial quest for a genuine international element: potential for future judicial conflicts between the UK and the EU?”

The valid choice of a (foreign) governing law in commercial contracts presupposes, pursuant to EU private international law, a genuine international element to the transaction in question. Given that the underlying rationale of this requirement stipulated in Article 3(3) of the Rome I Regulation has yet to be fully explored, the normative foundations as to the properties that a genuine international element must possess remain unsettled. The particularly low threshold applied by more recent English case law in favour of almost unfettered party autonomy in choice of law at first glance avoids legal uncertainty. However, such a liberal interpretation not only robs Article 3(3) Rome I Regulation almost entirely of its meaning but also appears to be rooted in a basic misunderstanding of both the function and rationale of Article 3(3) Rome I Regulation in the overall system of EU private international law. Consequently, legal tensions with courts based in EU member states maintaining a more restrictive approach may become inevitable in the future due to Brexit.

 

Darius Chan & Jim Yang Teo, “Re-formulating the test for ascertaining the proper law of an arbitration agreement: a comparative common law analysis”

Following two recent decisions from the apex courts in England and Singapore on the appropriate methodology to ascertain the proper law of an arbitration agreement, the positions in these two leading arbitration destinations have now converged in some respects. But other issues of conceptual and practical significance have not been fully addressed, including the extent to which the true nature of the inquiry into whether the parties had made a choice of law is in substance an exercise in contractual interpretation, the applicability of a validation principle, and the extent to which the choice of a neutral seat may affect the court’s determination of the proper law of the arbitration agreement. We propose a re-formulation of the common law’s traditional three-stage test for determining the proper law of an arbitration agreement that can be applied by courts and tribunals alike.

 

Amin Dawwas, “Dépeçage of contract in choice of law: Hague Principles and Arab laws compared”

This paper discusses the extent to which the parties may use their freedom to choose the law governing their contract under the Hague Principles on Choice of Law in International Commercial Contracts and Arab laws, namely whether they can make a partial or multiple choice of laws. While this question is straightforwardly answered in the affirmative by the Hague Principles, it is debatable under (most) Arab laws. After discussion of the definition of dépeçage of contract, this paper presents the provisions of dépeçage of contract under comparative and international law, including the Hague Principles, and then under Arab laws. It concludes that Arab conflict of laws rules concerning contract should be reformed according to the best practices embodied in this regard by the Hague Principles.

 

Jan Ciaptacz, “Actio pauliana under the Brussels Ia Regulation – a challenge for principles, objectives and policies of EU private international law”

The paper discusses international jurisdiction in cases based on actio pauliana under the Brussels Ia Regulation, especially with regard to the principles, objectives and policies of EU private international law. It concentrates on the assessment of various heads of jurisdiction that could possibly apply to actio pauliana. To that end, the CJEU case law was thoroughly analysed alongside international legal scholarship. As to the jurisdictional characterisation of actio pauliana, the primary role should be assigned to teleological and systematic considerations. Actio pauliana can neither be characterised as an issue relating to torts nor as a right in rem in immovable property. Contrary to the recent position adopted by the CJEU, it should also be deemed not to fall within matters relating to a contract. The characterisation of actio pauliana as a provisional measure or an enforcement mechanism for jurisdictional purposes is equally incorrect.

 

Harry Stratton, “Against renvoi in commercial law”

The doctrine of renvoi is rightly described as “a subject loved by academics, hated by students and ignored (when noticed) by practising lawyers (including judges)”. This article argues that the students have much the better of the argument. English commercial law has rightly rejected renvoi as a general rule, because it multiplies the expense and complexity of proceedings, while doing little to deter forum-shopping and enable enforcement. It should go even further to reject renvoi in questions of immovable property, because the special justification that this enables enforcement of English judgments against foreign land ignores the fact that title or possession of such land is generally not justiciable in English courts and such judgments will not be enforced irrespective of whether renvoi is applied.

 

Yun Zhao, “The Singapore mediation convention: A version of the New York convention for mediation?”

Settlement agreements have traditionally been enforced as binding contracts under national rules, a situation considered less than ideal for the promotion of mediation. Drawing on the experience of the 1958 New York Convention on international arbitration, the 2019 Singapore Mediation Convention provides for the enforcement of settlement agreements in international commercial disputes. Based on its provisions and the characteristics and procedures of mediation, this article discusses the impact of the Singapore Mediation Convention on the promotion of mediation and its acceptance by the international community. It is argued that the achievements of the New York Convention do not necessarily promise the same success for the Singapore Mediation Convention.

 

Jakub Pawliczak, “Reformed Polish court proceedings for the return of a child under the 1980 Hague Convention in the light of the Brussels IIb Regulation”

In recent years a significant increase in applications sent to Polish institutions to obtain the return of abducted children under the 1980 Hague Abduction Convention can be observed. Simultaneously, Poland has struggled with a problem of excessively long court proceedings in those cases and the lack of specialisation among family judges. Taking these difficulties into consideration, in 2018 the Polish Parliament introduced a reform aimed at improving the effectiveness of the court proceedings for the return of abducted children. The work on the amendment of the Polish legal regulations was carried out in parallel to the EU legislative process in the field of international child abduction. Although the Polish reform had been introduced before Council Regulation (EU) 2019/1111 of 25 June 2019 (Brussels IIb) was adopted, the 2016 proposal for this Regulation had been known to the national legislature. When discussing the amended Polish legal regulations, it should be considered whether they meet their goals and whether they are in line with the new EU law.

 

Elaine O’Callaghan, “Return travel and Covid-19 as a grave risk of harm in Hague Child Abduction Convention cases”

Since February, 2020, courts have been faced with many novel arguments concerning the Covid-19 pandemic in return proceedings under the “grave risk exception” provided in Article 13(1)(b) of the 1980 Hague Convention. This article presents an analysis of judgments delivered by courts internationally which concern arguments regarding the safety of international travel in return proceedings during the Covid-19 pandemic. While courts have largely taken a restrictive approach, important clarity has been provided regarding the risk of contracting Covid-19 as against the grave risk of harm, as well as other factors such as ensuring a prompt return despite practical impediments raised by Covid-19 and about quarantine requirements in the context of return orders. Given that the pandemic is ongoing, it is important to reflect on this case law and anticipate possible future issues.

 

Chukwudi Paschal Ojiegbe, “The overview of private international law in Nigeria” (Review Article)

The High Court of the Eastern Cape in Makhanda (Grahamstown), South Africa, on 28 December 2021 issued an interim interdict to stop Shell from commencing seismic activity off the south-eastern coast of South Africa. The full judgment is available on Saflii.

From a conflict-of-laws perspective, the interdict raises some points of interest.

First, it provides two examples of the application of non-State law.  In considering whether Shell has adequately informed the local communities of its plans, the judge took into account not only the South African legislation, but also of the local communities’ modes of communication and of seeking consensus. In this sense, even though Shell had published its intentions in newspapers, these have not reached the communities in which people were not necessarily able to read English and Afrikaans (the languages of the newspapers). The judge found that “the approach that was followed to consult was inconsistent with the communities’ custom of seeking consensus.” (para 25). The judgment implicitly recognise this custom as law. This approach is in line with the South African Constitution (sec. 211(3) states: The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.).

The next example of the application of non-State law is the Rio Declaration on Environment and Development (para 69 of the judgment) to find that where there are threats of serious or irreversible damage, the precautionary approach shall be taken, even in the absence of full scientific certainty (Principle 15 of the Declaration).

The second interesting point is that the judge allowed this civil action even though there was a public law remedy available to the applications, namely an application to the Minister to cancel or suspend the right to explore that was granted. The judge found that the time-consuming nature of that remedy and the unlikeliness of its success made it an unsatisfactory remedy (paras 74-77).

 

Luxembourg Business Registers, C-601/20 Sovim
Rapprochement des législations
Prévention du blanchiment de capitaux et protection de la vie privée et des données à caractère personnel : l’avocat général Pitruzzella confirme la validité du régime d’accès public aux informations sur les bénéficiaires effectifs de sociétés

RS (Effet des arrêts d’une juridiction constitutionnelle)
Droit institutionnel
Selon l’avocat général Collins, le droit de l’Union s’oppose à une disposition ou à une pratique de droit national en vertu de laquelle les juridictions nationales ne sont pas habilitées à examiner la conformité avec le droit de l’Union d’une disposition nationale qui a été jugée constitutionnelle par un arrêt de la Cour constitutionnelle de l’État membre

Commission / Autriche (Indexation des prestations familiales)
Sécurité sociale des travailleurs migrants
Selon l’avocat général Richard de la Tour, l’indexation de l’allocation familiale et des avantages fiscaux accordés par l’Autriche aux travailleurs dont les enfants résident en permanence dans un autre État membre est contraire au droit de l’Union

Landeshauptmann von Wien (Perte du statut de résident de longue durée)
Espace de liberté, sécurité et justice
Le ressortissant d’un pays tiers ne perd pas son statut de résident de longue durée si sa présence sur le territoire de l’Union se limite, au cours d’une période de douze mois consécutifs, à quelques jours seulement

Roumanie / Commission
Citoyenneté européenne
La Cour confirme la décision de la Commission d’enregistrer la proposition d’initiative citoyenne européenne « Minority SafePack - one million signatures for diversity in Europe »

Commission / Grèce (Récupération d’aides d’État - Ferronickel)
Aide d'État
La Grèce est condamnée à payer une somme forfaitaire de 5,5 millions d’euros et une astreinte de plus de 4 millions d’euros par semestre de retard pour ne pas avoir récupéré les aides d’État octroyées à Larco

La Ley – Unión Europea is a Spanish journal published monthly by Wolters Kluwer under the editorship of Professor Fernández Rozas (University Complutense, Madrid). It comprises several sections; contributions are classified depending on their length and nature – whether analytical or descriptive. Although not exclusively devoted to private international law, every issue contains at least an in-depth comment to a decision of the Court of Justice related to judicial cooperation on civil and commercial matters. An English abstract is attached to all of them.

A personal selection of five (random number) articles published in 2021, in chronological order:

Rafael Arenas García (University Autónoma of Barcelona), Jurisdiction over rights in rem in immovable property and jurisdiction in contractual matters in the case law of the Court of Luxembourg, La Ley-Unión Europea February 2021 – commenting C-433/19, Ellmes Property service Limited.

The judgment of November 11, 2020 interprets both the exclusive ground of jurisdiction in proceedings which have as their object rights in rem in immovable property and the ground of jurisdiction in matter relating to a contract of art. 7.1 of Regulation 1215/2012. Regarding the first of these forums, the Court considers that an action must be regarded as constituting an action «which has as its object rights in rem in immovable property, provided that the action may be relied erga omnes. With regard to the contractual forum, it is especially significant that the Court determines directly the place of fulfilment of the obligation without considering the governing law of the obligation according with the conflict rules of the court seised.

Ángel Espiniella Menéndez (University of Oviedo), Cross-Border Payments by Subrogation after the Insolvency, La Ley – Unión Europea September 2021, commenting (very critically) on C- 73/20, ZM.

The Judgment analyses the case of a cross-border payment made by the debtor by subrogation
and after the opening of the insolvency proceeding. The Court considers that this payment shall be governed by the law of the contract and not by the law of the insolvency proceeding. A very doubtful conclusion which is contrary to the equal treatment of creditors.

Santiago Álvarez González (University of Santiago de Compostela), A new, provisional and debatable delimitation of international jurisdiction over violations of personality rights, La Ley – Unión Europea September 2021, commenting (again, very critically) on C-800/19, Mittelbayerischer Verlag.

On 17 June 2021 the Court of Justice of the EU pronounced a judgment in case C-800/19,
Mittelbayerischer Verlag KG v. SM. The ECJ held that «Article 7(2) of Regulation (EU) n.o 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that the courts of the place in which the centre of interests of a person claiming that his or her personality rights have been infringed by content published online on a website is situated have jurisdiction to hear, in respect of the entirety of the alleged damage, an action for damages brought by that person only if that content contains objective and verifiable elements which make it possible to identify, directly or indirectly, that person as an individual».The author does not consider that the new ECJ judgement is justified by the predictability of the rules of jurisdiction laid down by Regulation no 1215/2012, the legal certainty which that regulation seeks to guarantee, or the sound administration of justice as the ECJ does. Furthermore, he thinks that all these objectives should lead down to an entire reconsideration of the ECJ doctrine on «centre of interests» and the «mosaic approach» in the framework of art. 7.2 Regulation no. 1215/2012.

(Follow up: a note by Pedro de Miguel on C-251/20, Gtflix tv is expected in La Ley, in January 2022)

Pilar Jiménez Blanco (University of Oviedo), The procedural risks of changing the consumer’s domicile: do the Brussels I bis Regulation and the Lugano convention need a reform?, La Ley-Unión Europea November 2021, on C-296/20, Commerzbank.

The Commerzbank Judgment shows the risks derived from the change of domicile of the consumer
after the conclusion of the contract in the cases of passive consumer of art. 17.1.c) of the Brussels I bis
Regulation [art. 15.1.c) of the Lugano Convention]. Such risks must be assumed when the consumer is the defendant, considering only the domicile at the time of filing the claim. However, these risks break with the predictability of the competence when the consumer is the plaintiff and the professional has not pursued or directed his commercial or professional activities to the State of the new domicile. Here is a reflection on the opportunity to adapt the Brussels Ia Regulation and the Lugano Convention to this situation.

Francisco Manuel Mariño Pardo (Notary), European Certificate of Succession. Temporary effectiveness of authentic copies and effectiveness with respect to the persons designated therein, La Ley-Unión Europea December 2021, on C-301/20, UE, HC y Vorarlberger Landes-und Hypothekenbank, with the added value of the author’s reflections on the impact on the Spanish notarial practice.

On its judgment of 1st. July 2021, the ECJ held that article 70(3) of Regulation (EU) n.o 650/2012
must be interpreted as meaning that a certified copy of the European Certificate of Succession, bearing the words «unlimited duration», is valid for a period of six months from the date of issue and produces its effects, within the meaning of Article 69 of that regulation, if it was valid when it was presented to the competent authority; and that article 65(1) of the same Regulation, read in conjunction with its Article 69(3), must be interpreted as meaning that the effects of the European Certificate of Succession are produced with respect to all persons who are named therein, even if they have not themselves requested that it be issued.This paper analyzes the ECJ judgment and add some thoughts on its effects on the Spanish notary activity.

Durant les six mois – dont trois en dehors vraiment de toutes considérations électorales – de la présidence française du Conseil européen (PFUE), les avocats sont aux avant-postes pour rappeler les fondamentaux de l’État de droit, tout en essayant de faire aussi entendre leur voix sur des sujets de compétitivité économique.

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La France préside le Conseil de l’Union européenne pour six mois. À cette occasion, la Délégation des Barreaux de France et Lefebvre Dalloz s’associent pour vous proposer ce podcast dont la vocation est de sensibiliser sur les travaux et les actions conduites dans le domaine de la justice au plan européen.

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Deutsche Telekom / Commission
Concurrence
Le Tribunal accorde à Deutsche Telekom une indemnité d’environ 1,8 million d’euros à titre de réparation du préjudice qu’elle a subi en raison du refus de la Commission européenne de lui verser des intérêts moratoires sur le montant de l’amende qu’elle a indûment payé dans le contexte d’une infraction aux règles de la concurrence

Deutsche Telekom / Commission
Concurrence
Le Tribunal accorde à Deutsche Telekom une indemnité d’environ 1,8 million d’euros à titre de réparation du préjudice qu’elle a subi en raison du refus de la Commission européenne de lui verser des intérêts moratoires sur le montant de l’amende qu’elle a indûment payé dans le contexte d’une infraction aux règles de la concurrence

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 sixth EFFORTS Newsletter was just 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.

The EFFORTS Reports on national case-law have also been posted: you may follow this link for the Reports on Belgian, French and Luxembourg case-law, respectively. The other reports will be posted in the forthcoming weeks.

Regular updates are also available via the Project’s website, as well as  LinkedIn and Facebook pages.

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

Tommorow, 20 January 2022, the Department of Law of the European University Institute organizes a Conference on Appellate Review and Rule of Law In International Trade and Investment Law. The event will take place in a hybrid format that may be attended online via zoom or offline in person at the Badia Fiesolana-Refettorio.

The organzizers characterise the purpose of the Conference as follows:

“Do regulatory competition, geopolitical rivalries, climate change, regionalism and plurilateral agreements risk undermining the UN and WTO legal orders and sustainable development objectives? How should the EU respond? This conference aims to create an interactive and targeted discussion on these intricate questions, with presentations by esteemed scholars in international economic law and policy

Why is it that the EU promotes judicialization and appellate review in trade and investment relations while the US government has unilaterally disrupted the appellate review system of the Word Trade Organization and seeks to limit judicial remedies in trade and investment agreements? Is appellate review necessary for protecting rule of law, sustainable development and prevention of trade, investment and climate conflicts? Answers to these questions are influenced by the prevailing conceptions of international economic law. Commercial law conceptions and Anglo-Saxon neo-liberalism often prioritize private autonomy and business-driven arbitration and market regulation. Authoritarian governments tend to prioritize state sovereignty and intergovernmental dispute settlements. European ordo-liberalism emphasizes the need for embedding economic markets into multilevel human and constitutional rights and judicial remedies.

This conference aims to create an interactive and targeted discussion on these intricate questions, with presentations by esteemed scholars in international economic law and policy. The International Economic Law and Policy Working Group is therefore delighted to invite you to join this discussion on Thursday, 20th January 2022 at 14.30 (CET).

 

Speakers:

Professor Ernst-Ulrich Petersmann, European University Institute,

Professor Fabrizio Marrella, Ca’ Foscari University of Venice,

Dr Maria Laura Marceddu, European University Institute, and

Professor Bernard Hoekman, European University Institute”

This event is open to all. Please register via thefollowing link by Wednesday, 19th January 2022, indicating whether you would like to attend the event in person or online. The Zoom link as well as the participants allowed to attend the event in person will be shared with registered participants prior to the event.”

For the programme and further information on the EUI Conference please consult the attached programme as well as the event’s website.

 

 

 

At the beginning of December 2021 the European Commission launched a new initiative aiming to digitalise cross-border judicial cooperation – the Proposal for a Regulation on Digitalisation of Judicial Cooperation and Access to Justice in Cross-Border Civil, Commercial and Criminal Matters, and Amending Certain Acts in the Field of Judicial Cooperation.

The proposed regulation does not establish new European procedures, but focuses on electronic communication in the context of cross-border judicial cooperation procedures and access to justice in civil, commercial and criminal matters in the EU. With the adoption of this regulation the European legislator seeks to create the necessary legal framework to facilitate electronic communication in the context of the cross-border judicial cooperation procedures in civil, commercial and criminal matters.

The present text follows a proposal from December 2020 for a Regulation on a Computerised System for Communication in Cross-Border Civil and Criminal Proceedings (mentioned earlier in other blogs available here, here, and here) – and two recast regulations from November 2020 – the Service of Documents Regulation and the Taking of Evidence Regulation (see earlier blogposts here and here). The Service of Documents and Taking of Evidence Regulations establish a first comprehensive legal framework for electronic communication between competent authorities in cross-border judicial procedure, and will rely – as the present proposal – on the e-CODEX decentralized IT system to exchange standardized forms, documents, and certifications (more on the e-CODEX decentralized system pilots can be read here, here, and here).

The proposal is based on Articles 81(1) and 82 TFEU and follows an identical approach to the solutions chosen in the recasts of the Service of Documents and Taking of Evidence Regulations for the use of electronic communication means. However, the text of the present proposal will not become applicable in relation to the aforementioned regulations.

The EU Regulations covered by this initiative are listed in two annexes: one concerning legal acts in civil and commercial matters and the other the legal acts in criminal matters (available here).

The present development comes after a number of instruments have been adopted over the years to enhance judicial cooperation and access to justice in cross-border civil, commercial and criminal cases. These instruments had been developed with a paper-based format in mind, an approach followed by most national procedures within the EU. This characteristic of the European instruments and the lack of interconnection of the national electronic systems (where available for judiciaries) meant that national authorities and individuals have not been able to rely extensively on the developments of digital communication or security mechanism offered by electronic documents, signatures and seals in cross-border proceedings. Given this situation, during the COVID-19 pandemic many technical solutions were developed in an ad-hoc manner to limit disruption of justice services and judicial cooperation. However, such solutions may not always satisfy the highest level of security and guarantee of fundamental rights.

For this reason further steps were considered necessary by the European legislator. Rules on digitalisation are becoming desirable to improve access to justice as well as the efficiency and resilience of the communication flows inherent to the cooperation between judiciaries and other competent authorities in EU cross-border cases. The pandemic increased consideration for creating a framework that is able to secures access to justice and facilitate communication of authorities in charge of delivering justice services during long lasting disruptive events.

The Explanatory Memorandum of the proposal emphasizes the importance to achieve the following goals: efficient cross-border cooperation, resilience in force majeure circumstances, and contributing to securing access to justice within ‘a reasonable time’ as crucial element for the right to a fair trial.

Aims of the Proposal

The proposed regulation aims to ‘ensure an adequate and holistic infrastructure for electronic communication between individuals, legal entities or competent authorities with the authorities of another Member State’. This common approach should:

• Ensure the availability and broad use of electronic means of communication in cross-border cases between Member States’ competent authorities including the Justice and Home Affairs and EU bodies;
• Enable the use of electronic means of communication in cross-border cases between individuals and legal entities, and courts and competent authorities (except for situations covered by the Service Regulation);
• Facilitate the participation of parties in oral hearings through videoconference or other distance communication technology in cross-border civil and criminal proceedings for reasons other than the taking of evidence (taking of evidence by videoconference or other distance communication technology fall under the Evidence Regulation);
• Ensure that documents are not refused or denied legal effect solely on the grounds of their electronic form (this is not to touch upon courts’ powers to decide on the validity, admissibility and probative value as evidence under national law); and
• Ensure the validity and acceptance of electronic signatures and seals in electronic communication in cross-border judicial cooperation and access to justice.

When adopted the text is set to coordinate Member States’ efforts in digitalising judicial services and establish a coherent framework for the existing EU rules, leading to simplification and speeding up of communication between Member States authorities and individuals and legal entities.

The e-CODEX system will secure the interoperability of national and EU access points, while the European e-Justice Portal is expected to undergo some modifications to support the interaction between natural and legal persons and courts and competent authorities in cross-border proceedings.

Overview of the Text of the Proposal

The first articles (Articles 1-2) establish the scope of the act, the limitations to its application and defines the concepts used within its provisions. Article 3 is dedicated to the rules concerning the decentralised system consenting electronic communication between courts and competent authorities. The use of the system is to be compulsory, except in case of disruption of the system or in other specific circumstances. Article 4 establishes the European electronic access point. The European electronic access point is to be part of the e-CODEX decentralised IT system and may be used by natural and legal persons for electronic communication with the courts and competent authorities in civil and commercial matters having cross-border implications. This is to be located on the European e-Justice Portal. Article 5 sets a duty on the EU Member States’ courts and competent authorities to accept electronic communication from natural and legal persons in judicial procedures, but leaves the choice of the electronic means of communication at the discretion of the natural and legal persons (e.g. European electronic access point, national IT portals were available for participation in judicial procedures). Article 6 recognises an electronic submission to be equivalent to a paper one and requires national authorities to accept such communications from natural and legal persons. Article 7 provides the legal basis and sets out the conditions for using videoconferencing or other distance communication technology in cross-border civil and commercial proceedings under the legal acts listed in Annex I and in civil and commercial matter where one of parties is present in another Member State. Additionally, special rules are set by this article for hearing children. Article 8 addressing the same aspect for criminal matters, including special rules for hearing a suspect person, an accused, convicted person or children. Article 9 focuses on using trust services (i.e. electronic signatures and seals) in electronic communication. Article 10 requires that electronic documents are not denied legal effects solely on the ground that they are in electronic form. This provision is similar to provisions on the matter included in the Recast Service of Documents and Tacking of Evidence Regulations as well as the eIDAS Regulation. Article 11 provides the legal basis for electronic payment of fees, including through the European e-Justice Portal. This point is of high significance in cross-border procedures as it proved to be a problematic aspects in the application of the European uniform procedures in several Member States (e.g. the European Order for Payment, the European Small Claims Procedure). Article 12 lays the framework for the Commission to adopt the necessary implementing acts, while Articles 13-14 mandate the Commission to create, maintain, and develop the reference implementation software and deal with the matter of cost bearing for various IT developments. Article 15 addresses the aspects related to the protection of personal data exchanged through the digital means. Articles 16-18 set the rules for collecting data and evaluation of the effectiveness of the proposed Regulation. This is followed by a number of articles focusing on the amendment of several regulations in civil, commercial and criminal matters. Articles 19-22 introduce a number of amendments to Regulations in civil and commercial matters included in Annex I, while Article 23 seeks to amend criminal matters side related to the Regulation on mutual recognition of freezing orders and confiscation orders.

Regulations to be Amended by the Proposal

The European uniform procedures regulations – European Order for Payment, European Small Claims Procedure and the European Account Preservation Order – will be amended by the present proposal. The rules seek to create the legislative format to: (1) recognise the submission of the applications or other forms of the procedures by electronic communication means provided by the present proposal or any other means of communication, included electronic, accepted by the Member State of origin or available to the court of origin, (2) secure the recognition of electronic signatures, (3) make available means of electronic payment of court fees (i.e. for the European Small Claims Procedure), (4) secure the communication by electronic means of communication between the authorities and the parties involved.

Another regulation to be amended is the Insolvency Regulation. The proposal introduces provisions related to the cooperation and communication between courts for secondary insolvency proceedings in the sense that these should be carried out via the decentralised electronic means referred to by the present proposal – e-CODEX. Additionally, any foreign creditor should be able to lodge claims in insolvency proceedings by any means of communications accepted by the State of opening of the proceedings or by the electronic means provided by Article 5 of the proposal.

In criminal matters, the Regulation on the mutual recognition of freezing orders and confiscation orders will also be amended when the proposed regulation will be adopted. The e-CODEX decentralized system consenting electronic communication between courts and competent authorities will have to be used for a number of actions, namely: (1) by the issuing authority to transmit the freezing order to the executing authority, or central authority; (2) for the executing authority to report on the execution of the freezing order; (3) to inform the issuing authority on any decision to recognise and execute or not to recognise and execute an issued freezing order; (4) for the executing authority to report the postponement of the execution to the issuing authority and subsequent measures taken for its execution; and (5) for the execution authority to make a reason request to the issuing authority to limit the period for which the property is to be frozen. The same applies for similar provisions related to confiscation orders.

Concluding Remarks

When adopted this regulation will achieve one of the goals set out in last year’s Communication on the Digitalisation of Justice: making ‘digital communication channels the default channel in cross-border judicial cases’. If properly applied this will address two main problems of cross-border judicial cooperation: inefficiencies affecting this cooperation and barriers to access to justice in cross-border civil, commercial and criminal cases.

Now, it remains to be seen how the adopted text of the regulation will look like and how long it will take for achieving its full deployment in cross-border civil, commercial and criminal cases.

La Commission européenne a engagé, le 22 décembre 2021, une procédure en manquement contre la Pologne à la suite des décisions de son Tribunal constitutionnel des 14 juillet et 7 octobre 2021. Dans la continuité de nombreuses autres procédures, le sens et la portée de cette décision laissent entrevoir la transposition dans l’ordre juridique de l’Union de la logique de la procédure pilote telle qu’elle existe à l’article 61, § 1er, du règlement de procédure de la Cour européenne des droits de l’homme.

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Following successful conferences in Bonn, Würzburg and Hamburg, please save the date for the 4th German-speaking Conference for Young Scholars in Private International Law, which will take place on 23 and 24 February 2023 at Sigmund Freud University in Vienna.

The theme of the conference will be

Deference to the foreign – empty phrase or guiding principle of private international law?

The organisors explain: “As part of the legal system, rules of private international law are bound by the principles of their national jurisdiction, but they also open up the national system to foreign rules. Is the claim of deference to the foreign merely an empty phrase or, at best, a working hypothesis, or can it serve as a meaningful guiding principle of private international law? Are there tendencies within or across specific areas of private international law to move away from deference to, and towards a general suspicion against, the foreign? To what extent does (mutual) trust become the basis of deference to the foreign in the process of internationalisation and Europeanisation? What, if any, is the relationship between deference to the foreign and the methods of private international law?

We would like to explore these and many other related questions at the 4th German-speaking Conference for Young Scholars in Private International Law. We are inviting contributions from all areas of private international law, including but not limited to contract and tort law, company law, family and succession law as well as international procedural law, international arbitration and uniform law. The written contributions will be published in an edited conference volume. The conference will be held in German, but English presentations are also welcome. The call for papers will be released in spring 2022 and we expect the submission of abstracts until late summer 2022.

We cordially invite all interested scholars to save the date of the conference. Please feel free to contact us with any questions (ipr@sfu.ac.at). Further information on the conference is available at https://tinyurl.com/YoungPIL.

Andreas Engel, Florian Heindler, Katharina Kaesling, Ben Köhler,
Martina Melcher, Bettina Rentsch, Susanna Roßbach, Johannes Ungerer.”

For the German text of the note, please consult the attached pdf: Save-the-date-IPR-2023_DE

 

Kazakhstan Kagazy Plc & Ors v Zhunus & Ors [2021] EWHC 3462 (Comm), sees Henshaw J unpicking the follow-up to a trial of applications and claims made by the Claimants for the purpose of enforcing an unsatisfied judgment for approximately US$300 million, handed down in December 2017.

The relevant part of the complex judgment, for the purposes of the blog, is a ‘tracing claim’: claimant argue that monies stolen from them by one of the defendants can be traced or followed into a variety of assets said to be held by companies within Cypriot trusts structures for the benefit of said defendant and his family. What is being traced are shares in Exillon, an oil company which Mr Arip developed after he fled Kazakhstan for Dubai. The proceeds of the shares went partially into the purchase of real estate, with another (substantial) part remaining liquid in a Swiss bank account.

Defendants submit that the tracing claim is governed by Kazakh law, and that that law does not recognise the concept of tracing. The judge, with respect, and perhaps he was echoing submissions, takes a rather unstructured approach to the conflict of laws analysis from which the judgment subsequently never recovers. Many first instance judgments in the UK intuitively start by quoting a relevant section from Dicey (whose 16th ed I am told might be out end of 2022), and then somehow engineer the analysis around it. In the case at issue, the Dicey rule that is zoomed in on [85], is disputes over real property, which are subject to lex situs (lex rei sitae). At [88] the judge then refers to Akers v Samba in which the Supreme Court, albeit at the jurisdictional level, held “the situs or location of shares and of any equitable interest in them is the jurisdiction where the company is incorporated or the shares are registered”. [89]:

It would follow that, insofar as relevant, questions of title to the Exillon shares, whose proceeds (a) were used to purchase the Properties and (b) remain in the form of the £72 million in the BJB account in Switzerland, would be likely to be governed by Manx law, Exillon having been incorporated in the Isle of Man.  A possible alternative would be English law on the basis that the shares were traded on the London Stock Exchange.  The parties have in any event agreed that, so far as relevant to these claims, Manx law is the same as English law.

[91] some role for Kazakh law is suggested to still exist when considering whether the English law preconditions for a tracing claim are met.  ‘It is generally a pre-condition of tracing in equity that there be a fiduciary relationship which calls the equitable jurisdiction into being’. [92] The law applicable to a cause of action or issue determines whether a person is required to hold property on constructive or resulting trust, hence it is necessary to consider whether duties imposed by the relevant foreign law are to be regarded as fiduciary.

Only in an afterthought [94] does the judge consider the lex causae governing unjust enrichment, equitable claims and negotiorum gestio, per Rome II as retained in UK law (and in Dicey). [The judgment is not in fact clear on when the claim was introduced and therefore might be subject to acquired as opposed to retained EU law].

The lex causae for the qualification of the current claims (proprietary restitution) as one of these entries in Rome II [96] is matter of factly presented as English law. [99] the judge dismisses the relevance of the succinct Rome II analysis for, harking back to his first reference to Dicey, the fundamental nature of the Claimants’ claim in the present case is held to be a proprietary one hence Dicey’s lex situs rule is said to apply without a need to consider Rome II.

Surely the right order is to qualify the claim, using autonomous EU interpretation, under (retained) Rome I cq Rome II and with reference to CJEU authority- with of course some of the recent qualification issues following CJEU Hrvatske Sume thrown in. Subsequently to only consider the English common law to the extent statutorily retained EU law does not govern the issue. The approach in the judgment is unsatisfactory and in that respect joins Fetch.AI Lrd & Anor v Persons Unknown Category A & Ors [2021] EWHC 2254 (Comm) , which Amy Held and Matthias Lehmann discuss critically this morning.

Geert.

Kazakhstan Kagazy Plc & Ors v Zhunus & Ors [2021] EWHC 3462 (Comm) (21 December 2021)
Includes somewhat fuzzy discussion of applicable law to (share) tracing and ownership claims, as well as unjust enrichment etc and Rome IIhttps://t.co/6GCjwBJCqY

— Geert Van Calster (@GAVClaw) December 22, 2021