Agrégateur de flux

The third issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) for 2025 has been published. The following English abstracts have been kindly provided by the editor of the journal. M.F. Müller-Berg, The effects of the new product liability directive on international product liability [German] The concepts of damage, marketing and the person sustaining […]

Le droit de séjour découlant de l’article 20 du Traité sur le fonctionnement de l’Union européenne naît-il en vertu du droit de l’Union européenne ? Et à quel moment ce droit prend-il naissance ? La Cour de justice de l’Union européenne était interrogée sur les droits d’un ressortissant de pays tiers lié à une personne ayant le statut de citoyen de l’Union.

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If you do use the blog for research or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.

Our University’s reminder re open access policies and our publication repository, reminds me of the interesting provision inserted in 2018 in Article X.196 of Belgium’s Economic Law Act: (DeepL translation)

The author of a scientific article that is the result of at least half publicly funded research retains, even if, in accordance with Article XI.167, he has disposed of his rights to a journal publisher or placed them under an ordinary or exclusive licence, the right to make the manuscript available free of charge in open access to the public in a journal after the expiry of a period of 12 months for human and social sciences and six months for other sciences after the first publication, provided that the source of the first publication is mentioned.
The publishing contract may provide for a shorter period than that stipulated in the first paragraph.
The King [that is shorthand for the Government, GAVC] may extend the period stipulated in the first paragraph.
The right described in the first paragraph cannot be waived. This law is mandatory and applies irrespective of the law chosen by the parties as soon as there is a link in Belgium. It also applies to works created before the entry into force of this paragraph and which do not belong to the public domain at that time.

Under Article 9 Rome I 

1.   Overriding mandatory provisions are provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organisation, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under this Regulation.

2.   Nothing in this Regulation shall restrict the application of the overriding mandatory provisions of the law of the forum.

3.   Effect may be given to the overriding mandatory provisions of the law of the country where the obligations arising out of the contract have to be or have been performed, in so far as those overriding mandatory provisions render the performance of the contract unlawful. In considering whether to give effect to those provisions, regard shall be had to their nature and purpose and to the consequences of their application or non-application.

This is the ‘overriding mandatory law’, aka lois de police aka lois d’application immédiate provision.

Clearly even in Belgian courts the provision is bound to trigger interesting discussions. First of all of course the statutory construction of ‘scientific’ [note that the Dutch (‘wetenschappelijk’) and French use of ‘scientific’ is a much broader category than the English language ‘scientific’; humanities faculties for instance are very much ‘scientific’ in the ‘wetenschappelijk’ sense]. Is a historic novel loosely based on scientific research, a ‘scientific’ work? Further, the meaning of ‘at least half publicly funded research’: that’s a statutory construction quagmire and I suspect the travaux might help (I have not consulted them for this post). Finally, at least for purposes of this blog, the limitation to cases with ‘a link to Belgium’: e.g. would the mere seizing of a Belgian court not suffice? Further, any choice of court away from Belgium, in copyright and other agreements is likely to upend the impact of the provision, seeing as a non-Belgian, EU Member States courts (and the UK under Rome I) will have much more flexible room for manoeuvre under  Rome I (see above) to apply the Belgian Act. This may be managed by authors either by seizing a Belgian court first (in a denial of (copyright) infringement claim, presumably), or potentially by claiming the illegality of choice of court away from Belgium (not such an easy proposition I imagine; e.g. the consumer contract protection prima facie would seem unavailable). Fun with conflict of laws. Have I mentioned it’s exam season? (I know, I am on sabbatical. But not everyone is). Geert. Handbook of EU Private International Law, 4th ed. 2024, 3.73 ff.

Under Article 10 of the Spanish Law 14/2006 of 26 May 2003 on assisted human reproduction techniques, gestation agreements, for a price or not, by a woman who renounces to motherhood in favour of a party to the contract or of a third party are null and void. As a rule, the parenthood of children born […]

In preparation of the University of Bologna (Ravenna Campus) Summer School on Transnational Litigation, already noted on this blog, a warm-up webinar will take place on 19 May 2025, from 6 to 7 pm CET. The session will feature Marco Pasqua (PhD at Catholic University of the Sacred Heart of Milan) who will speak on […]

RRC Sports
Concurrence
Avocat général Emiliou : les instances dirigeantes du sport sont limitées dans leur autorégulation en cas d’impact significatif sur les matières régies par le droit de l’Union

The Cambridge Law Journal has published, on First View (that is, online before print), an interesting article by Marcus Teo (Assistant Professor, Faculty of Law, National University of Singapore) on proof of foreign law in English law, titled The Inference of Similarity English courts have long professed to apply a “presumption of similarity” when faced with […]

 

 

 

 

 

 

 

 

 

 

 

 

 

Written by Catherine Shen, Senior Assistant Director, ABLI

Following successful sessions in 2021, 2022 and 2023, the Singapore-based Asian Business Law Institute (ABLI) and the Permanent Bureau of the Hague Conference on Private International Law (HCCH) return after a one-year hiatus with their fourth joint webinar, this time on electronic service of documents and remote taking of evidence.

Titled Cross-border Commercial Dispute Resolution – Electronic Service of Documents and Remote Taking of Evidence, the webinar will take place on Thursday 10 July between 5 to 6:10pm (Singapore time) or 11am to 12:10 noon (CEST), and is expected to discuss, among others, electronic transmission of requests under the Service Convention, such as the use of IT for communication among Central Authorities and other competent authorities, service by electronic means across different jurisdictions, and remote taking of evidence by video-link and electronic evidence under the Evidence Convention.

Invited speakers include Melissa Ford, Secretary of HCCH,  Lucinda Orr, Partner of Enyo Law LLP, Justice Anselmo Reyes, International Judge of the Singapore International Commercial Court, and Dr Xu Guojian, Senior Partner of SGLA Law Firm.

More about the webinar and its speakers can be found in the flyer.

For more information or to register, click here. Early bird discount is available till 10 June. Queries about the webinar can be directed to Catherine of ABLI at abli_info@abli.asia.

La Cour de justice de l’Union européenne engage une clarification des critères relatifs à la nécessité et aux modalités de contrôle des actes de procédure du parquet européen par les juridictions nationales, rappelant le principe d’équivalence des recours entre les situations relevant du droit national et celles relevant du droit de l’Union. 

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This is an academic public service claxon: the European Commission Roadmap towards ending Russian energy imports COM(2025)440 is an absolute treasure trove for questions in current exam season underway in much of the Northern Hemisphere at least.

The Roadmap obviously has solid security credentials in the light of Russia’s invasion of Ukraine, and raises the type of issues which imo are excellent to discuss with students particularly in an oral exam:

what are the implications of the consequential trade restrictions viz international trade law;

how does the EC propose to deal with ongoing long-term contracts (both in the suggestions for communication of these contracts to Commission services, and the roadmap towards ending them. Flag viz the latter element: these contracts are subject to a smorgasbord of dispute resolution clauses, governing law provisions etc. How does force majeur in war times impact on contracts subject to different national laws? (The Commission suggesting ia ‘Building on joint European preparations, the assessment of the impact of the measures carried out by the Commission since the Versailles Declaration, including effects on gas security of supply, market, prices and legal aspects (including contracts), the Commission intends to propose legal measures for the effective phase out of gas imports from Russia.’);

what is the impact of any EU measure on claims under international investment law, particularly for claims that may be brought outside of the EU;

etc. Should guarantee at least half an hour of discussion which may gauge a student’s knowledge of the issues in various legal subjects quite nicely.

You’re welcome.

Geert.

If you do use the blog for research or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.

In HM Treasury & Anor v Global Feedback Ltd [2025] EWCA Civ 624, the Court of Appeal overturned the finding by Lang J in [2024] EWHC 1943 (Admin) that the relevant UK statutory provisions on trade in agricultural products (specifically: beef), giving effect to the UK-Australia 2021 Free Trade Agreement (FTA), are a “provision of [a Contracting State’s] national law relating to the environment” (emphasis added) in Article 9(3) of the Convention on Access to Information Public Participation in Decision-Making and Access to Justice in Environmental Matters (“the Aarhus Convention“).

The judgment has an important impact, before you start wondering why I am reporting on a nerdy issue of international environmental law.

A9(3) Aarhus (the Convention was ratified by the United Kingdom on 23 February 2005, and Brexit has no impact on its membership) requires each Party to ensure that members of the public “have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.”

A9(4) in turn requires inter alia those procedures, and also procedures under Art.9(1) and (2), to “provide adequate and effective remedies” and not to be “prohibitively expensive”. The latter element has been transposed in English civil procedure law as follows:

Part IX of the civil procedure rules – CPR 46 give partial effect to A9(4) by imposing costs limits on “Aarhus Convention claims”. That expression means “a claim brought by one or more members of the public by judicial review or review under statute which challenges the legality of any decision, act or omission of a body exercising public functions, and which is within the scope of Art. 9(1), 9(2) or 9(3)” of the Aarhus Convention (CPR 46.24(2)(a)).

The central issue in this appeal is therefore the meaning and width of the phrase “which contravene provisions of its national law relating to the environment” in Art.9(3).

The issue has arisen in a claim for judicial review brought by Global Feedback Limited (GFL) against the UK Government viz its 23 February 2023 to make the Customs Tariff (Preferential Trade Arrangements and Tariff Quotas) (Australia) (Amendment) Regulations 2023 (SI 2023 No. 195) (“the 2023 Regulations”). The 2023 Regulations give effect to tariff preferences on Australian imports under the Free Trade Agreement (“FTA”) between the UK and Australia which was signed on 17 December 2021 and came into force on 31 May 2023.

GFL claims that the 2023 Regulations will harm the environment by adversely impacting on climate change. It says that the FTA would lead to a substantial increase in greenhouse gas (GHG) emissions from the production of cattle meat, because (i) beef production methods in Australia produce significantly more GHG emissions per weight of beef than those in the UK and (ii) the lower prices of Australian beef compared to UK beef are likely to lead to a net increase in production of Australian beef for consumption in the UK. According to GFL, “carbon leakage” occurs when production moves from one country to another resulting in higher net GHG emissions, for example where the production process in the new country is more GHG intensive.

GFL’s specific target is the insufficient nature, it argues, of the Impact Assessment that coincided with the amendments to the UK’s customs classifications and -tariffs resulting from the UK-AUS FTA.

Lang J ordered that the costs limits in CPR 46 should apply. [58-59] of the current judgment summarise her findings as

the judge decided at [12]-[14] that the present claim does fall within Art.9(3) and (4). She said that it was arguable that s.28 of the 2018 Act required the appellants to have regard to relevant international obligations, including the UNFCCC, and those obligations were directly concerned with environmental issues. The appellants were under obligations in UK national law to have proper regard to their environmental obligations under international law when making the 2023 Regulations. This was sufficient to bring the claim within the scope of Art. 9(1), applying a broad purposive approach.

The judge also took into account at [13] the nature of the alleged contravention. She was not persuaded that the appellants’ obligations only related to GHG emissions in the UK as opposed to Australia, in circumstances where the implementation of the FTA by the 2023 Regulations would promote a market for the importation of Australian produce into the UK with a risk of increased emissions in Australia. There is a public interest in the environmental issues raised by the claim and the scope of s.28 of the 2018 Act may be relevant to other free trade agreements which are being implemented.

The Court of appeal disagrees with the first instance judge.

Holgate LJ reminds parties first of the informative yet non-binding nature of both the findings of the Aarhus Compliance Committee, and the Guidance documents drawn up by the EU when the EU itself acceded to the Convention. He turn summarises the relevant interpretative provisions of the Vienna Convention on the Law of Treaties – VCLT, incl [5v2] in fine, with reference to A33 VLCT, the provision on authentic (language) versions of the Convention.

[74] ff he considers first “relating to”. That, “(and other similar connectors) shows that the nature and strength of the link will depend upon the surrounding language, the wider context of the legislation and its purpose.” Discussion of CJEU authorities not being of determinative help, he then [82] turns to the travaux préparatoires and the French text of the Aarhus Convention to find [88] that the French text confirms that “relating to” is used as a strong, not a loose or broad, connector:

The relevant legal provision of national law should be to do with, or be concerned with, the environment. This is consistent with saying that to fall within Art.9(3) the purpose of the legal provision in question should be for the protection or regulation of the environment. The preparation of the Convention shows that the Parties were not prepared to agree that Art.9(3) should apply to any claim or matter related to the environment or the protection of the environment.

Discussion of relevant case-law does not he decide help claimants, and [134] ‘the present case raises this issue: does Art.9(3) of the Aarhus Convention apply where a claim alleges that a defendant’s decision or act under a legal provision not relating to the environment is vitiated by a public law error in some way connected to the environment or an effect on the environment?’ He decides [141]

it cannot be assumed that the Court’s reasoning in Venn [Venn v Secretary of State for Communities and Local Government [2015] 1 WLR 2328], which was specific to the nature of the well-established role played by the planning regime in environmental protection, is transferrable to open-ended statutory requirements to take into account relevant considerations in other legislation enacted for non-environmental purposes, such as funding for overseas projects, financial market controls or international trading arrangements.

and [148]

this is a challenge which amounts to allegations of breaches of public law principles and not any breach of this country’s law relating to the environment or environmental law. It therefore falls outside the scope of Art.9(3) of the Aarhus Convention. Any costs protection could only be considered through an application for a costs protection order.

Evidently the views of the Court of Appeal are debatable, and one imagines there might be more in the Aarhus travaux that might help claimants. For those interested in the domestic implementation of Treaty law, this is an interesting judgment.

Geert.

1/2 Cost caps, public interest litigationMeaning of "provisions of..national law relating to the environment" A9(3) Aarhus ConventionCustoms provisions in UK-Australia FTA with impact on Greenhouse Gas emissions[HMG] v Global Feedback [2025] EWCA Civ 624bailii.org/ew/cases/EWC…

— Geert Van Calster (@gavclaw.bsky.social) 2025-05-14T06:45:07.686Z

If you do use the blog for research or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.

Seeing as it is exam time across many universities, this is one of a series of posts where some core elements of international litigation strategy is considered. One or two students of the law might find these ponderings useful e.g. in essay submissions.

In African Export-Import Bank v National Government of the Republic of South Sudan & Anor  [2025] EWHC 1079 (Comm), claimant would be entitled to apply for default judgment.  Yet it seeks a reasoned judgment from the Court on the merits, so as to aid its efforts to enforce any judgment abroad. Accordingly, Afreximbank applied for permission to apply for summary judgment, and to be granted such judgment – both of which were granted by Lionel Persey KC. 

The case clearly echoes DVB Bank v Vega Marine, to which the judge here also refers, and Trafigura v Republic of South Sudan[2020] EWHC 2044 (Comm).

[19] Defendants have been given full notice of the proceedings (with detail provided of course by claimant) and the proceedings take place in the forum agreed in the relevant facility agreement for the resolution of the parties’ disputes. Defendants have utterly declined to participate.

[20] The principles governing the applications were summarised by Bryan J in European Union v Syria [2018] EWHC 1712 (Comm) at [61]-[62] and can be summarised as follows:

(1) The purpose of the rule requiring permission to apply for summary judgment against a defendant prior to the filing of an acknowledgement of service is (a)  to ensure that no application for summary judgment is made before a defendant has had an opportunity to participate in the proceedings, and (b)  to protect a defendant who wishes to challenge the Court’s jurisdiction from having to engage on the merits pending such application.

(2) Permission should generally be granted only where the Court is satisfied that the claim has been validly served and that the Court has jurisdiction to hear it.

If those conditions as to valid service and jurisdiction are met, there is generally no reason why the Court should prevent a claimant with a legitimate claim from seeking summary judgment – all the more so in the light of the relevance to smooth enforcement.

[30] ff a claim for sovereign immunity (appropriately flagged by counsel for claimant as a possible defence, should defendants have appeared) is dismissed: but the ‘prior written agreement’ and the ‘commercial activities’ exception to immunity readily apply.

A good reminder of the principles.

Geert.

Summary money judgment re facility agreementsNote express concession by claimant & OK of same by judge, that summary judgment will assist enforcement abroad better than judgment by defaultAfrican Export-Import Bank v [South Sudan] [2025] EWHC 1079 (Comm)bailii.org/ew/cases/EWH…

— Geert Van Calster (@gavclaw.bsky.social) 2025-05-10T07:47:42.290Z

https://x.com/GAVClaw/status/1921109738827256108

 

Stevi et The New York Times / Commission
Droit institutionnel
Accès aux documents : la décision de la Commission refusant à une journaliste du New York Times l'accès aux messages textes échangés entre la présidente von der Leyen et le PDG de Pfizer est annulée

Recent legislative initiatives in the United States reflect concerns over the extraterritorial implications of Directive (EU) 2024/1760 on corporate sustainability due diligence (CSDDD). One such initiative consists of a bill titled Prevent Regulatory Overreach from Turning Essential Companies into Targets Act of 2025 (Protect USA Act of 2025), introduced in the US Senate by Senator […]

The European Parliamentary Research Service has recently released a Briefing, by Nikolina Šajn, on the European Commission’s proposal for a regulation on cooperation among enforcement authorities responsible for the enforcement of Directive (EU) 2019/633 on unfair trading practices in business-to-business relationships in the agricultural and food supply chain. Background The proposal aims at improving farmers’ […]

La jurisprudence des mois de mars et avril 2025 se caractérise par des affaires françaises qui sont moins nombreuses qu’en janvier-février mais qui peuvent présenter un intérêt majeur comme celle relative à la répression des actes sexuels non consenties et par des affaires venues d’ailleurs mettant encore plus en évidence que d’habitude l’importance envahissante dans le contentieux européen de l’article 8 qui consacre le doit au respect de la vie privée et familiale, de la correspondance et du domicile.

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It has not yet been reported on this blog that a few months ago an interesting collection of essays, under the title Die Achtung des Fremden – Leerformel oder Leitprinzip im Internationalen Privatrecht? (Deference to the Foreign – Empty Phrase or Guiding Principle of Private International Law?), has been published by Mohr Siebeck. Edited by […]

If you do use the blog for research or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.

When I flagged the hard Brexit in judicial cooperation, I also referred to the one exception to that, which is the embryonic judicial co-operation on intellectual property rights. In Praesidiad Holding BVBA & Anor v Zaun Ltd [2025] EWCA Civ 591 these provisions are put to the test. The judgment dismissed the appeal against the first instance judgment of Zacaroli J in Praesidiad Holding BVBA & Anor v Zaun Ltd [2024] EWHC 1549 (Pat).

In accordance with Article 85(5) of the EU’s Community Design Regulation, proceedings before the EU Intellectual Property Office (“EUIPO”) have res judicata effect. In the case at issue, Betafence had initiated an infringement action in March 2018 in the English courts. Zaun’s response was to seek a declaration of invalidity at EUIPO). In October 2018, by consent, the Infringement Action was stayed pending final determination of the Invalidity Action. At that time, the terms on which the UK would depart from the EU had not been established. The consent order contained a liberty to apply to lift the stay in the event that the departure from the EU impacted on the position with the regard to the RCD, the Invalidity Action or the Infringement Action.

The EUIPO Invalidity Division on 19 July 2019 rejected each of Zaun’s arguments and found that the design was valid. Zaun’s appeal succeeded before the EUIPO Board of Appeal on 2 March 2021 however that decision was then overturned by the General Court of the EU on 19 October 2022. Permission to appeal to the CJEU was refused on 17 April 2023. On 12 June 2023, the Board of Appeal of the EUIPO then issued a confirmatory decision, upholding the validity of the design and finally disposing of all of the invalidity challenges.

Betafence contend that Zaun is precluded from challenging the validity of relevant Community designs, either because Article 86(5) of the Community Designs Regulation still applies (as a result of the provisions of the Withdrawal Agreement, which have direct effect in English law), or pursuant to the English law principles of res judicata.

Zaun, on the other hand, contends that Article 86(5) has been expressly – or at least implicitly – disapplied by UK amendments made to the Registered Designs Act 1949 (“RDA 1949”), in respect of proceedings that were pending at ‘IP Completion Day’ (Implementation Period completion day: 11 PM on 31 December 2020, the end of the UK’s transition period following EU withdrawal from the EU). Their view is that there is accordingly no statutory res judicata that would preclude the counterclaim in the infringement action.

Moreover, Zaun contends that the English law principles of res judicata and abuse of process do not apply because: (1) the EUIPO is not a court of competent jurisdiction; or, if that is wrong, (2) the amendments made to the RDA 1949 should be interpreted as disapplying the doctrines of res judicata and/or Henderson v Henderson abuse of process. It further contends that there is no question of a decision of the EUIPO giving rise to any estoppel or abuse of process in relation to the Re-registered Design, because it is a newly-created UK right.

The judge held that Zaun was precluded from challenging the validity of the designs because Zaun had already unsuccessfully challenged the validity of the RCD before EUIP) and on appeal therefrom to the General Court of the European Union. Zaun contend in short that the effect of the relevant Brexit legislation is that it is able to challenge the validity of the designs in these proceedings.

[26] Title VI of the UK-EU Withdrawal Agreement is headed “Ongoing judicial cooperation in civil and commercial matters”. Article 67(1) provides that:

“In the United Kingdom, as well as in the Member States in situations involving the United Kingdom, in respect of legal proceedings instituted before the end of the transition period and in respect of proceedings or actions that are related to such legal proceedings pursuant to Articles 29, 30 and 31 of [the Brussels I Regulation (Recast)], Article 19 of Regulation (EC) No 2201/2003 [‘the New Brussels II Regulation’] or Articles 12 and 13 of Council Regulation (EC) No 4/2009 [‘the Maintenance Regulation’], the following acts or provisions shall apply:

(a) the provisions regarding jurisdiction of [the Brussels I Regulation (Recast)];

(b) the provisions regarding jurisdiction of Regulation (EU) 2017/1001 [the EU Trade Mark Regulation], of [the CD Regulation], of Regulation (EC) No 2100/94 [‘the Community Plant Variety Rights Regulation’], of Regulation (EU) 2016/679 of the European Parliament and of the Council [‘the General Data Protection Regulation’] and of Directive 96/71/EC of the European Parliament and of the Council [‘the Posted Workers Directive’];

(c) the provisions of [the New Brussels II Regulation] regarding jurisdiction;

(d) the provisions of [the Maintenance Regulation] regarding jurisdiction.”

[36] Arnold LJ summarises the res judicata issues of relevance:

There was no dispute before either the judge or this Court as to the applicable principles concerning res judicata and abuse of process, which were explained by Lord Sumption in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46, [2014] AC 160. In brief summary, there are three principles which are potentially relevant. First, cause of action estoppel, which is the principle that once a cause of action has been held to exist or not to exist, that determination cannot be challenged by either party in subsequent proceedings. Secondly, issue estoppel, which is the principle that, in general, the determination of an issue which is necessary to the decision in earlier proceedings is binding on the parties in later proceedings. Thirdly, the principle derived from Henderson v Henderson (1843) 3 Hare 100, which precludes a party from raising in later proceedings points that were not, but could and should have been, raised in earlier proceedings, which is a species of abuse of process.

[39] summarises the common ground on ‘proceedings pending’:

Claimants accept that, despite Brexit, Zaun was able (subject to the objections raised by the Claimants’ application) to bring its counterclaim for a declaration of invalidity of the RCD in August 2023 because the counterclaim was made in proceedings which were pending as at 31 December 2020. Since the Claimants accept this, it is not strictly necessary to determine which legislative provision(s) enabled Zaun to bring that counterclaim. It is nevertheless pertinent to consider this question, because it provides the starting point for the issues which arise on the appeal. It is clear that the proceedings are “pending proceedings” as defined in paragraph 9(1) of the Schedule 1A to the 1949 Act. During the course of argument counsel agreed that it followed from paragraph 9(2), which provides that, with certain exceptions, the provisions in Title IX of the CD Regulation shall continue to apply to pending proceedings as if the UK were still a Member State, that Zaun was able to bring its counterclaim pursuant to Article 81(d) of the CD Regulation. By virtue of Article 88(1) the applicable law is (the relevant provisions of) the CD Regulation. Although paragraph 9(2) is expressed to be subject to paragraph 9(3) and 9(4), nothing in those subparagraphs prevents Zaun from bringing such a counterclaim. It was also agreed that the same result could if necessary be arrived at via section 7A of the 2020 Act and Article 67(1) of the Withdrawal Agreement: cf. Simon v Taché [2022] EWHC 1674 (Comm) at [66]-[75] (HHJ Cawson QC sitting as Judge of the High Court).

[48] the first instance judge’s views are summarised:

The judge held that Zaun was precluded from bringing its counterclaim in respect of the RCD by Article 86(5), which applied by virtue of section 7A of the 2020 Act and Article 67(1) of the Withdrawal Agreement for two alternative reasons. The first was that the provisions of Title IX of the CD Regulation as a whole were the provisions regarding jurisdiction. The second was that Article 86(5) was a provision regarding jurisdiction. The judge held that, irrespective of Article 86(5), Zaun was precluded from bringing its counterclaim in respect of the RCD by res judicata or abuse of process. Finally, he held that the same conclusions applied to Zaun’s counterclaim in respect of the UKRRD.

[57] reference is made to ia a linguistic argument to hold on the meaning of ‘jurisdiction’:

It is not necessary to decide whether the judge was right about Title IX as a whole, because in my judgment he was right about Article 86(5). The primary definition of “jurisdiction” in Jowett’s Dictionary of English Law (6th ed) is “legal authority; extent of power”, referring in particular to the authority or power of a court. A synonym for jurisdiction in this sense is “competence”. I do not think that this is a purely English conception of the notion. Indeed, the French text of Article 67(1) uses the word “compétence” where the English has “jurisdiction”. In the conflict of laws (private international law) context, it is common to distinguish between “personal jurisdiction”, meaning the persons in relation to whom the court is competent to adjudicate, and “subject matter jurisdiction”, meaning the kinds of question which the court is competent to adjudicate.

[58] Zaun argue that Article 86(5) does not provide for a restriction on jurisdiction, but rather a procedural bar analogous to limitation or a substantive defence analogous to an estoppel. Jurisdiction, it says, is solely about which court or tribunal should decide an issue. Arnold LJ disagrees: [59]:

Article 86(5) plainly does not provide for a substantive defence: it is not located in any of the Titles of the CD Regulation dealing with substantive law, but in Title IX dealing with “jurisdiction and procedure”; and it does not provide that the defendant to the counterclaim has a defence, but says that “[n]o counterclaim … may be made”. I accept that it could be described as a procedural bar, but in my judgment it is aptly characterised as a provision regarding jurisdiction because it qualifies the subject matter jurisdiction, or competence, of Community design courts pursuant to Article 81(d). Furthermore, analogies with English provisions such as those governing limitation are dangerous because, as counsel for Zaun accepted, Article 86(5) must be given an autonomous interpretation as a matter of European law. As for determining which court or tribunal should decide an issue, that involves an allocation of jurisdiction, that is to say, the authority or power to decide the issue.

[60] references pro inspiratio to Brussels Ia’s enforcement provisions are rejected as irrelevant, and [61] references to UK statutory law, too, for “the issue is one of interpretation of Article 86(5), which cannot be affected by the English legislation.” [62] ff additional support is found in Trademark litigation, specifically the Supreme Court in Sky plc v SkyKick UK Ltd [2024] UKSC 36 with [66] specific reference to Lord Reed in that case:

“511. … it would have been highly unfortunate if the United Kingdom’s withdrawal from the EU had been other than on terms which enabled pending legal proceedings to be decided on the basis of the pre-existing law. It is a basic principle of legal certainty, and an aspect of the rule of law, that the legal consequences of events are, in general, determined in accordance with the law in force at the time of those events, rather than a different law introduced at a later date. Proprietors of trade marks who had brought infringement proceedings in designated United Kingdom courts before the end of the transition period had accrued causes of action under the EU Trade Mark Regulation (to which defendants with grounds for challenging the validity of the marks in question had a counterclaim). Whether the proceedings were concluded before the end of the transition period could depend on wide variety of factors, including, in the present case, the fact that there was a preliminary reference to the Court of Justice of the European Union, and an appeal to this court. It would be incompatible with the values I have mentioned if the time taken by the judicial process were to have the effect of depriving the parties of the remedy to which they were entitled. It would also mean that identical cases would be decided differently, depending on the vicissitudes of litigation, and on whether they happened to be brought in the courts of this country or in the courts of the remaining EU member states.

512. As one would expect, one of the objectives of the Withdrawal Agreement was to avoid problems of that kind. That is not only implicit in its provisions, as I have explained, but is also reflected in its preamble, which stresses ‘that the objective of this Agreement is to ensure an orderly withdrawal of the United Kingdom from the Union and Euratom’, and recites that the parties are resolved to do so ‘through various separation provisions aiming to prevent disruption and to provide legal certainty to citizens and economic operators as well as to judicial and administrative authorities in the Union and in the United Kingdom’.”

[73] the res judicata and abuse of process arguments are discussed, with reference [72] specifically to the “UKRRD was aptly described by counsel for Zaun as a clone of the RCD”.

the principles of res judicata and abuse of process apply to preclude Zaun re-litigating the validity of the UKRRD. More specifically, I consider that Zaun’s counterclaim is precluded by issue estoppel. As explained above, Zaun relies upon the same grounds of invalidity with respect to the UKRRD, albeit arising under the 1949 Act rather than under the CD Regulation, as it does in relation to the RCD. Zaun accepts that the differences in the prior designs being relied upon and in its argument with respect to the question of functionality do not prevent the application of issue estoppel. Thus the issues are the same, and Zaun is prevented by issue estoppel from re-litigating them before the High Court. (If Zaun had relied upon the difference in the prior designs, then there might well not have been an issue estoppel with respect to novelty and overall impression, but there would probably have been an objection based on Henderson v Henderson. As it is, it is not necessary to consider those questions.)

An interesting judgment on the interpretation of the Withdrawal Agreement, the continuing impact of the EU’s Community Design Regulation and its UK counterpart.

Geert.

Brexit claxon, A54(1)(b) and A67 Withdrawal Agreement(co-operation in civil justice matters, jurisdiction)Impact of Brexit on holder of registered Community designPraesidiad Holding BVBA & Anor v Zaun Ltd [2025] EWCA Civ 591 bailii.org/ew/cases/EWC…

— Geert Van Calster (@gavclaw.bsky.social) 2025-05-10T07:39:06.911Z

https://x.com/GAVClaw/status/1921107249872752866

https://www.linkedin.com/posts/geert-van-calster-60abab9_brexit-claxon-articles-541b-and-article-activity-7326873198984142849-K6II?utm_source=share&utm_medium=member_desktop&rcm=ACoAAAHHS6oB7DOA8jUedLLahLDL6cEwepyHYwA

La France a manqué à ses obligations positives qui lui imposent d’appliquer effectivement un système pénal apte à réprimer les actes sexuels non consentis. La Cour de Strasbourg relève une absence quasi « systémique » de prise en compte des circonstances dans l’appréciation du discernement, du consentement et de la vulnérabilité des victimes mineures. Elle reconnaît par ailleurs la victimisation secondaire d’une des victimes. 

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Guest post by Bebizuh Mulugeta Menkir, former Lecturer of Laws in University of Gondar, currently working as a Lawyer and Senior National Consultant for a legal reform project. E-mail: babimulugeta@gmail.com

The Ethiopian legal system is characterized by the absence of codified rules on conflict of laws. Though it cannot be considered as the exact period in which conflict of laws have emerged in Ethiopia, some elements of such rules can be found even in the early 1900s, which is long before the modern codes were developed in 1950s and 1960s.

A book written by Mersehazen Woledekirkos titled “Ye Hayagenawe Keflezemen Mebacha:Ye Zemen Tarik Tezetaye Kayehute ena Kesemahute 1896–1922”[1]  is a record of  historical events that happened in 20th century Ethiopia. One of the records is the “Trade Agreement (1908)” that was signed between Ethiopia and France.  This agreement, among others, regulates the adjudication of disputes between Ethiopian and French nationals/dependents. This short piece aims to briefly discuss the salient conflict of laws rules that are incorporated in this trade agreement.

The 1908 Trade Agreement and Conflict of Laws

The trade agreement between Ethiopia and France was signed on January 10, 1908. In this agreement Ethiopia was represented by Emperor Menelik II and Antony Klobukowski signed on the behalf of France.[2]

This agreement consists of a total of nine articles (sections) covering a range of issues, including custom tax, immigration and security matters in performance of trade between the two nations.[3] Specifically, Article 7 of the agreement stipulates the agreed terms with respect to the adjudication of disputes, of civil as well as criminal nature, that would arise between Ethiopian and French nationals/dependents. In other words this provision was devoted to regulate questions in cases involving a foreign element.

Accordingly to the contemporary conception, it is a foreign element that triggers questions that require the application of conflict of laws. In the trade agreement a foreign element is established based on the nationality of parties to the dispute that the application of rules stated under Art. 7 of the agreement would arise in case when either one or both of the disputant parties are French nationals/dependents.

Though the provision also brought criminal matters within its scope of application, the part concerning civil cases regulates jurisdictional and choice of law matters that are part of conflict of laws.  Regarding jurisdiction, the agreement states that:

Until the Ethiopian legal system is in par with the Europeans, disputes between French nationals (dependents) in civil as well as criminal matters shall be under the jurisdiction of French consulate.[4] (Translation mine)

As it can be inferred from this provision conditionally makes disputes between French nationals/dependents under the exclusive jurisdiction of France, until Ethiopian laws are harmonized with European legal frameworks. Though the provision lacks clarity as to when do Ethiopian laws would be considered to be in par with  the European counterparts, Ethiopian courts wouldn’t claim primary as well as secondary jurisdiction in civil cases over with both of the disputant parties are French nationals/dependents.

However, the jurisdictional stand will be changed when the dispute is between French national (dependent) and Ethiopian national (dependent). This stipulated in the agreement that reads:

If a French national (dependent) brings legal action against Ethiopian citizen (dependent), in civil and criminal matter, it shall be adjudicated by an Ethiopian judge together with a representative from French consulate.[5] (Translation mine)

As per the above quoted provision of the agreement, disputes between an Ethiopian national/dependent and French national/dependent is under the jurisdiction of Ethiopian (specialized) court. This court was later on established in the Ministry of Foreign Affairs, in the year 1920/21.[6]  While this court is supposed to adjudicate disputes in a bench composed of an Ethiopian judge and a representative from French consulate; and in case of ties between the two the case shall be submitted to the Emperor of Ethiopia, for final decision.[7]

Moreover, the agreement also has a different stand regarding the choice of applicable law in case when the dispute is between an Ethiopian national/dependent and French national/dependent. As such, if one of the parties to the dispute is an Ethiopian national/dependent, the case will disposed according to Ethiopian law.  In this respect, Art 7 of the agreement reads as follows:

If the defendant is an Ethiopian national (dependent), the case shall be adjudicated based on Ethiopian law; which shall also be applicable in case when the defendant is a French national (dependent).[8] (Translation mine)

Generally, according to the trade agreement, legal disputes between French nationals/dependents in Ethiopia are under the jurisdiction of France.  Cases involving disputes Ethiopian national/dependent and French national/dependent are under the jurisdiction of Ethiopian court; that shall resolve the case by applying Ethiopian laws.

However, the trade agreement is silent regarding disputes between French national/dependent and another foreign national/dependent residing in Ethiopia. Here, it is interesting to mention that despite what was clearly stated under article 7 of the trade agreement, the provision was later on started to be applicable to foreigners other than French.[9]

 

[1] Mersehazen Woledekirkos, Ye hayagenawe keflezemen Mebacha:Ye Zemen Tarik Tezetaye kayehute ena Kesemahute 1896–1922 (Amharic), Addis Ababa University Press, 3rd ed. (2016/17)

[2] Id. p.243

[3] Id.

[4] The Trade Agreement, Art 7, paragraph 1 (as stated , Mersehazen supra 1,  p. 243)

[5] Id., Art 7, paragraph 2

[6] Mersehazen, supra1,  p. 242&243

[7] The  Trade Agreement,  Art 7, paragraph 4

[8] Id. Paragraph 3

[9] Mersehazen, supra 1 , p.245