Agrégateur de flux

The Milan Law Review (MLR), run by the Faculty of Law of the State University of Milan, is a multidisciplinary and multilingual law journal, published on a six-monthly basis in open access mode.

The editors of the journal are calling, inter alia, for articles on topics in the field of public and private international law, either in Italian or in English.

Interested authors will find more information here.

Papers intended for the next issue shall be submitted by 31 October 2021.

A quick note on Dhir v Flutter Entertainment Plc (Rev 2) [2021] EWHC 1510 (QB), in which Griffiths J had to consider ia whether choice of law had been made at all and if so (or also if no choice of law had been made), whether this was for the onshore law of the Emirate of Dubai – onshore Dubai law, or for the law of the Dubai International Financial Centre – DIFC.

Claimant (Amarjeet Dhir) is a Dubai-based businessman who advanced money to another businessman in Dubai which he thought would be invested in the local property market. Unknown to him, the man taking his money (Tony Parente) was a gambling addict. As Mr Parente now admits, he applied money he had been given by Mr Dhir (and, it seems, others) to fund his gambling habit. One of the gambling businesses with which he lost a lot of money in a short space of time was the defendant, through that part of its operations branded as Paddy Power. Mr Dhir now seeks to recover from Paddy Power money in its hands which he says represents the money he is entitled to recover from Mr Parente.

The relevant agreement includes express choice of law as follows: 

“This agreement is signed in Dubai and shall be governed and construed in accordance with the laws of Dubai”.

Claimant says that it meant DIFC laws, while defendant says that it means onshore Dubai law). All experts agreed that it had to be one or the other: it could not be both.

[116] jurisdiction before the E&W Courts is by prorogation (A26 Brussels Ia). Both parties agree [129] that the Rome I Regulation guides the search for the lex contractus. The agreement is silent on choice of court: otherwise that could certainly have been a factor in determining choice of law (recital 12 Rome I). In general [118] the judge is cautious in ‘letting the jurisdiction dog wagging the choice of law tail’, and held the many ties of parties and contract with Dubai (including signature at Dubai and not DIFC: a geographically distinct location) pointed to onshore Dubai law as  lex contractus.

Choice of law therefore made not verbatim, yet ‘clearly demonstrated’ (A3(1) Rome I).

Geert.

EU Private International Law, 3rd ed. 2021, Heading 3.2.4.

Dhir v Flutter Entertainment [2021] EWHC 1510 (QB)
Considers ia A3(1) Rome I: choice of law: whether agreement to advance monies is governed by the onshore law of the Emirate of Dubai or by the law of the Dubai International Financial Centre DIFChttps://t.co/PrQQwQCXrd

— Geert Van Calster (@GAVClaw) June 14, 2021

The Mexican Academy of Private International and Comparative Law (AMEDIP) will be holding its annual XLIV Seminar entitled “New perspectives for Private International Law in a post-pandemic society” (perspectivas para el derecho internacional privado en una sociedad post-pandemia) from 17 to 19 November 2021 for the second time online.

The main focus of the seminar will be to analyse the impact of the Covid-19 pandemic on the development of private international law.

Potential speakers are invited to submit a paper in Spanish, English or Portuguese by September 1st 2021. Papers must comply with the criteria established by AMEDIP and will be evaluated accordingly. Selected speakers will be required to give their presentations preferably in Spanish as there will be no interpretation services but some exceptions may be made by the organisers upon request.

Participation is free of charge. The platform that will be used is Zoom and it will also be streamed via Facebook Live. For more information, please click here.

The following post was written by Paul Eichmüller (Vienna).

Although rules concerning the use of a name of natural persons have been liberalised in the member states of the European Union to a large extent after the CJEU’s famous decisions in C-148/02, Garcia Avello, and C-535/06, Grunkin and Paul, there still remain areas where national name law remains untouched. The Austrian Supreme Court has shown in its latest decision from 20 April 2021 that even for citizens of two member states, the conflict of laws rules for name matters may not generally be affected by CJEU judicature.

The parties of the case in question were the unmarried German mother and the Italian father of a son with German-Italian dual citizenship. After the child had been born in Germany – where he acquired his mother’s surname, as is usual under German law if the parents are unmarried – the boy and his mother moved to Austria. There, the father brought a request in court to change the child’s surname to a compound name consisting of both the mother’s and the father’s surnames. The mother, however, wanted her son to retain his current surname.

The Austrian courts of first and second instance concordantly dismissed the father’s request to change the child’s surname. Under Austrian law, the law applicable to name disputes follows the personal statute, which in turn is determined by a person’s citizenship (§§ 13, 9 IPRG). In cases of dual nationality – neither nationality being Austrian – the “effective nationality” (i.e. the nationality of the state to which the person has the closest link) determines the personal statute (§ 9(1) sentence 3 IPRG).

The courts concluded that the link to Germany had in this case been stronger, as the boy had been born in Germany and lived in a household with his German mother. German law, which accepts the renvoi (Article 10(1) EGBGB), does not provide for a change of the child’s surname against the will of the other parent unless the well-being of the child is affected, so that the request was denied.

The Austrian Supreme Court upheld the lower courts’ decisions. It found no fault in how the previous instances had determined the applicable law. More importantly, it also ruled that this outcome was compatible with the CJEU’s rulings on European name disputes. According to the CJEU in Garcia Avello and Grunkin and Paul, Articles 18 and 20 TFEU merely require that EU citizens that lawfully use a name in one member state are allowed to use this name also in other member states. However, in the present case, the child in the case at hand had precisely not yet acquired a different name in Italy. Additionally, the father even conceded that under Italian law, a child may alternatively bear the surname of one parent or a compound name of both parents’ surnames. Thus, there were no objections from a perspective of European law, as neither freedom of movement was restricted nor was there discrimination on the basis of citizenship, and the request was dismissed.

Without explicitly stating it, the Austrian Supreme Court made one point very clear in its judgment: the EU fundamental freedoms as interpreted by the CJEU in Garcia Avello and Grunkin and Paul do not impose on the member states the duty to determine the law on name disputes in a different way. Only the recognition of legal facts or acts from other member states, but not the identification of the applicable law is affected by the freedoms.

EU primary law requires that a name legally borne or acquired in another member state may also be borne in all other member states. It does, however, not impose a specific conflict-of-laws rule. Therefore, the law that determines whether and under which circumstances the name (even of a dual citizen) can be changed in another member state is not affected.

As the desired name is not legally borne in the other state, it remains merely hypothetical and thus is not subject to the fundamental freedoms. Whether the father could have changed his son’s name without the consent of the mother under Italian law was therefore not even assessed by the Supreme Court, as it deemed it not of importance.

As conflicts issues with regard to the change of name are concerned, each state is thus free to apply its own national rules of private international law. However, as most states offer the possibility to apply for a name change in their home state anyway, this issue will mainly arise in parental disputes. Like in the case at hand, one parent may wish to change the name of a child living in a different country against the will of the other parent and thus might bring an action in the family court at the child’s habitual residence pursuant to Article 8 of the Brussels II bis Regulation. When posed with the question of whether a change of name is possible, this court can then – free from obligations of EU primary law – assess the possibility of the name change according to its very own (private international) law.

Non lieu à renvoi

The London Steam-Ship Mutual Insurance Association Ltd v The Kingdom of Spain (M/T PRESTIGE) [2021] EWHC 1247 (Comm) has been in my blog in-tray for a little while: I had thought of using it for exam purposes but have now decided against that.

The case is the appeal against Cook J’s registration of the Spanish judgment in the Prestige disaster.  I have reported thrice before on the wider litigation – please use tag ‘Prestige’ in the search box.

References in the judgment are to Brussels I (44/2001), not its successor, Brussels Ia (1215/2012) however the  relevant provisions have not materially changed. Application is for recognition and enforcement of the Spanish Judgment to be refused,  and the Registration Order to be set aside for one or both of two main reasons, namely: (1) that the Spanish Judgment is irreconcilable with a 2013 Hamblen J order, upheld on Appeal,  enforcing the  relevant Spanish award (A34(3) BI), and (2) that recognition would entail a manifest breach of English public policy in respect of (a) the rule of res judicata and/or (b) human and fundamental rights (A34(1) BI).

Butcher J referred the first issue to the CJEU on 18 December 2020 – just before the Brexit deadline. I have not been able to obtain a copy of that judgment – the judge merely refers to it in current one. The CJEU reference, now known as Case C-700/20, is quite exciting for anyone interested in the relationship between arbitration and the Brussels regime. Questions referred, are

1) Given the nature of the issues which the national court is required to determine in deciding whether to enter judgment in the terms of an award under Section 66 of the Arbitration Act 1996, is a judgment granted pursuant to that provision capable of constituting a relevant ‘judgment’ of the Member State in which recognition is sought for the purposes of Article 34(3) of EC Regulation No 44/2001?

(2) Given that a judgment entered in the terms of an award, such as a judgment under Section 66 of the Arbitration Act 1996, is a judgment falling outside the material scope of Regulation No 44/2001 by reason of the Article 1(2)(d) arbitration exception, is such a judgment capable of constituting a relevant ‘judgment’ of the Member State in which recognition is sought for the purposes of Article 34(3) of the Regulation?

(3) On the hypothesis that Article 34(3) of Regulation No 44/2001 does not apply, if recognition and enforcement of a judgment of another Member State would be contrary to domestic public policy on the grounds that it would violate the principle of res judicata by reason of a prior domestic arbitration award or a prior judgment entered in the terms of the award granted by the court of the Member State in which recognition is sought, is it permissible to rely on Article 34(1) of Regulation No 44/2001 as a ground of refusing recognition or enforcement or do Articles 34(3) and (4) of the Regulation provide the exhaustive grounds by which res judicata and/or irreconcilability can prevent recognition and enforcement of a Regulation judgment?

These are exciting questions both on the arbitration exception and on the res judicata refusal for recognition and enforcement. They bring into focus the aftermath of CJEU West Tankers in which the status of the High Court confirmation of the English award was also an issue.

The Club’s argument that recognition would be contrary to English public policy because the Spanish Judgment involved a breach of human and fundamental rights was not referred to the CJEU. Discussion  here involves ia CJEU Diageo. Suggested breaches, are A 14(5) ICCPR; breach of fundamental rights in the Master being convicted on the basis of new factual findings made by the Supreme Court; inequality of arms; and; A1P1.

There is little point in rehashing the analysis made by Butcher J: conclusion at any rate is that all grounds fail.

That CJEU case is one to look out for!

Geert.

EU Private International Law, 3rd ed 2021, 2.84 ff, 2.590 ff.

The University of Manchester Law School is seeking to recruit a Lecturer in Conflicts of Law.

The new appointment is meant to enhance teaching and research in Conflict of Laws, comparative private law and or commercial litigation at both undergraduate and postgraduate levels. This post will be available from 1 September 2021.

The candidate must fulfill the following requirements:

• have a relevant PhD (or equivalent) and demonstrate the ability to produce high quality publications, meet flexible curricular and teaching needs, and demonstrate capability to contribute organisationally to the wider School community.
• have experience of delivering research-informed teaching at an institution of higher learning or should be able to demonstrate the clear potential to do so.

The deadline for the applications is 17 June 2021.

Enquiries about the vacancy, shortlisting and interviews should be addressed to Professor Yenkong Hodu (yenkong.ngangjohhodu@manchester.ac.uk). Blended working arrangements may be considered.

More information about the vacancy can be found here.

Urbanisme

Architecte - entrepreneur

Procédure civile – Impartialité

The Milan Law Review (MLR) of the State University of Milan Law Faculty is a multidisciplinary and multilingual law journal, published on a six-monthly basis in open access mode. 

Articles on topics of private international law, public international law and European Union law are welcome. 

Papers can be written in Italian or English. Instructions for authors and more information about the journal can be found on the website: https://riviste.unimi.it/index.php/milanlawreview/about. 

Papers may be submitted to the Journal by email to the following address: milanlawreview@unimi.it. 

The next deadline for submitting papers is 31 October 2021.