Agrégateur de flux

By Jie (Jeanne) Huang, Associate Professor, University of Sydney Law School Australia

In 2013, the plaintiffs, ePayment Solutions Pty Ltd (EPS) and RCD Holdings Ltd (RCD) concluded a written contract with the defendant, LT Game International (Australia) Ltd (LT) about the development and installation of a computer betting game. LT is a company incorporated in the Virgin Islands and registered in Australia as a foreign company. The contract was signed in Australia. Its Clause 10 provides.

“10. Governing Law

Any dispute or issue arising hereunder, including any alleged breach by any party, shall be heard, determined and resolved by an action commenced in Macau. The English language will be used in all documents.”

When a dispute arose, the plaintiffs commenced the proceedings at the Supreme Court of Queensland in Australia ([2020] QSC 318). The defendant entered a conditional appearance and applied to strike out the claim, or alternatively, to have it stayed as being commenced in this court contrary to the contract. This case shed useful light on how an Australian court may address the impacts of COVID-19 on foreign jurisdiction clauses.

The parties did not dispute that Clause 10 was an exclusive jurisdiction clause choosing courts in Macau China. However, an exclusive foreign jurisdiction clause does not exclude Australian courts’ jurisdiction. The plaintiffs alleged that the Supreme Court of Queensland should not enforce the exclusive jurisdiction clause due to the COVID?19 pandemic for two reasons.

First, the pandemic currently prevents the plaintiffs from commencing proceedings in Macau. The court rejected this argument because no evidence suggested that representatives of the plaintiffs had to be present in Macau for lawyers retained by them to commence proceedings.

Second, plaintiffs also alleged that their witnesses could not travel from Australia to Macau because of the pandemic. The court also rejected this argument because of insufficient evidence. According to the court, the plaintiffs did not provide any evidence of the impact of COVID?19 in Macau, for example, what restrictions were being experienced now, what restrictions were likely to be experienced in the future and how long those restrictions may persist. There was also no evidence showing when a trial of proceedings commenced now in Macau might be heard. Although Australian witnesses might be called in the Macau proceedings, the plaintiffs did not identify any specific persons who would be called were residents in Australia. It was also unclear whether overseas witnesses might be called if the proceedings were conducted in Australia as Australia also imposed strict travel restrictions.

Finally, the court ruled for the defendant and dismissed the plaintiffs’ claim. Nevertheless, the court indicated that the plaintiffs could recommence the proceedings in Queensland if the circumstances of the COVID-19 pandemic changed materially in Macao in the future.

Comments:

It is well established that an exclusive foreign jurisdiction clause does not operate to exclude Australian courts’ jurisdiction; however, the courts will hold the parties to their bargain and grant a stay of proceedings, unless the party who seeks that the proceedings be heard in Australia can show that there are strong reasons against litigating in the foreign jurisdiction.[1] In exercising its discretion, the court should take into account all the circumstances of the particular case. However, doubts have been cast as to whether courts should consider financial or forensic inconvenience attaching to the nominated foreign jurisdiction, at least when these factors should have been known to the parties at the time the exclusive jurisdiction clause was agreed by them.[2]

In RCD, the court correctly held that Clause 10 should be interpreted as manifesting an intention that disputes would be determined in Macau by applying the law of Macau. Although the application of Macau law might bring financial benefits to the defendant because it is more difficult to prove liability for damages under the Macau law than the law in Australia. However, this is insufficient to convince the court to exercise jurisdiction because the potential financial benefits for the defendant are what the parties have bargained for.

Regarding the location of witnesses, the court is also correct that parties should expect that breaches may occur in Australia as the contract would be partially performed there, and consequently, witnesses in Australia may need to be called for proceedings in Macao. Therefore, the location and travel of witnesses are not a strong reason for Australian courts to exercise jurisdiction.

The outbreak of the COVID-19 pandemic is a factor that parties could not reasonably expect when they concluded their foreign jurisdiction clause. If a plaintiff wants to convince an Australian court to exercise jurisdiction in spite of an exclusive foreign jurisdiction clause, this plaintiff must provide solid evidence of the impacts of the COVID-19 pandemic on foreign proceedings. If the plaintiff can show that the pandemic developed so as to effectively prevent, or unduly frustrate the plaintiff in litigating in the foreign jurisdiction, then that might be a discretionary consideration, with any other relevant considerations, in favor of allowing the plaintiffs to litigate in Australia.

 

[1] High Court of Australia decisions such as Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 at 445, Oceanic Sunline Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 259, Huddart Parker Ltd v The Ship Mill Hill (1950) 81 CLR 502 at 508-509.

Decisions of intermediate courts of appeal such as Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) & Ors (2010) 79 ACSR 383 at 402-403, [88]-[89], Australian Health & Nutrition Association Ltd & Anor v Hive Marketing Group Pty Ltd & Anor (2019) 99 NSWLR 419 at 438, [78], Venter v Ilona MY Ltd [2012] NSWSC 1029.

[2] Incitec Ltd v Alkimos Shipping Corp (2004) 138 FCR 496 at 506 and Australian Health & Nutrition Association Ltd & Anor v Hive Marketing Group Pty Ltd & Anor (2019) 99 NSWLR 419.

Zacaroli J this morning held in Gategroup Guarantee Ltd, Re [2021] EWHC 304 (Ch) on whether ‘part 26A’ English restructuring ‘Plans’ (see my review of ia Deep Ocean) are within the scope of the Lugano Convention’s insolvency exception (Lugano rather than Brussels Ia was engaged).

He held they are, leading to neutralisation of an exclusive choice of court agreement in the relevant bonds, and making the courts of England and Wales have jurisdiction despite this choice of court.

Oddly Kaupthing was not referred to. Neither was Enasarco.

The judge relied unconvincingly in my view on the dovetail discussion (most recently discussed by me viz Alpine Bau) under the Brussels IA Recast and the EU Insolvency Regulation (‘EIA’)- neither of course applicable to the UK anymore, as indeed is the case for the Lugano Convention.

All in all this is a case in which the  reasoning has a potentially long term impact. The claim form in this case was issued on 30 December 2020. As such, by reason of Regulation 92(1), (2)(d) and (3) of the Civil Jurisdiction and Judgment (Amendment) (EU Exit) Regulations 2019, the Lugano Convention continues to apply.

The Plan Company was incorporated on 8 December 2020 as a wholly owned subsidiary of gategroup Holding AG (the ‘Parent’, a company incorporated in Switzerland. At [55] , if Lugano applies to applications under Part 26A, then the Plan Company accepts that by reason of A23(1) Lugano and the exclusive jurisdiction clause in favour of the courts of Zurich in the Bonds, this court has no jurisdiction. That acceptance is made notwithstanding that the Deed Poll contains a non-exclusive jurisdiction clause in favour of the courts of England. The Plan Company acknowledges that since the purpose of the Plan is to effect amendments to the terms of the Bonds, the exclusive jurisdiction clause in the Bonds is engaged.

The usual modus operandi of assuming application of Brussels Ia arguendo (see viz schemes of arrangement most recently KCA Deutag and viz Plans Deep Ocean and Virgin) did not fly here for as noted the Plan Company accepts that the exclusive jurisdiction clause in favour of the Zurich courts is a complete bar to this court assuming jurisdiction if the Lugano Convention applies (in the preceding cases the point need not be decided, since jurisdiction under BIa could be established arguendo as in none of them was there adversarial argument on the point).

At 70 Justice Zacaroli introduces effectively an amicus curiae by Kirkland & Ellis, opposing the view that the insolvency exception applies.

At 73 ff a first point is considered: Part 26A Plans have not been notified under the EIA Annex. This refers to the so-called dovetailing between Brussels Ia, Lugano and the EIR. The suggestion is that if a procedure is not listed in Annex A EIR, it is conclusively not an insolvency proceeding and “that is the end of the matter” because the dovetailing principle leads inexorably to the conclusion that it falls within the Recast (‘and thus within the Lugano Convention’  [73]). At 82 the judge incidentally is under the impression that the older, heavier procedure of amendment by (EP and Council) Regulation applies – which it no longer does since the EIR 2015.

I have since long submitted that there is no such dovetail. It is also clear that there cannot be identity of interpretation between the Lugano Convention’s insolvency exception and the Brussels regime given that non-EU Lugano States are not part of the EIR. The judge confirms as much at 81 and at 91 ff  and, in a first approach, revisits the principles of modified universalism and the origin of the insolvency exception in particular in the Jenard report. He holds at 103 that the ratio behind the insolvency exception in the Rapport Jenard is the same as the ratio behind Plans, hence that the exception applies.

In a second (presumably subsidiary) approach, the judge queries whether proceedings under Part 26A comply with the abstract requirements for an ‘insolvency’ procedure under of A1(1) EIR and finds at 133 that they do. I am really not convinced by the relevance of that analysis. He includes at 134 ff an argument that the Dutch ‘WHOA’ (Wet homologatie onderhands akkoord) proceedings are to be included in Annex A. Again I am not convinced that serves much purpose. Member States populate the Annex and a Member State proposal for inclusion is not checked against A1(1) EIR.

Conclusion on the jurisdictional issue at 137: ‘proceedings under Part 26A are within the bankruptcy exclusion in the Lugano Convention. This court accordingly has jurisdiction notwithstanding the exclusive jurisdiction clause in the Bonds.’

A most relevant judgment, on which the issues are not at all clear. Expect appeal lest the restructuring timing has made this nugatory – settling these issues would most certainly be welcome.

Geert.

EU private international law, 3rd ed. 2021, paras 2.73 ff (2.81 ff in particular) and 5.35 ff.

 

Important first instance decision on whether a restructuring plan is an insolvency proceeding for the purposes of the Lugano Convention.
Held that it is, with confusing analysis of the EU Insolvency Regulation.
Held Lugano does not apply, E&W courts have jurisdiction. https://t.co/XqZ0J6IIIH

— Geert Van Calster (@GAVClaw) February 17, 2021

Paul Lorenz Eichmüller (University of Vienna) has kindly provided the following post.

Austria is one of the few European countries that still retains the institution of fault divorce, which means that a court will have to examine the grounds for a separation. With an increasing number of States abolishing this type of divorce (England and Wales being one of the most recent examples), conflicts problems may arise due to the incompatibility between the different systems. This is well illustrated by a recent decision of the Austrian Supreme Court from 10 December 2020.

Facts

The parties of the underlying case were both Austrian citizens who got married in Austria and later moved to Belgium for professional reasons. Subsequently, they got divorced there under Belgian law in accordance with Article 8(a) of the Rome III Regulation. Belgium had abolished fault divorce in 2007. Thus, no statement on fault for the divorce was issued in the judgment.

After the divorce, the former wife moved back to Austria and brought an action for a supplementary pronouncement of fault in Austrian courts to improve her situation in subsequent maintenance proceedings under Austrian law. The former husband had in the meanwhile relocated to Guinea.

The Decision by the Austrian Supreme Court

After the court of first did not discuss the applicable law at all and the court of second instance ruled that pursuant to Article 8(c) of the Rome III Regulation, Austrian law was applicable to the issue of determining fault in a marriage, the Supreme Court of Austria decided that Austrian law was indeed applicable. According to the Supreme Court, the supplementary pronouncement of fault serves primarily for the purposes of maintenance, as it determines the amount of maintenance that a divorced spouse receives. As such, it is a preliminary question for the maintenance claim and hence governed by the maintenance statute, rather than the divorce statute. This would also be in line with the Rome III Regulation, which excludes matters of maintenance from its sphere of application in Article 1(2)(g). The Hague Protocol on the Law Applicable to Maintenance Obligations, which determines the maintenance statute in Austria (Article 15 of the Maintenance Regulation), stipulates in Article 3 that the applicable law is the law at the habitual residence of the creditor, which in this case was Austria. However, in order to give the former husband the opportunity to argue for the possible application of a law with a closer connection according to Article 5 of the Hague Protocol, the court referred the dispute back to the court of first instance.

Assessment

The decision of the Supreme Court is overall not very convincing, leaving many open questions that have not been dealt with in the reasoning of the judgment.

First of all, the decision is insofar remarkable as it unnecessarily brought confusion to an issue that had previously been settled in well-established case law. Given the unclear qualification of fault in a divorce in private international law, a referral of the case to the ECJ for a preliminary ruling would have thus been preferrable, as the scope of application of the Rome III and Maintenance Regulations is concerned. The previous rulings of the Austrian Supreme Court had always determined the supplementary pronouncement of fault according to the divorce statute (RS0077266; approving also in literature: Nademleinsky, EF-Z 2019, p. 139).

Apart from this procedural issue, the Supreme Court surprisingly broke with precedent (1 Ob 340/58) stating that it is not a preliminary question for the award of maintenance whether there was fault, but rather a mere question of fact, whether the divorce judgment contains a pronouncement of fault. That approach is also followed in literature (Zankl/Mondel in Schwimann/Kodek, ABGB4 § 69 EheG Rz 1). But even if it is classified as a preliminary question in the exception of international cases (as supported by Nademleinsky, EF-Z 2019, p. 139), the law applicable to preliminary questions nevertheless has to be determined separately in accordance with the applicable rules of private international law. Therefore, this would in itself not provide any additional value for the scope of application of the abovementioned regulations or for the applicable law.

Now, what actually is the applicable law determining fault in a divorce? At a first glance, the argumentation of the Supreme Court seems plausible: As the pronouncement of fault after a finalised divorce only serves the purpose of creating a better position for the maintenance creditor, it might be regarded as an issue of the Maintenance Regulation. However, a question is not automatically within the scope of the Maintenance Regulation, solely because its main relevance lies in maintenance law. In a fault divorce, the question who bears fault for the end of the marriage falls without the shadow of a doubt under the divorce statute. Yet, in maintenance proceedings following a no-fault divorce the exact same question would be determined by another statute, just because the law applicable to the divorce under Art 8 Rome III does not know a fault divorce. It is not convincing that the classification should depend on the type of proceedings initiated, as this undermines the aim of the European private international law regulations, namely to uniformly determine the applicable law.

Additionally, the rules of the Hague Protocol are designed in such a way that they protect the creditor by referring to the law at the creditor’s habitual place of residence. This is appropriate given that the creditor has to make a living at that place. However, the question whether there was fault in ending the marriage is not at all connected to the place of the creditor’s habitual residence. It is much more closely connected to the marriage and its dissolution. Thus, it should be determined according to the divorce statute.

Contrary to the Supreme Court’s ruling, Belgian law is thus relevant for fault in divorce in the present case. Does that, however, mean that the former wife necessarily receives a lower maintenance and the husband’s fault cannot be taken into account? Not necessarily. If there is no pronouncement of fault in the divorce judgment, the maintenance is determined according to equity (§ 69(3) EheG) rather than by a fixed percentage, as when there is a pronouncement of fault. Up to the present decision, this was also the case for any foreign judgment from a jurisdiction without fault divorce (RS0114475).

According to some opinions (Zankl/Mondel in Schwimann/Kodek ABGB4 § 69 EheG Rz 18; LGZ Wien 11.6.1984, 44 R 1049/84), the fault of a spouse can then be weighed in this equitable evaluation. Although the Supreme Court seems to disagree with this interpretation – for good reasons if both the divorce and the maintenance proceedings were held under Austrian law – this line of jurisprudence should not be followed in an international context, since a failure to consider fault would lead to a qualitative discrepancy of norms.

If the Supreme Court were to remain adamant in its position that the fault may in principle not be weighed in cases of § 69(3) EheG, the legal norms in the foreign divorce statute and the Austrian maintenance statute would be in qualitative discrepancy to each other, as the latter simply assumes that fault will be pronounced in the divorce judgment if there is any. Based on this assumption, it assigns lower maintenance to divorces where no fault is pronounced. However, this assessment does not have foreign judgments in mind where there is no possibility for a pronouncement of fault according to the divorce statute. While Austrian maintenance law requires the existence of this legal institute, its absence in many jurisdictions results in the connection of this question ending up nowhere. Hence, the incompatibility of the two legal systems has to be remedied by the means of adaptation.

While adaptation can be conducted both on the level of private international law (as Gitschthaler in Gitschthaler, IntFamR Art 11 HUP Rz 2 seems to suggest) and on the level of substantive law, the choice between the two should depend on which one is the less invasive.

As maintenance after divorces without the pronouncement of fault is under Austrian law determined on the basis of equity anyway, the adaptation on a substantive level – by allowing the weighing of fault – is relatively non-invasive compared to applying a different statute altogether. The application of Austrian law on the determination of fault can therefore not be considered the preferred option.

Thus, the Supreme Court should have dismissed the action for a supplementary pronouncement of fault, so that the maintenance court could weigh the fault in its equitable evaluation – if not by default, then at least by the means of adaptation. Also from a point of procedural economy, this would be a desirable outcome, as the additional supplementary proceedings could be avoided.

Indemnisation des victimes d'infractions

Ryanair / Commission
Aide d'État
Le moratoire sur le paiement de taxes mis en place par la France pour soutenir les compagnies aériennes, titulaires d’une licence française, dans le cadre de la pandémie de Covid-19 est conforme au droit de l’Union

Ryanair / Commission
Aide d'État
Le régime de garanties de prêts mis en place par la Suède pour soutenir les compagnies aériennes titulaires d’une licence d’exploitation suédoise dans le cadre de la pandémie de Covid-19 et destiné à remédier à la perturbation grave de l’économie de cet État membre est conforme au droit de l’Union

In preparation of the Conference on the HCCH 2019 Judgments Convention on 13/14 September 2021, planned to be taking place (if Covid-19 allows it) on campus of the University of Bonn, Germany, we are offering here a Repository of contributions to the HCCH 2019 Judgments Convention. Please email us if you miss something in it, and we will update …

Update of 16 February 2021: New entries are printed bold. Please also check the list of video recording of events on the Convention at the bottom, if you like.

Please also check the “official” bibliograghy of the HCCH for the instrument.

Explanatory Reports

Garcimartín Alférez, Francisco;
Saumier, Geneviève „Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters: Explanatory Report“, as approved by the HCCH on 22 September 2020 (available here) Garcimartín Alférez, Francisco;
Saumier, Geneviève “Judgments Convention: Revised Draft Explanatory Report”, HCCH Prel.-Doc. No. 1 of December 2018 (available here) Nygh, Peter;
Pocar, Fausto “Report of the Special Commission”, HCCH Prel.-Doc. No. 11 of August 2000 (available here), pp 19-128

 

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Convention“, YbPIL 21 (2019/2020), pp. 365-380 Mariottini, Cristina “The Exclusion of Defamation and Privacy from the Scope of the Hague Draft Convention on Judgments, YbPIL 19 (2017/2018), pp 475-486. Martiny, Dieter “The Recognition and Enforcement of Court Decisions Between the EU and Third States”, in Alexander Trunk, Nikitas Hatzimihail (eds.), EU Civil Procedure Law and Third Countries – Which Way Forward?, Baden-Baden 2021, pp 127-146 Meier, Niklaus “Notification as a Ground for Refusal”, Netherlands International Law Review (NILR) 67 (2020), pp 81-95 Nielsen, Peter Arnt “The Hague 2019 Judgments Convention – from failure to success”, Journal of Private International Law 16 (2020), pp 205-246 North, Cara “The 2019 HCCH Judgments Convention: A Common Law Perspective”, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 202-210 North, Cara “The Exclusion of Privacy Matters from the Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 33-48 Oestreicher, Yoav “ ’We’re on a Road to Nowhere’ – Reasons for the Continuing Failure to Regulate Recognition and Enforcement of Foreign Judgments”, The International Lawyer 42 (2008), pp 59-86 Okorley, Solomon “The possible impact of the Hague Convention on the Recognition and Enforcement of foreign Judgments in Civil or Commercial Matters on Private International Law in Common Law West Africa”, (Master’s Dissertation, University of Johannesburg, 2019; available: here) Pasquot Polido, Fabrício B. “The Judgments Project of the Hague Conference on Private International Law: a way forward for a long-awaited solution”, in Verónica Ruiz Abou-Nigm, Maria Blanca Noodt Taquela (eds.), Diversity and integration in Private International Law, Edinburgh 2019, pp. 176-199 Pertegás Sender, Marta “The 2019 Hague Judgments Convention: Its Conclusion and the road ahead”, in Asian Academy of International Law (publ.), Sinergy and Security: the Keys to Sustainable Global Investment: Proceedings of the 2019 Colloquium on International Law, 2019 Hong Kong, pp 181-190 Pertegás, Marta “Brussels I Recast and the Hague Judgments Project”, in Geert Van Calster (ed.), European Private International Law at 50: Celebrating and Contemplating the 1968 Brussels Convention and its Successors, Cambridge 2018, pp 67-82 Pertegás, Marta “The 2019 Hague Judgments Convention: The Road Ahead”, in Proceedings of the 16th PIL Regional Conference (Tirana, 2019), forthcoming (available here) Qian, Zhenqiu “On the Common Courts Provision under the Draft Hague Convention on the Recognition and Enforcement of Foreign Judgments”, Wuhan University International Law Review
2019-01, pp. 59-74 Qian, Zhenqiu;
Yang, Yu “On the Interpretation and Application of the Cost of Proceedings Provision under the Hague Judgment Convention”, China Journal of Applied Jurisprudence 2020-04, pp. 96-108 Reyes, Anselmo „Implications of the 2019 Hague Convention on the Enforcement of Judgments of the Singapore International Commercial Court”, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 695-709 Ribeiro-Bidaoui, João “The International Obligation of the Uniform and Autonomous Interpretation of Private Law Conventions: Consequences for Domestic Courts and International Organisations”, Netherlands International Law Review 67 (2020), pp 139 – 168 Rumenov, Ilija “Implications of the New 2019 Hague Convention on Recognition and Enforcement of Foreign Judgments on the National Legal Systems of Countries in South Eastern Europe”, EU and Comparative Law Issues and Challenges Series (ECLIC) 3 (2019), pp 385-4040 Sachs, Klaus;
Weiler, Marcus “A comparison of the recognition and enforcement of foreign decisions under the 1958 New York Convention and the 2019 Hague Judgments Convention”, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 763-781 Saito, Akira “Advancing Recognition and Enforcement of Foreign Judgments: Developments of Inter-Court Diplomacy and New Hague Judgments Convention”, Kobe Law Journal 68(4), pp. 59-110 Saumier, Geneviève “Submission as a Jurisdictional Basis and the HCCH 2019 Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 49-65 Schack, Haimo “Wiedergänger der Haager Konferenz für IPR: Neue Perspektiven eines weltweiten Anerkennungs- und Vollstreckungsübereinkommens?“, Zeitschrift für Europäisches Privatrecht (ZEUP) 2014, pp 824-842 Schack, Haimo „Das neue Haager Anerkennungs- und Vollstreckungsübereinkommen“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 1-96 Senicheva, Marina “The Relevance and Problems of the Hague Convention of July 2, 2019 on the Recognition and Enforcement of Foreign Judgments Ratification by the Russian Federation”, Advances in Law Studies 8 (2020), online (available: here) Shchukin, Andrey Igorevich “Indirect International Jurisdiction in the Hague Convention on the Recognition and Enforcement of Foreign Judgments of 2019 (Part 1)”, Journal of Russian Law No. 2020-7, pp. 170-186 Shchukin, Andrey Igorevich “Indirect International Jurisdiction in the Hague Convention on the Recognition and Enforcement of Foreign Judgments of 2019 (Part 2)”, Journal of Russian Law No. 2020-11, pp. 140-54 Shen, Juan “Further Discussion on the Drafts of the Hague Convention on Jurisdiction and Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters and Considerations from Chinese Perspective”, Chinese Review of International Law 2016-06, pp. 83-103 Silberman, Linda “Comparative Jurisdiction in the International Context: Will the Proposed Hague Judgments Convention be Stalled?”, DePaul Law Review 52 (2002), pp 319-349 Solomon, Dennis “Das Haager Anerkennungs- und Vollstreckungsübereinkommen von 2019 und die internationale Anerkennungszuständigkeit“, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 873-893 Spitz, Lidia „Refusal of Recognition and Enforcement of Foreign Judgments on Public Policy Grounds in the Hague Judgments Convention – A Comparison with The 1958 New York Convention“, YbPIL 21 (2019/2020), pp 333-364 Stein, Andreas „Das Haager Anerkennungs- und Vollstreckungsübereinkommen 2019 – Was lange währt, wird endlich gut?“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 197-202 Stewart, David P. „Current Developments: The Hague Conference adopts a New Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, American Journal of International Law (AJIL) 113 (2019), pp 772-783 Sun, Jin;
Wu, Qiong “The Hague Judgments Convention and how we negotiated it”, Chinese Journal of International Law 19 (2020) Sun, Xiaofei;
Wu, Qiong “Commentary and Outlook on the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Journal of International Law 2019-01, pp. 155-164+170 Taquela, María Blanca Noodt; Abou-Nigm, Verónica Ruiz “News From The Hague: The Draft Judgments Convention and Its Relationship with Other International Instruments”, Yearbook of Private International Law 19 (2017/2018), pp 449-474 Teitz, Louise Ellen “Another Hague Judgments Convention? – Bucking the Past to Provide for the Future”, Duke Journal of Comparative & International Law 29 (2019), pp 491-511 Tian, Xinyue;
Qian, Zhenqiu;
Wang, Shengzhe “The Hague Convention on the Recognition and Enforcement of Foreign Judgments (Draft) and China’s Countermeasure – A Summary on the Fourth Judicial Forum of Great Powers”, Chinese Yearbook of Private International Law and Comparative Law 2018-01, pp. 377-388 van der Grinten, Paulien;
ten Kate, Noura „Editorial: The 2019 Hague Judgments Convention”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 1-3 van Loon, Hans “Towards a global Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 4-18 van Loon, Hans “Towards a Global Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters”, Collection of Papers of the Faculty of Law, Niš 82 (2019), pp 15-35 van Loon, Hans “Le Brexit et les conventions de La Haye”, Revue Critique de Droit International Privé 2019, pp 353-366 Wagner, Rolf “Ein neuer Anlauf zu einem Haager Anerkennungs- und Vollstreckungsübereinkommen“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2016, pp 97-102 Wang, Quian “On Intellectual Property Right Provisions in the Draft Hague Convention on the Recognition and Enforcement of Foreign Judgments”, China Legal Science 2018-01, pp. 118-142 Weidong, Zhu “The Recognition and Enforcement of Commercial Judgments Between China and South Africa: Comparison and Convergence”, China Legal Science 2019-06, pp 33-57 Weller, Matthias “The HCCH 2019 Judgments Convention: New Trends in Trust Management?”, in Christoph Benicke, Stefan Huber (eds.), Festschrift für Herbert Kronke zum 70. Geburtstag, Bielefeld 2020, pp 621-632 Weller, Matthias “The 2019 Hague Judgments Convention – The Jurisdictional Filters of the HCCH 2019 Judgments Convention”, Yearbook of Private International Law 21 (2019/2020), pp 279-308 Weller, Matthias “Das Haager Übereinkommen zur Anerkennung und Vollstreckung ausländischer Urteile”, in: Thomas Rauscher (ed.), Europäisches Zivilprozess- und Kollisionsrecht, Munich, 5th ed., forthcoming Weller, Matthias „Die Kontrolle der internationalen Zuständigkeit im Haager Anerkennungs- und Vollstreckungsübereinkommen 2019“, in Christoph Althammer/Christoph Schärtl (eds.), Festschrift für Herbert Roth, forthcoming. Wilderspin, Michael;
Vysoka, Lenka “The 2019 Hague Judgments Convention through European lenses”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 34-49 Xu, Guojian “Comment on Key Issues Concerning Hague Judgment Convention in 2019 “, Journal of Shanghai University of Political Science and Law 35 (2020), pp 1-29 Xu, Guojian “To Establish an International Legal System for Global Circulation of Court Judgments”, Wuhan University International Law Review 5 (2017), pp 100-130 Xu, Guojian “Overview of the Mechanism of Recognition and Enforcement of Judgements Established by HCCH 2019 Judgments Convention”, China Journal of Applied Jurisprudence No. 2020-02, pp 65-77 Yeo, Terence “The Hague Judgments Convention – A View from Singapore”, Singapore Academy of Law Journal (e-First) 3rd August 2020 (available here) Zhang, Wenliang;
Tu, Guangjian “The 1971 and 2019 Hague Judgments Conventions: Compared and Whether China Would Change Its Attitude Towards The Hague”, Journal of International Dispute Settlement (JIDS), 2020, 00, pp. 1-24 Zhao, Ning “Completing a long-awaited puzzle in the landscape of cross-border recognition and enforcement of judgments: An overview of the HCCH 2019 Judgments Convention”, Swiss Review of International and European Law (SRIEL) 30 (2020), pp 345-368

 

Recordings of Events Related to the HCCH 2019 Judgments Convention

HCCH “22nd Diplomatic Session of the HCCH: The Adoption of the 2019 Judgments Convention”, 2 July 2020 (short documentary video available here) University of Bonn; HCCH “Pre-Conference Video Roundtable on the HCCH 2019 Judgments Convention: Prospects for Judicial Cooperation in Civil and Commercial Matters between the EU and Third Countries”, 29 October 2020 (full recording available here) JPRI; HCCH; UNIDROIT; UNCITRAL “2020 Judicial Policy Research Institute International Conference – International Commercial Litigation: Recent Developments and Future Challenges, Session 3: Recognition and Enforcement of Foreign Judgments”, 12 November 2020 (recording available here) ASADIP; HCCH “Conferencia Internacional: Convención HCCH 2019 sobre Reconocimiento y Ejecución de Sentencias Extranjeras”, 3 December 2020 (full recording available here and here)

 

Gustavo Moser and Michael McIlwrath  have just published “Negotating International Commercial Contracts” (with Eleven publishers). More information is available on the publisher’s website.

The authors have kindly provided us with the follow summary:

The choices of law and forum are seldom negotiated in great depth, despite presenting far reaching implications, often more than what negotiators would generally consider or predict. Poorly negotiated clauses of law and forum might (and often do!) result in unwelcome surprises and costly mistakes. Negotiating these clauses has always been, and is likely to become even more, pivotal to a contract’s ‘well-being’ going forward, particularly in light of Brexit and the pandemic

It is therefore a rather opportune time to consider a few key issues in the negotiation (prospective) and enforcement (actual) of choice of law and choice of jurisdiction clauses.

For example, what law applies to a defective choice of law clause or, in the absence of it, to the main contract, or, rather, to a (defective or otherwise) dispute resolution clause? In which court should I initiate legal proceedings and what are the main commercial risks and benefits of such choice.

 It is also pertinent to rethink prospective choices: what is the optimal law(s) to my contract based on a pre-selected set of variables and preferences (e.g. approach given to contract interpretation, contract performance, mandatory rules or gap-fillers)? Are there any other contractual arrangements which might be of particular interest?What are the main difficulties to bear in mind when considering choice of law and choice of dispute resolution clauses?

The above and many more questions are raised and discussed in our recently published book Negotiating International Commercial Contracts: Practical Exercices (Eleven 2020) The 80+ exercises, with inspiration from real-life scenarios, invite the readers to understand the importance of these clauses. The book further aims to provide guidance to anyone involved in contract negotiation as to how they may more effectively make informed and commercially sensible choices in their deals.

 

The public consultation on the EU initiative modernising judicial cooperation between EU countries – use of digital technology is open from 16 February 2021 until 11 May 2021 (midnight Brussels time), click here. We have previously reported on the EU feedback period of this initiative here (which is a previous step and is part of the roadmap).

The public consultation consists of a questionnaire with 15 questions (mainly multiple-choice). An interesting question is the following:

“9) In case it is decided to propose a new EU legal instrument, what aspects of digitalisation should it regulate (Multiple choice – one or several replies are possible): – The mandatory or optional nature of electronic communication with and between competent national authorities – The legal validity of electronic documents and evidence – The conditions for the use of electronic signatures/seals – The responsibilities for data protection obligations – The architecture of the IT system to be used – Other (Please elaborate in the box below).”

With regard to the purpose of this initiative, the EU website states the following:

“This consultation concerns cross-border judicial cooperation in the European Union. It refers to civil, commercial and criminal cases and involves, for various reasons, more than one EU Member State. The European Commission is planning a new initiative aiming at digitalising cross-border judicial cooperation procedures. The purpose is to make use of new digital tools for electronic communication between courts, other competent authorities of the Member States and also to give the possibility to individuals and businesses to start proceedings and to communicate with the courts and the other competent authorities in other EU countries electronically, to be able to submit electronic documents from the comfort of their homes and offices. Currently, the communication from individuals/businesses to judicial authorities and between the public authorities themselves is carried out mainly on paper, which causes delays, involves more costs and is susceptible to crises such as COVID-19 pandemic. The European Commission seeks the views and opinions of stakeholders and all persons who could be impacted by the future initiative in order to take them into consideration when deciding on the possible options and the way forward.”

Irit Mevorach (Professor of International Commercial Law at the University of Nottingham and Co-Director of the University of Nottingham Commercial Law Centre) has wriiten an interesting article on Overlapping International Instruments for Enforcement of Insolvency Judgments: Undermining or Strengthening Universalism?. that has been just published in the European Business Organization Law Review.

The abstract reads as follows:

In recent years modified universalism has emerged as the normative framework for governing international insolvency. Yet, divergences from the norm, specifically regarding the enforcement of insolvency judgments, have also been apparent when the main global instrument for cross-border insolvency has been interpreted too narrowly as not providing the grounds for enforcing judgments emanating from main insolvency proceedings. This drawback cannot be overcome using general private international law instruments as they exclude insolvency from their scope. Thus, a new instrument—a model law on insolvency judgments—has been developed. The article analyses the model law on insolvency judgments against the backdrop of the existing cross-border insolvency regime. Specifically, the article asks whether overlaps and inconsistencies between the international instruments can undermine universalism. The finding is mixed. It is shown that the model law on insolvency judgments does add vigour to the cross-border insolvency system where the requirement to enforce and the way to seek enforcement of insolvency judgments is explicit and clear. The instrument should, therefore, be adopted widely. At the same time, ambiguities concerning refusal grounds based on proper jurisdiction and inconsistencies with the wider regime could undermine the system. Consequently, the article considers different ways of implementing the model law and using it in future cases, with the aim of maximizing its potential, including in view of further developments concerning enterprise groups and choice of law.

La Cour de cassation se prononce, pour la première fois, sur la portée des dispositions de l’article 1258-2 du code de procédure civile à l’égard d’un mandat d’inaptitude établi en application d’un droit étranger.

en lire plus

In Benkel v East-West German Real Estate Holding & Anor [2021] EWHC 188 (Ch), Morgan J was asked to join a party on the basis of Article 8(1) Brussels Ia’s anchor defendant mechanism, and obliged. Mr Dikautschitsch (domiciled in either Spain or Germany) is to be one of a number of defendants. One of the existing defendants, East-West UK, is domiciled in England and Wales.

Casio Computer Co Ltd v Sayo & Ors [2001] EWCA Civ 661 was the authority mostly relied on, as was, via the link with Article 30, Sarrio SA v Kuwait Investment Authority. Expediency to add the second defendant to the proceedings was found to be present given the possibility of conflicting findings of fact [59]. Morgan J rejected [64] a rather novel argument that given the possibility of the E&W courts’ findings of fact clashing with potential future proceedings elsewhere, he should refrain from exercising his discretion to consolidate.

Geert.

European Private International Law, 3rd ed. 2021, Heading 2.2.13.1.

Santé publique

On 5 February 2021, the Universities of Amsterdam, Maastricht and Tilburg, in collaboration with the Open University, organized an online seminar on The Netherlands, a forum conveniens for collective redress?

A group of experts in the field addressed both procedural and private international law aspects of collective actions under the Dutch and European frameworks. The first panel of the seminar discussed whether the current private international law instruments need specific rules on collective actions and settlements. Burkhard Hess and Alexia Pato drafted some preliminary statements that sparked interesting discussions. The questions related to standing to sue under the Directive on representative actions (2020/1828), which where discussed in the third panel of the day, will also be published on the EAPIL blog. Finally, a brief account of the whole seminar will be published in the Dutch journal on PIL, NIPR.

 

Panel 1. Statement: The instruments of European private international law (Brussels I, Rome II) are in need of specific rules for collective action and collective settlements. 

AP: The proposed statement for the present panel is that EU instruments on Private International Law need specific rules on collective redress. I believe that this statement is true as far as the Brussels I bis Regulation is concerned.

BH:  First, I would like to thank the organizers of this webinar for the thorough preparation of today’s event. The explanation of the Dutch case law and the small films on the structural issues of jurisdiction, pendency and applicable law are very much appealing. I assume that the audience expects this panel to be a little bit controversial. In this respect, I would like to state that I am less optimistic regarding the enactment of a specific EU instrument on cross-border collective redress. However, we will come back to this issue in the course of our common reflections.

1. AP: Let us start with Article 4 of Regulation Brussels I bis, the general head for international jurisdiction. One might question whether litigation in the defendant’s domicile should be promoted in all cases. In that sense, it is interesting to note that the Directive on representative actions implements the mutual recognition of representative entities’ standing to sue, so that access to courts of other Member States is facilitated. Coupled with the fact that the Directive leaves Private International Law questions to the Regulations already in force, one cannot help but conclude that litigation in the domicile of the defendant should remain the general rule, according to the European legislator. Nevertheless, that forum might not be always accessible, especially where small-value claims are involved. In consumer law cases, for example, consumer associations have tried to use the alternative forum of Article 7(2) of Regulation Brussels I bis, which opens a forum on the market they are active in. This could be a mere strategic move or the evidence that cross-border litigation is uneasy. Either way, I believe that this question should be further examined.

BH: The basic principle of the Brussels I bis Regime is actor sequitur forum rei. It corresponds to the basic idea that a party should primarily defend against the lawsuit brought against her or him at home. There might be a home advantage, especially when a large enterprise is facing a high value lawsuit and the compensation sought may impact on employment. However, as collective redress usually empowers the plaintiff(s), at first sight there is no (compelling) need to further privilege collective redress with regard to jurisdiction. Article 79(2) GDPR is an example where the EU lawmaker enlarged the grounds of jurisdiction in favour of the plaintiffs. However, I have the impression that this provision shall strengthen the extraterritorial application of EU data protection law vis à vis third state defendants.

2. AP: Second, even though the Dutch case law on collective actions involving environmental harms recalls that the mandatory nature of Article 4 of Regulation Brussels I bis must be respected, this idea has been challenged before the English courts. In particular, in Vedanta, the UK Supreme Court seemed to admit that an exception to Article 4 of Regulation Brussels I bis is conceivable, when “the claimant has no genuine intention to seek a remedy against the anchor defendant”. Additionally, cases such as Trafigura and Petrobras pose the question whether party autonomy could supplant the application of Article 4 of Regulation Brussels I bis.

BH: This issue seems to me to be more related to Article 8(1) of Regulation Brussels I bis. This provision was generously interpreted when the CJEU in case C-352/13, CDC, permitted actions against co-defendants to move on. In this case, the plaintiff and the anchor defendant had settled the case even before the lawsuits against the co-defendants had been served. However, the CJEU held that a control of abuse might be possible in the realm of Article 8(1) of Regulation Brussels I bis.

3. AP: In cases such as Milieudefensie v. Shell, the Dutch courts had to assess whether jurisdiction could be asserted over the foreign subsidiary of a Dutch mother company, based on Article 7 of the Dutch Code of Civil Procedure, which corresponds to Article 8(1) of Regulation Brussels I bis at the EU level. This kind of scenario obliges us to determine whether jurisdiction should be exercised when the dispute involves foreign plaintiffs, a foreign co-defendant, a foreign harm, and the application of a foreign law. The tension between access to justice and the private international law principles, according to which jurisdiction is allocated where some relevant connecting factors link the court to the dispute is particularly visible in those kinds of cases. Having a look at the case law of other jurisdictions, such as the US, one observes that the tendency is to restrict the assertion of jurisdiction in foreign-cubed cases. In all cases, a redefinition of our policy objectives (e.g. avoid the risk of irreconcilable judgments, provide access to justice, etc.) might be necessary in order to better frame what the general rule on the attraction of co-defendants and its exception should be.

BH: Objectively, jurisdiction over co-defendants may amount to an exorbitant head of jurisdiction when the relationship between the main defendant and the co-defendant appears to be superficial and loose. However, when it comes to tortious behaviour, the decision-making in the board of a mother company related to the foreign subsidiary may amount to tortious conduct. Yet, these are facts easy to assert but very difficult to prove. In the context of Article 7(2) of Regulation Brussels I bis, the CJEU has been very reluctant with regard to co-perpetrators (cf. case C-228/11, Melzer).

4. AP: As regards the WCAM procedure, asserting international jurisdiction to declare collective settlement agreements binding has been controversial as well. In Shell and Converium, the Amsterdam Court of Appeal considered that the victims located in the Netherlands were the defendants and declared that it had jurisdiction according to Article 4 of Regulation Brussels I bis. Victims domiciled in other EU Member States were included within the collective settlement thanks to Article 8(1) of Regulation Brussels I bis. This means that the presence of one shareholder in the Netherlands allocates jurisdiction to Dutch courts. Of course, this has to be mitigated by the fact that both petitioners freely chose to submit to the jurisdictional power of those courts. However, would that situation be sustainable if all Member States had a WCAM mechanism and hence, the ability to declare EU-wide settlements binding? Put differently, the question is whether Private International Laws rules on jurisdiction should adapt (and if so, how?) or remain unchanged.

BH: The problem related to WCAM relates to the applicability of the Brussels I bis Regulation: Does the “homologation” of an out of court settlement really amount to a dispute litigated in courts? (here, I would like to add that the same concerns relate to schemes of arrangement). Just to put it differently: Are non-contentious proceedings in the material scope of the jurisdictional regime of Brussels I bis? The difficulties start with the determination of the role of the parties: who is the plaintiff, who is the defendant? To my opinion, jurisdiction in these cases should be based on articles 25 or 26 in case one agrees that the Brussels I bis Regulation applies to this constellation.

5. AP: As regards the application of the special and protective fora of Regulation Brussels I bis, it is commonly acknowledged that collective redress actions, which protect a general interest, such as the environment or the market as a whole, may be brought in the place where the damage occurred, as case C-167/00, Henkel, shows. When the collective redress action bundles many individual claims, the centralisation of those claims in a place other than the defendant’s domicile is trickier. As the CJEU ruled in C- 498/16, Schrems, multiple claims cannot be bundled in the forum of one consumer’s habitual residence (section IV of the Regulation Brussels Ibis). Even though such a result is bad news for access to justice, I believe that the current text of the Regulation would not have allowed the CJEU to come up with another solution. The centralisation of claims at the place where the damage occurred is difficult as well, as Article 7(2) of the Regulation Brussels I bis allocates not only international but also territorial jurisdiction, and the place of the damage will hardly ever be exactly the same for all victims. In the case C-709/19, VEB, the AG seems to open the door to the centralisation of claims for victims who are located within the same Member State. He says (I quote) ‘the problems of territorial fragmentation arising from a strict application of Article 7(2) Brussels I bis could be solved by arguments in support of a specialised court in a particular local jurisdiction’. However, I doubt that Article 7(2) of Regulation Brussels I bis actually allows domestic procedural law to modify the venue designated by the Regulation.

BH.: As far as consumer claims are concerned, Articles 16 and 17 of Regulation Brussels I bis only apply to contractual claims – but this may be the case when private shareholders sue the company. In his Opinion on case C-498/16 AG Bobek clearly and correctly stated that the introduction of a new head of jurisdiction for consumer collective claims is a matter for the EU lawmaker, the argument has been taken up by AG Campos Sánchez-Bordona in case C-709/19, VEB.

According to the case law of the CJEU as it stands today, the application of Article 7(2) requires more than a pure pecuniary loss to fix the locus damni. In this regard, the Opinion in case C-709/19, VEB, clearly (and correctly) indicate that neither the location of an investment account, nor the status as consumers of some of the investors establish a sufficient connection with the Netherlands. In the case of a declaratory action, followed by (individual) actions for damages, the place of the damage is difficult to assess when there is no clear indication of the place of the damage in the first phase of the proceedings.

On the other hand, I do not see a problem in setting up a specialised court in a Member State having particular jurisdiction for a specific type of claims. In case C-400/13, Huber and Sander, the CJEU has already decided that the concentration of venue in one court by the MS is not excluded by the specific heads of jurisdiction of the Maintenance Regulation which equally address both: international jurisdiction and venue. A good example could be follow-on actions related to cartel law violations; let’s see what is decided in the pending case C-30/20, Volvo.

6. AP: My last point concerns parallel litigation. The emergence of multiple proceedings in several states may give rise to potential ‘overlaps’ between actions. Those overlaps represent a waste of judicial resources and may generate inconsistent judgments, as well as overcompensation. At the same time, we have to accept that parallel litigation is a by-product of our jurisdictional system, which provides for alternative fora. To some degree, parallel litigation will therefore take place. Within the Brussels regime, the lis pendens rule of Article 29 of the Regulation Brussels Ibis should hardly ever apply in collective redress cases as the formal (or even material) identity of parties in parallel proceedings will usually not be met. As for Article 30 of the Regulation, on related actions, this provision could theoretically apply to parallel proceedings in collective actions. However, potential delays in the resolution of the dispute and possible disparities between the claims will more often than not militate against the stay of proceedings. Both the Steinhoff and Libor cases illustrate the difficulties that parallel ligation generates.

In all cases, a clear-cut rule on stay of proceedings does not seem to be an option, as collective redress mechanisms vary from state to state. As regards the difficulty to determine which court is seised first, one could imagine implementing a communication channel between courts in the manner of Article 29(2) of Regulation Brussels I bis or setting up an EU-wide register of collective redress actions, as the Commission’s Recommendations of 2013 suggest. These proposals are no panacea, but they might nevertheless bring more clarity to this complex legal landscape.

BH: As long as collective actions are based on opt in, the problems of pendency and relatedness are manageable. The moment, a person opts in a collective lawsuit should be the moment of pendency for this person as he or she becomes by registration a party to the (collective) proceedings. I am happy to see that the new Directive on Collective Redress for Consumers is based on the basic idea that in cross-border settings only opt in is possible, see Article 9(3) of Directive (EU) 2020/1828. However, the Directive addresses problems of cross-border litigation rather randomly and Article 3(7) provides for a strange definition of a cross-border representative action, whereby a cross-border situation is present ‘where a qualified entity in another EU Member State brings an action in another EU Member State than that in which the qualified entity was designated.’ This definition is not in line with the concept of the Brussels regime and demonstrates that the Directive primarily provides for the mutual (but limited) recognition of the standing of qualified entities in the courts of other EU Member States. I addressed these issues in my book on Europäisches Zivilprozessrecht (2nd ed., 2021) ch. 11, at paras 11.78 -11.87.

However, the Directive only intends to achieve procedural minimum harmonisation. Consequently, Member States may go further and expand collective redress mechanisms based on opt out also to cross-border settings. In these constellations only Article 30 of Regulation Brussels I bis applies to parallel proceedings. As Alexia has explained, this provision is based on judicial discretion and, therefore, is not suited to effectively coordinate overlapping opt out proceedings pending in several EU Member States. An additional weakness is that this provision only permits the first proceedings to move forward – this might not be an optimal solution in the case of competing, overlapping collective actions.

When it comes to the certification of the class, Article 32 of the Brussels I bis Regulation is difficult to apply. This is well explained in the video of Ianika Tzankova. To my opinion, the decisive moment should be either the filing of the lawsuit or the filing of the application to permit the collective case to proceed. This flexibility corresponds to the aims of Article 32 of Regulation Brussels I bis.

7. AP: To conclude, the application of Private International rules on jurisdiction to collective redress cases is uneasy and forces us to reconsider what kind of policy objectives should be promoted. On the one hand, we could encourage litigation at the defendant’s domicile, which would limit parallel litigation to a certain extent. However, we would probably have to think about creating extra-incentives for representative entities to be able to reach that forum. We would also have to think about potential exceptions to the application of this general rule in light of the case-law involving environmental matters. On the other hand, if a closer forum is to be offered and promoted, access to justice would be fostered, but parallel litigation would probably increase, and more coordination measures would be required. In all cases, recent mass harm situations have stretched the interpretative limits of the Brussels I bis provisions and we have been forced to create extravagant interpretations, so that the system could hold. I believe that now is a good time for a change and I support the enactment of a truly appropriate regulatory regime for cross-border collective redress.

BH: Should the EU lawmaker intervene? To my opinion, this would be a considerable political challenge, as there is currently a clear competition among Member States either to promote their judicial systems to attract collective litigation (as in the Netherlands) or to protect their industries from collective redress (as it is still the case in Germany). Against this background, the chances of a binding EU instrument on the coordination of the different cross-border collective redress instruments in the EU Member States appear to be limited. Member States might strongly oppose to such a zealous project. They already did it when the Recast of the Brussels I Regulation was negotiated.

When enacting Directive 2020/1828, the EU lawmaker intentionally avoided to set a clear framework for the different instruments on collective litigation in the Member States (cf. Article 1(2)). The Directive only requires that Member States provide for an instrument of collective redress corresponding to the main features of the Directive. However, it is worth noting that most of the mandatory provisions of the Directive apply to cross-border settings and require an opting in. Nevertheless, it remains to be seen whether the CJEU will interpret the Regulation Brussels I bis and the Directive in a systematic way. This might finally entail that only opt in instruments will be included into the Brussels regime.

Burkhard Hess, Europäisches Zivilprozessrecht, De Gruyter 2021.

Just over ten years after the first edition of Europäisches Zivilprozessrecht (European Civil Procedure) by Burkhard Hess (director Max Planck Institute for Procedural Law, Luxembourg) a second –  even more voluminous and impressive – edition was published early 2021. While updating this book after a decade that marks not only the further expansion  but perhaps also the coming of age of European Civil Procedure is an immense task in itself, this new addition also expands in breadth. Particularly noteworthy is the new part on the interaction between European law and national civil procedure, including out-of-court procedures.

A must-read or even must-have for German readers having an interest in European Civil Procedure!

 

The blurb on the publisher’s website reads:

This book explores the European law of civil procedure from a systematic and dogmatic perspective by comprehensively assessing and providing a detailed explanation of all the instruments adopted in this area of the law. Based on the case law of the Court of Justice of the European Union, it expounds on the legislative powers of the Union, the different regulatory levels of European procedural law, its underlying concepts and legislative techniques. Against this background, it addresses the interfaces of the European law of civil procedure with the civil procedures of the EU Member States and the judicial cooperation with third States. The 2nd edition of this treatise also focusses on latest developments such as the protection the independence of the judiciary and of the rule of law in the Member States of the European Union. Moreover, it tackles alternative dispute resolution and arbitration, as well as the latest policy of the EU Commission in the digitization of national justice systems. To further contextualize the development of the European law of civil procedure, it also provides the reader with a thorough understanding of preliminary reference procedures before the Court of Justice. In its final chapter, it addresses the current policy debate towards a European code of civil procedure.

This reference book is an essential reading for academics, regulators, and practitioners seeking reliable and comprehensive information about the European law of civil procedure. It also addresses trainee lawyers and students interested in cross-border litigation and dispute resolution, as well as those who wish to specialize in European business law.